REFUGEES AND IDENTITY DOCUMENTS
Flight from persecution
- Persecuted people often have to flee their countries without documentation.
- Refugees are frequently forced to travel using false papers both because they need to hide their identity from their persecutors and because countries such as Canada use restrictive measures to prevent refugees from seeking asylum.
- Many countries nevertheless summarily exclude from refugee determination claimants who do not have valid travel documents.
- Some countries, while allowing access to the refugee determination system, make a presumption of non-credibility against claimants who don't have documents. Canada has in its Immigration Act a provision to this effect by requiring the positive determination of both Board members in cases where the claimant has destroyed or disposed of ID without valid reason.
- In some case the Immigration and Refugee Board (IRB) has ruled that claimants who DID have documents were not refugees partly because the fact that they were able to obtain documents proved that they were not being persecuted.
- The Federal Court has ruled that whether or not a claimant destroyed travel documents on arrival in Canada is irrelevant to the determination of the claim. Refugee claimants are often advised by others to dispose of their documents when they reach Canada. They may believe that if they keep the documents they will be immediately returned to the country they are fleeing.
- The Minister is apparently considering requiring refugees to have identity documents prior to making a claim or creating a legal presumption that their claims lack credibility without them.
Acquiring documents after arrival
- For many refugees it is difficult, dangerous or impossible to acquire identity documents after their arrival in Canada.
- Governments in some countries cease to exist or will refuse to provide identity documents to certain nationals, including those fleeing as refugees. In countries at war, official records may be destroyed or there may be no bureaucracy available to answer requests for information.
- It can be dangerous for refugees or for their families in their homeland if identity documents are requested. Alerted to the refugee's situation, the persecutors may renew their attacks. Refugees should never be expected to approach the government of the country they have fled.
- Recognizing that refugees may not be able to produce identity documents, Article 27 of the 1951 Convention on the Status of Refugees obliges states to provide identity papers to any refugee in their territory who does not possess a valid travel document.
- Canada (and Citizenship & Immigration Canada in particular) has a culture of paper and relies heavily on written documentation to establish identity and relationship. Births, marriages and deaths are systematically documented in Canada and the information on official certificates is known to be reliable. Immigration Canada's processes are designed with this kind of documentation in mind.
- This reliance is becoming more pronounced as CIC moves increasingly towards mail-in processing. The more applicants are expected to deal with Immigration Canada exclusively by mail, the harder it is for those who do not have Canadian-style documents.
- In many other parts of the world, little reliance is placed upon paper. Births, marriages and deaths are not necessarily officially registered. Identity and relationships are established in other ways, such as the testimony of witnesses.
- An insistence on identity documents discriminates against people from such parts of the world, and in particular against certain sections of the population least likely to have documents: women, rural people and youth.
- Insisting on identity documents gives an incentive to forgery. It favours those willing to use false documents and penalizes those who refuse to have recourse to them.
- Since Bill C-86 all applicants must have satisfactory identity documents before they can be landed.
- Prior to Bill C-86, Convention Refugees and others in special classes such as the backlog were landed without official identification if it could not be obtained. It has not been shown that any problems arose from this way of operating.
- Many refugees who do have some identity documents are nevertheless being refused because immigration officials are not "satisfied" with their documents. Officials who have discretion to decide whether documentation is sufficient or not are choosing not to land refugees even though they have papers confirming their identity and nothing more can be obtained.
- Questioning the refugee's identity after determination implicitly means questioning the refugee determination. If Department officials have concerns about the identity of the claimant they can present evidence at the hearing and may question the claimant.
- There is no evidence that serious criminals are concealing themselves among the undocumented group. On the contrary, notable offenders have been admitted to Canada under their own name and with ID and have subsequently been denounced by members of the community (this is the case for example with Léon Mugesera).
- Currently there are thousands of undocumented Convention Refugees, mostly from Somalia, Sri Lanka, Iran and Afghanistan, who have spent years awaiting landing.
- Applicants under DROC, H&C and PDRCC and family class applicants are required to have official documents before they can be landed.
- A member of the DROC is however exempted from the documentation requirement if the person "cannot acquire such documents because of disruption of government in the issuing country".
Effects of denial of permanent residence
- Requiring identity documents has serious legal and psychological effects on the lives of refugees. Refugees cannot be reunited with their spouses and dependent children. They also face discrimination in access to education and employment. Young people finishing high school are effectively barred from pursuing their studies. Some occupations and professional training are closed. They cannot travel outside Canada, even to visit a sick or dying family member.
- The problem of family separation is magnified in many cases by the fact that the spouse and/or children are living in situations of risk in the country of origin (where they may face persecution) or in temporary asylum in a third country, often in refugee camps.
- Refusal to land is likely to have serious long-term consequences, in terms of economic marginalization, social alienation, family breakdown and mental and physical health.
- The Convention on the Rights of the Child, which Canada has ratified, requires that the best interests of the child be a primary consideration in all actions concerning children (Art. 3). Further the Convention contains specific references to the child's right to family reunification and to maintain relations with both parents (Art. 10). Overall, the Convention affirms the special protection needs of children, both as individuals and as members of a family.
- In addition to providing documents establishing their own identity, refugees seeking to be reunited with family members overseas, including spouse and dependent children, must prove their relationship.
- Documents proving relationship are often unavailable for the same reasons that identity documents are often unobtainable (disruption and destruction due to war or unrest, persecution of refugees and their families, cultural realities). In many parts of the world, marriage certificates are not issued.
- In law people should be presumed to be telling the truth. However, CIC places the onus of proof of relationship on the applicant.
- CIC is increasingly calling for DNA testing to confirm family relationship. This testing is very expensive and time-consuming.
Insistence on identity documents
- The Canadian Human Rights Commission has ruled against CIC for insisting on ID created before there was any interest in immigration to Canada. The tribunal found that this policy or practice may have an adverse effect on people whose country of origin may not have a proper record-keeping system.
- It is legitimate for CIC and IRB to want to know the identity of the person with whom they are dealing. It is illegitimate to insist on identity documents.
- Neither carriers nor others should be penalized for bringing refugees into Canada, no matter what the state of their documentation.
- Access to the refugee determination process should never be denied or delayed on the basis of inadequate documents.
- The refugee determination system should not make any presumption or inference that refugees lack credibility if they do not have or are unable to get identity documents.
- Once a person has been accepted as a refugee, that decision should be accepted as a determination of identity for the purpose of granting permanent residence.
- A solution for all refugees denied landing for lack of ID should be implemented quickly.
- The solution should respect the following principles:
- it should be consistent with Canada's obligations under the Convention on the Rights of the Child.
- it should not impose delays in granting permanent residence to refugees and others.
- in particular it should not delay family reunification.
- it should be applied to those accepted under DROC, H&C and PDRCC as well as to refugees, and to all those unable to provide ID, whether or not there is a government in place in their country of origin.
- Sufficient personnel and resources should be allocated in order to land the backlog of undocumented persons within six months, with a priority to urgent family reunification.
- The Minister should direct visa officers to give greater weight to personal interviews and alternative documentary evidence (such as prior statements of relationship, affidavits, etc) to establish family relationship when primary documents cannot be obtained.
- The Minister should convene a joint committee comprised of representatives from NGOs, the concerned communities, the UNHCR and the government to address the full range of issues relating to identity documents.
A longer, more detailed version of this brief is also available.