The CCR Youth Network demands that Canada give full consideration to the best interests of children affected in any immigration decision, including the decision to deport.
As mentioned on the Campaign Home Page, the UN Convention on the Rights of the Child requires countries who have signed it to take into “primary consideration” the “best interest of the child” in ALL decisions affecting children, but Canada doesn’t always do that.
What the UN Convention on the Rights of the Child says:
| Art. 3 (1): “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” |
Where Canadian law fails to respect the UN Convention on the
Rights of the Child:
Canada’s Immigration and Refugee Protection Act only requires consideration of children’s best interests in certain specific situations, in contrast to the Convention which requires it “in all actions concerning children.” Moreover, while the Convention says that children’s best interests must be a “primary consideration”, the Act only requires that they be “taken into account.”
So what does this mean?
Because the references in the Act to best interests are limited, the government has argued before the courts that they should not be considered in other situations. Many immigration decisions affecting children continue to be made without appropriate (or in some cases any) consideration of the “bests interests of the child.”
How does this relate to deportation?
Suppose a child in Canada is facing deportation. Or a child's parent is threatened with deportation, meaning that the child will either have to leave Canada with the parent or stay in Canada separated from their parent. How are the child's best interests taken into account in deciding whether to go ahead with the deportation?
The only way is through an application for permanent residence on Humanitarian and Compassionate grounds, commonly known as an H&C application. The application can point out how the planned deportation would be contrary to the best interests of the child - for example, because the child would suffer hardship as a result of going to dangerous place or because the deportation would lead to the child being separated from family.
But there’s a catch – making an H&C application doesn’t stop deportation. It often takes months and even years for an H&C application to be reviewed by the government - and in the meantime the person can be deported. And there are no exact rules for deciding H&C applications: each officer uses their own discretion to judge whether the situation faced by the child is "bad" enough to deserve allowing the child (or the parent) to stay in Canada.
What actually happens in Canada?
Delays in processing of H&C applications are leading to more and more people being deported from Canada before their H&C application has been reviewed, in other words before the best interest of the child has even been “taken into account,” let alone given “primary consideration.”
Under H&C, the best interests of the child are supposed to be examined, but if the person is deported first, it’s too late after the fact to consider whether the deportation would be contrary to the child’s best interests.
For example:
Three children, aged 6, 11 and 17, were facing deportation from Canada back to Mexico. They had fled Mexico after their parents were killed by drug traffickers. They had settled into life in Canada with their grandmother, and certainly didn't want to return to the place where their parents had been murdered. When their H&C application was reviewed, the officer said it was a very sad life situation, but still decided that returning them to Mexico would not be too harsh. Their H&C application was refused. (The children were subsequently saved from deportation after a public protest campaign).
A single mother of four children is under threat of deportation. Three of her children are girls who face a well-documented risk of female genital mutilation in their mother's home country. One of the girls has a serious medical condition and evidence shows that adequate treatment would not be available in that country. The mother submitted an H&C application explaining the consequences for her children (who are Canadian-born). More than two years later, she is being called in for deportation proceedings and her H&C application has still not been studied.
What should the government do?
The CCR Youth Network demands that Canada give full consideration to the best interests of children affected in any immigration decision, including the decision to deport.