Resettlement, Durable Solutions and Signatory Countries: Policy Position

RESETTLEMENT, DURABLE SOLUTIONS AND SIGNATORY COUNTRIES

POLICY POSITION

30 June 2004

A. THE CONTEXT

A number of years ago the Canadian governmnent identified the need to clarify and formalize its policy on the resettlement of refugees "located in signatory countries which are considered to have fair and effective protection regimes." The Canadian Council for Refugees, for its part, adopted a resolution in December 1999 drawing attention to the inconsistency of interpretation of "durable solution" and calling for an interpretation that specified that temporary protection and eligibility for future refugee determination do not constitute a "durable solution."

Since then, the government developed an Operations Memorandum (OM) on "Processing in Signatory Countries" (2001), later superceded by sections incorporated into OP5, a chapter of the immigration manual. The CCR developed a position paper in 2000 and provided comments on the draft OM and the draft OP5.

Despite these clarifications of positions and exchanges of views, the matter remains in 2004 one that is both confused and controversial. For private sponsors wishing to offer a permanent home to refugees, it is unclear which refugees Citizenship and Immigration Canada considers eligible for resettlement to Canada. Moreover, sponsors query the legality and moral legitimacy of decisions finding refugees ineligible based on the country in which they find themselves, when the refugees do not, in fact, enjoy a durable solution.

This paper is in part a revision of the CCR's 2000 policy position.

B. THE INTERNATIONAL FRAMEWORK

Resettlement is recognized internationally as having two principal functions:

To offer protection to refugees.
To offer a durable solution to refugees.

In addition, resettlement can be used to ensure a more equitable sharing of responsibilities among states, through the resettlement of refugees from a state hosting many refugees to a state hosting fewer refugees.

The UNHCR promotes three durable solutions:

(1) voluntary repatriation

(2) local integration in the country of first asylum

(3) resettlement

C. THE CANADIAN LEGAL FRAMEWORK

Canadian law adopts the "durable solution" concept, limiting the possibility of resettlement to Canada to refugees who don't have access to another durable solution.

The Immigration and Refugee Protection Regulations require that Convention Refugees Abroad and Humanitarian-protected Persons Abroad be persons:

"in respect of whom there is no reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada, namely (i) voluntary repatriation or resettlement in their country of nationality or habitual residence, or (ii) resettlement or an offer of resettlement in another country." (139(1)(d)).

The language of the regulation is somewhat surprising: it does not refer to the possibility of local integration; on the other hand, it refers to "resettlement" in the country of origin, as an alternative to voluntary repatriation.

D. CANADIAN GOVERNMENT POLICY

The Canadian government's policy on the resettlement of refugees "located in signatory countries which are considered to have fair and effective protection regimes" is articulated in OP5, Overseas Selection and Processing of Convention Refuges Abroad Class and Members of the Humanitarian-protected Persons Abroad Class, a chapter of the Immigration Manual.

Section 7.2 is entitled: "Countries signatory to the Convention or the Protocol". The following extract explains the basic position adopted:

Any person who wishes to apply for assessment as a Convention refugee abroad, or as a member of an HPC class in signatory countries, may apply in the specified manner. There is no basis for refusing to consider an application simply because the person made the application in a signatory country.

In assessing applications from persons located in signatory countries with "fair and effective protection regimes", the officer will need to determine whether the person could find a durable solution in that country.

[...] There is no readily available definition of "fair and effective protection regime." However, both the Convention and the Protocol establish fundamental rights for refugees, such as non-refoulement and asylum, as well as particular rights and standards of treatment. Therefore, what constitutes a "fair and effective protection regime" is a question of fact to be determined on the basis of the conditions existing in the country in question at the time an application is assessed.

The section goes on to provide questions that officers could ask in making a determination, as well as a chart outlining what the officer might decide, depending on whether the applicant has or hasn't applied for protection, and whether the application is still in process or has been refused, accepted or withdrawn.

Another relevant section of the manual is 13.2, Ensuring applicant does not have another durable solution. This provides the following advice on local integration:

In assessing if local integration has taken place, the best measure is the implementation of the rights recognized in the 1951 Convention and other basic human and civil rights which include

protection from refoulement;

the right to seek employment;

the right of children to education;
the right to leave and to return to the asylum country;
the right to seek permanent residence status and citizenship in the future (in certain countries only); and
the right to marry, to practice religion, to own property, to access social services (housing, medical care, etc.)

The section goes on to say that the absence of one of these rights does not automatically mean that there is not a durable solution, and proposes a series of questions that could be asked.

The section also gives advice on "What is a reasonable period of time?":

The "reasonableness" of any time period should be considered within the context of the individual's particular situation. If the civil and human rights of the applicant are respected in the country where they are currently living, a reasonable period of time may be longer than that for an individual who is not permitted to work, for example. Again, this is a question of fact to be determined by the officer.

Once again, a series of questions is proposed to assist officers in their determination.

E. SIGNATORY COUNTRIES

CIC's policy focuses on "signatory countries." It is important to note that a very large number of states are parties to the 1951 Convention, to the 1967 Protocol or to both. These states include most of Africa, a region from which CIC regularly aims to resettle a significant proportion of government-assisted refugees.

The mere fact that a country has signed the Convention does not mean that it will provide adequate protection.(1) Even less can it be assumed that all a refugee's needs will be met and rights respected and that a durable solution will thus be available. Conversely, states that are not signatory may offer refugees protection and a durable solution.(2)

The distinction made in OP5 between resettlement out of signatory and non-signatory countries has no basis in international convention or Canadian law. In practice, it is not a distinction that guides the Canadian government in choosing the countries from which it will principally resettle.

It is an unhelpful distinction in that it obscures the fundamental questions that need to be asked: is the refugee protected? Does the refugee have a durable solution?

Where the notion of "signatory country" may be useful is in maintaining (as in OP5) the rebuttable presumption that a refugee in a non-signatory country does not have a durable solution.

F. FAIR AND EFFECTIVE PROTECTION REGIMES

The Canadian policy implicitly accepts the limited usefulness of signatory country status by going on to address the sub-category of "signatory countries with 'fair and effective protection regimes'." If assessing applications from refugees in such countries, OP5 tells us, officers "will need to determine whether the person could find a durable solution in that country."

The implication of the manual is that there is no need to consider the availability of local integration in a country that does not have a "fair and effective protection regime." However, if the country of asylum does have a "fair and effective protection regime," local integration must be considered.

As noted above, according to Canadian law, refugees are not eligible for resettlement to Canada if they have a "reasonable prospect, within a reasonable period, of a durable solution in a country other than Canada." In the interests of efficiency, it is entirely reasonable to narrow down the cases in which the officer needs to make an individual determination of whether or not the durable solution of local integration is available to an applicant. If the refugee is in a country where local integration is a reasonable prospect, consideration will need to be given to the availability of that durable solution for the applicant.

However, rather than using the regulations' language of "durable solutions", the manual asks about "fair and effective protection regimes." What does this phrase mean? The manual informs us that "[t]here is no readily available definition of 'fair and effective protection regime.'" Instead, the manual invites officers to refer to the rights established in the Convention and Protocol.

One might question the usefulness of introducing a new concept that is not part of the regulations and does not have a definition. Furthermore, the manual does not greatly assist the reader in understanding which countries will be found to have a "fair and effective protection regime." After referring officers to the Convention and Protocol, the manual proposes a series of questions which do not obviously refer to the Convention or Protocol. For example, the officer might ask:

"Is access to the protection regime granted in a non-arbitrary and procedurally fair way?"
"Do additional 'refugee-like' classes exist such as the Canadian humanitarian-protected persons abroad classes?
"Does the system provide for a durable solution within a reasonable period of time?"

Since the questions listed are only some of the questions that "the officer could ask in making this determination", we must be prepared for the possibility that the officer will decide not to ask these questions but ask others instead.

The lack of clarity makes it very difficult for private sponsors to know in any particular case whether a visa officer is, in any particular case, going to decide that local integration is a possibility. Because it is unclear how countries' protection regimes are being assessed, it is also difficult for sponsors to know what information should be presented to show that a particular applicant does not have a durable solution.

It is worth noting that internationally, including in the UNHCR forum, the concept of "effective protection" is the subject of much debate. There is at present no consensus of what constitutes "effective protection." If in the future there were such a consensus, the concept could be helpful in the context of assessing eligibility for resettlement to Canada.

G. ASSESSING AN INDIVIDUAL APPLICATION FROM A COUNTRY WITH A "FAIR AND EFFECTIVE PROTECTION REGIME"

The manual rightly acknowledges that a refugee in a country that is considered to have a "fair and effective protection regime" may not have a durable solution and therefore may be eligible for resettlement.

No country can claim a perfect record when it comes to protecting refugees. Even in countries that offer many refugees effective protection, certain refugees, for one reason or another, do not benefit. Either "fair and effective protection regimes" is interpreted in a very strict way and no countries will meet the definition, or it is interpreted in a somewhat loose way, and countries that meet the definition will be found to fail to protect certain refugees.

For example, a refugee fleeing persecution based on sexual orientation may not be able to secure protection in a country that protects many refugees but does not interpret the refugee definition to include persecution based on sexual orientation.

The manual suggests that a refugee in this situation should nevertheless make an application for protection in the country in which they find themselves and would only be considered for resettlement after they had been refused. This could be challenged from the perspective that, if a person's claim is known to be the sort that is routinely refused by the particular country, it is not possible to maintain that the person has a "reasonable prospect, within a reasonable period, of a durable solution."⁽³⁾

H. DURABLE SOLUTION

One of the disadvantages of the focus in the manual on the concepts of "signatory country" and of "fair and effective protection regimes" is that it tends to obscure the test that is actually in the regulations, namely the availability of a "durable solution". The manual adds to this problem by placing in a completely different section its discussion on durable solutions, including local integration.

In discussing "local integration", the manual proposes that its availability be measured by reference to the rights in the 1951 Convention and other basic human and civil rights (section 13.2, see above, page 3). The manual thus recognizes that refugees who are not threatened by refoulement but who are deprived of such basic rights as work, study, family reunification and travel are clearly still in need of a durable solution.

I. BASIC HUMAN RIGHTS STANDARDS

The international bill of human rights is made up of the Universal Declaration of Human Rights and the two covenants: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. It is important that the rights in the latter covenant be accorded equal weight. No refugee can be considered to have achieved a durable solution when one of their basic rights is violated.

J. FAMILY REUNIFICATION

In some cases, privately sponsored applicants have family in Canada, which makes Canada a particularly appropriate place for them to find a durable solution. The UNHCR promotes the principle of family reunification, most actively in the case of nuclear families and where there is a relationship of dependency, but also of other relatives. According to the UNHCR Resettlement Handbook (July 2002), "UNHCR strongly supports the adoption by States of broad and flexible criteria of family reunification with respect to the selection of refugees for resettlement from countries of temporary stay" (IV/22).

Where the applicant has immediate family members in Canada, there may be no durable solution until the family has been reunited. Where the family relationship is not one of the nuclear family (for example, adult siblings), Canada may well be the obvious and logical destination for applicants without a durable solution, especially if the Canadian family members are supporting them financially.

K. BEST USE OF RESOURCES

Resettlement is a durable solution that is available only to a small minority of the world's refugees. Each year, the government commits itself to resettle only 7,500 government-assisted refugees. While privately sponsored refugees are not assisted with government dollars, government resources are required to process their applications overseas, and each year the government allocates only enough visa office resources to process approximately 3,000 - 3,500 privately sponsored refugees.

Given the limited resources available, does it make sense to limit resettlement to the poorer parts of the world, such as Africa, Asia and Latin America, where the needs of both refugees and host societies are greatest?

Several years ago, when a significant portion of government-assisted refugees were being resettled out of Europe, the Canadian Council for Refugees urged the government to re-orient its refugee targets, particularly in favour of Africa, whose share of the world refugee population was seriously under-represented in its share of the refugees resettled to Canada.

The private sponsorship program, however, differs in an important way from the government-assisted program. Behind most private sponsorship applications there is not a fixed budget that could be spent equally well on any refugee family: there is rather a community of people responding to the identified need of a particular refugee family. If that refugee family is unable to come to Canada to receive the welcome waiting for it, there is probably no money to transfer instead to another equally deserving family. Thus to refuse an application, simply because the applicants are in a relatively wealthy country, though without a durable solution, means reducing the number of refugees who can find a durable solution.

The principles of non-discrimination and of the value of every human being also make it difficult to justify closing the door on a refugee in need, simply because of the country in which the refugee is currently staying. Refoulement is an equally serious rights abuse whether the person is sent back to persecution from a European or an African country.

Finally, Canadian law does not allow an otherwise eligible refugee to be denied resettlement through private sponsorship to Canada simply on the basis of the country in which the refugee is staying, unless the refugee has a durable solution.

L. EXAMPLES

The following are some examples of concrete situations, one of a private sponsorship case, one of a country. They illustrate some of the challenges that come up when the government's policy is put into practice. Further case studies could be usefully pursued, for example of Costa Rica and South Africa.⁽⁴⁾

REFUGEE FAMILY IN GREECE

In February 2003, a private sponsorship application was submitted for a refugee family in Greece. The sponsor included in the application a copy of the Greek Secretary General of the Ministry of Public Order's letter refusing refugee status, as well as a certified English translation of it.

Shortly afterwards the applicants received a letter indicating that their case was refused by the Rome visa post for not having provided "credible evidence to the effect that they have been denied protection". The refusal was made without an interview.

The sponsor intervened with CIC headquarters, pointing out that the visa post had apparently not taken account of the Greek Ministry's refusal letter. This was acknowledged by CIC and the sponsor was told to expect to hear back from the visa post.

Another refusal letter followed in July 2003. The second refusal letter, like the first one, informs the principal applicant that "you currently reside in a country that is a signatory to the Geneva Convention on Refugees, Greece, where you have a reasonable possibility, within a reasonable period of time, of a durable solution by regularizing your residence status through the procedures available to persons in your situation."(5)

The letter does not explain how the applicants, as refused refugee claimants, should regularize their residence status. The applicants themselves are unaware of any procedures available to them.

These are the applicants' circumstances:

They are restricted to the city of Athens. They are not free to leave Athens.
They are not allowed to work. Even when such persons without status go to the place where general labourers wait for offers of low paying jobs, someone has to watch for the police and everyone has to be prepared to run if necessary.
For persons without status, costs of medical treatment are higher. The family has a five year old daughter with Thalassemia Major who requires regular blood transfusions.
The family's relatives in Canada support their living and health expenses in Greece.

The sponsor believes that the family was wrongly rejected by Greece and they are in fact refugees in need of protection.

GERMANY

In Germany, a large number of asylum seekers, while not deported, are not granted asylum and do not enjoy many basic rights. An example is the situation of Afghans in Germany. A UNHCR memo, dated September 2003, gives an overview of the situation:

Since 1992, most refugee status determinations for Afghans, if taken at all, were negative. Rejections were generally based on the notion that under German law persecution leading to refugee status would need to come from the state, and that no state controlled Afghanistan. This position was only overturned by the Federal Constitutional Court in August 2000.
As a result of the legal doctrine operating in Germany, Afghan asylum seekers were in general not recognized as refugees and did not receive adequate protection in Germany.
Limited protection was granted only through Section 53 (6) of the Aliens Act, giving a temporary stay of deportation.

Persons with a temporary stay of deportation:

Do not have freedom of movement
May not work or, if allowed to work, may work no more than 2 hours a day
Are eligible only for reduced welfare assistance
Have access only to emergency health care
Are rarely allowed to pursue higher education

People may remain with only temporary status for long periods (for example, more than 10 years in the case of a Sri Lankan family).

RECOMMENDATION

1. That CIC abandon the use of concepts of ‘signatory countries’ and ‘fair and effective protection regimes’ and focus its attention on the availability of a durable solution for the individual applicant.

2. That OP5 be amended to conform to IRPA and to set out that there is no reasonable prospect of a durable solution in all those situations where it has been improperly applied, and in particular, those situations where:

a) a refugee claim has been made in the country where the person is located and rejected;

b) the determination of a refugee claim in the country where the person is located is subject to undue delays;

c) a refugee claim is pending in the country where the person is located and likely to be rejected for the reason that the concept of protection is applied more narrowly by that country than by Canada;

d) the person has been denied access to the local refugee determination regime because of the person’s own prior irrevocable waiver of the right to access the refugee determination system.

3. That CIC:

a) make it clear to sponsors and the applicant when CIC believes that applicants are in a country where local integration may represent a durable solution;

b) indicate concretely what the proposed durable solution is;

c) allow the sponsors and the applicant to rebut that presumption.

4. That the CCR urge its members to litigate failed resettlement cases where ‘signatory country’ was the issue.

FOOTNOTES

1. This is implied in OP5, section 7.2.

2. This point is recognized in OP5, section 7.3 Countries not signatory to the Convention and Protocol.

3. The manual, at page 33, incorrectly refers to the "possibility of a durable solution". The Regulations require that there be a "reasonable prospect," not merely a "possibility" of a durable solution. The Manual should conform to the law.

4. A number of Colombian refugees have taken refuge in Costa Rica. Most have apparently found protection there, but in the opinion of the UNHCR Costa Rica, some are not safe and need resettlement. The Canadian visa post, however, is allegedly not open to receiving any referrals. In South Africa, asylum seekers have access to a refugee determination system, but until November 2003, did not have the right to work until they had received an answer. This left many asylum seekers with no means of earning a living and often supported by family abroad. Because a backlog accumulated, many asylum seekers have waited several years. Despite a general view by the Canadian visa post that applicants have a durable solution in South Africa, some exceptions are made and accepted for resettlement to Canada. It is not however, clear to sponsors what are the factors that make a case exceptional, in the view of the visa post.

5. This is wrong in law, since the Regulations refer to "reasonable prospect", not "reasonable possibility" (IRPR 139(1)(d)).

June 2004