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Backgrounder: Changes to Canada’s Immigration and Refugee System

Jul 31, 2012 | CIJA Publications

The Government of Canada’s changes to the immigration and refugee system have attracted a great deal of attention over the last few months, particularly from within the Jewish community. Canada has provided a welcoming home for thousands of Jewish immigrants since the 1760’s, who have become an integral part of the fabric of Canadian life. However, our community remembers with sorrow the prejudicial immigration policy in place through the 1930’s and 40’s that prevented refugees fleeing the Holocaust from finding safety on Canadian shores. This immigrant experience compels the Jewish community to take a keen interest in ensuring Canada’s immigration system remains fair, just and effective.

At the end of March 2012, there was a record backlog of 39,000 unprocessed refugee claims in Canada – people living in limbo, unable to restart their lives and fully contribute to Canadian society. At the same time, Canada has also experienced a marked increase in frivolous or fraudulent claims from EU countries, costing $170 million per year and slowing down the process for those in legitimate need of protection. Unfortunately, a number of the government’s changes to address this and other glaring deficiencies in the refugee system have been misinterpreted and misunderstood. We hope that the following information will clarify these issues and foster informed consideration, and that our final conclusions will provide helpful perspective.

Designated Countries of Origin

23% of all refugee claims in 2011 came from European Union nationals, more than those from Africa and Asia combined. What’s more, 95% of those EU asylum claims were ultimately abandoned, withdrawn or rejected. Bill C-31: Protecting Canada’s Immigration System Act, which became law on June 28th 2012, contained a Designated Country of Origin (DCO) policy, designed to prevent the clogging of the system with frivolous or fraudulent claims from typically safe countries, and to ensure that acutely vulnerable refugee populations quickly get the protection they need. To accomplish this, refugee claimants from a DCO will be managed through an expedited claims process, in line with United Nations High Commission for Refugees guidelines.

Although the Minister of Citizenship and Immigration makes the final decision whether to designate a country, the new legislation does not give the Minister the power to determine a DCO arbitrarily. In order to be considered, a country must either have a 75% rejection rate or a 60% rate of withdrawal and abandonment of refugee claims. For refugee claimants from countries with a small number of claims, additional criteria would be considered including the existence of an independent judiciary, recognition of basic democratic rights and freedoms and mechanisms to redress infringement, and the existence of civil society organizations.

There is a misconception advanced that DCO refugee claims are summarily rejected, without fair and independent review by the Immigration and Refugee Board (IRB). This is not the case – all claimants are guaranteed access to the IRB under the new legislation, including those from a DCO. Under the previous system, a claimant would have to wait an estimated 19 months before an initial hearing with the IRB, but the new legislation speeds up this process. DCO claimants should now have an initial hearing with the IRB within 30-45 days depending on their point and means of entry. In comparison, non-DCO claimants should have their initial hearing within 60 days.

There is another misconception that DCO claimants have absolutely no recourse to appeal a negative IRB decision. It is true that DCO claimants will not have access to the newly created Refugee Appeal Division (RAD) to revisit the rejection of their claims. However, they retain the right of appealing directly to the Federal Court for judicial review, though they will not automatically have their deportation blocked during this process. Previously, the law included an automatic stay of removal for all those seeking judicial review, a procedure that contributed to a long determination timeline – an average 4.5 years and up to a maximum of 10 years – from the time the claim was made to deportation.

Medical Care for Refugees

There has been a great deal of confusion surrounding changes to the Interim Federal Health Program (IFHP). For most claimants, the changes will mean an end to supplemental benefits such as dental and vision care for which Canadian citizens are similarly not covered. Instead, the IFHP will now provide three categories of temporary, taxpayer-funded, health benefits to refugee claimants which remain in effect until their claim is rejected or they are accorded permanent residency and become eligible for provincial health coverage.

Expanded Health-Care Coverage is extended to the most vulnerable categories of refugee claimant, such as Government Assisted Refugees and victims of human trafficking, providing a similar level of coverage as that extended to Canadians receiving social assistance (including vision and dental care). Health-Care Coverage is extended to the vast majority of claimants, excluding those from a DCO, who will receive a comparable level of medical care to that which Canadians receive through their provincial health system.

DCO refugee claimants, on the other hand, are eligible for Public Health or Public Safety Healthcare Coverage. This covers medical services necessary to diagnose, prevent, or treat a disease or disorder that poses a risk to Canadian public health or public safety. This is the same level of care extended to failed claimants awaiting deportation, and is designed to ensure that comprehensive medical coverage does not attract frivolous or fraudulent refugee claims from otherwise safe countries. It is important to reiterate that once any refugee claim has been accepted and permanent residency conferred to the claimant, even if they are from a DCO, they become eligible for the same provincial health coverage all Canadians benefit from.

Irregular Arrivals

In the last century, Jews were forced to flee acute persecution in Europe and the Middle East by all possible means – regular and irregular. The Canadian Jewish community therefore takes particular interest in the government’s new measures dealing with irregular arrivals to Canada. Human smuggling is a serious crime that must be addressed to effectively ensure our borders are secure. The exploitation of vulnerable refugees, as well as the infiltration of would-be terrorists, criminals and vicious human rights abusers should be stopped. However, the fate of the world’s most at risk populations, who often face dire circumstances that propel them to desperate means of escape, must be considered. Any initiative to combat human smuggling should take their situation into account, striking a balance between discouraging traffickers and extending a compassionate hand to legitimate refugees in need.

Bill C-31 establishes automatic detention for irregular arrivals over the age of 16, subject to review within 14 days and another every six months thereafter. Detention will remain in place until a final positive decision is made by the IRB on the refugee claim, or until release is ordered by the IRB or the Minister of Public Safety. This is designed to facilitate investigation into identity, admissibility, and criminality and ensure those irregular arrivals admitted to Canada pose no threat to the public. While it is vitally important to properly identify and process irregular arrivals, the detention rules – which do not apply to those under 16 years of age – could place additional strain on distressed families, particularly on refugee children who could be separated from their parents during this process.

In an attempt to dis-incentivize coming to Canada via irregular arrival, the new legislation enhances the ability of the government to review the protected person status of those who misrepresented their refugee application, return to their country of origin and demonstrate that they are not in legitimate need of Canada’s protection. However, Bill C-31 also prevents those legitimate refugees who are part of an irregular arrival from applying for permanent resident status for a period of five years. This effectively bars them from sponsoring family members to join them in Canada during this period, unnecessarily punishing desperate refugees and leaving their family members, who remain in dire circumstances, little recourse to come to Canada in a legal manner.

The Jewish community remains vigilantly mindful of the need to help desperate refugees find safety on our shores, and indeed much has improved in the situation facing irregular arrivals in Canada over the last 65 years. Current circumstances are in no way analogous to the treatment of those fleeing Nazism by irregular means – such as the S.S. St. Louis which was not even allowed to dock at a Canadian port. These false comparisons are an insult to the memories of those who perished as a result of past injustice. Bill C-31 allows irregular arrivals to land on Canadian soil and provides a process through which their asylum claim is investigated and adjudicated fairly by the IRB. If only the current system were in place in the 1930s and 1940s, perhaps many more Jews could have been saved from the horrors of the Holocaust.

Conclusions

In our assessment, the recent changes to Canada’s immigration and refugee system offer significant improvements towards protecting the safety and security of Canadians, deterring human smuggling and dispensing with unsubstantiated refugee claims fairly and quickly. Canadians want a system that responds effectively and compassionately to those legitimate refugee applicants while identifying and removing those who try to defraud the system’s generosity. On balance, the new legislation accomplishes this goal.

However, there are certain areas where small but significant improvements should be considered by the government:

  1. Clear provisions should be included for how a designated country could be removed from the DCO list should the situation there warrant a re-evaluation;
  2. In our view, DCO refugee applicants should have access to the same health coverage as non-DCO claimants, especially in light of the potential cost savings derived from the shortened processing time established by Bill C-31.
  3. Care should be taken to avoid separating families that are part of an irregular arrival, particularly those with children under 16 who might not be detained with their parents. Once an irregular arrival claimant’s identity and status have been confirmed and they have been concretely determined to be a legitimate refugee, they should be treated the same as all other successful refugee claimants and not subjected to a five year waiting period before they can sponsor their families to join them.

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