Relating to the
Agreement between the Government of Canada and
the Government of the United States of America
 for Cooperation in the Examination of Refugee Status Claims
 from Nationals of Third Countries

The Office of the United Nations High Commissioner for Refugees (UNHCR) appreciates the opportunity to comment on the draft implementing regulations ("Regulations") related to the proposed Agreement between Canada and the United States of America for Cooperation in the Examination of Refugee Status Claims from National of Third Countries (“Agreement”).

The underlying objective of this Agreement, to ensure the appropriate allocation of State responsibility for determining refugee status, is shared by UNHCR.  It is important to avoid situations where responsibilities for asylum applications are unclear and/or not assumed, with a corresponding risk of refoulement of refugees. UNHCR's main interest is to ensure that persons seeking protection from persecution will have access to a full and fair procedure to assess their claims, whether in Canada or in the United States, and that protection will be accorded to those who need it.

At the same time, UNHCR Executive Committee Conclusion 15 (XXX) provides that the intentions of the asylum seeker should "as far as possible be taken into account". In this connection the Agreement's provisions for family reunification and for the exercise of discretion by the Parties are particularly important.

UNHCR submitted written comments on the draft Agreement in July 2002  and participated in consultations with the Canadian and American authorities.  The final text takes certain of UNHCR's comments into account. This in particular concerns the assurance that “chain removals” cannot take place (Article 3), the broadening of the exception for family members of asylum-seekers (Article 4(2)(b)), the undertaking that information-sharing on individual claimants will be done in a way which does not put claimants at risk (Article 7), and the commitment to seek input from non-governmental organizations with regard to the implementation of the Agreement (Article 8). UNHCR appreciates the invitation in Article 8 to participate in monitoring and review of the implementation of the Agreement.

UNHCR believes that the broad statement in the introduction to the Regulations to the effect that UNHCR "….considers that both countries meet their international obligations…." deserves further qualification.  In its written comments, UNHCR drew attention to situations in both countries where access to refugee protection could be jeopardized, contrary to international norms. While the draft Regulations address some of these concerns, others remain and are outlined below.

Finally, the impact of the Agreement will depend not only on the Regulations but also on the policy guidance and practical implementation which will follow. UNHCR hopes to receive the relevant CIC policy manuals for comment, before they are finalized.

Asylum-seekers returned to the U.S. under the Agreement and section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) may be placed in "expedited removal" proceedings. Under current U.S. law, expedited removal proceedings, including mandatory detention, apply to “arriving aliens” with fraudulent or no travel documents. UNHCR has expressed concern about how this process functions, and about the need for greater procedural guarantees to ensure that bona fide refugees are not removed to a country of feared persecution (refoulement), and are treated in a humane manner while their applications are being considered. While U.S. government officials have stated that they expect that most persons returned from Canada would not be subject to expedited removal, this has not yet been confirmed, as the corresponding U.S. Regulations have not yet been issued.  In addition, UNHCR has frequently set out its views regarding the common U.S. practice of detaining asylum-seekers, often in state or county jails.

Recommendation 1: UNHCR recommends that Canada create an exception in the Regulations for asylum-seekers who may be placed in expedited removal proceedings in the U.S. and/or subject to detention contrary to international norms.

UNHCR has questioned the consistency with international standards of certain statutory bars to the asylum procedures. Those at issue include the U.S. bar for failure to meet a filing deadline, and criminal and "affiliation" bars in both countries which are broad and automatic in nature. Refugee claimants subject to a U.S. statutory bar that has no equivalent under Canadian law (s. 101 IRPA) may be returned under the Agreement to the U.S., where they would not be eligible for asylum and/or non-refoulement protection. Under these circumstances, they may well be denied rights which, except for the operation of this Agreement, would be available to them.

Although under both U.S. and Canadian law, some persons who are ineligible for asylum (or protected person status) may still be eligible for protection from refoulement (through withholding/stay of removal), this is only the case if they satisfy a heightened legal standard. As a result, claimants who satisfy the refugee definition under the 1951 Convention/1967 Protocol, but fail to meet this heightened legal standard, could be subject to refoulement.

Recommendation 2: UNHCR recommends that Canada create an exception in the Regulations for persons who would be ineligible for asylum or non-refoulement protection in the U.S. on grounds inconsistent with the 1951 Convention/1967 Protocol,  but not in Canada.

"Family Member"
Respect for the principle of family unity should be at the core of decisions taken under the Agreement.  Refugee families are often involuntarily separated for long periods.  UNHCR believes the refugee protection objectives of both Parties are best served if the Agreement is implemented in a way which fosters family reunification at the earliest opportunity.  UNHCR appreciates the broad definition of "family member" (s. 159.1 of the Regulations), and the fact that the exception in Article 4 of the Agreement also applies to persons whose family members in Canada have refugee claims pending before the Immigration and Refugee Board (s. 159(c) of the Regulations).

UNHCR urges that reference be made in the Regulations to de facto family members as well. Many refugees have lost their own family members and have been taken in by or become dependent on others, with whom they developed emotional and material ties. At a minimum, a provision should be included in the Regulations  to allow an officer the discretion to permit a refugee claimant with a de facto family member in Canada to enter to have his or her claim heard.

Recommendation 3: UNHCR recommends that the Regulations include an exception for claimants with de facto family members in Canada who serve or have served as their primary support mechanism.

"Lawful Status"
The Agreement permits exceptions for claimants who have a family member with "lawful status” in Canada.  Section 159.5 of the Regulations enumerates these as: citizens,  permanent residents,  persons whose claim for refugee protection has been accepted (s. 95 IRPA), and adult refugee protection claimants (s. 99 IRPA).

However, the wording in subsection 159.5(b) is not entirely clear.  The reference to a person with “a claim for refugee protection that has been accepted under the Act” leaves doubt as to whether this includes a person on whom protection has been conferred  following a pre-removal risk assessment (PRRA).

Recommendation 4: UNHCR recommends that the wording “a refugee claim that has been accepted under the Act” in section 159.5(b) Regulations be changed to “and is a protected person under the Act”.

UNHCR also believes that the interpretation of  “lawful status” reflected in the Regulations should be extended to four other categories of persons lawfully staying in Canada, namely: (1) those who benefit from an indeterminate stay of removal because of a generalized risk to the entire civilian population in their country of origin (s. 230 IRPA Regulations); (2) those who benefit from an indeterminate stay of removal because they have been found by CIC to be at individual risk (s.112 & s.114 IRPA); (3) those who have received approval in principle from CIC to remain in Canada for humanitarian and compassionate reasons (s. 233 IRPA Regulations); and (4) resettled refugees who enter on a temporary resident permit and are not yet permanent residents. This is explained below.

Stay of removal because of generalized risk in the country of origin ("Moratoria countries")
Although this status is not permanent, it is lawful and is related to instability in the country of origin. Experience has shown that these stays often remain in effect for many years. Beneficiaries are allowed to work and are expected to integrate into their host community.  S. 159.6(c) of the Regulations creates an exception for all nationals of these « moratoria » countries, allowing them to enter Canada and have their claims heard.  However, the family members of these persons do not necessarily have the same citizenship. In such cases, they would be prevented from entering Canada and having their claims determined.

Recommendation 5:  UNHCR recommends that section 159.5 of the Regulations be amended to interpret « lawful status » as including a stay of removal under section 230 IRPA Regulations, because of generalized risk to the entire civilian population in the country of origin.

Stay of removal because of individual risk and need for protection
Persons who were found ineligible for refugee protection but benefit from a stay of removal under subsection 112(3) and section 114 IRPA have been determined to be in need of protection.  They are granted permission to remain in Canada for an indeterminate period of time because they are at risk of torture, cruel and unusual treatment or punishment or their life is at risk (s. 97 IRPA).  Due to the nature of this risk, the stay of removal is likely to remain in effect for an extended period, during which the individual has the opportunity to work, integrate and where relevant, demonstrate rehabilitation.  In such circumstances, a family member should be permitted to enter and to have his or her claim determined in Canada.

Recommendation 6: UNHCR recommends that section 159.5 of the Regulations be amended to include persons allowed to remain because of individual risk and need for protection.

Stay of removal for humanitarian and compassionate reasons and resettled refugees who enter with a "temporary resident permit"
CIC may permit any individual to remain in Canada if it considers there are humanitarian and compassionate reasons to do so.  In practice, an assessment of the humanitarian and compassionate grounds is made in the first stage of processing and applications are either rejected or “approved in principle”. Final approval is subject to criminal, medical and security checks, and twelve or more months may pass before permanent residence is granted.  Section 233 IRPA Regulations allows these individuals to remain in Canada until processing is complete.  UNHCR believes there is little interest in preventing a claimant whose family member benefits from this stay of removal from having his or her claim determined in Canada. Similarly, a small number of refugees who are resettled on an urgent basis to Canada enter with a "temporary resident permit" (section 24 IRPA), and are subsequently landed. Relatives of these refugees should also be permitted to enter Canada to have protection claims determined, even if their family members in Canada are not yet landed.

Recommendation 7: UNHCR recommends that section 159.5 of the Regulations be amended to interpret « lawful status » as including: (a) persons who benefit from a stay of removal under section 233 IRPA Regulations, for humanitarian and compassionate reasons; and (b) Convention refugees and humanitarian-protected persons who enter Canada with a "temporary resident permit" but are not yet landed.

In its July 2002 written comments, UNHCR welcomed the generous exception for “unaccompanied minors” in Article 4 of the Agreement. At that time, UNHCR expressed concern about the fact that a child seeking admission at a Canadian land border would not be admitted to lodge an asylum claim if he or she had a parent in Canada who did not fall into one of the enumerated exceptions. Unfortunately, this problem remains unresolved and has been compounded by section 159.5(d) of the Regulations. This section defines  an unaccompanied child as one who “is not accompanied by a person who has attained the age of 18 years” -- without any requirement that the accompanying adult be a parent or relative or a legal or customary guardian of the child. This could result in a situation where a child is accompanied by an adult who might exploit the child (for instance, a trafficker) and is therefore denied entry to Canada. However, there is no requirement for officials to assess the relationship between the child and the accompanying adult.  This will not help to reduce the risk of exploitation of children.

UNHCR has repeatedly suggested that governments adopt the term “separated” child in preference to “unaccompanied”, in order to convey that the child’s separation from his or her parents or guardians is the crucial element.  UNHCR defines a separated child as a person who is under the age of eighteen years and is “separated from both parents and is not being cared for by an adult who by law or custom has the responsibility to do so”. UNHCR suggests adoption of this definition in the Regulations.

It is critical to identify separated children in need of protection at the earliest opportunity.  Interviews at ports of entry to determine eligibility under the Agreement should ensure that the exceptional protection provision for “unaccompanied minors” is carefully examined.  This means assessing the relationship between the child and any accompanying adult to ensure the adult is able and suitable to care for the child. If this is not the case, the unaccompanied minor exception should apply. Child welfare specialists should be consulted where necessary to evaluate the relationship between the child and an accompanying adult. Protection will be compromised if section 159.5(d)(i) is not amended to stipulate that the person accompanying the child must be an adult who by law or custom has the responsibility for looking after the child.
Recommendation 8:  UNHCR recommends that subsection 159.5(d)(i) be amended to read “has not reached the age of 18 and is not accompanied by a person who has reached the age of 18 and who by law or custom has the responsibility to look after the child”.

UNHCR remains concerned that persons found ineligible to make a refugee claim in Canada under the Agreement do not have access to an effective review procedure.  Persons found ineligible under 101(1)(e) IRPA are not entitled to a Pre-Removal Risk Assessment (PRRA) under s. 112 IRPA -- which in any case is not designed to review eligibility decisions under the Act.  Although in theory claimants may apply to the Federal Court for leave for judicial review of the ineligibility determination, it is improbable that claimants who have been sent back to the U.S. (and who may be in detention) would have access to legal counsel and be able to prepare the requisite proceedings and affidavits to pursue this course of action. Judicial review in any event addresses points of law, rather than the merits of the case.

Recommendation 9:  UNHCR recommends that the Regulations be amended to set out a procedure for the administrative review of the merits of eligibility decisions made under subsection 101(1)(e) IRPA.

Section 159.6 of the Regulations sets out only three situations in which the discretion in Article 6 of the Agreement is applied. As noted in our comments and during consultations with the Parties, there are other circumstances where the discretionary provision might need to be invoked. The absence of any regulatory provision permitting the exercise of discretion by officers in other circumstances is of concern to UNHCR.

Recommendation 10: UNHCR recommends that s. 159.6 of the Regulations be amended to permit broader application, in individual cases, of the discretionary provision in Article 6 of the Agreement.

UNHCR Ottawa
14 November 2002