Refugees and Migration

A refugee claimant is someone who arrives in Canada and claims refugee status, as opposed to being sponsored from abroad.

Canada is signatory to the Geneva Convention Relating to the Status of Refugees. International law accords refugee claimants the right to seek asylum. Refugee claimants are not illegal refugees; countries signatory to the Convention must allow them access to a fair and just refugee determination system. The United Church believes that includes the right of an appeal.

According to the 1951 Geneva Convention and its 1967 protocol, refugees are persons who

• have a well-founded fear of persecution based on their race, religion, nationality, political opinions or membership in a particular social group;
• are outside the country of their nationality and are unable or, by reason of that fear, unwilling to be protected by that country; or
• not having a country of nationality, are outside the country of their former habitual residence and are unable or, by reason of that fear, unwilling to return to that country.

In Canada, since the introduction of the Immigration & Refugee Protection Act (June 2002), refugee claimants can also be accepted if they are found to face a danger of torture or risk to their lives, or a risk of cruel and unusual treatment or punishment.

Refugee claimants can be found ineligible for a hearing if their claims are found inadmissible on the grounds of serious criminality, organized criminality, security risk, or human or international rights violation. Claimants are also ineligible if they have been recognized as a Convention refugee by another country to which they can be returned, or if they have previously made a refugee claim in Canada (whatever the result).

The reality is most refugee claimants are prevented from reaching Canada to make a refugee claim by measures such as the Safe Third Country Agreement, signed by Canada and the U.S. in December 2002. Prevention measures including visa restrictions, carrier sanctions, airport screening, exclusion, and safe third county criteria do not distinguish between refugees and migrants and violate an individual's right to seek asylum.

Refugee claimants may be detained upon arrival in Canada if they pose a security concern or flight risk (i.e., the interviewing officer believes they may not show up for appointments). Detention is increasingly being employed around the world to deter movement of refugees. Currently, it is difficult for the church to assess and support the number of refugee detainees or those detained on security certificates across Canada.

Eligible refugee claims are determined by a quasi-judicial tribunal, the Refugee Protection Division of the Immigration and Refugee Board. Some straightforward (manifestly well-founded) claims may be expedited without a formal hearing; normally, a single decision-maker determines the refugee claim. Approximately 40 percent of the cases heard are determined to be Convention refugees or protected persons. Protected persons are eligible to apply for permanent residence.

Claimants receiving a negative decision can apply to the Federal Court for a judicial review of the case or to the Canada Border Services Agency for a Pre-removal Risk Assessment. If either review is found positive, the claimant can apply for permanent residence. Rejected claimants can also apply to Citizenship and Immigration Canada for a Humanitarian and Compassionate Review.

All domestic administrative and judicial options should be exercised before seeking an appeal to the Minister of Citizenship and Immigration, appealing to international courts, and/or considering the last resort of sanctuary.