Migration Challenges and Opportunities for Canada in the 21st Century
A submission by Jamie Chai Yun Liew to the Standing Committee on Citizenship and Immigration (CIMM)
October 18, 2018
Refugee Protection and Addressing Statelessness
My name is Jamie Liew and I a refugee lawyer and an associate professor from the Faculty of Law, University of Ottawa.
In my limited time today, I am submitting three recommendations:
- Repeal section 117(9)(d) of the Regulations
I am providing to the committee a written copy of research co-authored with two other lawyers that calls for the repeal of section 117(9)(d) in the Immigration and Refugee Protection Regulations which excludes as a member of a family class a family member that was not disclosed and/or examined before the sponsor came to Canada. This regulation imposes a lifetime bar to refugees and other migrants from sponsoring their family due to nondisclosure of a family member that has nothing to do with fraud in 90% of cases. Tragic reasons like an assumed death of a child leads to permanent family separation. This regulation is overbroad and unnecessary given other tools in the immigration legislation. I invite the members of the committee to review this paper and consider how this impacts refugees separated from their family and Canada’s longstanding commitment to family reunification.
- A Holistic Refugee Protection Framework
Second, when Canada is considering what its refugee protection framework should look like, it should not look at its overseas activities separate from its inland protection scheme. The focus should not be how requests for refugee protection come to Canada.
Much of the public discussion surrounding the issue of managing our border has been to cast the resettled refugees as good, law abiding persons waiting in line, while those coming to our borders as those that are queue jumpers, law breakers and less deserving. The government has a role in shaping the way that migrants are seen in public through policy and laws and rather than talking about refugee protection in the resettlement context as the legitimate way and those coming inland as a means to discourage, we are sending damaging and dangerous messaging that is not aligned with our international legal obligations. I encourage the committee to think about refugee protection and the effects and links the resettlement process has with the inland protection system. I am therefore recommending the reforms that would allow migrants to go to official ports of entry, putting trust in our well-oiled system rather than crafting make-shift border posts. I have recommended to this committee in the past to eliminate the Safe Third Country Agreement. I provide the committee again with a copy of my submissions provided in July of this year.
- Address Statelessness
Third, I want to draw the committee’s attention to the issue of statelessness. The UNHCR states that there are over 10 million stateless all over the world. In recognizing this as a global problem, the UNHCR commenced a 10-year campaign in 2014 called #IBelong to end statelessness by 2024.
Stateless persons have difficulty accessing health care, education, and social services. Without status, stateless persons cannot work. They are at risk of being detained and because there are sometimes no prospect of removing the person to another country, they can be indefinitely held in immigration detention. In other cases, they are removed to a place where they suffer further hardship because they are stateless. Their lives are in limbo.
I first want to discuss how the lack of citizenship may be the cause of displacement and forced migration. Indeed, the denial or the stripping of citizenship is a political tool that encourages discrimination, oppression and in the case of the Rohingya in Myanmar, genocide.
While it may be clear, for example, for the Rohingya, that some stateless persons may also be refugees, in many situations, stateless persons do not meet the requirements in law to qualify for refugee protection.
Canada has provided some relief in the form of policy guidelines for permanent residence applications on humanitarian grounds and also the ability to apply to the Minister to grant citizenship to a stateless person in the Citizenship Act. These two legal mechanisms however are an exercise of discretionary power that is seen as an exception to the rule and is an avenue that should not be used as a means of circumventing the normal immigration or citizenship process.
While there are potential avenues existing within the citizenship and immigration framework by which some stateless persons may gain status, for many, they simply do not qualify or are at the whim of pure discretion.
As a leader in refugee protection, Canada can also become a leader in providing protection for stateless persons by creating a holistic legal framework by which stateless persons can have a true chance at accessing not only permanent status but also citizenship as a durable solution. Canada can begin by legally defining and investigating the depth of statelessness in Canada. My recommendation is to identify and track stateless persons while creating legal mechanisms geared towards providing a pathway for citizenship dedicated to stateless persons.
Secondly, it is important to understand that Canada is a signatory to the 1961 Statelessness Convention but not a party to the 1954 Statelessness Convention. The 1961 Convention establishes a framework to guide states in preventing statelessness from occurring while the 1954 Convention establishes positive obligations on states towards stateless individuals. Arguably aspects of both Conventions are becoming customary international law.
Canada has a stateless population of its own in which it should address. More research needs to be conducted with regards to how Indigenous persons who don’t have citizenship want to be recognized as citizens within Canada. As well, stateless persons who have a dominant and effective link to Canada by, for example, spending their entire lives here should be given a pathway to citizenship.
I point out Canada’s international obligations here also because there has been recent talk about eliminating birthright citizenship. I have conducted research in other countries where birthright citizenship is not present and can attest that there are several reasons why this policy should not see the light of day.
This discussion is fueled by the fear migrants may be engaging in birth tourism. Existing data however shows only 0.1 percent of total births can be characterized as such. This is not a problem worth eliminating birthright citizenship for.
Second, if we are going to talk about efficient management of the administrative processing of citizenship applications, such a policy would demand more tax dollars towards a more complicated citizenship application process because everyone would have to apply for citizenship. Proving citizenship will be more difficult and this policy will inevitably create greater numbers of stateless persons within our borders.
I leave you with this. My father was stateless before he immigrated to Canada. He was lucky because at the time he qualified as a low-skilled worker. He would not qualify under today’s system. I was born on the heels of him obtaining citizenship in Canada but had the government of the time not changed the residency requirements from five years to three years, I would have been born in Canada while my father was stateless. If birthright citizenship did not exist, I may not have become a Canadian. I am living proof that welcoming stateless persons to Canada with the conferral of citizenship is the best way to build a nation.