Limited access to protection for trafficked non-citizens
Current laws relating to trafficking in persons criminalize trafficking by punishing traffickers, but do not protect the rights of trafficked persons specifically. Some measures exist in Canada to regularize the status of trafficked non-citizens; however, these do not provide adequate protection for all trafficked persons who need it.
There is a need for clearer statutory protection for trafficked non-citizens.
Trafficked non-citizens may seek statutory protection in Canada through three main avenues. Existing measures to regularize the status of trafficked persons include:
- Temporary Resident Permits (TRPs)
- Refugee claims
- Applications for humanitarian and compassionate (H&C) consideration
TRPs offer a legal immigration status to some trafficked non-citizens, albeit temporary. TRPs are currently the main avenue to protection offered under Canada’s immigration legislation.
In May 2006, the Canadian government issued guidelines for TRPs for trafficked non-citizens. This represented an important step towards recognition of the protection needs of trafficked persons.
TRPs are granted by Citizenship and Immigration Canada and offer:
- A “reflection period” of 180 days, during which they may remain in Canada;
- Access to health care through the Interim Federal Health (IFH) Program, including medical and social counselling during this time;
- The right to apply for a work permit.
Following the 180 day period, an immigration officer may extend the permit depending on the circumstances of the individual case.
The guidelines for issuing TRPs are incorporated into CIC’s general Operational Manual IP1 for Temporary Resident Permits.
CCR comments on TRPs
Despite their many positive features, experience has shown that there are continuing gaps in access to protection and rights for trafficked persons through TRPs. Some of the gaps identified by the CCR include:
- Access to TRPs is limited in practice, and now in law;
- When trafficked persons do receive TRPs, their rights are restricted;
- Options for receiving permanent protection are uncertain;
- Trafficked persons continue to be detained and deported.
The CCR has developed a detailed report on Temporary Resident Permits: Limits to Protection for Trafficked Persons (also available as print copy).
In some cases trafficked persons’ situation corresponds to the refugee definition and they may be recognized as a refugee.
Some trafficked persons do not meet the refugee definition, which was not designed to address their situation. The refugee claim also in some regards offers less access to services than a TRP.
A trafficked person may also apply to remain in Canada on H&C grounds to allow for consideration of the hardship their trafficking situation in Canada has caused them.
- An H&C application takes a long time to be assessed;
- Fees will not be waived for an H&C; therefore the applicant will have to pay the $550 fee.
- An H&C application will not stay a deportation, meaning that the person may be removed from Canada before the application is considered.
- While waiting for a decision, the applicant may not have access to basic rights, such as a work permit, health care or other benefits.
- Some trafficked persons are barred by law from making an H&C application (see below).
Changes to immigration and refugee policies: New barriers to access protection
Important changes to the Immigration and Refugee Protection Act (IRPA) came into effect in 2012, modifying in particular the refugee determination system. These changes bar people whose refugee claims have been rejected, withdrawn or abandoned, from applying for status.
In some cases, trafficked persons are forced by their traffickers to make a refugee claim, which is either meant to fail or is not pursued, so that the person is subject to removal and can be threatened and controlled by their trafficker. The CCR is concerned that these changes have created new barriers for trafficked persons to access status in Canada, leaving them more vulnerable.
Changes to the law may specifically limit trafficked persons’ access to:
- TRPs: for 1-year, or 5 years for Designated Foreign Nationals;
- H&C applications for 1 year;
- Refugee determination system:
- Pre-removal risk assessments to consider their risk on the basis of new information revealed after they escaped their traffickers: 1 year bar, or 3 year bar to access PRRA for refugee claimants from a designated country of origin (DCO).
- Short timelines (15 days) to provide a Basis of Claim to the Immigration and Refugee Board, involving preparation for a refugee hearing and finding legal representation.
These changes may make it harder for trafficked persons to escape their traffickers and may also facilitate the arrest and deportation of trafficked persons instead of providing pathways to status and protection.
Legislative amendment is needed to bring a permanent and fundamental change in policy so that trafficked persons in Canada are protected.