RESETTLEMENT OUT OF SIGNATORY COUNTRIES
POLICY POSITION

October 2000

A.  THE CONTEXT

1. The Canadian Government Proposals and Present Stand

The Canadian government is currently considering the issue of resettlement out of countries that are parties to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. It has identified this issue as "a developing policy area" and is working to develop a "more detailed and formal policy on applications for resettlement from refugees located in signatory countries which are considered to have fair and effective protection regimes" (CIC OP4, 4.2). Citizenship and Immigration Canada has stated that it is preparing an Operations Memorandum in this area.

In a recent discussion paper⁽¹⁾ the Canadian government presented, among other options, a proposal to limit resettlement out of signatory countries. This was offered as one possible way of managing refugee applications. The paper proposes excluding from consideration for resettlement those persons who are located in signatory countries "in good standing", which is explained as having "in place fair refugee determination and protection systems". An exception is foreseen in situations where "the Minister determined that it would be appropriate to engage in burden sharing in order to assist with an extraordinary or overwhelming number of asylum applicants".

In the view of the Canadian Council for Refugees, the proposal to limit resettlement out of signatory countries runs counter to the goal of refugee protection. In other words, such a restriction will have the effect of closing the door on refugees in need of protection, rather than being a useful tool for the government in "managing the flow of applications".

This paper was developed as a result of concern about the government's proposals. Its main objective is to set out the reasons why resettlement should not be denied or restricted on the basis that a refugee is in a signatory country.

2. What do different documents say about resettlement out of signatory countries?

2.1 Canadian regulations
The Immigration Regulations, 1978 define a "Convention refugee seeking resettlement" as, in part, a person for whom "there is no possibility, within a reasonable period of time, of a durable solution". Similar words are used in the definition of "member of the country of asylum class" and "member of the source country class" (Humanitarian Designated Classes Regulations). "Durable solution" is defined as voluntary repatriation to the person's country of citizenship or of habitual residence; resettlement in that country, in a neighbouring country or in the country of asylum; or an offer of resettlement by a country other than Canada.

2.2 The CIC OP4 Chapter
The CIC document OP4 (Overseas Selection and Processing of Convention Refuges seeking Resettlement and Members of the Humanitarian Designated Classes, a chapter of the Immigration Manual) gives an outline of Canada's refugee policy, defines basic terms and provides guidelines for processing applications from refugees seeking resettlement overseas.

The issue of resettlement out of signatory countries is addressed in more detail in Section 4 ("The Application") where a long paragraph is devoted to the question "What if the applicant is applying in a country that is a signatory to the Convention or the Protocol?". The following extracts are of most relevance:
 

The degree to which countries have implemented the standards outlined in the Convention and the efficacy of refugee protection regimes established in signatory countries varies greatly, however, in their scope and effectiveness [sic]. This variation occurs partly because of the numerous reservations made by States to different Articles relating to standards of treatment outlined in the Convention, partly because various Convention Articles have not been enacted in domestic legislation and partly because though enacted they may not be enforced or otherwise put into practice. ("What if the applicant is applying in a country that is a signatory to the Convention or the Protocol?" 4.2, p.10)

... 'resettlement in the country of asylum' should be interpreted in the same way as the durable solution of 'local integration'. This means the local settlement and integration of refugees in the country of first asylum so that they can live independently with human and civil rights such as the right to marry, practice one's religion, own property, work (and thereby participate in the local economy and support themselves and their family) and have access to education, housing etc. as laid out in the Convention. (4.2, p.11)

Refugees in countries of asylum which provide these, or similar, rights are generally considered to have effective protection ... unless they have a credible claim of persecution against the country of asylum itself... (4.2, p.11)

... Canada's refugee legislation operates independently of protection regimes established in other countries, even in countries which provide effective asylum. (4.2., p.11)

The increased emphasis being placed on family reunification as a fundamental humanitarian principle found in the Convention ... means that this particular category of cases should be examined with a somewhat greater than normal degree of flexibility wherever the applicant is located. (4.2., p.11)

Other important extracts from elsewhere in the OP4 are:
 

Resettlement may also be used as a 'burden sharing' mechanism by which countries such as Canada facilitate moderate resettlement of refugees from countries of first asylum. These countries host hundreds of thousands, and in some cases millions of refugees over long periods of time, incurring in the process tremendous stresses and strains on the resources, environment and social fabric of their societies. ("What is resettlement ?" 1.5, p.2)

You may receive private sponsorships for persons who are not, strictly speaking, in need of resettlement in Canada because they are in a signatory country and have protection. Many signatory states, however, offer only temporary status to asylum seekers. These persons therefore are not permanently resettled and may be eligible for resettlement in Canada even though they may not be immediately in need of resettlement per se ... Keep in mind the fundamentally humanitarian nature of the resettlement program and the principle of family reunification." ("Can refugees in a country of asylum signatory to the Convention or Protocol be selected for resettlement in Canada?" 6.5, p. 22)

2.3 UNHCR Resettlement Handbook

The UNHCR Resettlement Handbook speaks of resettlement in the context of "durable solutions". Of these there are the following:

(1) voluntary repatriation of the refugee to his or her country of citizenship or residence.
(2) local integration in the country of first asylum.
(3) resettlement.
 

The following extracts are of relevance:

Refugees may be denied basic human rights in a country of refuge; their lives and freedom may be threatened by local elements driven by racial, religious or political motives, or by attacks and assassinations directed from the outside. The authorities in the country of refuge may be unable or unwilling to provide effective protection. In such circumstances, resettlement becomes not a solution of last resort, as it has often been called, but a principal objective. (Chapter 1: "Resettlement: A Vital Instrument of International Protection," p.1)

Resettlement is an essential element in a comprehensive strategy of refugee protection and the attainment of durable solutions. (Chapter 2: "Search for lasting solutions", p.1)

The goal in resettlement is to enhance, not diminish, asylum and protection prospects for the entire refugee population. (Chapter 2, p.5)

The decision to resettle a refugee is normally taken, with priority, where there is no alternative way to guarantee the legal or physical security of the person concerned. (Chapter 2, p.5)

3. The practice of other countries

None of the eight resettlement countries listed in the UNHCR Resettlement Handbook bars resettlement out of signatory countries or has measures to that effect. (vide "Country Chapters").
 

B.  THE CCR POSITION

The CCR stated in its Resolution 5 from December 1999 ("Resettlement from signatory states"):
 

Persons in signatory states, including states with refugee determination systems, should continue to be eligible for consideration for refugee resettlement to Canada, regardless of the status or result of the refugee application.

Before addressing the specific CCR concerns with the signatory country proposal, it is worth noting that 139 states are parties to the 1951 Convention, to the 1967 Protocol or to both. All 139 states are "signatory countries". Among them are Germany, Guatemala, Luxembourg, Liberia, Sweden, Sudan, Netherlands, Niger, Finland, Burkina Faso, Denmark, China, Yemen, Iran and more than one hundred other countries.

In fact it often appears that the real intention behind proposals referring to signatory countries is to limit or stop resettlement out of European countries. This goal is different, but no more acceptable.
 

1. Signatory countries do not always offer refugees protection

The mere fact that a country has signed the Convention does not mean that it will provide adequate protection, and thus that refugees needs will be met and rights guaranteed. As OP4 notes, the reservations made by states when acceding to the Convention and Protocol may seriously curtail the rights of refugees which the Convention and Protocol sought to guarantee. When we add to that the fact that many states prove to be either willing or unable to live up to their Convention obligations, the legal position and actual situation of refugees in many countries is far from stable or clear.
 
 

It is not uncommon for a refugee's life to be at risk and for the host state to be unable or unwilling to provide protection. This situation is not exclusively reserved for non-signatory countries: it also occurs in signatory states. This may be due to numerous reasons. In some cases even though a refugee has fled to another country, she or he is still in fear of being persecuted because of the closeness of the persecutor, who may have the means to harass and persecute her or him in the country of refuge. An unstable situation in the host country may also contribute to refugees lacking permanent protection.

Furthermore, some countries have adopted a restrictive interpretation of the Convention and Protocol. The most well-known cases are that of Germany and France, two countries that have adhered to the "accountability" theory. Until just recently, the German practice required that a refugee fear persecution by a State or by a quasi-State authority. In the case of persecution by non-State agents, the persecution had to be tolerated or encouraged by the State, or the state had at least to be unwilling to offer protection. In August 2000, this interpretation was struck down by the Federal Constitutional Court, offering hope to refugees from Afghanistan and other countries afflicted by civil war. It remains to be seen how the ruling will affect refugee determination in Germany.
 

Similar concerns apply to areas where Canadian refugee law provides protection while the other countries do not. For example, many countries do not offer protection to refugee women fleeing gender-related persecution, whereas in Canada jurisprudence and the IRB guidelines make clear that the Convention definition should be interpreted to cover refugees in this category. Similarly, some countries deny protection to refugees fleeing persecution based on their sexual orientation, who under Canadian law would be entitled to protection.

Therefore preventing resettlement of refugees from signatory countries would affect refugees who are denied protection in some countries beccause of narrow interpretations of the refugee definition. No matter how well-founded their fear, they would also be ineligible for resettlement to Canada. This would amount to Canada legitimizing the narrow interpretation of the Convention taken by some countries, in contradiction with Canada's own policy and jurisprudence.⁽²⁾

CIC's proposals recognize that not all signatory countries offer refugees protection. They propose that resettlement be barred or limited out of signatory states in "good standing" or that have "fair and effective protection regimes". This kind of qualification, while in principle offering some reassurance, is of little or no practical use. There is no internationally accepted measure of states in "good standing". Nor is there a credible mechanism capable of certifying states as having "fair and effective protection regimes". Any attempt by Canada to class states as in "good standing" or as not in "good standing" will have as rough a ride as the attempt to identify "safe third countries": the same problems of a political, juridical and factual nature apply.

Even where a country may offer many refugees effective protection, there will often be individual refugees for whom the protection, for one reason or another, is ineffective.
 

It is important to emphasize that the Convention covers more than the right to non-refoulement. It guarantees a range of rights to allow refugees to get on with their lives. Too often little attention is paid to these rights when considering whether or not a State protects refugees; too often these rights are not in fact respected. Resettlement is offered as a durable solution to refugees. Those 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.

Another problem arises in relation to processing of sponsorships by Canadian officials overseas. For example, the visa officers in Berlin have indicated that refugees need to exhaust all the options in Germany before they can be considered eligible for resettlement in Canada. In order for all possible appeals to be completed, considerable time can elapse. When private sponsors inquired about what would happen to their sponsorship cases, they were told that pending a final decision in a signatory country their sponsorship application will be closed. This approach is problematic. In some countries the acceptance rate for refugees is very low and the outcome of appeals may be foreseen in advance. If it is negative to the applicants, they often face deportation within weeks of the final decision. In this context what guarantees can the Canadian government give to private sponsors that the person will not be refouled from a signatory country while awaiting Canada's assessment of his or her resettlement application? If a Sponsorship Agreement Holder has decided that a refugee is eligible for resettlement, it has likely done screening before aiming at this conclusion. Each application should be processed in full, including interview and evaluated on its individual merits.
 

2. International legal standards concerning refugee rights

The question of whether a refugee has a "durable solution" locally can usefully be approached from the perspective of international human rights standards, which like the Convention point us to rights that go beyond protection from refoulement.

In many countries, refugees may not be granted Convention refugee status, but instead protected under some kind of "humanitarian class." The range of rights provided to those in such classes is frequently much narrower than that offered Convention refugees. For example, there are often limits on family reunification, right to exit and work etc. This means that the needs of the refugee and his or her potential integration are being compromised.

In assessing whether a refugee has adequate protection, emphasis needs to be placed on the kind of rights given to refugees in view of their status and on whether they match up to international human rights standards, for example as articulated in the International Covenant on Civil and Political Rights (especially Articles 2, 3, 7, 9, 12, 13, 14, 18, 23, 24 etc), the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child (especially articles 2, 3, 9, 10) and other regional or international human rights instruments. CIC's Chapter OP4 states that "local integration" needs to be evaluated by reference to the level of respect for human and civil rights (4.2, p. 11).

A brief submitted in 1998 by FIAN International, an NGO working for the human right to feed oneself, examines Germany's compliance with the Covenant on Economic, Social and Cultural Rights. It points to a systematic denial of some of these rights in the case of asylum seekers and refugees. The brief reports that by law, by jurisprudence and by practice, asylum seekers and refugees are entitled to lower standards of treatment than German citizens. As a result, they are expected to live on less money than the minimum for Germans, live in housing that is unacceptable for Germans, eat food in quantities and of standards below what is necessary to maintain good health and denied medical care.⁽³⁾
 

3. The objective of "burden sharing"

One of the policy objectives of Canada's resettlement program is to provide a mechanism of 'burden sharing', "by which countries such as Canada facilitate moderate resettlement of refugees from countries of first asylum" (OP4, 1.5, p. 2). If Canada decided to resettle only out of countries that are not signatory, it would be sending a message that it would only assist countries strained, economically, socially and environmentally, by large number of refugee arrivals if the countries have not signed the Convention.

The Discussion paper "Managing the Flow of Applications" recognizes that the goal of "burden sharing" is not consistent with a bar on resettlement out of signatory countries and contemplates exceptions to the general rule.⁽⁴⁾ However, given that "burden sharing" is one of the basic objectives of resettlement, it is difficult to see how relying on exceptions to the rule would be an effective way of managing the resettlement program. A significant proportion of refugees resettled to Canada come from countries of asylum that are signatory countries. Are they all to be designated as "exceptions" to the rule? By what process?
 

4. The proposal runs counter to the objective of family reunification

Resettlement is a useful tool in aiding refugee family reunification. This goal is emphasized in Bill C-31 where it is described as "a fundamental humanitarian principle...which is key to our current and future policy direction." As many refugee families are dispersed all over the world, limiting resettlement to non-signatory countries would in fact also limit the possibilities of facilitating family reunification. Resettlement is an instrument serving to fulfil obligations Canada undertook as a signatory country of the Convention on the Rights of the Child, in respect of family reunification.
 

5. The proposal contradicts the "partnership principle" between the government and private sponsors

The Refugee Resettlement Model (RRM), espoused by the government as a means of reinvigorating resettlement, promotes partnership between the government and private sponsors. The signatory country proposal runs counter to the "partnership principle."

Where sponsorship applications are made for refugees in signatory countries, the government needs to have more confidence that sponsors will have selected people that are in genuine need of resettlement. Data supplied by private sponsors should reassure the government of this: statistics from two sponsors show that the majority of applications for persons in signatory countries in Europe were accepted by the government.⁽⁵⁾
 
 

Sponsorship Agreement Holders are receiving ongoing training through the Refugee Sponsorship Training Program to assist them in developing sound applications, understanding the eligibility criteria and other selection criteria and providing information with their applications to support the eligibility of those they wish to sponsor. This training will also extend, where possible, to Groups of Five.

This data seems to be supported by data provided by the CIC. In 1998 the posts based in Europe (Ankara, Bonn, Paris, Belgrade/Vienna) had an average refusal rate for private sponsorships of 40% (compared to the worldwide average rate of 49.3%) and in 1999 the rate for these posts was 47% (compared to the total average of 48.5%).

The fact that significant numbers of refugees have been accepted for resettlement by the government out of signatory countries (including European signatory countries) suggests that from the government perspective too there are refugees in such situations who are eligible for resettlement. Any restriction on the basis of presence in a signatory country risks denying these refugees a durable solution.

If on the other hand the government is concerned that private sponsors are submitting unfounded and ineligible cases, the issue should be addressed through education and support for private sponsors.
 

C. CONCLUSION

For the reasons mentioned above the CCR opposes the introduction of a restriction on resettlement out of signatory countries. It would undermine the goals of resettlement in offering protection to refugees and in "burden sharing". It contradicts Canada's family reunion goals set and shut the door on what for many refugees is the only durable solution available. Instead of such a proposal the government should promote dialogue between CIC and private sponsorship agreement holders about the need for resettlement.
 

Notes

1. "Managing the Flow of Applications: A Discussion Paper", August 2000

2. Of course, resettling refugees out of countries that apply a narrow definition does not address the broader issue of the inadequacy of refugee protection régimes which exclude some refugees from the scope of the refugee definition. The CCR encourages the Canadian Government to work at the international level to promote more effective refugee protection régimes worldwide. While inadequacies continue to exist, however, resettlement remains one response by which individual refugees can be assured protection.

3. Social Human Rights in the Federal Republic of Germany: Parallel Information to the third report of the Federal Republic of Germany concerning the Rights enshrined in the International Covenant on Economic, Social and Cultural Rights, Submitted at the occasion of the 19th session of the Committee on Economic, Social and Cultural Rights (16 November - 4 December, 1998) by FIAN International.Available at http://www.proasyl.de/texte/fian.htm

4. "...situations in which the Minister determined that it would be appropriate to engage in burden sharing in order to assist with an extraordinary or overwhelming number of asylum applicants."

5. It is worth noting that overall acceptance rates for private sponsorship applications have been below 50% in recent years.