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Article Excerpt
Abstract
In order to achieve secure status in Canada, asylum seekers must go through a lengthy, three-stage procedure involving (1) eligibility determination, (2) refugee status determination, and (3) application for permanent residence. Applicants are screened for security and criminality at both the first and third stages. During the third stage, which can take upwards of eighteen months, refugees find themselves in "legal limbo": as recognized refugees they have the right to remain in Canada, but beyond that their rights are significantly curtailed.
The author argues that the repeat screening at the permanent resident stage is unnecessary and redundant, and that the resulting delay in access to basic rights violates Canada's international obligations. The article concludes with a proposal that permanent resident status be granted automatically to refugees upon recognition as refugees.
Resume
Pour obtenir un statut sur au Canada, les demandeurs d'asile doivent se soumettre a un long processus de selection, comprenant (1) la determination d'eligibilite, (2) la determination du statut de refugie, et (3) la soumission d'une demande pour le statut de resident permanent. Les candidats subissent une procedure de selection sur dossier axee sur des considerations de securite et de criminalite a la premiere drape et, de nouveau, a la troisieme etape. Durant la troisieme drape, qui peut prendre jusqu'a 18 mois, les refugies se retrouvent dans un etat juridique indetermine: en rant que refugie reconnu, ils ont le droit de rester au Canada; mais raise a part ce fait, leurs droits sont sensiblement restreints. L'auteur soutient que l'examen au peigne fin une nouvelle fois, au stade de resident permanent, est superflu et redondant, et que le delai a l'acces aux droits fondamentaux qui en decoule fait que le Canada enfreint ses obligations internationales. L'article conclut avec une recommandation que le statut de resident permanent soit automatiquement octroye aux refugies des l'instant oh ils sont reconnus comme refugies.
Introduction
In 2003, the Government of Canada selected 7,505 women, men, and children seeking asylum from persecution and brought them to Canada from overseas. Churches and other private groups sponsored a further 3,247 refugees, while 11,250 refugees who claimed protection after coming to Canada on their own were granted permanent residence in 2003, along with 3,958 of their dependants overseas. (1)
For those refugees brought to Canada by the government or sponsoring groups, arrival at the border generally marks the end of a long road. Upon arrival they are granted permanent resident status and can apply for Canadian citizenship three years later. For those who make it to Canada on their own and seek asylum at the border or within the country, however, arrival in Canada marks the beginning of a whole new ordeal.
Canada's refugee program is rooted in international law. The individual right to asylum is enshrined in the Universal Declaration of Human Rights (UDHR), which states: "Everyone has the right to seek and to enjoy in other countries asylum from persecution." (2) The 1951 Convention relating to the Status of Refugees (3) and its 1967 Protocol (4) give content to the right guaranteed by the UDHR, by setting out the obligations of states with respect to asylum seekers. States that have become parties to the Convention are bound by Article 33 not to expel or return ("refouler") a refugee "to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." (5) The prohibition on refoulement specifically to torture is also provided for in Article 3 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, (6) and Article 7 of the 1966 International Covenant on Civil and Political Rights. (7) So well entrenched is the principle of non-refoulement to torture that it has evolved into a customary norm of international law, (8) applicable to states regardless of whether they are parties to one of the relevant conventions.
As a result of the principle of non-refoulement, states parties are obliged to consider the claims of those who request asylum in their territory or at their frontier. Canada's Immigration and Refugee Protection Act (9) (IRPA) reflects these principles by providing for the conferral of refugee status, or "protected person" status. (10) In order to receive such protection, claimants must meet a refugee definition based on the Refugee Convention, or show they face a risk of torture, a risk to life, or a risk of cruel and unusual treatment or punishment, as set out in the Convention Against Torture. They must also meet certain eligibility and admissibility criteria, as discussed below. Once they have been formally recognized as refugees and granted Canada's protection, refugees are entitled to remain in Canada. (11)
Recognition as a refugee or protected person, however, does not result in refugees receiving equal treatment with other residents of Canada. While protection from refoulement is generally the most immediate concern for most refugees upon arrival, other key rights protections are not available to them even after refugee protection has been granted. In order to enjoy the full range of rights enjoyed by other residents of Canada, refugees must apply for and be granted "permanent resident" status. Only after such status has been granted are refugees in a position to become full and (nearly) equal (12) participants in Canadian society.
Three steps to permanent status
Refugee protection claimants seeking Canada's permanent protection must proceed via a three-step process of (1) eligibility, (2) refugee status determination, and (3) permanent residence. (13)
Step 1: Eligibility Determination
Under the Immigration and Refugee Protection Act (IRPA), protection claimants must pass an "eligibility" determination before their protection claim may be heard by the Refugee Protection Division of the Immigration and Refugee Board (IRB). Eligibility determination includes both administrative matters and a criminality and security screening. Under section 100 (1) of IRPA, immigration officers have three working days (seventy-two hours) from receipt of the claim to determine whether the claim is eligible to be referred to the Refugee Protection Division. If the three days pass without a determination by the immigration officer who received the claim, then the claim is "deemed to be referred." (14) (It is worth noting, however, that in the event that information comes to light after referral, the immigration officer retains the power to reclassify the claim as ineligible, suspending and eventually terminating consideration of the claim by the Refugee Protection Division. (15))
Further to a January 2003 directive issued by Citizenship and Immigration Canada (CIC), officials must interview all refugee claimants arriving at the border to elicit information for admissibility, security, and criminality screening. The policy is to have "a full and complete front-end screening (examination) before the claimant is allowed into Canada." (16) Where, due to high volumes of arrivals or insufficient resources, officers find they are unable to complete the eligibility determinations within the stipulated three working days, the directive instructs them to detain (17) or "direct back" claimants as measures of last resort. IRPA gives immigration officers discretion to detain a refugee claimant, without a warrant, in a variety of circumstances, including:
* in order to complete an examination, (18) or
* if the officer has "reasonable grounds to believe" the person is inadmissible and poses a danger to the public, (19) or
* if the officer has "reasonable grounds to suspect" the person is inadmissible on grounds of security or for violating human or international rights, (20) or
* if the officer "is not satisfied of the identity of the foreign national ..." (21)
Until their claim has been referred to the Refugee Protection Division, claimants have no legal status in Canada and are extremely vulnerable. Not only may they be detained without a warrant (this may also happen after referral), they are also ineligible to work, study, or receive social assistance or publicly funded medical care.
Step 2: Refugee Status Determination
Claims that are found or deemed eligible are referred to the Refugee Protection Division of the IRB, a quasi-judicial tribunal. A one-member panel (22) makes a determination of the merits of the protection claim, usually following an oral hearing. (23) While the lion's share of the Refugee Protection Division's work involves assessing whether a claimant should be granted protection, it should be noted that the Division also applies the "exclusion clauses" of the Refugee Convention. The exclusion clauses allow states to deny refugee status to claimants for whom, though they may meet the definition of a Convention refugee, there are serious grounds to believe they have committed a crime against peace, war crime, crime against humanity, serious non-political crime, or "acts contrary to the purposes and principles of the United Nations." (24) This is a second opportunity to screen out persons believed to pose a security or criminal threat to Canada or Canadians. In addition, if evidence later comes to light indicating that refugee protection was obtained fraudulently, the Minister may at any time seek to revoke ("vacate") that status. (25)
The average processing time by the Refugee Protection Division is approximately twelve to sixteen months. During this period, claimants may apply for and are generally granted a temporary, renewable student authorization. (26) If they are unable to otherwise support themselves, claimants may apply for, and are generally granted, a temporary, renewable employment authorization. (27) There are, however, restrictions on the types of...
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