Submissions to the #CIMM Standing Committee (October 18, 2018)

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

 

Introduction

 

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.

 

 

 

 

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My submissions to the Parliamentary Standing Committee on Citizenship and Immigration

Impact of Irregular Crossing of Canada’s Southern Border

A submission by Jamie Chai Yun Liew to the Standing Committee on Citizenship and Immigration (CIMM)

July 24, 2018 

Managing Refugee Claims at the Border


Introduction

 

My name is Jamie Liew and I a refugee lawyer and an associate professor of law from the University of Ottawa.

 

Selecting Refugees

 

I want to first respond to the idea that assessing refugee claims should be done within the framework of a plan and that there is a “process related to the selection of humanitarian immigrants”.

 

When we are talking about processing refugee claims there are 3 things this committee should keep in mind.

 

  • FIRST, Canada has an international legal obligation not to return a person to risk as it is a signatory to the Refugee Convention and the Convention against Torture. [Article 33(1) of the Refugee Convention and article 3(1) of the Convention against Torture espouse the principle of non-refoulement] Once they have asked for refugee protection, we must assess it properly. A refugee claimant cannot be punished for the way in which they came within our borders.

 

  • SECOND, there are a number of factors driving people to move, including those out of Canada’s control. People have been and are coming regardless of what Canada does to discourage or encourage them to come. The committee should not conflate the refugee protection program with other immigration streams. It is a unique program where people are not necessarily selected and where the requirements to qualify as a refugee are different from the criteria in any other stream. Questions about whether those crossing our borders speak our official languages or what skills they have is irrelevant. What is relevant is whether the person fits the refugee definition.

 

  • Finally, refugees should not be pitted against each other. There is no queue. Sure, Canada can voluntarily select persons overseas to resettle but refugees abroad waiting in refugee camps are no more or less deserving than those refugees that eventually obtain protection by coming through our land borders. While the levels plan can be amended to an estimated number of persons that may be expected to come for budgetary planning, ultimately, we should not be preoccupied with quotas or levels because we have an international obligation to meet.

 

Safe Third Country Agreement

 

This committee has also heard that one plan the government should undertake is to close the loophole in the Safe Third Country Agreement. It is my recommendation today, that in managing the border in the words of one Member of Parliament, in “a planned, orderly, and compassionate manner” we should suspend the STCA immediately.  There are two reasons why:

 

  • FIRST, the STCA’s original purpose was to reduce the pressures faced by the IRB in terms of the number of claims being made but that it would not adversely affect the situation of asylum seekers. The STCA primarily benefits Canada and the US agreed to it in order to put in place post-9/11 measures on its border. Since its inception, the STCA has not done what it promised which is prevent refugees from coming into Canada.

 

  • SECOND, since 2002, concerns were expressed in the House and Senate about the STCA. Indeed, the Senate, in its 2002 report on the Safe Third Country Regulations to this very same committee highlighted the very risks we see people experiencing today. The Senate then and advocates today have called for a review of this agreement due to these risks. I have reviewed information coming out of the US on the impact of the STCA and I want to highlight a few for you.

 

  1. Canada is putting people at risk by turning people away at official ports of entry.

 

For example, one Rwandan woman went to an official port of entry, was interviewed by several Canadian border officials over the course of five hours. She was shocked that no one asked her why she was claiming asylum. After giving her fingerprints and signing documents she was driven back to the US border where she underwent more interviews, was handcuffed and detained in solitary confinement for 10 days before being released among the general population in the prison. When she was released from detention she came to Canada by making a dangerous journey through an unofficial border crossing. I understand Mr. Seidoo is coming to speak and I think he is the best person to articulate the risks of crossing our border irregularly.

 

  1. Canada is violating its international obligation to properly assess refugee claims by turning a blind eye to the improper treatment of refugee claimants in the US including: the detention of people, the use of an expedited process and denying claims based on gender-based persecution.

 

Detention and expedited processing – American attorneys attest that the US government is apprehending people traveling on public buses and trains to prosecute them on criminal charges of illegal entry regardless of whether an asylum claim has been made. Persons may be given a credible fear or reasonable fear interview and if they do not pass, they may be removed from the US. Attorneys tell us these are cursory interviews where persons can be denied on the spot without an opportunity to obtain a lawyer or develop and present their claims for protection and can be deported quickly thereafter.

 

American Attorneys also state that immigration detainees are being held in criminal facilities and are subject to solitary confinement. There is insufficient medical care in detention and little access to interpretation or legal services.  A significant number of immigration detainees are not eligible for bond. Children and entire families are being detained. Attorneys have seen their clients experience PTSD and suicidal ideation as a result of prolonged detention.

 

Gender-Related Refugee Claims – Attorney General Jeff Sessions issued a precedential decision which effectively eliminates a woman’s ability to obtain refugee protection based on domestic violence or other forms of gender-related persecution. [Harvard professor Debra Anker has stated the US interprets and applies the refugee definition in numerous ways that disadvantage women making claims for asylum based on domestic violence and gender-based persecution.]

 

This is all too real for Ms. L from Honduras, for example. She was kidnapped as a teenager, held in captivity and raped and beaten for months, including attacks with a machete. Thereafter for more than 10 years Ms. L was stalked and threatened. Hit men were hired to kill her domestic partner. Ms. L has had to move to different parts of Honduras and eventually fled to Mexico but was deported back to Honduras. Ms L’s abuser moved back in with her and continued his brutal abuse. She fled for the US where she was detained. Even though an immigration court found Ms. L credible, refugee protection was denied despite evidence of gender-based violence and the Honduran government’s unwillingness to protect her.

 

[Another example is Magdalena and her six-year old daughter Maria who fled Guatemala to escape abuse by her husband. On arrival in the US, Magdalena was separated from her daughter and criminally prosecuted for illegal entry. Maria was taken to a facility for unaccompanied minors. After five months in detention Magdalena was deported back to Guatemala where she is hiding from her abuser. Maria has since been released to a family member and is pursuing a refugee claim.]

 

Conclusion

 

I want to close by saying the government should be interested in managing the border in an orderly and compassionate way and there are three steps to this. First, suspend the STCA. Allow people to present themselves in a regular fashion at official border crossings not make-shift ones like at Roxham Road. Second, give each person coming to our border a fair opportunity to present their claim at the IRB because we can no longer be assured people are getting a chance to so in the United States.  Finally, fund the IRB appropriately to hear their cases in an efficient manner. I am open to questions to my remarks today. I have included a copy of: Canadian Council for Refugees, Why the US is not safe for refugees: challenging the Safe Third Country Agreement (which can be found here: http://ccrweb.ca/en/why-US-not-safe-challenging-STCA).

Draft Paper: Troubling Trends in Canada’s Immigration System Via the Excluded Family Member Regulation: A Survey of Jurisprudence and Lawyers

Co-Authored with Prasanna Balasundaram and Jennifer Stone, here is a new paper on a problematic regulation that prevents family reunification in Canada.

Abstract:

When a law purports to combat a problem, many of us take for granted that it is doing it effectively, and that it in turn is not harming people. This paper looks at one regulation that, while aiming to protecting the integrity of the immigration system, in fact erodes the humanitarian and compassionate objective of reunifying families and imposes harm on persons within and outside of Canada. Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations imposes a life-time ban on sponsoring a family member if the sponsor, when immigrating to Canada, did not disclose the existence of the family member and therefore have them examined by immigration officials.

This piece investigates the harms imposed by regulation 117(9)(d) by conducting two surveys: a survey of case law and a survey of lawyers. The findings are alarming. First, in looking at the reasons for non-disclosure and non-examination, 90 percent of cases had nothing to do with fraud, but involved tragic and heartbreaking reasons. Second, even in cases where children were involved, the best interests of those children did not lead to greater rates of family reunification. Third, while the courts have pointed to alternative remedies such as humanitarian and compassionate assessments, the surveys reveal that this, at best, only provides relief to half of the 90 percent not engaged in fraudulent activity. Finally, this regulation not only imposes family separation, but it also punishes sponsors who engaged in “misrepresentation” via non-disclosure of a family member, and places a chill on persons seeking alternative remedies to bring their family to Canada. The paper concludes that the problem of fraud in family reunification is overblown, and that regulation 117(9)(d) does more harm than good and should be repealed.

Why Monsef is the canary in the mine – Reform citizenship revocation

Just last year we were celebrating Maryam Monsef and how she came to Canada as a refugee and is now a Cabinet Minister in the Canadian government.

This week, after revelations that she was not born in Afghanistan, but in Iran, calls have been made for her to step down.

The revelation that she was born in Iran and not Afghanistan should be cause for concern for her in the legal sense.

Section 10 of the Citizenship Act states:

Revocation by Minister — fraud, false representation, etc.

10(1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Monsef’s birthplace could be construed as “false representation or fraud” or seen as “concealing material circumstances.”

Prior to changes made by the Conservative government, the Citizenship Act directed a Minister to give notice to a person that they are seeking to revoke the person’s citizenship. A person could then request that the matter be referred to the Federal Court to determine whether grounds for revocation have been met. The Conservatives amended the Citizenship Act and now persons facing revocation no longer have the option to have their day in court. They are now simply at the whim of a civil servant who has delegated authority from the Minister of Immigration, Refugees and Citizenship to decide: (1) if there was fraud or misrepresentation, and (2) whether citizenship would be revoked. These proceedings are done on paper.

The government’s Bill C-6, which has gone through third reading in the House of Commons is now going through the Senate. This Bill provides no amendment to this process whatsoever. While Bill C-6 aims to eliminate the ground for revocation related to acts deemed against the national interest of Canada, the proposed legislation keeps in place the streamlined system of decision-making within the bureaucracy and eliminates any judicial role in scrutinizing decisions of citizenship revocation. As it stands, a civil servant acts as an investigator, prosecutor and decision maker. It reinforces a distrust of the judicial system and ignores the significance of the decision at play – stripping status and rendering someone without citizenship.

Monsef came as a dependent child and relied upon her parents to fill out her forms. Nevertheless, children are subjected to the Citizenship Act and can be punished as a result of actions taken by their parents. We have not heard the reason why Monsef’s true birthplace was not listed on her application, but there could be a plethora of explanations that are understandable given that the family are refugees and fleeing dangerous and frightening circumstances. Perhaps they were given bad advice, or perhaps it was simply a mistake.

Monsef represents many people whose citizenship is precarious. Between 1976 and 2011, Canada revoked citizenship from 60 people. Contrast this with the period of 2011-2015 in which 3,100 people were given notice that their citizenship may be revoked.

Do we want to live in a society where our citizenship status is precarious or temporary? The new Bill C-6 should be amended to include a more robust and fair system of evaluating and determining whether citizenship should be revoked, and consideration and compassion should be instilled in a system where there are a number of rational and understandable reasons why people may have provided certain information.

 

Reflecting on the UN Summit on Refugees – Which rights matter?

Last week the UN convened a Summit for Refugees in New York. It was a rare high-level meeting dedicated to the issue of refugees.

In reviewing the outcome document from the Summit, now called “The New York Declaration,” I had mixed feelings.

What we can be hopeful about

The fact that a summit occurred on this topic is positive; that the world knows that there is a refugee crisis. The Declaration could set in motion future discussions that could set in motion more concrete and collective action.

The other positive aspect is the language from New York Declaration deployed. It addresses not only refugees but migrants, and recognizes that persons who are not refugees may also be vulnerable and marginalized. This recognition may lead to a future expansion of the protection regime of migrants from refugees to other kinds of migrants.

What is disappointing 

For me what is one of the more disappointing aspects of the Declaration is the language that pits rights against rights. It’s the age-old debate about whose rights should be propped up more – state rights v individual (human) rights. The Declaration is rife with assuring states they have the rights to their sovereignty, while espousing that human rights should be respected too. This model has done nothing but pit rights against one another without providing a solution to the issue at hand.

As many other critics have pointed out, the Declaration is lacking any clear commitments. Initial drafts of the declaration proposed a global compact with commitments to resettle 10 percent of the world’s refugees annually but this language was taken out at the Summit.

The Declaration recognizes the need to share the burden with states who are proximate to crisis areas but nothing concrete has been set out to relieve or share this burden. There is no proposed system for establishing a model of burden or responsibility-sharing, and no system of accountability. Instead, the Declaration really reads as an acknowledgement and nothing more.

The Declaration also points out there are internally displaced persons (IDPs) , but again, as an acknowledgement.  Given that IDPs make up two-thirds of the world’s forced migrants, it is a missed opportunity not to address this issue more fully.

Finally, Canada’s example of resettling refugees has been celebrated, as it should. However, news of exporting our model should be carefully done as the model is imperfect as Tom Denton in his analysis states.

 

Temporary Foreign Worker Report Tabled by HUMA

The Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) tabled it’s report on the Temporary Foreign Worker Program (TFWP) on Monday.

It’s a 74 page report highlighting and acknowledging many of the submissions of individuals, businesses, and organizations who interact with migrant workers in Canada. The report also provides a series of recommendations for the Minister of Immigration, Refugees and Citizenship to consider in reforming the TFWP.

My thoughts will be published by the Ottawa Citizen early next week. Teaser: I think the government should take a more visionary approach than HUMA recommends.

History repeats itself

I’m teaching immigration and refugee law this semester and one class I give the students a historical case study to examine how far Canadian immigration law has come. It surprises me on how many students have never heard of the Chinese Head Tax before.

I showed the movie, “In the Shadow of Gold Mountain” which you can view for free on the National Film Board site: https://www.nfb.ca/film/in_the_shadow_of_gold_mountain/

After viewing the film, we had a discussion of the common threads or themes that can be pulled from the past to the present. It’s humbling to see how far we’ve come and much further we still have to go:

  • Family reunification – The film talked about how families were separated for prolonged periods of time, over years and decades.  Today, immigrant families still face separation, and some are barred from bringing bona fide family members through regulation 117(9)(d).  See my two papers discussing this issue here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2757471 and http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2839415
  • The economic class – The Chinese were seen as a means to fill labour needs. The discussion of how we use foreigners to meet our economic needs still exists. In fact, the current government plans on reforming the temporary foreign worker program.  The report from the Standing Committee at Parliament studying this issue should come out next week. I’ll be submitting a blog post soon on the submissions I made to the Committee in the spring.
  • Valuing lives – The film showed how many people died in building the railway in Canada. Today, migrant workers still work in hard conditions in Canada, and some even die when they are here but have no worker safety insurance.
  • The use of detention – Many Chinese were detained upon arrival. We still use detention and some migrants are detained upon arrival. While Minister Goodale has announced significant investment to reform the immigration detention system, there is a focus on detention. I will soon be submitting a blog post about my comments on this policy.
  • Who are citizens? – The film talked about how Chinese felt they did not belong, how they were denied the right to vote, and how they entered into military service to try to gain respect and recognition as Canadians. This discussion of who belongs and what rights are attached to citizenship are still being debated today. There will be future reforms regarding the Citizenship Act, but also discussion in the Courts in Frank v Canada about how sticky are our citizenship rights.
  • Exclusion and Inadmissibility – In the film we saw various legal tools being used to try to deter and exclude Chinese from immigration. There are various tools in the immigration system today that do the same thing.
  • Residency requirements – The film talked about how Chinese men would travel to China to visit with family but ensure they came back within two years so as to avoid losing their status to enter Canada. Today, we have similar residency requirements for different kinds of stats.
  • Responding to events outside of our borders – The film talked about the Japanese invasion in China and how persons in Canada felt so helpless and fearful for their families abroad. Canada has, in the past, responded to crisis abroad, such as expediting requests to bring family to Canada temporarily or permanently, for example, after the Haiti earthquake.
  • Charter and redress – Finally, the film talks about how the Charter did not provide a great source of recourse. Today, I think it can also be argued that the Charter has not been a place where non-citizens can turn to for remedies.