August 11, 2000

Introductory remarks

1. The paper, ‘Refugee Resettlement Eligibility and Selection Criteria: Implementation of Policy’, proposes changes intended to enable Canada to pursue its announced policy of "shifting the balance toward protection rather than ability to settle successfully" in selecting refugees overseas for settlement in Canada. It suggests adjustments to existing definitions of eligibility for resettlement as well as to selection criteria.

2. Proposed changes include:

3. These proposals would yield a resettlement decision based on the following determinations: 4. The paper does not make any statement about changes to medical and security clearances. It is understood that the excessive medical demand barrier will be removed for resettled refugees, as noted in ‘Issue Paper 2: Bill C-31 Regulations’. This could usefully be reaffirmed in the paper on eligibility and selection criteria.

5. UNHCR supports the objective of placing greater emphasis on refugee protection in the resettlement selection process, and of developing regulations to ensure that this is done. Including the proposed measures in Immigration Regulations would establish a stronger legal foundation than mere inclusion in Operations Memoranda. Nonetheless, UNHCR considers that the recommendations regarding vulnerable groups and the modified application of ability to establish criteria do not go far enough in removing this requirement, and thus ensuring that Canada’s resettlement program is a protection-based program.

Eligibility Criteria

6. In UNHCR's view, it is important for resettlement criteria to be flexible enough to allow country programs to be responsive to changing resettlement needs. UNHCR welcomes the fact that Canada resettles not only Convention refugees but other persons in need of protection in the Humanitarian Designated Class. UNHCR mandate refugees presented to Canada for resettlement consideration may indeed fall into either category.

7. The paper proposes a definition for the Humanitarian Class referred to in Bill C-31, which is intended to incorporate the definitions of the current HDC subclasses, minus their limitations --i.e. the requirement of a private sponsorship and the limited "source country list". UNHCR would welcome the removal of these limitations.

8. Canada’s Country of Asylum Class can offer protection to persons who are found not to meet the Convention definition, but who nonetheless are in need of protection through resettlement. Currently this Class is limited by the requirement that the individual being resettled have a private sponsor, thus limiting access to protection in this Class. UNHCR would welcome the removal of this limitation on the Country of Asylum Class, to enable government-assisted refugees also to be admitted under this Class.

9. Although strictly speaking outside of the Office’s mandate, UNHCR considers that the Source Country Class serves as a welcome, additional option for persons in need of protection. This must of course remain without prejudice to Canada’s obligation to continue to determine the claims lodged by asylum seekers in Canada on the basis of the 1951 Convention criteria, as well as the responsibility of other states to provide asylum. Furthermore, Canada should ensure that the numbers allocated to this Class do not undermine the availability of resettlement places, for refugees needing resettlement.

10. If the Source Country Class is to be genuinely responsive and flexible, the ideal option would be for any Canadian Embassy or High Commission to be able to process an individual for resettlement under this Class, if that person is at risk in the country of origin.

Durable Solution

11. The paper recognises that not only must a refugee meet either the Convention Refugee or Humanitarian Class definition, but that the refugee must "have no alternative durable solution." However, the paper does not explore what constitutes a durable solution. UNHCR urges that when Canada assesses whether a durable solution (resettlement) is needed, it look flexibly at all aspects of a refugee’s situation.

Defining Successful Establishment

12. The paper correctly acknowledges the absence of a universally recognised understanding of what constitutes successful establishment. Given the divergence of views, it would be inappropriate to attempt to include a definition in the Immigration Regulations. A policy manual would be better suited to exploring the meaning of, and varying approaches to, this concept.

13. Successful establishment should, in UNHCR’s opinion, be viewed as an outcome, that is, as an aim which both the refugee and Canada hope to achieve. Successful establishment of resettled refugees may therefore usefully be set out as an objective within the Immigration Act. Indeed, Sections 3(1)(e) and 3(2)(f) of Bill C-31 do so, albeit not as explicitly as might be done. Successful integration, or establishment, is in any case a responsibility shared between the refugee and the host society. This goal should be pursued not through policies which limit selection to those who are likely to require little assistance in settling in Canada, but rather through policies and programs in Canada which will facilitate the resettled refugee’s integration.

Resettlement Priorities

14. In the past, Canada has applied criteria related to a refugee's "ability to successfully establish" as a way of prioritizing among many candidates for limited resettlement places. UNHCR urges that instead of this approach, Canada prioritize based on a hierarchy of needs. This is the approach taken by the UNHCR Resettlement Handbook. The Handbook identifies refugees within the following categories as needing resettlement:

15. Within these categories the highest resettlement priority is given to refugees with legal and physical protection needs. As the Resettlement Handbook notes, "…in cases not related to immediate protection concerns, particularly those falling under the criteria of lack of local integration prospects, a decision to refer for resettlement may be influenced by the availability of spaces."

16. Canada could apply a similar "hierarchy of needs" approach in prioritizing resettlement. This would mean giving highest priority to refugees whose physical and legal protection needs are the greatest. Refugees with special needs and family reunification considerations would be given second priority, and other refugees in need of a durable solution would be resettled next, based on the availability of places.

Vulnerable Persons and the Successful Establishment Requirement

17. As indicated above, UNHCR believes that "integration potential" should not be a determining factor in the selection of refugees for resettlement. Indeed, the paper’s stated goal is to provide the policy foundation for shifting the balance in refugee resettlement away from "ability to establish" and toward protection. If Canada’s refugee resettlement program is definitively to disentangle itself from Canada’s immigration program, then, in UNHCR’s view, it must distance itself as much as possible from immigration criteria.

18. Moving in this direction, the paper proposes removing the "successful establishment" requirement for some individuals, defined as vulnerable persons. This would be done when the assessment of "ability to establish" would not serve the commitment to place greater emphasis on the need for protection. In such a case, a determination would still be made regarding the amount of assistance required for the person to settle in Canada.

19. While UNHCR welcomes moves to reduce or partially to remove the "successful establishment" requirement, it understands that only a minority of resettlement applicants would benefit from this waiver, while the majority would still have to demonstrate an ability to establish themselves successfully in Canada within three to five years. UNHCR is also concerned that the "vulnerable case" approach may prove unnecessarily complicated. The above-mentioned "hierarchy of needs" approach might be more straightforward.

20. The requirement that visa officers assess the "ability to establish" of both "vulnerable" and "non-vulnerable" candidates for resettlement, albeit for different purposes, may prove unwieldy. In some cases, a visa officer will be making this assessment with a view to ensuring that the refugee receives the settlement assistance needed. In other cases, the visa officer would be looking at an eventual need for settlement assistance as a barrier to admission.

21. Also, defining vulnerable persons is likely in itself to prove problematic – though UNHCR understands that the proposed approach is well-intentioned. Refugees in need of resettlement are by definition all in some way vulnerable, and interpretation of the concept of vulnerability is likely to be variable and highly subjective. Separating resettlement candidates into "vulnerable" and "non-vulnerable" groups may thus hinder achievement of two of the paper’s stated objectives: establishing a transparent process, and not further complicating this process.

22. The clearest and most direct way to ensure the shift toward protection would be to eliminate the "successful establishment" requirement, at least for government-sponsored refugees. A referral by UNHCR is generally the basis for consideration for resettlement under the government-sponsored programme. Such referral is made after a determination that a refugee is in need of resettlement. Removal of the "successful establishment" requirement would be the single most significant step Canada could take, in the interest of responding to the needs of refugees for resettlement, as identified by UNHCR.

23. While this rationale may not apply as easily to privately sponsored applicants, the record of success associated with private sponsorship would suggest that in most cases the presence of a sponsor, often a member of the refugee’s extended family, helps refugees to overcome difficulties in establishing in Canada.

Proposed Selection Criteria

24. The paper proposes replacing current selection criteria with the following:

25. As noted above, UNHCR is not in favor of maintaining these criteria, which relate to the refugee's "ability to establish." However, if they are retained, they should in any case be examined collectively, so that a weakness in one area would not bar admission, especially if an applicant is strong in another area. Furthermore, as recognized in the paper, the principal applicant and family members should be evaluated together, as a group. Thus where one family member may have more difficulty establishing, the presence of other family members with stronger settlement abilities would compensate for this. This "collective" evaluation should also include extended or de facto family members (as defined in OP4 Section 6.9) or regulatory changes should be made so that extended or de facto family members are exempt from selection criteria.

UNHCR Ottawa
11 August 2000