The Canadian Council for Refugees (CCR) seeks immigration and refugee policies and practices that conform to Canada’s international human rights obligations, comply with the Canadian Charter of Rights and Freedoms, honour the contribution that refugees and immigrants make to Canadian society, reflect a spirit of openness and generosity, and recognize the obligations that Canadians have towards the many less privileged people in our unequal world.

This report card evaluates Canada’s recent record by reference to what the CCR believes should be the guiding principles. The focus is laid particularly on the policies and practices of Citizenship and Immigration Canada (CIC), the federal department responsible for immigration and refugee protection.

On June 28, 2002, the Immigration and Refugee Protection Act (IRPA) came into effect, replacing the previous immigration law that had been in force since 1978. This report card reviews the impact, for better and for worse, of this new Act.

The comments on performance are organized under 10 headings, which have been graded according to whether there has overall been significant progress, limited progress or deterioration. In no area was there found to have been significant progress.

• The vast majority of refugee claimants who make it to Canada have their claims referred to the Immigration and Refugee Board (IRB) for a hearing on the merits. (From January to September 2003, less than 1% of claims were found ineligible, i.e. not referred to the IRB)
• IRPA now requires that most refugee claims be referred to the IRB within 3 days. Under the old law, refugee claimants often waited months to have their claim referred.

• The Canadian government has expanded its efforts overseas to prevent "improperly documented travellers", including refugees from travelling to Canada. There are no measures in place to ensure that refugees interdicted by these efforts are not sent back to persecution.
• Beginning January 2003, CIC began "directing back" refugee claimants at the US-Canada border, sending them back into the US even when they knew the claimants would be detained and therefore unable to re-appear to pursue their refugee claim in Canada. As a result, some refugee claimants were denied access to Canada’s protection because the US detained them.
• In December 2002, Canada and the US signed the "Safe Third Country" agreement. Once implemented, this agreement will close the door on most claimants seeking Canada’s protection at the US-Canada border. Even claimants who face detention and less than a full and fair hearing of their refugee claim in the US will be denied access to Canada. The agreement is expected to hurt women in particular, since as the Canadian government itself recognizes, the US does not offer the same level of protection from gender-based persecution as does Canada.
• Under the agreement, Canada will accept referrals for resettlement of refugees interdicted by the US, thus assisting the US to avoid its own international obligations to provide asylum.
• IRPA increases the categories of people denied access to a refugee hearing. Those denied fair consideration include anyone who has ever made a refugee claim in Canada in the past and people who have been granted refugee protection in another country, even if they face persecution in that country.
• IRPA denies a person access to a refugee hearing if a removal order has been made against the person.

• Most refugee claimants have a hearing before the Immigration and Refugee Board, an independent quasi-judicial tribunal.

• The appointment process for members undermines the IRB’s potential as a fair decision-making body. Members are appointed in a political process that allows partisan considerations to trump considerations of candidates’ competency.
• The appeal for refugee claimants provided for by the Immigration and Refugee Protection Act has not been implemented. Despite the fact that their lives may be at stake, refugee claimants have less rights of appeal than Canadians contesting a parking ticket.
• The grave injustice of the lack of appeal is compounded under IRPA by the fact that refugee claimants are now heard by a single Board member (under the old Act, claimants were heard by two members). This only increases the arbitrary nature of the process due to serious inconsistency in the quality of Board members. The fate of refugee claimants lies in the hands of a single individual.
• Because IRPA broadens the grounds for detention, more refugee claimants are detained. By denying them their liberty, the law compromises their right to a fair hearing because of the difficulties of preparing a claim while in detention. Statistics from mid-June to mid-October 2003 show that on average 282 refugee claimants were detained each week.
• IRPA explicitly provides for refugee hearings by videoconferencing, undermining claimants’ right to a fair hearing.
• Some refugee protection decisions are now made by CIC officials through the Pre-Removal Risk Assessment (PRRA). Applicants for a PRRA do not have a right to a hearing. Decision-makers are not members of an independent quasi-judicial tribunal, but civil servants working for the same department that is trying to deport the applicants. There is little accountability since most of those rejected are removed before the Federal Court could have a chance to review the negative decision.

On the positive side:

• The Immigration and Refugee Protection Act expands the grounds for protection to include risk of torture and risk to life or of cruel and unusual treatment or punishment. This means that Canada now offers protection to people who do not meet the narrow definition of the Refugee Convention, but who face torture, death or other grave rights abuses.

On the negative side:

• The UN Convention against Torture, to which Canada is a signatory, prohibits the return of anyone to a substantial risk of torture. Yet IRPA excludes some categories of people from protection from removal to torture. This means that Canada has left the door open to removing people when there is strong evidence they face torture.
• IRPA excludes certain categories of persons from being considered in relation to the Convention refugee definition. This means that some people who are refugees according to the Convention may be denied Canada’s protection and perhaps returned to face persecution

• The Canadian government establishes an annual target for government-assisted refugees (currently 7,500 refugees a year) and provides a budget for the resettlement of these refugees.
• Canada has a program for the private sponsorship of refugees, giving an opportunity for Canadians to offer a permanent home to additional numbers of refugees in need of resettlement.
• IRPA somewhat reduces the barrier created by the "successful establishment" criterion which requires refugees to show that they have good settlement potential in order to be accepted for resettlement. Under IRPA the "successful establishment" criterion is waived for refugees designated ‘vulnerable’ or ‘urgent’. For other refugees, the regulations list factors to be considered in evaluating "successful establishment" promoting greater consistency and attention to the realities of refugees.
• More special needs refugees are arriving under Joint Assistance Sponsorship (JAS).
• Canada shows leadership through its participation in international level discussions on resettlement (within the Working Group on Resettlement and Annual Tripartite Consultations on Resettlement). In June 2003 Canada hosted the first UNHCR Forum (on the theme of resettlement).

• Insufficient visa office time is assigned to processing refugees for resettlement. As a result, processing is often very slow, causing suffering for refugees who wait for months or years in precarious situations. In addition, the shortage of visa office resources is leading to questions about whether the targets for resettled refugees (both government-assisted and privately sponsored) for 2003 will be met. (By the end of October 2003, only 70% of the government target had arrived). If fewer refugees arrive than projected, some refugees lose the opportunity for a permanent home.
• Private sponsors have great difficulty getting information about the status of applications. Combined with the long processing times, this leads to frustration and discouragement among private sponsors.
• Refugees can no longer apply for resettlement directly to Canadian visa posts; now must be referred (except for a few areas). The UNHCR is the only organization authorized to refer, and it has limited capacity. Even refugees with means to support themselves in Canada are effectively barred because of the new rule about referrals.
• Most refugees seeking resettlement in Canada still need to meet the "successful establishment" requirement, undermining the program’s ability to offer protection to those in need. Canada is the only resettlement country to formally exclude refugees from resettlement based on their integration potential.
• CIC is asking for longer undertakings from private sponsors (up to three years), with the effect of reducing sponsorships since sponsoring groups can only take on responsibility for a limited number of sponsorships at one time.
• Applicants for resettlement to Canada have no right of appeal. Informal review mechanisms are not transparent and application for judicial review to the Federal Court is by leave only (i.e. the Court has to grant permission).

On the positive side:

• IRPA makes provisions for the granting of permanent residence to some refugees with few or no identity documents, addressing a longstanding problem that led to thousands of refugees, especially Somali and Afghan refugees, spending years in limbo.
• IRPA provides refugees with a Protected Person document, on the basis of which they can get travel documents.

• Many of the rights to which refugees are entitled under the Refugee Convention are only available to refugees with permanent residence, yet some refugees continue to face long delays or are unable to acquire permanent residence.
• An increasing number of people are in long-term limbo as a result of a moratorium on removals to their country of origin. There is no program under IRPA to allow them to acquire permanent residence.
• The government has not acted to address the situation of the many people living for years without status in Canada.

• Under IRPA, common-law partners (including same-sex partners) are included as part of the family, allowing partners to stay together or be reunited if separated.
• IRPA has expanded the category of family to include children up to the age of 22 years (up from 19).
• IRPA creates the Spouse or common-law partner in Canada class which facilitates family reunion for some.
• Under IRPA, sponsors are responsible for spouses or common-law partners for 3 years instead of 10.
• CIC is now attempting wherever possible to process separated refugee families concurrently, so that family members who are in different parts of the world can be resettled at the same time to Canada.
• De facto family members are considered when refugees are being resettled.
• IRPA creates the "one year window of opportunity" which facilitates speedy reunification for separated refugee families.

• Since the implementation of IRPA, CIC routinely refuses requests for in-Canada processing of family sponsorship applications for persons without status (such as refugee claimants). As a result, families are being separated as one member of the family is deported from Canada, even though an application for sponsorship has been filed.
• People receiving social assistance are denied the right to sponsor their families.
• Fiancés can no longer be sponsored.
• De facto family members of refugees accepted for resettlement must meet eligibility requirements (i.e. show that they themselves meet the refugee definition). This particularly impacts on children who may have difficulty meeting eligibility.
• Despite some improvement in statistics, many families wait years for reunification. The UN Committee on the Rights of the Child recently expressed concern over Canada’s failure to ensure expeditious family reunification.

• The government publicly acknowledges the benefits to Canada of immigration and Canada’s obligations towards refugees.
• Canadian laws and government institutions formally oppose discrimination.

• Enforcement measures have been targeting Muslims and Arabs leading to an increase in prejudice and seriously undermining the sense of security of the affected communities. The conduct of Operation Thread in the summer of 2003, which led to the public labelling of 23 Pakistani and Indian men as "suspected terrorists" on the basis of very flimsy evidence, is a compelling example of how Citizenship and Immigration Canada has promoted a spurious link between terrorism and Muslims and Arabs.
• The government has made increased use of the security certificate process, which denies those affected the basic right to know the evidence against them. The government introduced new citizenship legislation (Bill C-18) that would expand the security certificate process to naturalized citizens. Under this bill, even a citizen could be stripped of citizenship and deported from Canada without a right to hear the evidence.
• The government has done little to counter the myths and stereotypes about refugee claimants that continue to feature strongly in Canadian public opinion.

• Permanent residents are able to apply for citizenship after three years of residence. The vast majority of refugees and immigrants take advantage of this right.
• The Canadian government has recognized the need to improve recognition of foreign credentials and access to trades and professionals, notably in the Speech from the Throne (October 2002).
• The government funds settlement services for newcomers to assist them in participating in Canadian society. New settlement programs are being developed to meet emerging needs (for example, programs in schools and for employment)

• Foreign-trained immigrants and refugees face significant barriers in having their skills recognized in the Canadian labour market. Access to trades and professions remains limited. As a result, many newcomers to Canada are under-employed.
• Government funds allocated to settlement services are insufficient and do not increase on a per immigrant basis when immigration levels go up, nor based on any overall assessment of immigrant service needs.
• Provision of settlement services is inconsistent across the country, with e.g. more advanced language training or better access to specialized employment services available in one part of the country but not another.
• Access to government-funded settlement services is restricted, based on the newcomer’s status and length of time in Canada. This means that specialized settlement services are denied to some who need them, for example, refugee claimants and women immigrants who didn’t have an opportunity to learn English or French when they first arrived.

• The Canadian government has consistently maintained the position that refugee claimants must not be systematically detained.

• IRPA increased powers of detention leading to arbitrary and discriminatory detention practices.
• Many of those detained under immigration legislation (about 50%) are kept in outlying provincial jails alongside criminals, with limited access to services and telephones.
• IRPA broadens categories of people considered inadmissible for criminal and security concerns in ways that include people who have no personal involvement in crime or threats to the security. As a result innocent people are penalized.
• The security certificate, which provides for mandatory long-term detention and secret reviews and evidence, is fundamentally unfair by denying the right to those affected to hear the evidence against them. Mandatory detention is not respectful of human rights.
• IRPA removes the right of permanent residents to appeal to the independent Security Intelligence Review Committee if they are found inadmissible based on a security certificate. This seriously undermines the right to due process.

• IRPA specifies that detention of children is a matter of last resort. The number of children detained has gone down.
• IRPA recognizes in certain places the obligation to consider the best interests of the child.

• IRPA still does not incorporate systematically obligations under the Convention on the Rights of the Child, notably the duty to give primary consideration to the best interests of the child in all decisions affecting a child.
• The detention of some children continues to be a concern. From mid-June 2003 to mid-October 2003, there were on average 17 minors in immigration detention each week. The UN Committee on the Rights of the Child recently called on Canada to refrain as a matter of policy from detaining unaccompanied minors.
• There is still no national policy on separated children seeking asylum in Canada, a lack that recently raised the concern of the UN Committee on the Rights of the Child.

The government itself has committed itself to many of the goals articulated by the CCR above, including through the objectives identified for the Immigration and Refugee Protection Act. The following are the objectives most relevant to the above points.

IRPA 3(1)( j): To work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.