Canadian Refugee Procedure/History of refugee procedure in Canada

History of asylum and the concept of sanctuary

In both the international and Canadian contexts, the very existence of a refugee determination system is a recent development. Since time immemorial, people have moved to flee persecution, war, religious intolerance, governmental instability, and criminal sanction. However, it is only in the twentieth century in which the international community began to respond to such persons on the move in the organized fashion that entailed the creation of a refugee status determination system.

The word "asylum" is younger than its concept and practice. Eve Lester states that flight and requests for hospitality and asylum are concepts as old as life itself. There are myriad examples of such population movements. Around 1280 BCE the Egyptians and Hittites agreed to a pact that provided for extradition: it stipulated that people who fled from one jurisdiction to the other had to be returned, and would not be granted asylum, but that in such cases the returned refugee would not be punished in their homeland. In 721 BCE, after the Assyrian King Sargon II conquered Israel and its capital Samaria, tens of thousands of Israelites were banished and spread across the lands of the Assyrian Empire, eventually assimilating with the locals. In 375 CE the Roman Emperor Valens granted asylum to thousands of Goths who were fleeing tribes of Huns who had invaded their territory. Later examples include the expulsion of Jews from Spain in 1492: in March 1492, the Alhambra Decree was issued, which ordered all the Spanish Jews to either baptize or to leave Spain within four months. As a result, more than a hundred thousand Jews left Spain and took refuge in Portugal, France, the Netherlands, the Ottoman Empire, and other places. At that point, Sultan Bayezid II sent the Ottoman Navy to Spain in order to safely evacuate Jews to Ottoman lands. During the reign of Mary Tudor from 1553 to 1558, a Queen known as "Bloody Mary" by her Protestant opponents, 30,000 Englishmen fled to Holland, while yet more fled to other parts of Europe such as the free city of Frankfurt. Other mass population movements occurred to escape instability, as when many English escaped to France during the Interregnum of 1649-1660.

Historically, asylum and sanctuary were associated with particular places where, upon reaching them, an individual was inviolable and beyond the reach of the law. Such places included altars, temples, churches, particular cities, and ships. Ancient Greece, for example, had a strictly governed system for offering sanctuary at dedicated shrines. Indeed, the word "asylum" dates from this time and its roots in the Greek word asylia refer to the notion of someone who cannot or should not be seized. Specifically, the verb asylao means to violate or lay waste, while the adjective asylos/asylon represents the opposite, namely, that which is inviolable. For its part, the Hebrew word miqlat describes special cities set aside for asylum or refuge. The Book of Numbers describes six designated cities, the arei miqlat, or "cities of refuge", at which someone who had killed unintentially could find security until the death of the reigning High Preist. Ecclesiastical asylum existed throughout Western Europe during the Middle Ages. It transferred the sacredness of the biblical altar to its own realm and granted the right of asylum to those who sought refuge in churches or monasteries. Church asylum differed from that described by the Hebrew Bible in that it was extended even to those who had committed crimes with intent.

While this text focuses on what might be termed the Western and North American traditions of asylum, asylum has existed as an ancient practice throughout the world. Gil Loescher states that every major world religion contains teachings on the importance of providing protection to those in need. Migration is a major theme of the Jewish Torah and rabbinical scholars have argued that the concept of non-refoulement has an analogue in ancient biblical Jewish legal principles of refugee protection. Deuteronomy 23:16, for example, inveighs: "You shall not turn over to his master a slave who seeks refuge with you from his master. He shall live with you in any place he may choose among the settlements in your midst, wherever he pleases; you must not ill-treat him." There are a number of references in the Bible to sanctuary for the oppressed and needy, and it is said that the New Testament tells of Jesus and his family as refugees who were accepted in Egypt. Islam also continued older traditions of asylum from the Arab civilizations that existed prior to the seventh century. Indeed, Islam dates its birth to the exile of the Prophet Mohammad to Medina, where the Prophet and his followers took refuge after facing persecution from the rulers of Mecca. Islam then codified asylum into law in a way that was consistent with the duty the Quran places on Muslims to offer asylum to all. It is said that normally a request for dijwar (protection) had to be accepted (Quran 9:6), but how long it would last was not covered by any hard or fast rules. India and China have had their own traditions of asylum dating back thousands of years. The Chinese also concluded a number of treaties dealing with fugitives and strangers, for example in 544 BCE, the prince of Cheng concluded a treaty with a coalition of princes who had invaded his territories that specified that in future fugitives from justice would be surrendered. There are also many recorded Chinese examples of the acceptance of forced or voluntary exiles by other nations involving members of the nobility and royal households. The Aztecs are also said to have had a tradition of offering asylum. Behrman notes that some have argued that the Southern African philosophy of ubuntu, which emphasizes a collective approach to human rights and which focuses on the needs of the most vulnerable in society, contains a principle of hospitality to the stranger above and beyond the notion of asylum as commonly understood in the Global North.

History of the concept of the refugee

As discussed above, victims of circumstance forced to seek sanctuary in foreign lands have been known throughout history. This phenomenon has been referred to through a number of terms, including refuge, migration, exodus, asylum, sanctuary, fugitives, exiles, and émigrés. The specific term 'refugee' is of a more recent pedigree, having been first coined in the 1600s in France. The concept's genealogy is entwined with the emergence of the modern view of state sovereignty at that time in Europe. This section traces the history of these two concepts and how the refugees of the 17th century differed from earlier exiles and moving persons.

The world today is divided into sovereign states. All individuals are to be organized into populations and divided territorially amongst these states. In this way, the international state system is both a way of organizing political power, and also a means of organizing people. It was with the Treaty of Westphalia of 1648 that the inter-state legal and political relationships which undergird this system were first established, and the feudal society of the medieval world was superseded by this modern society of sovereign territorial states. Key concepts of modern international relations emerged at this point, including the inviolability and fixity of borders and non-interference in the domestic affairs of foreign sovereign states. In this way, the concept of state sovereignty that emerged with the Peace of Westphalia helped build the modern concept of the state which partitions the world into a vast juxtaposition of independent territorial units. One of the facets of this system was that territory was consolidated, unified, and centralized under a sovereign government and the population of the territory now owed final allegiance to this sovereign. The sovereign state could demand, among other things, religious and linguistic conformity to ensure such allegiance.

Within a few decades of the Peace of Westphalia, the term “refugee” was coined. The word refugee can be traced to its origins in the French word réfugié that was used to identify the Huguenots, hundreds of thousands of Reformed Protestant French migrants who escaped the French Catholic monarch to move to non-Catholic European countries around the time of Louis XIV’s revocation of the Edict of Nantes in 1685. This edict had previously allowed Protestant Huguenots to practice their religion openly. With the revocation of the edict, the legal guarantees that had protected Protestant religious practice in France for a century ended. Calvinist churches were destroyed, Ministers were forcibly exiled, Protestants were forced to convert, and restrictions were put in place on their access to public office and the professions. The term "refugee" was adopted into the English language as these Huguenots arrived in England. Protestants in New France were similarly affected - forced to either abjure Protestantism, return to France, or leave for an English Protestant colony in the new world.

What arguably distinguishes the phenomenon of the refugee from the earlier exiles and moving persons was how their movements interacted with the newly emergent state system. In this way, it is no coincidence that the term "refugee" emerged at this time in the 17th century alongside the rise of the modern conception of the state. Indeed, Harsha Walia labels the very concept of an asylum seeker a "state-centric taxonomy only possible because of a prevailing assumption of the border as a legitimate institution of governance". As Betts and Collier argue, what was new post-Peace of Westphalia was the way that governments began to conceive of themselves as being able to govern refugee movements. This raised two principal questions: when could states offer refuge, and when could would-be refugees expect it?

The question of when and whether states could offer refuge was hotly contested. Many states considered it within their power to prohibit emigration. For example, after to the arrival of hundreds of thousands of Jews from Spain and Portugal in the 1490s, Sultan Bayezid II of the Ottoman Empire prohibited Jewish emigration from his lands on the grounds that it would create a significant loss both to the economy and the treasury of the Sultan. Historically, and as discussed below in the section on pre-Confederation Canada, the institutions of slavery and servitude were also major restrictions on the right to move in any direction. As the Huguenots fled France in the 1600s, Louis XIV demanded that these "traitors" be returned on the grounds that most had left France without his permission. When the Swiss failed to execute an order repatriating these refugees, relations between Switzerland and France deteriorated, and the French threatened the Swiss with war. Ultimately, most Huguenot refugees who went to Geneva were denied citizenship - probably because the authorities feared that the French would retaliate for such an "offence" - and the Swiss began to urge the refugees to seek permanent asylum elsewhere. In the end, no armed conflict between France and Switzerland took place. Nonetheless, the question of the right of states to offer refuge, and states' ability to restrict departures, persisted as a cause of inter-state discord. From the 1840s, the right of states to offer refuge became more clearly defined. After the repression of the Hungarian uprising of 1848 by the Hapsburgs, many Hungarians fled to Turkey. Russia (which had a role in suppressing the uprising) and Austria requested the refugees' refoulement. Turkey replied that its honour was at stake, as well as the humanity of the Sultan, and since both France and the United States sided with Turkey, Russia and Austria relented.

The other question that emerged at this time was when could would-be refugees expect to receive refuge. Rebecca Hamlin contrasts the concept of the refugee, which entails crossing an international border and appealing to a state for protection, with practices from earlier in European history when appeals for protection could be made to families, individuals, or religious leaders, not just states. For the most part, the question of who could avail themselves of refuge was not seriously explored. It went without saying that one could only seek refuge among those willing to offer hospitality; for example, when protestants fled England for Frankfurt in the 1550s, an initial embrace of the refugees shortly gave way to unease at their growing number and an eventual ban on the refugees’ form of worship, which caused many to move on to more hospitable locales. As will be detailed below, it was not until 1920 that there was a serious concern with delimiting the scope of the term refugee and which individuals might be entitled to such status. Emma Haddad sets out this evolution in more detail and argues that the phenomenon of the "refugee" that emerged alongside the state system, and developed into the twentieth century, came to be marked by its new scale, bureaucratized processes, clear definitions of insiders and outsiders occasioned by newly locked borders and assumptions about the nation state being the proper home for individuals, and the lack of obvious receiving countries as national identities increasingly superseded religious ones.

Refugee and population movements in pre-confederation Canada

Turning to Canada, (im)migration processes, of various sorts, including ones involving the search for refuge, have long been present in this territory. Asking about the history of refugee processes in Canada’s territory raises an ontological question about who should qualify as a refugee when one looks at population flows of centuries past. To the extent that refugees may be regarded as those with experiences marked by discrimination, displacement across borders, a severing of the bond between the individual and their government, and an overriding apprehension of persecution in their home community, persons meeting such criteria have a long history in this land. That said, the concept of the refugee is indeed a modern one, as described above, and applying it to population movements of pre-confederation Canada is surely anachronistic. In Rebecca Hamlin's words, "to look back and place a refugee/migrant binary onto crossings of the past does not accurately reflect the realities of those events." It is nonetheless appropriate to review (not erase) the history of population movements in the territory of Canada, both indigenous and colonial, and to chart how the contemporary concept of the refugee has been deeply linked with the modern colonial state.

To start, movement and displacement of persons in the territory of Canada is not new. Some First Nations were highly itinerant, as with the Blackfoot who would follow bison across the prairies to hunting grounds where they would utilize bison jumps and runs. The Blackfoot Confederacy joined the Blackfoot, Blood and Piegan nations located in the Great Plains region of Canada and the United States. They shared a common nomadic lifestyle based on the movement of bison, which they relied on for their sustenance.

Warfare between First Nations also led to indigenous persons fleeing aggression and moving to new regions. For example, in the 16th century, the Haudenosaunee (Iroquois) embarked on campaigns to subjugate or disperse neighbouring groups while pursuing an ancient ideal that they “extend the rafters of the longhouse” by absorbing their neighbours into one nation and thereby produce a universal peace. In 1649 the Haudenosaunee dispersed the French-allied Huron-Wendat from their homeland by destroying villages. Haudenosaunee dispersal campaigns then impacted the Petun, Neutral and Erie in the 1650s, with those nations dissolving and their members either joining together to form new communities or joining pre-existing Iroquoian nations.

Forced displacement of Indigenous persons also resulted from the actions of the colonial regimes that took hold in Canada and the United States. European powers established their North American colonies on lands that they seized from the pre-existing Indigenous nations. These seizures involved the imposition of borders and attendant physical, social, and cultural displacement. As noted below, this had a number of consequences, including that many First Nations persons were killed by disease and warfare and had their mobility and way of life disrupted by this new colonial order.

Finally, the concept of the refugee may also be thought of as a legal concept, and in this respect the First Nations in Canada have long faced questions about how to define and justify the conditions of community membership. Today such questions are primarily viewed through the lens of immigration and citizenship in the Canadian legal regime, but in indigenous legal regimes they may equally be viewed through the concepts of family law, house group membership, and kinship rights, among others. Indeed, a multitude of indigenous laws and legal traditions have persisted in the territories of Canada, both prior to, and then alongside, this country's colonial legal order. As John Borrows writes, the earliest practitioners of law in North America were its Indigenous inhabitants. These indigenous laws and legal traditions have been defined by their diversity, continuity, repression, survival, and adaptability. Bhatia writes, for example, about a number of First Nations' legal principles that relate to citizenship and welcoming the other, such as the Dish With One Spoon wampum agreement, an Indigenous citizenship law made between Haudenosaunee and Anishinaabe nations in 1701. Arima, for their part, writes about First Nations' legal principles related to family relations, such as the way that the Nootka on Vancouver Island would intermarry with persons from the Coast Salish groups on the mainland, despite otherwise less than amicable relations between the nations. In such ways, setting the terms on which welcome will be offered to the other has a long legal, not just practical, history in Canada.

Turning to the colonial regimes in North America, they used force to establish themselves and to erect international boundaries. These borders have served to restrict First Nations' mobility - British North America and the United States of America required the First Nations to subject themselves to these emergent entities, even where pre-existing living arrangements did not neatly fit on one side of the border or the other. For example, Crees and Chippewas from Canada became considered "foreign Indians" in the United States and deportable "illegal immigrants" despite ties to lands in the present-day United States that pre-date that country's founding. The subversive chant "we didn't cross the border, the border crossed us" is, for this situation, entirely apt.

Furthermore, even within national boundaries, the colonial regimes erected borders which limited mobility, including the borders involved in the reserve system, which abrogated many relationships with traditional territories, and involved related social, cultural, and political displacements. Many Indigenous persons were compelled to reside on reserves, and, after the 1885 Northwest Rebellion, the federal government developed a pass system — a process by which Indigenous people had to present a travel document authorized by an Indian agent in order to leave and return to their reserves. Even apart from the reserve system, the movements of many First Nations persons were controlled by settlers in Canada, as when a xenophobic hysteria overtook Victoria, BC upon the arrival of Smallpox in 1862, something which led to the police emptying nearby Indigenous encampments at gunpoint, burning them down, and towing canoes filled with smallpox-infected Indigenous people up the coast. Over the next year, as these Indigenous persons returned to their home communities, they took Smallpox with them, and at least 30,000 Indigenous people are reported to have died from the disease, representing about 60 per cent of the extant First Nations population. Indeed, one of the most significant effects of colonialism was the large number of First Nations persons in Canada who died of diseases introduced by European colonists. One of the effects of such deaths was the emergence of post-contact communities such as the Abenaki, an aboriginal group in present-day New Brunswick and Quebec which emerged when numerous smaller bands and tribes, who shared linguistic, geographical, and cultural traits, joined together into a new political grouping after their original tribes were destroyed by disease and warfare.

Apart from the effects of such epidemics and forced movements, the newly created nation of Canada also effected the social and cultural displacement of the pre-existing aboriginal peoples. In the words of the section of the final report of the Royal Commission on Aboriginal Peoples on displacement and assimilation:

[The impact of colonialism on indigenous populations was profound.] Perhaps the most appropriate term to describe that impact is 'displacement'. Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities. They were also displaced socially and culturally, subject to intensive missionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children, imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In North America they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures and processes in favour of colonial-style municipal institutions.

At times Indigenous communities relied upon the newly created international boundaries when seeking refuge from such displacement. For example, after American troops destroyed 40-50 Cayuga villages in the present-day US in 1779, many peoples of the Cayuga tribe fled the United States to seek refuge in British North America, and in so doing relied on these new borders for their associated guarantee of safety.

In the 1700s and 1800s, the British instituted policies to encourage immigration to British North America. The people that the British encouraged to relocate included persons who would rightfully be termed refugees today. For example, 50,000 United Empire Loyalists, supporters of the British in the American revolution, migrated north in response to American republicanism. Many of them migrated northward either because they did not wish to become citizens of the new American republic or because they feared retribution for their public support for the British during the War of Independence. These included Mohawks and other members of the Six Nations Indians stripped of their lands in the Ohio Valley because they sided with the British during the American Revolution. The retribution meted out to loyalists in the United States included beatings, imprisonment, and other forms of harassment. Among the loyalists who migrated northward were an estimated 2000 members of the aboriginal peoples bordering the Thirteen Colonies who had supported the British cause, believing that an alliance with the British offered the best hope for preserving their independence and protecting their territories from land-hungry colonists.

The loyalists also included thousands of free(d) black persons, some of whom had heeded a British proclamation issued early in the war offering freedom to any slave who deserted his (sic) American master during the Revolution and volunteered to serve with the King's forces. Most of the new black arrivals responded to an offer made late in the conflict that guaranteed that all slaves who made formal claim to protection behind British lines would receive their freedom. Upon arrival, many of these black loyalists faced the scourge of racism and dismal agricultural prospects in Nova Scotia, where they primarily settled, and, bitterly disappointed, 1,200 sailed for Sierra Leone to start afresh on the west coast of Africa in 1792. Nonetheless, over the next century an estimated 30,000 African Americans came to Canada as the final stop on the underground railroad, seeking protection from slavery in that country. While they received de jure freedom, they did not always receive de facto security as attempts were made to illegally kidnap black freemen refugees in Canada and return them to former owners in Southern states.

While it is the case that black and indigenous persons did flee the United States for Canada, the fact is that a racial logic was at work in the Canadian colonial project which shaped who the regime saw fit to welcome. We can see this logic of colonialism in Canada's history, both in terms of how First Nations were treated, but also with how the state responded to ethnic and national outsiders. In the 1700s, the British enacted deliberate policies to reinforce the British character of its North American possessions. This included the forced deportation of French-speaking Acadians from present-day Nova Scotia. In 1755, Lieutenant-Governor Lawrence and his council decided that the Acadians should be dispersed among the several colonies on the continent through forced transhipment. More than 3000 Acadians were transported to southern British colonies in the present-day United States that year. As many as a third of the passengers died on the ships. Many Acadians sought refuge on Prince Edward Island and in Cape Breton, but they gained only temporary respite. In 1758, another British expedition against Louisbourg forced its surrender; 6000 more Acadians were then forcibly removed from their homes.

While the governments in pre-Confederation Canada made explicit efforts to entice persons who can aptly be titled refugees to choose to come to the country, they were generally individuals who hailed from the "right countries" and were of desired races, religions, and nationalities. For example, John Graves Simcoe, the first lieutenant-governor of Upper Canada, issued a proclamation in 1792 inviting Americans to emigrate to Upper Canada. This included a special appeal to the members of pacifist religious communities, including Quakers, Mennonites, and Dunkards, which promised them an exemption from military service.

The emergence of legal restrictions on immigration in colonial Canada

During its earliest centuries, Canada and its colonial forebears had neither an official immigration policy, nor the means to control the movement of individuals at the border. This tracks the experience of other western states at the time. In Chetail's summary, the 17th century rise of the nation state, and its implicit corollary—territorial sovereignty—did not generally coincide with the introduction of border controls. Quite the contrary, the admission of (the right kinds of) foreigners was viewed as a means of strengthening the power of the host state, primarily for demographic and economic reasons. As a result, until the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America were able to simply move to new jobs and opportunities in new regions. While the federal Parliament had been given jurisdiction over "Naturalization and Aliens" pursuant to section 91(25) of the Constitution Act, 1867, Canada's first post-confederation immigration law, the 1869 Act Respecting Immigration and Immigrants, reflected the laissez-faire zeitgeist by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed. Passports, for example, were not generally required for European and North American travel prior to the First World War. Given all of this, defining a refugee was not a major concern for the reigning powers.

While, from the point of view of western states, people prior to World War I enjoyed a certain freedom of movement in the world, by no means did these comparatively open-door immigration practices result in a practical and non-discriminatory freedom of movement for all. Restrictions on freedom of movement took many forms. Some of the earliest restrictions on movement which were imposed by states were imposed on the internal movement of both nationals and non-nationals within each state's territory. In Europe such internal migration restrictions were mainly imposed for tax purposes, and in British North America, as discussed above, one of the principal reasons for such restrictions was the control of the aboriginal population through reserve and pass systems.

Furthermore, even at this time, not all migrants were welcomed by Canadian society. Even while all British subjects formally had the right to settle anywhere in the Empire, including the British Dominion of Canada, as Jan Raska describes, the Canadian government admitted migrants based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant. The seemingly laissez-faire immigration policies of early Canada existed, to an important extent, because of de facto travel restrictions which particularly limited travel to Canada for those of "undesirable races", not least of which were the lack of economical transportation modes to the new world from anywhere except western Europe for several centuries. Even for those who were able to migrate to a new country at this time, the comparatively open-door immigration practices did not result in historical refugees enjoying the suite of rights set out in the modern Refugee Convention. For example, as Emma Borland writes, the French Huguenots of the 17th century did not receive an entirely welcoming reception in the United Kingdom and were not granted permanent residence. Instead, the Huguenots kept the status of foreigner, rather than being considered ‘subjects’, and therefore had only limited rights in England at that time.

In any event, the comparatively laissez-faire attitude towards immigration which had prevailed began to increasingly give way as the capacity of the state to monitor and govern the populace increased. The concept of asylum took on a newfound importance in the 1800s in Europe as countries began to conclude bilateral treaties committing to extradite criminals, which limited individuals' hitherto freedom to abscond from one state to another. States did see fit to exclude from such extradition regimes those who had perpetrated political crimes, on the basis that they should properly be granted asylum from prosecution. For example, the 1826 Registration of Aliens Act restricted the British government from deporting political refugees, thus recognizing that a refugee once granted asylum could not be returned. Similarly, in 1833, Article 6 of the Belgian Extradition Act (‘Loi sur les extraditions’) enshrined the principle of the non-extradition of any political refugee, with the exception of those refugees who threatened public security. The concept of a political asylee in Latin America was similarly codified in a series of regional conventions dating from the 1889 Convention on the International Penal Law. Yet more restrictive immigration policies began to be imposed at the turn of the 20th century, concomitant to the emergence of the modern welfare system. In Thériault's chronology, as states became more financially involved in the welfare of their populations, they became increasingly concerned with the perceived additional burden of new immigrants and refugees. Furthermore, increased global mobility at this time began to make racially-inflected concerns about immigration more acute.

The barriers that states began to erect increasingly affected those who would today be termed refugees; exceptions to Canada’s growing immigration restrictions were generally not made based on the reason why an individual wished to depart their home state. As James Hathaway puts it, "what mattered was not the motive for immigration, but rather the immigrant's potential to contribute to the development of Canada". That said, despite lacking a refugee policy as such, the government occasionally attempted to ease and facilitate the entry of victims of religious and political persecution. A number of the people that the Canadian government specifically sought to entice to come to Canada during this period could, incidentally, rightfully be thought of as refugees, including:

• In the 1870s and 1880s the Canadian government sought to entice Mennonites to settle in western Canada. The Mennonite search for a new home was precipitated by the introduction of a policy of Russification in the schools of the Ukraine, where they lived, and by the implementation of universal conscription, which went against their pacifist beliefs. The Canadian government not only offered them freedom from military service, but also freedom from swearing the oath of allegiance, a requirement which conflicted with their religious beliefs. The Mennonites were the first non-British group to receive direct financial assistance from the Canadian government to come to Canada.
• Following the assassination of Tsar Alexander II in March 1881, violent pogroms took place throughout Russia, and hundreds of Jews were massacred, while others were systematically turned out of their homes and ordered from their villages. At this point, millions of Russians fled in search of refuge. Hundreds of them availed themselves of group-settlement opportunities in western Canada. The first party of more than 200 Russian Jewish refugees to arrive in Canada in 1882 faced what Trebilcock and Kelley describe as "formidable obstacles" to their resettlement. For example, when the federal government and the Jewish community settled on an appropriate piece of land for the new arrivals, the plan was abandoned after neighbouring Mennonites objected to living beside Jews. Eventually, a number of settlements succeeded and by the turn of the century, the Jewish population of Canada was approximately 17,000, almost ten times that of 1880. Then, from 1900 to 1921, a further 138,000 Jews immigrated to Canada, many of them refugees fleeing yet further pogroms in Czarist Russia and Eastern Europe.
• Persecuted Doukhobors also began to arrive from Russia at this point, as well.

Over time, amendments to Canada's immigration legislation began to explicitly enshrine the country’s discriminatory policies in statute. These amendments were in keeping with the rise of such restrictions in other western countries at this time; indeed, by 1930 every independent state in the Western Hemisphere had passed legislation limiting migration on racial grounds. That said, as Somani puts it, racism at the Canadian border was masked by a performance of legality as Canada was reluctant to incorporate racial restrictions into its immigration laws too overtly, lest this undermine the notion of a cohesive British empire and undermine geopolitical relationships, say with the Japanese, or lend support to independence movements, for example that in India. To this end, Canadian policies which de facto discriminated on the grounds of class, race, sex, and disability were couched in neutral language, as with a power accorded to Cabinet to exclude any class of immigrant where it deemed that such exclusion was “in the best interests of the country”.

The specific exclusionary measures employed in Canada included:

• Documentation requirements: Canada, like many states at the beginning of the 20th century, implemented a requirement that travellers to Canada carry passports. As Kaprielian-Churchill writes, the passport requirement appears to have been implemented for the purposes of exclusion. It was strictly applied to Asian immigrants, for example, while not being required for more favoured classes of immigrants.
• Restrictions based on ethnicity, including racially selective taxation: The Chinese head tax was used to selectively exclude this groups of migrants. It was first imposed by the Chinese Immigration Act of 1885, which is described as the first piece of Canadian legislation to exclude immigrants based on ethnic origin. The head tax on Chinese immigrants was set at $50 in 1885, raised to $100 in 1900, and then raised to $500 in 1903. In contrast, the standard fare to enter the country for other immigrants was one dollar per passenger over one year of age. That $500 sum would be roughly $12,900 today, was equivalent to the savings from two years’ worth of wages, and was said to be enough to purchase two homes in Montreal. Roughly 97,000 Chinese people paid the tax to come to Canada between 1885 and 1923. Later, the 1923 Chinese Immigration Act eliminated the duties placed on earlier Chinese immigrants, but instead outright prohibited the permanent settlement of almost all Chinese migrants. While exceptions were formally made for diplomats, merchants having invested at least $2,500 in an established business (and their wives), people of Chinese origin born in Canada, and students, only 15 Chinese immigrants were admitted to Canada in the 23 years following this Act. It was repealed in 1947.
• Restrictions on “races deemed unsuitable to the climate and requirements of Canada”: Section 38(c) of the 1910 Immigration Act allowed the Governor-in-Council to “prohibit ... the landing in Canada ... of immigrants belonging to any race deemed unsuited to the climate or requirements of Canada.” Black American immigrants were routinely excluded as being “unsuited to the climate” of Canada. The Cabinet of Prime Minister Sir Wilfrid Laurier approved a formal immigration ban in 1911 excluding immigrants of African descent: “His Excellency in Council, in virtue of Sub-Section (c) of Section 38 of the Immigration Act, is pleased to Order and it is hereby Ordered as follows: ... For a period of one year from and after the date hereof the landing in Canada shall be and the same is prohibited of any immigrants belonging to the Negro race, which race is deemed unsuitable to climate and requirements of Canada.” Section 38(c) of the 1910 Immigration Act would also be used by the Canadian government to enact and enforce policies that restricted pan-Asian immigration until new regulations were enacted in 1967.
• Racial restrictions on immigration incentive and loan programs: Loan an incentive programs, such as the 1950s Assisted Passage Loan Scheme, provided loans to those who could not afford their own transportation to Canada. Loans were provided to those from Europe, but not to those from Africa or Asia.
• Restrictions on re-entry to Canada: Following the passage of the 1923 Chinese Immigration Act, pre-existing Chinese immigrants already within Canada were generally permitted to remain, but they could only return to China for a visit if it was a one-way trip.
• Racially-based internment: The internment of Ukrainians was directed at excluding and controlling these migrants. Earlier, Chinese persons had been restricted to living in Chinatowns in many parts of Canada. Japanese Canadians were unable to return to the coast until 1949 following their internment during World War II.
• Refusal to process immigration paperwork for racial reasons: Of the more than 1 million American immigrants reported to have emigrated to Canada between 1896 and 1911, fewer than 1000 of them were African Americans. Trebilcock and Kelley report that there was relatively limited interest in settling in Canada shown by the African-American community and that the Canadian government did less than nothing to cultivate such interest. On those occasions when department officials or immigration agents were approached by African Americans wishing to emigrate to Canada, government policy was restrictive. At times, requests were simply ignored by Canadian immigration agents or put 'on file' indefinitely.
• Health-based restrictions: Immigration legislation passed in 1906 tightened entry requirements for those who were diagnosed as "insane", "idiotic", or "epileptic". Facially neutral legislative provisions were also employed in discriminatory ways; for example, while nothing in the Immigration Act specifically barred black Americans, any immigrant could effectively be denied access to Canada for health reasons under the Act's medical provisions. The government in 1911 instructed immigration inspectors along the American border to reject all black persons as unfit for admission on medical grounds. As Harold Troper notes, "there was no appeal."
• Class-based restrictions: In 1879, an order-in-council was passed to prohibit the landing in Canada of "indigents and paupers" unless the master of the ship carrying them deposited sufficient funds to provide temporary assistance and cover inland travel expenses. Then with the 1906 Act respecting Immigration and Immigrants Parliament tightened the entry requirements for those deemed to be "paupers" or "destitute". The government amended the Immigration Act in 1910 to prohibit all "charity cases" who had not received written authority to immigrate to Canada from the superintendent of immigration at Ottawa or the assistant superintendent of emigration for Canada in London. As Valerie Knowles writes, this clause was inspired by the large number of impoverished British immigrants who had arrived in Canada with the assistance of charitable organizations eager to rid Britain of paupers and to provide them with a new start in Canada.
• Restrictions based on the manner of coming to Canada: Canada used facially neutral legislation regarding the manner in which individuals came to Canada to discriminate against racial minorities. The Chinese Immigration Act of 1885 limited the number of Chinese persons a ship could carry to one for every fifty tons of cargo, as compared to one European for every two tons of cargo. Later, the 1906 “continuous journey regulation” authorized the Minister to prohibit entry of immigrants unless they came to Canada from the country of their birth or citizenship "by a continuous journey on through tickets purchased before leaving the country" (the wording was subsequently amended slightly). This regulation famously prohibited the landing of all but 20 of the 376 passengers, most of whom were Sikhs, on the SS Komagata Maru in 1914. The boat was not allowed to dock in Vancouver, and, after a two-month stalemate, the Komagata Maru was forced to turn around and sail back across the Pacific Ocean. While these would-be immigrants had not started out as refugees, 26 of its passengers were killed by the British Indian police upon arrival in India, who suspected that the passengers had become aligned with a group based in North America that was committed to the overthrow of the British Raj in India. This continuous journey rule had particular implications for refugees, regardless of race, because its requirement that tickets be purchased in the country of birth or in Canada, an impossible requirement for most refugees who, by definition, would be loath to return to their country to embark on a voyage to Canada. Furthermore, the restrictive intent behind the continuous journey rule was exemplified by actions that the Canadian government took to stop the only direct ship service between India and Canada, the Canadian Pacific shipping line's Calcutta-Vancouver service. Later, the federal government would come to prohibit the landing of "skilled and unskilled workers" in Western seaports in 1913; that restriction had predictable racial effects considering who it was who was likely to arrive in Canada via the Pacific ocean. Another Canadian interdiction effort from the early 1900s involved authorities responding to consternation among prairie residents about a possible influx of African-American settlers by instructing railway staff not to sell train tickets to Black people coming from the US.
• Religious restrictions: For a three-year period starting in 1919, Doukhobors, Mennonites, and Hutterites were specifically prohibited entry into Canada because of, in the words of the relevant order-in-council, "their peculiar customs, habits, modes of life and methods of holding property, and because of their probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship within a reasonable time after their entry." The Hutterites are said to have provoked particular resentment in Canada at this time on account of their pacifism and consequent refusal to bear arms in the World War.
• Sex-based policies: In 1938, male residents of Canada who were able to support their intended wives were able to sponsor a fiancée. Female residents of Canada were not extended the same ability to sponsor a spouse. Canada's 1947 Citizenship Act permitted Canadian women who married non-Canadians to retain their citizenship, but these women could not pass on their Canadian citizenship to their children born abroad, since those children were presumed to receive their citizenship from the responsible parent, their father.
• Political-opinion-based restrictions: In 1910, the Immigration Act was amended to provide for the exclusion and deportation of those professing anarchist views.

Exceptions to these restrictive policies were made for those with temporary status in Canada, for example fifteen thousand Chinese men were brought to Canada to construct the country's first transcontinental railroad. However, exceptions were generally not made based on the reason why an individual wished to depart their home state - indeed, until the 1970s, Canada made no formal distinction between refugees and other migrants.

League of Nations era

It was in the wake of the First World War and the Russian Revolution that the term "refugee" came to be widely used. While the term "refugee" does date to the 17th century, it had not been widely used until this point. It was during the 1920s that the term "refugee" began to emerge with more frequency and long-standing "competitor terms", like asylum, protection, and hospitality, began to be "relegated to oblivion". As Hamlin describes it, the term refugee "was a product of this period." Amidst rising public concern about this issue, and in response to an appeal from the International Committee of the Red Cross, Member states of the League of Nations approved the creation of a refugee office in 1921 and appointed Fridtjof Nansen as the first High Commissioner for Refugees. In 1922, Nansen created the so-called 'Nansen Passport' for Russian refugees. This was an international identity certificate facilitating the movement and resettlement of refugees uprooted by the events of World War I, the Russian revolution, and the Armenian genocide in Turkey. This institutional innovation provided several million post-WWI European refugees with a way to seek protection and assistance. It has also been pinpointed as the beginning of international refugee law. In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, following Nansen's death, the League of Nations abolished the position of the High Commissioner and entrusted this humanitarian aspect of refugee work to the Nansen International Office for Refugees, or International Refugee Office for short.

Thériault states that at first it was generally assumed that the refugee problem was temporary and that countries voluntarily afforded refugees relatively generous benefits. However, by the late 1920s, European states began to recognize the enduring nature of the refugee problem and increasingly refused to integrate refugees. This led to a shift in international refugee law, as efforts to have states adopt agreements that imposed substantial obligations, such as the 1922 and 1924 arrangements regarding the issuance of the Nansen Passport to Russian and Armenian refugees, began to meet with limited state interest. Canada, for one, refused to sign onto any of these international initiatives. The Canadian government steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept such passport bearers if they were returnable to another country in the event that they became criminals or insane, something that Kaprielian-Churchill describes as a smokescreen and means of rejecting refugees. In fact, even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection. In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.

In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law, the League of Nations convened an international conference in 1933 to negotiate a Convention Relating to the International Status of Refugees. Canada had remained a colony of the British Empire until 1931, meaning that there was no such thing as “Canadian foreign policy” before then, as Britain did not permit its colonies to sign treaties, form alliances, or pretty much interact in any meaningful way with other countries without London’s approval. In 1931, the U.K. passed the Statute of Westminster giving its self-governing white colonies the right to make their own foreign policy choices. It is thus of some significance that, two years later, Canada neither attended the conference which negotiated the Convention Relating to the International Status of Refugees, nor subscribed to the ensuing agreement. Nonetheless, this Convention is remembered as the first attempt to create a comprehensive legal framework for the protection of refugees and the time the principle of non-refoulement was first incorporated into international law.

The stark limits on Canada's willingness to take in refugees can be illustrated by looking at the main refugee groups that sought sanctuary during this period. As Irving Abella and Petra Molnar write, xenophobia and anti-semitism permeated Canada and "there was little public support for, and much opposition to, the admission of refugees [to the end of the Second World War]". For example, in the 1930s Canada restricted the admission of European Jews who sought safe haven from antisemitism and the emergence of fascism in Germany, but welcomed Sudeten Germans from Czechoslovakia in search of refuge given that they were considered to be more "desirable" immigrants. Armenian refugees were also subject to Canada's exclusionary policies. The Ottoman Empire began the mass killing, relocation, and deportation of its Armenian population in 1915. This claimed more than 1 million lives and resulted in more than half a million displaced persons. While 80,000 Armenian refugees would receive sanctuary in France, and 23,000 in the United States, fewer than 1,300 were admitted to Canada.

Canada justified its restrictive resettlement policies by employing a narrow definition of who qualified for refugee protection (to the extent that it discussed the categorization whatsoever). For example, when Jewish organizations in Canada asked the Canadian government for permission to resettle Jewish refugees displaced in Europe, the government demurred, claiming that, since many had left Russia with the consent of the authorities, they could not be considered refugees. Canada also did not support efforts to expand the conception of who was entitled to refuge. In 1938, the US government brought together 30 countries for a conference on the subject of the worsening refugee situation in Europe. Canada was a reluctant participant, tarrying for months before accepting the US invitation to attend the Evian, France event. Valerie Knowles describes Canada's participation at the summer 1938 conference as having been "minimal" and states that it was to Canada's relief that the delegates at the conference accomplished little more than to produce a statement of lofty principles not actually necessitating more liberal immigration policies. The work of the Nansen International Office for Refugees, or IRO, was halted this year, largely due to the position of the USSR, and despite the about 600 thousand refugees still under the Office's protection. That said, the separate Office of the High Commissioner of the League of Nations for Refugees continued to operate until 1946. The Intergovernmental Committee on Refugees (ICR) that was established that year, mandated to assist Jews from Germany and Austria, operated without Canadian involvement. Nonetheless, one aspect of Evian's legacy is that it is seen as a key moment in what Hathaway has called "the individualization of refugee law", because when the ICR was founded, it set forth a definition of a refugee that focused for the first time on why people were being displaced, something that would come to influence the 1951 Refugee Convention.

Canada also appears to have disregarded the notion of refoulement in its deportation decisions. For example, in its zeal to expel Communists, Canada removed persons who would be persecuted in their home countries. Hans Kist reportedly died of torture in a German concentration camp after being sent to that country from Canada. Kelley and Trebilcock write that many activists sent to fascist countries such as Italy, Germany, Finland, and Croatia were also in danger of losing their lives upon return.

That said, some people appropriately regarded as refugees did move to Canada during this time through Canada's regular immigration streams. In fact, Prime Minister Mackenzie King asserted that between 1932 and 1943 most of the immigrants who entered Canada were refugees. For example, between 1923 and 1930 close to 20,000 Mennonites from Russia were permitted to settle in Canada. As Kelley and Trebilcock set out the history, German-speaking Mennonite refugees from Russia came to Canada to escape hardship they were experiencing following the Russian revolution. Their refusal to take up arms during the revolution had alienated and angered both sides of the conflict, and Mennonites increasingly became the victims of brutal assaults and intimidation, which continued after the civil war ended. Throughout the 1920s, land expropriation, official intolerance of their religion, and threats of forcible relocation to Siberia prompted thousands to seek a safe haven elsewhere.

WWII-era refugee policies

Canadian refugee policy continued to be marked by antisemitism and xenophobia throughout the Second World War. Sanctuary was provided to many persons of favoured ethnicities, principally the British, and was denied to others.

At the beginning of the war, Canada began to allow for the admission of British children in danger overseas. The government agreed to the admission of 5,000 British children and their mothers and more than 4,500 British children and 1,000 mothers came to Canada. The movement was abruptly terminated in 1940 when two ships carrying children to Canada were torpedoed.

Entry for non-British persons was not facilitated in the same way. For example, a visible manifestation of the antisemitism which marked Canada's immigration and refugee policy at this time was the 1939 decision to deny admission to 930 Jewish refugees on the SS St. Louis seeking asylum from Nazi Germany. These refugees were instead sent back to what awaited them in Germany. When, later in the war, in 1943, Canada did announce that it intended to admit some Jewish refugees who had made their way to the Iberian peninsula, this is said to have "ignited a storm of protest from anti-refugee interests". Quebec opposition leader Maurice Duplessis held rallies in which he charged that that provincial and federal Liberals were set to allow the "International Zionist Brotherhood" to, in his words, settle 100,000 Jewish refugees in Quebec in return for election financing. Ultimately, Canada admitted fewer than 5,000 Jewish refugees during the Second World War, something Trebilcock and Kelley call one of the worst records of any democracy in providing assistance to the persecuted Jews of Europe. In contrast, the US allowed 240,000, Britain 85,000, China 25,000, Argentina and Brazil over 25,000 each, and Mexico and Colombia received some 40,000 between them. When a Canadian immigration official was asked how many Jews the country would admit after the war, their famous response was, “None is too many.”

Measures were also employed to exclude and restrict persons considered "enemy aliens" during the Second World War. Canada enacted mass internment policies that placed so-called German enemy aliens - Nazi sympathizers and Jewish refugees alike - into camps. Regulations under the War Measures Act also restricted entry by Japanese immigrants, provided for the deportation of Canadian citizens of Japanese descent, and effected the internment of Japanese persons. In February 1942 the government ordered the expulsion of some 22,000 Japanese Canadians from a 100-mile swath of the Pacific Coast. The majority were relocated in the interior of British Columbia, often in detention camps in isolated ghost towns. Japanese Canadians were forced to remain in these detention camps until the end of the war. Then, after the conclusion of hostilities, about 4,000 would surrender to pressure and leave Canada for Japan under the federal government's "repatriation" scheme. Of these, more than half were Canadian-born and two-thirds were Canadian citizens.

During the war, the British government also transported 2,500 "enemy aliens" to Canada. For the most part, these were German and Austrian nationals, many of them highly educated Jews, who had been living in Great Britain when the war erupted. Valerie Knowles describes their reception in Canada as follows:

The Canadian government agreed to receive these male civilian internees in the belief that it would be assisting hard-pressed Britain by accepting custody of a number of "potentially dangerous enemy aliens". Canadian authorities were therefore astonished to see a large assortment of teenage boys, university students, priests, and rabbis step ashore at Quebec. Despite their misgivings, however, the Canadians proceeded to place all in camps that resembled maximum security prisons. And it was here that scientists, theologians, musicians, teachers, artists, and writers, among others, would be forced to bide their time for months to come.

Knowles notes that, fortunately for these prisoners, the British government soon realized that it had done a possibly grave injustice to many of the internees and initiated steps to have them released. In 1945, Canada reclassified these one-time prisoners as "Interned Refugees (Friendly Aliens) from the United Kingdom" and invited them to become Canadian citizens. 972 chose to do so.

While Canada admitted a limited number of refugees during WWII, the number of refugees and displaced persons in other countries at this point was high: globally 175 million people—approximately 8 percent of the world population—were displaced in the aftermath of World War II. How to respond to them in a post-war environment became an increasing preoccupation of the Allied powers.

United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organization (IRO)

In 1943, with the end of World War II in sight, the allied powers began to lay the foundations of a post-war refugee regime. In that year, they established the United Nations Relief and Rehabilitation Agency (UNRRA) in preparation for the liberation of Europe. The War had created a refugee crisis of at least 10 million, and perhaps as many as 14 million, stateless persons in Europe alone. At war’s end, there were over a million displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp survivors, others were individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to communist regimes. Canada provided funding to the UNRRA, which operated more than 800 displaced persons camps in Europe; distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortage; and focused on the repatriation of displaced persons back to their home countries in Europe in 1945-46.

The activities of the UNRRA immediately began to be enmeshed in Cold War politics. The organization was faced with large numbers of displaced persons who were reluctant to return to countries where communist parties were taking a firm hold. Many Polish, Ukrainian, and Baltic persons were thus residing in camps, asking to be referred to a non-communist country, as opposed to their country of citizenship. Soviet officials objected to any willingness to countenance such demands. While the UNRRA was returning large numbers of displaced persons to their countries against their will at this point - perhaps some 2 million - this was becoming increasingly untenable. Many of those being returned were fearful of returning to Stalin's Russia, and indeed significant numbers were executed and/or sent to labour camps. In response to this situation, in December 1946 Western governments decided to stop funding the UNRRA and to transfer the task of organizing resettlement work from the UNRRA to a new entity, the International Refugee Organization. Unlike the UNRRA, the IRO had no Soviet participation and its chief function was not repatriation, but instead the overseas resettlement of refugees and displaced persons.

As Shauna Labman writes, it was at this point that the focus of refugee law and institutions shifted from an individual's inability to return home to their unwillingness to return home. In retrospect, this move to accommodate those with objections to returning to communist countries represented a sea-change in the international approach to refugees. Previously, international organizations had dealt only with specific groups of refugees, such as Russian or German refugees, and, in Gil Loescher's words, governments had never attempted to formulate a general definition of the term 'refugee'. For the first time, therefore, with the establishment of the IRO, the international community was making refugee eligibility dependent on the individual rather than group membership and accepted the individual's right to flee from political persecution to a safe country. Alan Nash situates this within the politics of the time, noting that the West was seeking to legitimate its refusal to repatriate by developing the principle of non-refoulement, which had heretofore featured little in previous refugee agreements by using an approach to managing refugees that extended relief to those who were unable or unwilling to adapt to the ideologies of their own countries and for whom continued residence there was intolerable.

To achieve its mandate, the IRO had its own specialized staff, a fleet of more than 40 ships, and, most importantly, the political and economic support of the developed world. With the opening up of this IRO resettlement program, the number of repatriations to Eastern Europe was reduced to a small trickle and the IRO began operations that would relocate more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania. After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons. In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe. In 1947, Canada began to accept refugee referrals from the International Refugee Organization. Canada also deployed its own immigration officers overseas for the purposes of selecting from among the displaced persons. Collectively, these arrivals comprised what was called the Displaced Persons Movement, which successfully resettled 186,154 persons to Canada over the course of six years. Of these, 100,000 entered Canada between 1947 and 1951 through what were termed labour-sponsored movements whereby an employer could show the government that a job could not be filled locally and the government in turn would have the IRO refer two or three potential immigrants from among available refugees for each needed labourer. During the four and a half years of IRO operations, Canada would accept 12% of all refugees resettled by the organization, when compared to Australia at 18%, Israel at 13%, and Britain at 8%. The terminology used at this time is not consistent: at times 'displaced persons' were contrasted with refugees in that displaced persons were those willing to return to their country of nationality post-war whereas refugees were not; at times the terms 'refugee' and 'displaced person' were used as synonyms; and at times the term 'displaced persons' was used to refer to what we now think of as 'internally displaced persons', in contrast to 'refugees' who had fled across a border from their home state.

When announcing the government's willingness to allow the movement of war survivors to Canada on May 1 1947, Prime Minister Mackenzie King articulated the government's position as follows: "It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy. Immigration is subject to the control of the parliament of Canada." Despite such protestations to the contrary, this speech is seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter. For example, in deference to the UN Charter, Mackenzie King announced that the Chinese Immigration Act of 1923 would be repealed and that Chinese residents of Canada would be able to apply for naturalization. Similarly, it was at this time that Canada was involved in discussions about the Universal Declaration of Human Rights, which would emerge in 1948 recognizing that “everyone has the right to seek and to enjoy in other countries asylum from persecution.” Despite this growing accommodation to human rights rhetoric, King's realpolitik was reflected in Canada's actions: the tens of thousands of displaced persons that Canada accepted during this post-war period were "carefully selected, and most of them would have satisfied our standards if they had been applying as immigrants", according to one contemporary author. Furthermore, it is arguable that the Holocaust had surprisingly little effect on refugee policies in the immediate post-war decades, especially in comparison to the effect of Cold War power politics on Canada's actions.

1947 also saw the birth of the concept of Canadian citizenship, with the coming into force of the Canadian Citizenship Act that January. Before the Citizenship Act, the people of this country were British subjects. The new Act eliminated the classification "British subject" and merged the pre-existing legal concepts of “nationality” and “citizenship” into a single status, that of “Canadian citizen”, and in so doing sought to create a unifying symbol for Canadians.

The founding of the UNHCR, negotiation of the Refugee Convention, and growing refugee intake

The International Refugee Organization had a time-limited mandate. The assumption of the international community was that refugees and displaced persons were a creation of war, hence an end to the fighting would mean an end to the existence of such individuals. However, as the IRO's June 1950 termination date neared, refugees continued to abound in Europe. Indeed, they were increasingly arriving across Western European borders from the Eastern Bloc. As a result, on December 3, 1949, the UN General Assembly decided to establish the United Nations High Commissioner for Refugees (UNHCR). A year later, on December 14, 1950, the Statute of the Office of the United Nations High Commissioner for Refugees was passed by the UN General Assembly, which defined the UNHCR's mandate to provide for the protection of refugees and forcibly displaced people and assist in their voluntary repatriation, local assimilation, or resettlement to a third country. The UNHCR began its work on January 1, 1951 with a staff of 99 and a budget of $300,000. It ha a humanitarian mandate and was to be of an entirely non-political character. At that point, the IRO was engaged in an extended wind-up of its operations, which it completed in 1952. The UNHCR, too, was intended to be temporary, with the UN General Assembly giving the organization a 3-year mandate to address the needs of displaced Europeans from World War II.

At the same time, negotiation of what would become the foundational treaty for modern refugee protection, the 1951 United Nations Convention Relating to the Status of Refugees, was underway. The preparatory work for the Convention started in 1948, with the initiation of the UN Secretary-General’s ‘Study on Statelessness’. The first round of negotiations in the drafting of the Refugee Convention then began through what was termed the Ad Hoc Committee on Statelessness and Related Problems, which was appointed by the UN Economic and Social Council on 8 August 1949. The Ad Hoc Committee was said to comprise a small circle of government representatives possessing ‘special competence’ on the subject, in the words of the relevant ECOSOC resolution. It was mandated to consider, and act on, the recommendations made in the Secretary-General’s ‘Study on Statelessness’. Cold War politics were felt during these discussions largely through the absence of the eastern block countries—the USSR and Poland first ‘walked out’ and then boycotted the Ad Hoc Committee in protest of the participation of (Nationalist) China. The committee, chaired by Canadian Leslie Chance, met from 16 January to 16 February 1950, and prepared the first draft of a refugee convention.

The Ad Hoc Committee then provided its report to the Social Committee of the UN Economic and Social Council. Discussions among the 15 country representatives on the Social Committee then took place over the course of eight meetings from 31 July to 10 August 1950. A draft text was voted on by ECOSOC, and the text then passed to the UN General Assembly. On December 14, 1950, the General Assembly debated and then adopted a draft of the text by 41 votes to 5, with 10 abstentions.

From there, a committee entitled the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons was formed to conduct the final negotiations on the Convention. The much-discussed travaux préparatoires of the Refugee Convention are from these meetings, which ran from July 2 to July 25, 1951, with the Convention being signed three days later on July 28.

Pursuant to this Refugee Convention, refugee status was a label held by individuals on the grounds of their personal circumstances. This contrasted with earlier definitions that had generally applied to all nationals of a particular state or persons of a particular ethnic group from that state, and in so doing required the asylum seeker to provide a more personalized account of their experiences as well as the general situation in the country of origin. Thereby, the scope of protection was narrowed and the importance of individual screenings increased.

Cold War politics played an important role in the countries that participated in this conference—while 26 nations attended the negotiations, other than Yugoslavia, no Soviet bloc country was present. While the Soviet Union had wanted a different approach from the individualized one that emerged from the conference, its absence from the negotiations led to Western nations prevailing in stressing the search for individual liberty as the central feature of refugee protection. A contrasting Soviet view can be see in that country's 1976 Constitution:

Article 38. The USSR grants the right of asylum to foreigners persecuted for defending the interests of the working people and the cause of peace, or for participation in the revolutionary and national-liberation movement, or for progressive social and political, scientific, or other creative activity.

Canada was seen to be a leader at the conference drafting the Convention: it was one of twenty-six countries to send a delegate to participate in the conference; a Canadian, Leslie Chance, chaired the conference; Canada was the country in the Americas that presented the most proposals during the process of drafting the Convention, voicing comments during discussions that were otherwise dominated by the European states; and Canada was a part of the working group vested with the responsibility of drafting arguably the key part of the Convention - the definition of a refugee in Art. 1 of the document. Canadian chairman Leslie Chance reported “we have been regarded throughout as taking a forward attitude.” As an aside, Chance's statement could be regarded as somewhat self-serving given the shifting positions Canada took at the conference, for example arguing, contra France and the United Kingdom, for the inclusion of temporal and geographical limitations in the Convention, prior to flipping that position and arguing against such restrictions. In any event, Canada did ultimately advocate at the conference "in favour of the widest possible definition" and took the position that "the purpose of the Convention was to protect refugees, not states."

The ensuing Convention provides a definition of a refugee and outlines the rights to which such people are entitled. The rights are a series of claims individuals can make against states: principally, the right not to be forcibly returned to a country in which there is a risk of serious harm (non-refoulement), as well as, for those recognized as refugees, key civil, political, economic, and social rights. While other Commonwealth states like Australia and Britain ratified this resultant Convention, Canada declined to do so. By way of explanation, then Secretary of State for External Affairs Lester B. Pearson announced that the government was concerned the Convention would give the refugee “the right to be represented in the hearing of his appeal against deportation” and, further, that the Convention would “grant rights to communists or to other persons who believed in the destruction of fundamental human rights and freedoms.” The Canadian government also noted with concern that, "some sections of the Convention appeared to prohibit states from deporting 'bona fide' refugees, even on grounds of national security". This reflected the RCMP’s belief that the Convention would restrict Canada’s right to deport refugees on security grounds and the government’s suspicion that the International Refugee Organization was infiltrated by communists. Without Canada, the Refugee Convention entered into force on April 22, 1954.

Despite not signing the Convention, in the ensuing years Canada inexorably became more involved in refugee matters:

• Pledging to respect non-refoulement obligations: Despite not signing the Convention, Canada pledged to nonetheless uphold the Convention’s non-refoulement obligation. In practice, Canada had no difficulty in ensuring compliance with what it viewed to be the requirements of the Convention because, from the late 1940s, and in line with US practice, Canada's Immigration Branch had invoked an administrative ban on deportations to any Communist country. Haddad notes that such a commitment was not onerous as the numbers emerging from behind the Iron Curtain were minimal for the simple reason that "refugees could not escape".
• Financially supporting UNHCR: Canada financially supported the UNHCR from its establishment. That said, Canada's contributions to UNHCR for the maintenance of refugees during this period have been described as "minimal" and in 1952 the Canadian government eliminated the UNHCR’s Canadian office.
• Becoming a member of UNHCR ExCom: In 1959, began to sit on the then-new UNHCR Executive Committee, an advisory body of states that gives guidance to the High Commissioner. The UN General Assembly established the Executive Committee of the Programme of the United Nations High Commissioner for Refugees in 1958, several years after the founding of the UNHCR. ExCom is responsible for approving the Office's annual budget and programme, for setting standards and reaching conclusions on international refugee protection policy issues, and for providing guidance on UNHCR's management, objectives, and priorities. In the 1950s, this group started with 24 member states. ExCom members need not have ratified the Refugee Convention, but are instead selected ‘on the basis of their demonstrated interest in and devotion to the solution of the refugee problem’.
• Growing refugee resettlement and admissions: At the time of UNHCR's creation, one of its principal tasks was to resolve the situation of those in displaced persons camps in Europe. Despite an initial expectation that this could be accomplished quickly, as of 1960 the UNHCR was still running refugee camps in Europe for persons displaced during WWII. For its part, by this time Canada had admitted nearly 250,000 displaced persons from Europe, many of whose journeys to Canada had been subsidized by a Canadian government seeking to recruit more workers for a booming economy. In the years following the UNHCR's creation, Canada also allowed for refugee entry on an ad-hoc basis for those displaced from other regions and for other reasons, ranging from small groups, such as when Canada admitted 39 Palestinian families in the wake of the displacement occasioned by the founding of the State of Israel, to larger movements, including the 37,000 Hungarian refugees Canada admitted following the Hungarian Revolution in 1956.
• Increasing procedural fairness for migrants in Canada: Canada also saw a movement towards increasing the extent of procedural fairness offered to migrants in Canada, providing for the creation of immigration appeal boards in 1952 which could hear appeals from decisions to deport aliens. Details of the IABs and their history follow below. That said, Canada's overall immigration laws continued to restrict persons for reasons of race, class, and health, and "national security" concerns related to the fear of communism, which were used to reject more than 29,000 applications to enter Canada between 1946 and 1958.

Non-discrimination measures

The 1952 Immigration Act empowered Cabinet to limit the admission of migrants by reason of a large number of grounds that allowed for Canada's discriminatory policies, including:

(i) nationality, citizenship, ethnic group, occupation, class or geographical area of origin,

(ii) peculiar customs, habits, modes of life or methods of holding property,

(iii) unsuitability having regard to the climatic, economic, social, industrial, educational, labour, health or other conditions or requirements existing ... in Canada ... or

(iv) probable inability to become readily assimilated or to assume the duties and responsibilities of Canadian citizenship ...

Furthermore, to this point Canada's immigration service had been plagued by widespread corruption. Among applicants, the Deputy Minister Keenleyside noted, there was a widespread belief that "even the simplest and most proper requests had to be lubricated with monetary or more personal favours."

By the 1960s, values were changing across Canada, and around the world, and Canada’s racially-based, Eurocentric approach to immigration and refugee policy was becoming less and less aligned with how the country both viewed itself and wished itself to be seen. Canada’s unofficial ban on black immigrants was costing it diplomatic legitimacy with newly independent former colonies and, by 1961, Britain had begun to pressure Canada to change its policies, as it had an open door to immigrants, such as those from the West Indies, that were barred entry into Canada. Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights, which prohibited discrimination by reason of race, national origin, colour, religion, or sex.

Canada began to repeatedly liberalize who it was prepared to admit, for example admitting 325 tubercular refugees and their families around 1960, the first time that Canada had waived its health requirements for refugees. In 1962, Prime Minister Diefenbaker's Immigration Minister tabled new regulations in the House that eliminated racial discrimination as a major feature of Canada's immigration policy. With this revision, historian Valerie Knowles states that the last vestige of discrimination which remained in the immigration regulations was a provision that allowed immigrants from Europe and the Americas to sponsor a wider range of relatives, something that was inserted at the last moment because of a fear that there would be an influx of sponsorships by persons from India. In 1965, Canada ratified the four Geneva Conventions which form the basis of international humanitarian law, including the 1949 Geneva Convention Relating to the Protection of Individuals in Times of War which includes a provision that refugees should not be considered enemy aliens if they had formerly had the nationality of an enemy power. Then, in 1966 Lester B. Pearson's government created the Department of Manpower and Immigration and mandated it with the responsibility of processing refugees without “discrimination by race, country or religion”. That department set to work and in 1967 all vestiges of discrimination were removed from the immigration regulations, if not the statutes themselves, and the government implemented its much-vaunted 'points system' in the regulations to guide the selection of many categories of immigrants.

That said, Canada's immigration laws continued to restrict persons who were "undesirable", which was used as a basis for screening prospective immigrants for "national security" concerns related to feared communist subversion. This was used to reject more than 29,000 applications to enter Canada between 1946 and 1958.

Immigration Appeal Boards

Immigration Appeal Boards, which could hear appeals from decisions to deport aliens, became a feature of the Immigration Act in 1952. Each board would consist of three staff members from the immigration department selected by the executive on an ad hoc basis. The ability to have recourse to an immigration appeal board was, from the time of their creation, limited: all appeals were to be heard by the Minister unless, at the Minister's discretion, the appeal was directed to an IAB. Furthermore, the Minister could also reverse any decision of an IAB.

1962 regulations expanded the jurisdiction of these boards to include appeals from all deportation decisions under the Act. In this way, while immigration to Canada continued to be considered a privilege, and not a right, basic due process protections were coming to be seen as properly extended to aliens. Specifically, as Trebilcock and Kelley note, it was coming to be accepted that the rules governing admission or deportation of aliens should be reasonably well specified and transparent, and that deportation decisions should generally be open to challenge before a neutral tribunal. That said, at this point, the Immigration Appeal Boards played what Trebilcock and Kelley describe as “a very minor role” in immigration decisions because their jurisdiction was limited to questions of law, and in view of the large discretionary powers granted to the immigration department, errors of law were quite rare. Furthermore, given that the boards were controlled by immigration officials, they could be considered neither neutral nor independent.

In March 1967, the Immigration Appeal Board Act changed this. This Act emerged from what was called the Sedgwick Report, drawn up by Joseph Sedgwick, Q.C., a one-man board of inquiry which had been commissioned by the government to study a series of highly controversial deportations. The principal features of the newly reconstituted Board following the passage of the 1967 Immigration Appeal Board Act were:

• Independence: Chief among the recommendations was the establishment of a completely independent Immigration Appeal Board. The Board was no longer controlled by immigration officials, but was instead a quasi-judicial entity independent of the Department of Manpower and Immigration. The Governor in Council now appointed the members of the IAB to serve fixed terms. In 1973, the IAB's independence was further strengthened through legislative amendments which provided that some IAB members would be appointed on a permanent basis, while others would be appointed to serve renewable two-year terms.
• Broader jurisdiction: The Board assumed the status of a court of record. A right of appeal to the Board was created for everyone who had been ordered deported from Canada, and for denial of Canadian citizens’ family sponsorship applications. Persons could appeal to the IAB on grounds of law, fact, mixed fact and law, or compassion. As described below, from 1973 the grounds for appeal came to include those who believed themselves to be refugees in accordance with the 1951 Geneva Convention. However, even prior to this time, any person who had been refused landing and ordered deported could appeal to the IAB, and the Board could order that person to be landed. Because the Board had a flexible and generous compassionate jurisdiction, in Plaut's view, refugees were "to a large extent" accommodated under the IAB's procedures, and "there was therefore no real need for a specific refugee determination process".
• Final authority over deportation decisions: Under the 1952 Immigration Act, the IAB consisted of Immigration Branch officials who made recommendations to the Minister, which the Minister could accept or reject at their discretion. Decisions of the newly reconstituted IAB were instead final (subject only to judicial review, as set out below).
• Leave requirement for judicial review: IAB decisions were final, subject to an appeal, with leave, to the Supreme Court of Canada on questions of law, including jurisdiction. As commentators have noted, these leave requirements have effectively served to "insulate" such administrative decisions from judicial review.

The 1967 changes to the Immigration Appeal Board are said to have proceduralized and judicialized immigration policy to an unprecedented degree and to have presaged calls for similar due process protections in the determination of refugee claims. That said, the Board had a statutory limit of 7 to 9 judges (later increased to 10) and was unable to keep pace with the scale of removals being ordered. Almost immediately, the Board was swamped with a backlog that, at existing case processing rates, was expected to take decades to go through. For example, as of August 1973 the IAB had a backlog of 17,000 cases, which it was deciding at a rate of 100 cases per month. In effect, anybody wanting to achieve de facto permanent residence in Canada needed only to lodge an appeal of their deportation with the Immigration Appeal Board to be added to the Board's backlog, which began to extend into the 21st century.

As a result, in 1973 the government amended the Immigration Appeal Board Act to abolish the universal right of appeal for all persons in Canada. Instead, only permanent residents, valid visa holders, and persons claiming to be refugees or Canadian citizens were given a right of appeal. In order to clear the backlog, the government also instituted a one-time amnesty program, which more than 39,000 people availed themselves of, including a significant number of US draft dodgers.

Negotiation of the 1967 Refugee Protocol

The 1951 Convention was seen by many as a Convention that reflected European experience - and by its terms was limited to those fleeing persecution ‘as a result of events occurring before 1 January 1951'. In the 1950s, refugees were emerging in other parts of the world in increasing numbers. In the 1950s, for example, anti-communist and nationalist Chinese refugees fled to Hong Kong in large numbers. In the 1960s, decolonization in Africa saw the scale of the refugee phenomenon there grow. Estimates put the total refugee population of Africa at 400,000 in 1964, a figure that had reached one million by the end of the decade. To wit, in the early 1960s, 150,000 Tutsi refugees fled Rwanda for Uganda, Burundi, Tanzania and Zaire; more than 80,000 refugees from Zaire could be found in Burundi, the Central African Republic, Sudan, Uganda and Tanzania by 1966; the first Sudanese war that ended in 1972 created 170,000 refugees; and there were 250,000 refugees from Rhodesia in Mozambique, Zambia and Botswana by the end of the 1970s.

UNHCR responded in a number of ways. In 1957 it developed what was called its ‘good offices’ mandate, which allowed the organization to bypass the geographical limitations of the Geneva Convention and assist in, inter alia, Hong Kong. In the mid to late 1960s, negotiations started to expand the temporal and geographic scope of the 1951 Refugee Convention. The Organization of African Unity's move to negotiate a regional refugee convention for Africa was feared by the UNHCR as something that could limit its authority and undermine the (supposedly) universal regime it shepherded. The 1967 Protocol was UNHCR's response. As articulated by the UNHCR, the motivation behind this initiative was to ensure that the de facto racial distinctions built into the 1951 Convention yielded to a growing anti-discrimination postcolonial zeitgeist:

The Convention had led to an unfortunate discrimination among the different groups of refugees, in particular with regard to the African refugees. Such discrimination conflicted with the Statute of his Office and was contrary to the universal spirit of the Convention itself.

The resultant protocol was signed at New York in January 1967. It entered into force that October. The changes that the protocol made to the 1951 Refuge Convention were straightforward: extending the territorial and temporal scope of the Refugee Convention to cover refugees outside of Europe and those displaced for newly emerging reasons. Canada was a laggard in signing the instrument. It initially refused to commit to the initiative to negotiate a protocol to the Refugee Convention on the basis that it was preparing what it termed its White Paper on Immigration. In 1966 Canada released this White Paper to, in researcher Clare Glassco's words, "test the waters" for making more fundamental changes to the immigration regime. Reaction to the White Paper was, however, tepid to negative. As a result, it would be three years until Canada would come to sign onto the 1967 Refugee Protocol.

Canada's ratification of the Refugee Convention and Protocol

Among many initiatives, the 1966 White Paper on Immigration committed to the establishment of an immigration admissions policy that would be free from discrimination on the grounds of "race, colour or religion". Further, the Paper proposed both the introduction of a refugee determination process within Canada’s borders, as well as the ratification of the 1951 UN Refugee Convention. As immigration official E.P. Beasley noted in 1966, in reference to the need for a clear refugee policy, in his view Canada had “become a country of first asylum,” and, thus, “the time may have come to set forth in legislation machinery and a methodology for determining these individual cases more precisely and more fairly.” The concept of a "first country of asylum" in this context refers to a situation where Canada is the first country that grants protection to an individual, as opposed to resettling individuals who have already found temporary protection elsewhere. An overall 'concept of control' had arguably traditionally governed Canada's refugee admission policies, a concept designed to control the 'quality' of those admitted, to ensure refugee selection overseas, and to prevent uncontrolled movement into Canada. At this time, Canada was increasingly seeing itself as a country of first asylum as Cold War crises caused thousands to seek safe haven in the West. That said, reaction to the White Paper was sharply negative, which accounts for why it took a further three years to make significant reforms to the immigration regime.

In May 1969 Canada ratified the 1957 Agreement Relating to Refugee Seamen. Then, a month later, in June 1969 Canada ratified the 1951 Convention Relating to the Status of Refugees as well as the 1967 Protocol Relating to the Status of Refugees. A statement by the Department of Manpower and Immigration at the time said that accession "would not alter the generous treatment Canada had traditionally extended to refugees". Indeed, at that time, most refugees were from Eastern Europe, and it was Canadian policy not to return them forcibly, and as such they were generally given immigrant status. Very few persons at that time entered Canada from the parts of the world that are major refugee-producing hotspots today. Furthermore, at that time refugees could apply for residency from within Canada and be considered under our general immigration policy.

Despite ratifying the aforementioned international instruments regarding refugees in 1969, no statute-based, official refugee policy existed in Canada for affirmative claims until the implementation of the 1976 Immigration Act. Instead, refugee claims were dealt with on an ad hoc basis by the then Department of Manpower and Immigration. In 1972, the regulation permitting immigration applications to be made from within Canada was revoked. This policy change would drive more people in Canada who did not want to be removed to avail themselves of the country's nascent refugee determination procedures. In 1973 the Canadian government established its first formal administrative structure to deal with refugee claimants. An interdepartmental committee comprised of representatives from the Departments of External Affairs and Manpower and Immigration met to assess individual claims and forward their recommendations to the Minister of Manpower and Immigration who had the authority to decide whether a refugee claimant could remain in Canada or would be deported. Furthermore, the Immigration Appeal Board Act was amended that year to empower the Board to quash a deportation order against a person it determined to be a Convention refugee and to also grant special relief in other cases because the claimant would suffer undue hardship or where humanitarian and compassionate considerations could be invoked. While refugees were given a statutory right of appeal to the IAB, the term "refugee" was not defined.

At this point, inland claims occurred at the level of hundreds per year. Individual orders-in-council granted a person status in Canada at the Minister’s discretion and were based in part on humanitarian, economic, and political considerations. Hathaway states that this was one of the flaws of the system: it was wholly within the Board's (or Minister's) discretion to grant or withhold landing in any particular case; as a result, there was no guarantee that refugees would received protection from Canada. This in-Canada assessment system complemented the overseas assessments then ongoing. Canada had issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas. That year Cabinet also approved what was termed the Oppressed Minority policy, which provided for the selection of oppressed people who were not Convention refugees because they were still in their home countries.

Canada incorporated its obligations under the Refugee Convention and Protocol into domestic law at the same time as series of international efforts to expand the scope of those treaties were underway. Some of these international efforts were successful, for example Canada ratified the Protocol to the Agreement relating to Refugee Seamen in 1975. Other efforts were fruitless. In 1967 the United Nations adopted a Declaration on Territorial Asylum which provided, in Article 3, that no person entitled to invoke Article 14 of the Universal Declaration of Human Rights should be subjected to measures such as rejection at the frontier. A conference was then held in 1977 to embody this, and other provisions, in a revised convention, a proposed UN Convention on Territorial Asylum. While a draft was produced, the conference ultimately ended in failure.

Establishment of the Federal Court and increasing judicial scrutiny of immigration decisions

Immigration law during the first century of Canada's nationhood has been said to have been implemented in a "highly discretionary and largely unaccountable" manner. It had previously been the case that the Immigration Act included a very strong privative clause, which courts had largely respected. The 1910 Act stated that "no court, and no judge or officer thereof shall have jurisdiction to review, quash, reverse, restrain or otherwise interfere with any proceeding, decision or order of the Minister or of any Board of Inquiry, or officer in charge ... relating to the detention or deportation of any rejected immigrant ... upon any ground whatsoever, unless such person is a Canadian citizen or has Canadian domicile." As Trebilcock and Kelley summarize, courts of the day, on the whole, respected these limitations imposed upon them. The comments of one Quebec Superior Court judge on this privative clause from a 1921 decision are illustrative:

... what Parliament intended, and what Parliament actually provided in the language of this statute, was that all questions as to the entry of immigrants into Canada should be determined exclusively by the machinery of the Department of Immigration, namely by the board of inquiry and immigration officers, subject only to an appeal to the Minister, and without any powers of review or control by the Courts ... ... no Court or Judge may interfere with the proceedings of a board of inquiry, either on the grounds of misunderstanding or misrepresentation of the law, or of the regulations, nor on account of admission of illegal evidence, nor of error in weighing the evidence heard, nor on account of any informality or omissions which may fairly be classed as a matter of procedure, or of departmental regulation.

This began to shift so that principles of fairness and due process began to assume an increasing importance in the system. Per the 1967 Immigration Appeal Board Act, challenges to IAB decisions could be filed directly with the Supreme Court of Canada, with that court's leave. Thereafter, the scope of the privative clause in the Act was reduced and in 1971, the Federal Courts, both Trial and Appellate, were established. At this point, Parliament amended the Immigration Appeal Board Act to direct applications for judicial review of IAB decisions on any question of law to the Federal Court of Appeal, which would have the discretion to grant leave and hear a matter. Furthermore, the decision of the Minister rejecting a claim to Convention refugee status was reviewable by the Federal Court Trial Division at this time, given that the Trial Division had jurisdiction to issue the traditional prerogative writs where the Court of Appeal did not have jurisdiction. That said, the supervisory jurisdiction of the Federal Courts was usually invoked by way of a judicial review of the IAB decision to the Federal Court of Appeal, rather than by way of reviewing the Minister's subsequent decision at the Federal Court Trial Division.

Raphael Girard credits the court's decisions with embedding principles of procedural fairness and transparency of decision making in the immigration Ministry's day-to-day operations. The Federal Court's immigration caseload would come to account for a large majority of its work and cause long queues of cases seeking judicial review. As of the mid-1980s, when judicial reviews were directed to three-member panels of the Federal Court of Appeal, roughly 75% of judicial review applications before that court were for the review of refugee determinations by the IAB. Two decades later, in the years preceding the implementation of the Refugee Appeal Division at the IRB in 2012, judicial review of inland refugee matters made up around half of the Federal Court’s caseload.

1976 Immigration Act

The revised Immigration Act introduced into Parliament in 1976, and brought into force two years later, was a watershed moment for Canadian immigration policy. It overhauled the statute for the first time more than two decades, expunged the last vestiges of open discrimination in the Act, for example by lifting a ban prohibiting gay men and women from immigrating, and, after a broad national debate, introduced a series of objectives into the statute which largely remain to this day. It did all of this through provisions that, with their detail and specificity, served to constrain executive decision making. It was with the introduction of the 1976 Immigration Act into Parliament that the government reinforced its willingness to assume its international share in refugee resettlement. It was this legislation that, for the first time, incorporated Canada's Refugee Convention obligations into statutory form. One of the objectives stated in the Act was "to fulfill Canada's international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and persecuted". The new Act recognized Convention refugees as a class of immigrants that could be selected abroad for permanent residence in Canada. The legislation also gave legal standing to the pre-existing ad hoc committee for advising the Minister of Immigration on individual refugee claims from people at the border or in Canada, the Refugee Status Advisory Committee (RSAC).

The RSAC process established in 1978 was as follows: those who sought refugee status in Canada had to first present themselves to an immigration officer. If they were found to be inadmissible (as was usually the case), then they would be sent to an immigration inquiry for a determination about whether they should be removed from the country. It was at this point that the individual could request refugee status, in which case the removal order was stayed and the person was brought before a senior immigration officer for an interview regarding the substance of the refugee claim. The senior immigration officer then sent the transcript of the interview to the RSAC. The RSAC reviewed the application and made a recommendation to the Minister as to whether to accept or deny the claim for protection. The program was very small: it processed only a few hundred claims per year throughout the late 1970s. In the year that the revised Immigration Act came into force, for example, 4,130 refugees were admitted to Canada, all of whom were fleeing communism.

Those who were not granted refugee status by the RSAC or the Minister had recourse to make an application on humanitarian and compassionate grounds. Such applications were considered by what was termed the Special Review Committee, which acted in an advisory capacity to the Minister. Furthermore, the Minister could determine that a person, though declared a refugee, should not be permitted to remain in Canada. Both groups had a right to appeal to the Immigration Appeal Board, whose proceedings were conducted in public. The IAB reviewed the documentary record and was authorized to grant an oral hearing on the merits of the claim for any applicant who, on the basis of the documentary record, showed that there were reasonable grounds to believe that the claim could be established. This legislative provision was interpreted to mean that the IAB could grant an oral hearing on the application only if the IAB determined that the application would probably be successful. Under this system, in its last year of operation, about nine percent of claimants determined by the Minister not to be refugees were determined by the Board to be refugees.

Access to the entire system was predicated on the fact that an individual was the subject of an inquiry into their immigration status, which essentially meant that they lacked legal status to remain in Canada. Other persons physically present in Canada, but with some form of (temporary) status had no right to make a claim or have it considered under the refugee claim process. This restriction led to what Rabbi Gunther Plaut termed an "administrative nightmare". In an effort to afford persons legally in Canada the benefits of the refugee status determination process, the Immigration Ministry instituted an extra-legal procedure known as the "in-status" claim. The claimant was considered in the same fashion as a person who made a claim while subject to an inquiry into their immigration status. There were problems with this. First, it lacked finality: if refused, the person could then make a second claim and undergo the whole process provided by the legislation anew. Furthermore, "in-status" claimants were ineligible for employment authorizations while they waited for their claim to be processed, their eligibility to work depending instead on the working permissions (or lack thereof) accorded to them by their pre-existing immigration status in Canada.

In the 1970s, most refugees that Canada accepted came via overseas resettlement, not an in-Canada asylum process. In the early 1970s Canada accepted its first non-European refugees by resettling a group of 228 Tibetan refugees and developing a “Tibetan Refugee Program” to host them. Tibetan refugee hosting opened the doorway to other refugee resettlement, as Canada accepted more than 7,000 ethnic South Asians expelled from Uganda under the dictatorship of Idi Amin in 1972-73, the first non-white refugees admitted to Canada in large numbers. Canada then admitted 7,000 Chilean refugees fleeing Pinochet’s regime in 1973 and about 10,000 Lebanese refugees fleeing the Lebanese Civil War between 1975 and 1978. In the 1970s, the U.S. was the largest source country of immigration, in part because of the large numbers of draft dodgers and deserters unwilling to fight in Vietnam who found refuge in Canada. Historian Valerie Knowles states that it is impossible to arrive at hard numbers for the number of draft resister and deserters who escaped to Canada during the Vietnam War, but estimates range from 30,000-40,000 from the Canadian Council for Refugees to between 80,000-200,000 according to Mark Fruitkin, a "draft resister" and author. Later that decade, from 1978 and 1981, 60,000 refugees from Southeast Asia were accepted - a figure that represents 25 percent of the number of immigrants admitted in these years. During this time, Canada resettled more refugees from overseas than any other country on a per capita measurement. Canadian immigration officials also travelled to El Salvador to interview prisoners at risk from paramilitary death squads there and grant refuge in Canada to some of those at risk, an example of processing claims in another country.

That said, decisions to accept these groups of individuals were ad hoc and highly political; for example, fearing that most of the Chilean political refugees were too left wing, and not wishing to alienate either the American or new Chilean administrations, the Canadian government restricted their numbers, which is what limited Canada to only accepting about 7,000 Chileans during that 30-year conflict. Similarly, after Canada accepted some Ugandan Asian refugees, there was marked public opposition to the move, with a poll in 1972 indicating that only 45 percent of Canadians approved of the government's decision; some in the government came to view this initiative as having cost the government seats in that year's election.

To address demands from civil society to have more of a role in refugee sponsorship, and criticism about government refugee sponsorship decisions, in 1978 Canada established a Private Sponsorship Program through which citizens could assist fully or partially in privately sponsoring new refugees. To date more than 300,000 refugees have come to Canada through this program.

Background to the founding of the Immigration and Refugee Board

The background to the creation of the Immigration and Refugee Board of Canada lay in concerns about the rigour, capacity, independence, and fairness of the pre-existing refugee status determination system in the 1980s.

To begin with, throughout the 1980s there were concerns about the rigour of Canada's asylum system and about potential abuse of the system. In the words of Deborah Anker, in the early 1980s the government undertook to amend what it painted as a fragile asylum system being taken advantage of by ‘illegitimate’ immigrants. One of the formative events in the creation of the IRB was the perceived crisis situation which emerged in the late 1980s when the federal government recalled Parliament for an emergency session to amend the Immigration Act after 174 Sikh persons arrived by lifeboat near the fishing village of Charlesville, Nova Scotia. At that time, the Canadian Employment and Immigration Advisory Council reported that most business and labour leaders felt the government had "lost control of the border". Such concerns about the integrity of the system were exemplified by the Reform Party platform in the 1980s which invoked what has been labelled "inflammatory language" about "immigration abuses, bogus refugees, [and] improper selection of immigrants". The Progressive Conservative government of the day stated that "many claims have been fraudulent. Recent data show that an average of 70 per cent of claims are unfounded". One response to these concerns, implemented in the mid-1980s, was what Deborah Anker describes as a series of restrictive measures, including the elimination of employment authorization and various social services for refugee claimants, and a new practice of returning refugee claimants travelling from the US to that country until their Canadian hearing date approached.

There were also concerns about the capacity of the pre-IRB system as a result of a growing number of refugee claims that were being made during the decade. Rebecca Hamlin states that Canada signed the above-noted international treaties making commitments to refugee protection before it began to consider itself to be a country of first asylum and before asylum seekers started coming to its shores in significant numbers. In 1980 Canada received what today looks like a very modest 1,488 refugee claims. By the middle of the 1980s, however, that number had grown to the point where such a large number of people were making in-country asylum claims that the system had become completely overloaded, with 8,260 claims being made in 1985. In 1987, some 27,000 refugee claims were initiated. The effect of this increase in claims, and the resources dedicated to refugee status determination, by 1988 it was taking an average of five to seven years for a claim to be processed. This increase in Canada mirrored similar increases elsewhere in the world, for example, while in 1976 Western European nations received 20,000 asylum seekers, in 1980 there were 158,000 such applicants and by 1986, more than 200,000 claims were being made annually.

In response to these growing numbers, as well as concerns about political interests potentially affecting decision-making on claims, in 1982 decision-making was transferred to a newly reorganized Refugee Status Advisory Committee, which for the first time was made clearly independent of the immigration department, with its own Chairman and an increased budget. Its independence was structurally enshrined by the fact that it reported directly to the Minister, instead of being a component of the Foreign Branch of the CEIC. This allowed it to, for the first time, compile authoritative and independent documentation on refugee-producing situations around the world. This system involved only written submissions, assessed by the committee in private, with the committee ultimately making recommendations to the Minister of Immigration. While in 1983 a pilot to provide such claimants with an oral hearing began in Toronto and Montreal, this simply involved an RSAC member who sat in on the examination and who could discuss any concerns that they had with the claimant and counsel. Under this model, the process was still bifurcated as that Member did not themselves make the actual decision; the decision was still made by the Minister on the advice of an RSAC panel who themselves had not seen the claimant. The Committee consisted equally of members from private life, the Department of Immigration, and the Department of External Affairs. As such, concerns about the independence of the refugee determination process from Canada's foreign policy persisted. The granting of refugee status could be seen to make a statement about the state of origin, and it was argued that Canada had a history of restricting the grant of refugee status on political grounds, focusing it in particular on Communist states and demonstrating a reluctance to recognize refugees from newly emerging post-Colonial states, lest such grants of refugee protection be perceived as an admission that western powers' policies and actions had been the cause of refugee flows. In the 1980s, for example, there were attempts by the Department of External Affairs to reverse RSAC decisions, indicating the extent to which the system was under observation.

This impetus for change was bolstered by a series of court decisions which undermined the extant framework for the refugee system. To that point, the system had distinguished between "in status" and "out-of-status" persons, contemplating refugee claims only for those individuals under inquiry for having violated the Immigration Act. In 1985, the Federal Court held that distinction to be unfair and inoperative. Furthermore, another 1985 decision, Singh v. Minister of Employment and Immigration, established that where the credibility of a claimant is at stake, an oral hearing before the then-Immigration Appeal Board was required. In so ruling, the Supreme Court of Canada set aside the previous system under which an application for an oral hearing had to be made. The Singh decision is often seen as a watershed that enforced Canadian Charter of Rights and Freedoms protections for migrants on arrival on Canadian soil, thereby requiring an overhaul of the refugee determination process to ensure that fair oral hearings started to be offered as a matter of course. One immediate response to the Singh decision was to expand access to oral hearings and to increase the capacity of the system in order to facilitate such access. In 1985, Bill C-55 modified the IAB to ensure that all refugees had the opportunity to have an oral hearing during their appeal and the bill increased the number of IAB members from eighteen up to fifty.

To address this constellation of challenges, the Canadian governments of the day commissioned a series of major studies, principally the 1981 Task Force on Immigration Practices and Procedures, the 1981 McDonald Royal Commission of Inquiry Concerning Certain Activities of the RCMP which reviewed the security screening process in immigration, the 1983 Robinson Report entitled Illegal Migrants in Canada, the 1984 Ratushny Report entitled A New Refugee Status Determination Process for Canada, the 1984 Deschênes Commission of Inquiry on War Criminals in Canada, and the 1985 report by Rabbi Gunther Plaut entitled Refugee Determination in Canada. Each of these reports recommend approaches for a new asylum determination system that would address both the right to be heard, and balance the competing interests of fairness and efficiency. The 1981 Task Force provided a report entitled "The Refugee Status Determination Process" which made three main recommendations: 1) the RSAC should be independent of immigration and external policy considerations, 2) the use of the Convention refugee definition should observe the spirit as well as the letter of the law, and 3) claimant should be given an oral hearing as part of the preliminary determination stage. Finally, the report also recommended that the Immigration Act "be amended to replace the present determination process with a central tribunal which would hear and determine refugee claims." The government took some immediate steps in response to the 1981 Task Force report. For example, with respect to the recommendation that the spirit of the Convention refugee definition be observed, the Minister issued new guidelines which instituted that the benefit of the doubt be given to claimants. The government also took other steps to increase the fairness of the system for refugee claimants, including replacing job-specific employment documents with generic authorizations in 1985 and dropping the requirement for an inquiry to be convened before a clamant would qualify for employment authorization - thereby eliminating an obstacle that had resulted in waits of up to eight months for employment authorization.

What ultimately emerged from all of these reports, events, and related legislative machinations of the 1980s was a new asylum system centred around a tribunal model. The relevant legislation, Bill C-55, or the Refugee Reform Act, was introduced in the House of Commons in 1986. This bill was supplemented by Bill C-84, the Refugee Deterrents and Detention Act. This latter, more restrictive piece of legislation, responded concerns about ships arriving on Canada's coast, criminality, and people smuggling. There was lengthy debate about these bills at an emergency session of Parliament. The Senate conducted an extensive inquiry into Bill C-84, and rejected the bill twice. Ultimately, after a new Immigration Minister agreed to additional amendments, the two bills were passed by the House of Commons and the Senate in 1988 and were given royal assent on July 21 of that year. Features and aspects of the new system included:

• Creation of an independent tribunal: The Immigration and Refugee Board of Canada came into existence as an independent administrative tribunal on January 1, 1989 with 115 members. At that time, the IRB consisted of two divisions: the Convention Refugee Determination Division and the Immigration Appeal Division, which replaced the previous Immigration Appeal Board. Gordon Fairweather, a former Attorney General of New Brunswick and the first Chief Commissioner of the Canadian Human Rights Commission, was appointed as the first Chairman of the IRB. As the respective names imply, one of the biggest changes was the move from a Refugee Status Advisory Committee which had left ultimate decision-making in the hands of the Minister it advised, to a fully independent tribunal.
• CRDD Oral hearings: The new refugee determination process included an oral refugee claim hearing with two IRB members presiding.
• Eligibility criteria: In 1988, the Canadian Parliament ‘introduced the concept of eligibility criteria into the legislation’ governing refugee claimants by revising the Immigration Act. The eligibility criteria have since been a prerequisite to claim refugee status in Canada.
• Eligibility and credible basis screening procedure: The Immigration Act included a procedure whereby all applicants had a hearing before a panel of two in which a claimant had the burden of proving that they were eligible to have their claim determined and that there was a credible basis for the claim. The panel included an immigration officer and a member of the CRDD. If either of the two panel members were persuaded, then the claim would be heard at a full hearing before the CRDD. The Minister was represented at such proceedings by a case presenting officer (CPO). In port-of-entry cases, “designated counsel” was provided for refugee claimants at first-level hearings, at the expense of the Minister, for the purpose of avoiding delay in processing claims. When this system was being introduced, the government estimated that this screening process could be completed in between three and seven days. Reasons were required to be provided for decisions in this screening process. There was a low threshold for a credible basis finding: the Immigration Act provided that if either the adjudicator or the CRDD Member was of the opinion that there was any credible or trustworthy evidence on which the Refugee Division might determine the claimant to be a Convention refugee, they were to determine that the claimant had a credible basis for the claim. As of October 1989, 5% of claims had been determined to lack a credible basis pursuant to this process.
• Governor-in-Council appointees: Up to 65 full-time Members of the Convention Refugee Determination Division could be appointed by the Governor in Council. If workload required, additional part-time Members could be recruited.
• Non-adversarial processes: The CRDD hearing into a claim was to be conducted in a non-adversarial manner. As part of this, the Minister was entitled only to present evidence and could not cross-examine the claimant or make representations, save where exclusion was at issue. Panels of the CRDD were assisted by an IRB employee called a Refugee Hearing Officer (RHO). The RHO was the new name for what had been referred to as the case presenting officer under the previous Refugee Status Advisory Committee system.
• Private proceedings: In contrast to the public proceedings at the former IAB, CRDD proceedings were normally conducted in camera.
• Informal processes: IRB management aimed to ensure that the Board respected its quasi-judicial status and avoided the trappings of a conventional court system, pushing the idea of brief written decisions and also supporting oral decisions.
• No countries designated pursuant to the safe third country regime: One concern raised by civil society with the new legislation was the Safe Third Country Regime that it introduced. In response to public criticism of the Safe Third Country Regime, Barbara McDougall, who was then Minister of Employment and Immigration, became persuaded that the United States might send refugee claimants deported from Canada back to Central America where their lives would be in jeopardy. As a result, she announced in December 1988 that she was "prepared to proceed with no country on the safe third country list ... We think the new system will be able to function without it."
• Limitations on judicial review: As was the case for the IAB, judicial review of determinations made by the IRB could only proceed with leave. However, the act provided that deportations would not take place until the Court had made a decision on the application for judicial review.
• Post-determination risk assessment: The government instituted a policy in 1989 to conduct a risk review for refused refugee claimants where time had passed between their refusal and deportation to assess claims regarding new risks. Specifically, unsuccessful refugee claimants were able to apply for post-determination review by an immigration official to evaluate whether removal would result in compelling personal risk. This review assessed "risk to life, inhumane treatment, or extreme sanctions," and could provide protection to persons not covered by the 1951 Convention and Protocol. Approximately 2-3% of such applications were accepted. As discussed below, this process eventually became the foundation for what is now s. 97 of the IRPA.
• Cessation and vacation provisions: Under this new law, the Minister was able to apply to the Refugee Division for a determination, before a panel of three of its members, that a person was no longer a Convention refugee on the grounds that the refugee obtained their status by fraudulent means or misrepresentation, or that the refugee no longer needs protection. An application for vacation first required leave from the Chairperson.

The IRB represented a fresh start for asylum policy-making in Canada. As part of the transition to the new system, the government instituted several expedited review programs for people with pending asylum applications. The first was a limited one called the 1986-87 Administrative Review. A subsequent one, that came into effect in 1989 alongside the IRB, was designed to "clear the decks" and allow for a fresh start in asylum policy-making. It essentially amounted to a general amnesty for refugee claimants who had entered Canada before 21 May 1986, one where individuals were permitted to stay in Canada and become permanent residents if they were already employed or likely to secure employment in the near future and had no medical, security, or criminal concerns. Formally, claims were divided into four groups:

• Group I: People whose claims were previously examined under oath. Generally, these claims were examined first on the rationale that these claimants had been in Canada the longest time. Employment and Immigration Canada officials began reviewing these claims in March 1989. If, on review, a credible basis for the refugee claim was recommended, the case proceeded to a special panel composed of an adjudicator and a member of the CRDD. If those panels decided favourably on the recommendation for credible basis, the claimants were able to apply for permanent residence without the necessity for a further hearing.
• Group II: People who arrived in Canada between May 1986 and February 1987 and who were issued Minister's permits.
• Group III: People whose immigration inquiries were adjourned to have their claims examined under oath but these examinations were not conducted.
• Group IV: People whose inquires were not opened or were not yet adjourned to have their claims examined.

Claimants from Group I found to have no credible basis for their claim and those from Groups II-IV were interviewed at what were called Canada Immigration Centres. If those claimants could demonstrate sufficient humanitarian and compassionate reasons allowing them to remain in Canada, such as family class links, no further review was necessary and the claimants could apply for permanent residence.

While under the previous system 30% of applicants had been accepted, under the expedited review program, acceptance rates were much higher - approximately 85% of the 28,000 applicants processed in 1986, for example, were accepted. All told, a backlog of 125,000 cases accumulated between the Singh decision and the coming into effect of the reformed refugee determination system in 1989, cases which were addressed through this expedited review program. While the expedited review program was supposed to be able to process the outstanding applications within two years, it took much longer to do so, keeping, in the words of the Canadian Council for Refugees Executive Director Janet Dench, "refugees in limbo and separated from their families for years". Claimants who were ordered deported through this backlog process required ministerial consent to return to Canada as visitors or immigrants.

Juridification of the refugee system and broader interpretations of the refugee definition

A longer-term implication of the Singh decision and the resultant changes to the refugee system, including the creation of the IRB, has arguably been the increasing 'juridification' of the refugee process. Colin Scott defines juridification as the “process by which relations hitherto governed by other values and expectations come to be subjected to legal values and rules”. A legal conception of asylum has edged out other conceptions of the institution and process, including the political and religious conceptions of asylum that were previously dominant. This change had implications for how the system was administered. For example, the reasons offered for decisions by the Refugee Status Advisory Committee in the 1980s were scant; as refugee lawyer David Matas describes it, the reasons often consisted of "merely a few sentences" which "seldom related the findings of fact on which their conclusions were based". In short, he states, what were offered were conclusions, as opposed to reasons. The reasons offered by the IRB would generally be more fulsome. This transition was consistent with international trends at the time - for example, it was not until 1984 that the Home Secretary in the UK was even required to give reasons for an asylum decision.

In this way, as the juridification of the system emphasized the importance of individuals retaining counsel, it is no coincidence that it was in 1986 that a group of immigration consultants assembled to form the immigration industry association in Canada, the Association of Immigration Counsel of Canada. From 1978, immigration legislation permitted regulations to be made with respect to the licensing of immigration consultants, however that had not been done. Questions that arose about the legality of the immigration consultant regime were put to rest in the 1990s with legal proceedings that the Law Society of British Columbia brought against Jaswant Singh Mangat, who ran Westcoast Immigration Consultants Ltd., providing representation for a fee before the Immigration and Refugee Board. After a BC judge issued an injunction against these activities on the basis that Mangat was not called to the bar in British Columbia, his became a test case, ultimately resolving in 2001 when the Supreme Court of Canada concluded that non-lawyer immigration consultants were in fact legal and authorized by the Immigration Act. At this time there was no system regulating immigration consultants and there was nothing in Canadian law which would prohibit an unlicensed individual from charging a fee to represent a client in an immigration matter. This would not arrive until after 2002.

With the end of the Cold War, and this juridification of the refugee system, the nature of who was recognized as a refugee began to shift - the concept went from being primarily about flight from Communism to a broader human rights-based conception of who was entitled to protection. Between the 1950s and the 1970s, argued the refugee scholar Gil Loescher, "recognizing persecution and the identifying perpetrators caused no headaches and the grant of asylum was generally used to reaffirm the failures of Communism and the benevolence of the West." The newfound IRB began to interpret the Refugee Convention in a way that was characterized as "expansive" and "progressive". In 1991, Canada became one of the first countries in the world to recognize sexual orientation-related persecution as a basis for claiming asylum. In 1993, the Immigration Act was amended to give the Chairperson the authority to issue guidelines. The amendment to the legislation came into force on February 1, 1993. Canada then issued guidelines on the handling of gender-based asylum claims in March 1993, something that was associated with a growing acceptance of claims related to gender-based persecution. While 80% of Canada's refugee entrants in the 1980s were men, the system became more gender balanced by the late 1990s. In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiative of its kind adopted by any state system. Much later, in 2017, the Board implemented guidelines on the adjudication of claims involving Sexual Orientation and Gender Identity and Expression (SOGIE). The acceptance rate for claims also went up dramatically - during the 1980s, about 70 per cent of claims for refugee status made in Canada were rejected after examination; the acceptance rate grew over the 1990s and subsequently.

These progressive interpretations of Canada's refugee obligations were influenced by Canada's human rights obligations and international human rights procedures that refugee claimants may access. The Government of Canada ratified the Convention on the Rights of the Child in 1991. This supplemented earlier instruments that Canada had ratified, including the International Covenant on Civil and Political Rights and the International Covenant on Social, Economic and Cultural Rights. Claimants today can bring individual complaints to seven UN treaty bodies established pursuant to such treaties, as well as to the special procedures established by the UN Human Rights Council, in particular, the Special Rapporteur on the human rights of migrants. The Committee against Torture is by far the most solicited UN treaty body and between 80 per cent and 90 per cent of all individual complaints submitted thereto concern alleged violations of the principle of non-refoulement enshrined in Article 3 of the Convention.

A similar dynamic has applied to the development of applications to remain in Canada for humanitarian and compassionate reasons, something that many apply for either as an alternative to applying for refugee status, or apply for after a refugee claim has been rejected. At one point, refugee advocates charged that such applications were useless. In 1993, Mary Jo Leddy charged that such applications were "useless for refugees" and stated that during the last year no requests for a humanitarian and compassionate review had been granted in Ontario.

Growing claim numbers and efficiency measures

The arguable corollary to this broadened conception of the refugee definition was an increasing difficulty of distinguishing refugees from other migrants. Indeed, because poverty may be a contributory cause of human rights abuse, many refugees will be migrating to better economic conditions. Such challenges, the individualistic status determination model employed in Canada, as well as a ballooning number of claims, quickly resulted in backlogs. Soon after the IRB started in 1989, the number of asylum seekers reaching Canada began to rise, from a rate of several thousand a year, to reach 37,000 in 1992. This happened concomitant to several global crises, including the implosion of the former Yugoslavia in 1991-92, which saw a number of persons come to Canada and claim asylum. At this point, Canada also fast tracked the admission of more than 25,000 refugees from Bosnia through its resettlement program. While originally the Immigration and Refugee Board projected that cases would be dealt with in as little as eight weeks and no more than several months, increasingly this was not happening.

Bill C-86, passed by the Senate in December 1992, was a response to this influx of claimants. The bill was perceived to be primarily concerned with boosting the system's efficiency. It did this in a number of ways:

• First was by eliminating a screening system for claims at the IRB and transferring authority for determining whether an applicant was eligible to claim refugee status from the Board to senior immigration officers at the immigration department. In the name of efficiency, Bill C-86 transferred the eligibility determination step to the department and abandoned the screening process designed to eliminate claims with “no credible basis”. When the Immigration Act was amended to eliminate the two-stage screening process, a new test for determining that claims have no credible basis was added to the statute, but it assumed a different function: instead of screening out claims at a preliminary stage, it served to restrict the post-determination rights of unsuccessful claimants whose claims were found not to be supported by any credible evidence.
• The CRDD was granted the authority to accept a claim without conducting an oral hearing, what was called the “expedited process”. As part of the expedited process, an RHO would interview the claimant and make a recommendation to a CRDD member as to whether the claim should be accepted without a hearing or whether a hearing was needed. In 1993, between 25 and 30 per cent of all claims were processed through this expedited process. See: Canadian Refugee Procedure/RPD Rule 23 - Allowing a Claim Without a Hearing#What is the history of the Board's processes to accept claims without a hearing?.
• The GIC was given the power to designate, from among the full-time members of the Refugee Division, members to be coordinating members (CMs) at the ratio of one CM for every fifteen members of the Refugee Division.
• Changes were also made to the process for seeking judicial review of the Board's decisions. From the time that the IRB had been created, panels of the Federal Court of Appeal had been conducting the judicial reviews, where they granted leave. February 1992 reforms to the Federal Courts Act transferred judicial review jurisdiction over credible basis decisions to the Federal Court Trial Division. In 1993, amendments to the Immigration Act came into force which vested single judges of the Trial Division with original judicial review jurisdiction over all decisions of the Convention Refugee Determination Division. The move from multi-member panels to single judges for judicial reviews was yet another efficiency measure implemented for this high volume system.

New IRB Rules of Practice were also made at this time, the Convention Refugee Determination Division Rules SOR/93-45.

In 1994, as a concession to pragmatism, the government decided not to return certain refused refugee claimants to their countries of origin, particularly certain claimants from China. It did this by introducing the Deferred Removal Orders Class (DROC), which allowed applications for landing from refused refugee claimants who had not been removed after three years, subject to certain conditions. The Class was particularly aimed at resolving the situation of some 4,500 Chinese claimants waiting in limbo. In this way, the initiative was a compromise: providing a sort of amnesty for the existing backlog of claimants, who had waited while deportations to China were suspended following the Tiananmen Square massacre, while also announcing that deportations of new refused claimants would recommence. Later, Canada also introduced special measures to address the situations of claimants who were not being recognized through regular procedures. In January 1997 the government introduced the Undocumented Convention Refugees in Canada Class (UCRCC), which offered a means for some refugees from Somalia and Afghanistan who were unable to satisfactorily establish their identity to become permanent residents, but imposing a five year wait from the date of their refugee determination.

Moreover, the position of the Refugee Hearing Officer continued to be seen as an important part of the efficiency and integrity of the system. This position assisted CRDD Members by conducting research and being responsible for questioning during hearings. In 1995, the position was renamed to be called a Refugee Claim Officer.

Furthermore, measures have been implemented to streamline the asylum process for those in Canada, professionalize the provision of advice, and make claiming asylum in Canada less desirable, including by:

• Limitations on appeal: One efficiency measure that was implemented at the time of the IRB's founding was that refugee claimants no longer had the ability to appeal a refusal of their claim under this revised system. As David Matas writes, this aspect of the new process was much criticized by legal counsel for refugees at the time. Claimants whose claims were declined continued to have recourse to seek judicial review at the Federal Court. However, a leave requirement was introduced in amendments to the Immigration Act in 1989. As a result of this, those seeking judicial review at the Federal Court required leave of the court to have their case heard. Leave to appeal has been granted in about 10 per cent of cases and reasons for refusal of leave are not granted.
• Broader restrictions on eligibility to claim: In 1994, authority was provided to the Minister of Citizenship and Immigration to issue a danger opinion against a refugee applicant on the basis of serious criminality. This had the effect of staying the refugee proceedings, removing the case from the jurisdiction of the IRB. As well, Bill C-44 came into force on July 10, 1995, providing for the redetermination of eligibility to have a claim referred to the Refugee Division. This allowed for the suspension of the processing of a claim at the CRDD and for revoking the referral of the claim to the CRDD if a senior immigration officer determined that the claim was ineligible to be referred to the CRDD.
• Restrictions on employment for claimants: In the early 1990s, the government prevented refugee claimants from working. This was changed later in the 1990s.
• Move from two-person panels to one-person panels: As the Convention Refugee Determination Division was originally conceived, refugee claimants would appear before panels of two decision-makers, only one of whom needed to accept their claim for their application to be successful. This at the time was conceived of as a cost-saving measure when compared to the three-member panels on the prior Refugee Status Advisory Committee and the three-member panels of the prior Immigration Appeal Boards. A further cost-saving initiative was announced in March 1995 to move from two-member panels to one-person panels. While the legislation would not be changed to make one-person panels the norm until the next decade, one-person panels de facto became the norm in the 1990s anyways. During that period, refugee determinations were usually made by one member sitting alone, with the "consent" of the applicant to do so. Catherine Dauvergne writes that by the time of the legislative amendment in 2002 that formalized this practice, two-person panels had already become rare.
• Increased focus on effecting removals: Citizenship and Immigration Canada describes removal as a key tool within the refugee system.
• Professionalization of immigration consultants: Steps were taken to professionalize the non-lawyer immigration consultants who can represent individuals before the IRB, including the 1996 creation of an Immigration Practitioners Certificate Program at Seneca College in Ontario, the first such program in Canada.

Growing claim numbers and deterrence measures

There was a time when the refugee "problem" was thought to be solvable. The Office of the United Nations High Commissioner for Refugees (UNHCR) was originally set up for only three years. The office was renewed by the UN General Assembly thereafter, but only for successive five-year periods. UNHCR's temporary nature, and repeated renewals, continued until December 2003. At that time, the UNGA removed the temporal limitation and created a framework for refugee protection set to continue indefinitely, "until the refugee problem is solved". In Shauna Labman's words, the removal of the temporal limitation on UNHCR's mandate speaks to the recognition of the increasing unlikelihood of such a resolution. Ebbing expectations of any permanent solution to refugee issues have come at the same time as refugee numbers have grown, asylum claimants have come from further afield, and concomitant refugee status determination costs have increased. This has been driven by reductions in the cost of international air travel, and the end of the Cold War, and with it a sharp reduction in the number of countries placing limits on the ability of nationals to leave their state (viz. the fall of the Berlin Wall).

In response, in Bríd Ní Ghráinne's words, states have begun to employ increasingly "creative" means to constrain refugee flows and restrict the number of individuals they recognize as refugees. Such measures have included curtailing the entry of refugees onto their territories through what she terms “relatively invisible—and hence politically expedient—non-entrée measures” which have been deployed by Canada to an increasing extent in recent decades. Canada's geographic location, buffered by the U.S., Mexico, and three oceans, has long made it difficult for irregular migrants to reach its territory. As the number of claimants in the country has risen in recent decades, Canada has increasingly turned towards the following non-entrée measures:

• Restrictive visa policies: Until the late 1970s Canada had many fewer direct flights from other countries and it also had no visa requirement for any country in the western hemisphere. Instead, many travellers to Canada had to switch flights in the United States, something which generally required a visa to that country. In the late 1970s, direct flights to Canada from other countries began to spring up and Canada began to implement an in-Canada asylum system. Canada simultaneously began to require visas for entry into Canada, something which restricted access to the asylum process. In 1987 the government began to require that individuals travelling via Canada to another country have a transit visa to pass through Canada if they came from a country whose citizens required a visitor visa to visit Canada. Such visa requirements expanded to the point that today citizens of states considered to be "refugee producing" generally require visitor visas that are described as "extremely difficult to obtain". For example, the rejection rate for visa applications from refugee-producing countries such as Somalia, Yemen, Afghanistan, and Syria is nearly 75 per cent.
• Carrier sanctions: Carrier sanctions refer to obligations placed on airlines and other transportation services to take care that they not transport anybody without a visa, if they are required to have one. The Department of Citizenship and Immigration charges a carrier what has been labelled a "hefty" administration fee for each traveller arriving with improper documents.
• Criminalization of people smuggling: Canada has used provisions criminalizing human smuggling as a means to deter asylum claims, for example bringing charges against a US humanitarian worker for smuggling (an offence under IRPA that carries a maximum life sentence) for transporting twelve Haitian asylum seekers to the USA–Canada border. Furthermore, in 1993 the passage of Bill C-86 established an expanded list of criteria by which an applicant might be determined inadmissible.
• Biometric requirements: In the early 1990s, the government introduced a requirement that asylum applicants be fingerprinted. The government also then introduced and gradually expanded biometric requirements for visa applicants; by the end of 2018, all visitors requiring visas also required biometrics. Measures were also taken to use such biometric identifiers as part of information-sharing agreements with other countries. The Canada-US Smart Border Declaration of December 2001 committed that the two countries would develop common biometric identifiers and engage in the exchange of information. A 2003 agreement between the countries entitled Sharing of Information on Asylum and Refugee Status Claims allows for the automated, systematic sharing of information between Canada and the US about asylum seekers, including biometric and biographic data.
• First country of asylum principles: Canadian immigration legislation has permitted the designation of safe countries since 1988. This provision was used to authorize the safe third country agreement between Canada and the United States in 2004 (see below).
• Stricter port-of-entry interviews and security screening: In the early 1990s, the government introduced deterrence measures design to push down the number of refugee claims, including stricter port-of-entry interviews. Then, in the wake of the 9/11 attacks, the then Immigration Minister announced that there would be much greater utilization of the strategy of Front-End Security Screening (FESS) for refugees as they arrive in Canada. More detail on FESS screening is available at: Canadian Refugee Procedure/RPD Rule 54 - Changing the Date or Time of a Proceeding#Regulation 159.9(3)(b): The process for investigations and inquiries related to sections 34 to 37 of the Act is referred to as the FESS process.
• Pushback operations: For example, in 1998 Canadian officials arranged for the interception by the Senegalese navy of a boat carrying 192 Tamil persons from Sri Lanka, individuals who were then returned to Colombo before they could arrive in Canada. The Immigration Act of the 1980s included authority for the Minister to direct a ship not to enter Canada’s waters where the Minister believed on reasonable grounds that the ship was bringing any person to Canada in contravention of the Act or Regulations; this provision was subject to a six-month “sunset clause” and was not used before it expired.
• Overseas interdiction: CBSA employees called migration integrity officers work overseas, ensuring that individuals who are travelling to Canada have proper travel documentation. Canada's interdiction programs abroad are a component of what is termed its Multiple Borders Strategy (MBS). Under the MBS, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada. In 2012 the government reported that there were 63 such officers in 49 locations worldwide. Between 2001 and 2014, such liaison officers intercepted over 86,000 persons offshore. For example, in 2018, 7,208 people, mostly from Romania, Mexico, India, Hungary, and Iran, were barred from boarding flights to Canada due to "improper documentation".
• Funding for border enforcement in countries of transit: Canada funds border enforcement in the global South to prevent departure.

Rebecca Hamlin situates the rise of this regime to deter asylum claims in the following way: "the rise of the regime of deterrence is, in part, a story of unintended consequences, because international commitments made by each country in a particular political moment came back to haunt future generations of policymakers. Had these countries' leaders anticipated the financial, security, and political challenges of the present-day situation, they might not have been as willing to make commitments that, at the time, were largely an abstraction."

The 2002 move from the Immigration Act to the IRPA

In the late 1990s, the federal government began a process to overhaul the then-Immigration Act, including with a lengthy public consultation period. It commissioned a report entitled Not Just Numbers: A Canadian Framework for Future Immigration which set out priorities for the reformed system, some of which were accepted and others (like removing jurisdiction for determining refugee status from the IRB and transferring it to civil servants) which were not. The resulting Immigration and Refugee Protection Act (“IRPA”) was an entirely new statute and represented the first complete revision of immigration legislation in Canada since 1978. It emerged from Bill C-11, titled An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger. The IRPA received Royal Assent on November 1, 2001 (or December 2001) and came into force on June 28, 2002. The shift from the Immigration Act to the IRPA that June marked a new era of asylum policy in Canada - one that has been described as being focused on relieving administrative burdens. In the drafting and development of the IRPA, considerable public attention was devoted to the question of whether to have one act governing immigration matters and a separate act governing refugee law. The idea, motivated by concern about the fundamental differences between immigration and refugee law, and advocated for in the Not Just Numbers report, was ultimately rejected; however, the Act's new title and the establishment of a separate division of the legislation devoted to refugees reflect this concern. Highlights of the new legislative framework include the following:

• Framework legislation: Compared to the previous legislation, the IRPA was described as framework legislation, with more details to be found in the regulations.
• Consolidated grounds for refugee protection: The IRPA expanded the categories of persons entitled to refugee protection. Under the former immigration legislation, the only category of person who was clearly entitled to protection at the IRB was a person who fell within the definition of “Convention refugee”. IRPA expanded the scope of coverage to include persons who are at risk of torture, death, and cruel and unusual treatment upon deportation to their country of nationality or former habitual residence. Canada had ratified the Convention Against Torture in 1987, but did not implement it directly in Canadian domestic law until this point. Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of IRPA section 97 to be monumental when it discussed the legislation before voting on it in 2002. When the bill was being debated, Minister of Citizenship and Immigration Elinor Caplan assured members of Parliament the IRPA "gives us the ability to streamline our procedures, so that those who are in genuine need of our protection will be welcomed in Canada more quickly and those who are not in need of protection will be able to be removed more quickly. That streamlining is extremely important." Immediately after IRPA went into force, the IRB Legal Services division produced a lengthy guide for decision makers on how to make section 97 decisions; the guide states that these decisions were subsumed under the IRB mandate to avoid the "delays and inconsistencies" of the previous "fragmented" and "multilayered approach".
• Focus on compliance with international human rights instruments: The IRPA introduced a provision to Canada's immigration legislation specifying that it was to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory.
• Shift from the CRDD to the RPD: The Convention Refugee Determination Division (CRDD) was renamed the Refugee Protection Division (RPD), to reflect the fact that it now had jurisdiction over the consolidated grounds for refugee protection.
• Creation of the RAD: The IRPA created the Refugee Appeal Division (RAD), which would review negative decisions on their merits, though this took ten years to fully implement. Specifically, after the Act was passed, Citizenship and Immigration Canada announced that as a result of “pressures on the system” implementation of the RAD would be delayed.
• Shift to single-member RPD panels: Because the IRB backlog was a huge concern, the staff time required to support the RAD was created through a shift from two-member panels to single-member hearings (or, occasionally, three-member RPD panels) so that half the number of Board members would generally be required for each case. This was as opposed to the two-member CRDD panels, or the use of single member CRDD panels on consent that had existed previously.
• PRRA: The IRPA transitioned from the Post-Determination Refugee Claimants in Canada Class (PDRCC) to the Pre-Removal Risk Assessment (PRRA) process. The procedure compensates for the inability of claimants to make a second refugee claim, even when changes in circumstances in the country of origin occurred after a first claim was denied. The way PRRA functions is that a refused asylum seeker can apply for a PRRA to assess whether the risk faced by the refugee claimant has changed since their decision was rendered. PRRA is an administrative review of an application done on the basis of a written submission. When the government announced the creation of CBSA in 2003, originally the plan was to transfer PRRA responsibility to them, but in the wake of pressure from NGOs, PRRA responsibility remained with Citizenship and Immigration Canada. As discussed below, in 2012 the IRPA was amended to limit access to the PRRA during the twelve months following the rejection of a claim.
• Clarification of the Chairperson's powers: The powers of the IRB Chairperson were clarified and added to, including the power to designate coordinating members; to delegate certain powers; to assign GIC-appointees to a Division; to take any action necessary to ensure that IRB members carry out their duties efficiently and without undue delay; and, in addition to the power to issue guidelines in writing to members, the Chairperson now also had to the power to identify IRB decisions as “jurisprudential guides” to assist members in carrying out their duties.
• Increased security provisions: Sharryn Aiken, et. al., write that the most significant shift signalled by the IRPA is that it demonstrated a marked security turn in Canadian immigration law. They note that "this is hardly surprising in legislation that was passed in the immediate aftermath of the September 11, 2001 attacks in the United States. Peter Showler writes that the government almost scrapped IRPA to introduce a law much tougher on refugees, but that Immigration Minister Elinor Caplan decided to proceed with the IRPA in the end. This law included a number of security-related measures, including:
  • Increased authority to detain claimants: The IRPA expanded the authority of immigration officers to detain refugee claimants where they represented a flight risk, a danger to the public, and/or their identity was in doubt. This expanded authority resulted in the number of individuals detained pursuant to the Immigration Act rising substantially, from 8,000 people in the year 2000 to some 11,500 in 2003.
  • Broader grounds of ineligibility to claim refugee protection because of criminality: When compared to the 1976 Act, IRPA included broadened grounds restricting the eligibility of refugee claimants to have their refugee claims determined.
  • Anti-smuggling measures: The past century has seen what Gil Loescher describes as "dramatic growth" in human trafficking and trans-continental people smuggling. Provisions in the IRPA for the first time implemented Canada's obligations under the Palermo Convention together with its Smuggling Protocol and Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children. Smugglers became eligible for a sentence of life imprisonment upon criminal conviction.

While the above overhaul of the system represented considerable change, it is also notable that some of the changes argued for in the Not Just Numbers report were ultimately rejected. For example, that report had recommended that the processing of overseas and inland refugee claims be unified within a single system with shared decision-makers for both. Having a single system reflected a desire for more consistent decision-making on refuge status, but, in Shauna Labman's words, "[brushed over] the additional necessity of the selection aspect in overseas resettlement." The proposal was not adopted.

Post-IRPA measures

Following the introduction of the IRPA, a number of measures were taken which had a continued focus on system integrity, efficiency, and reducing backlogs at the RPD. These included:

• Reverse-order questioning: The year following the introduction of the IRPA, in 2003, the IRB Chairperson issued Guideline 7 on the Conduct of a Hearing, which created a new order for questioning during an RPD hearing. The new order of questioning in a hearing of a claim for refugee protection was that, if the Minister is not a party, any witness, including the claimant, would be questioned first by the RPD and then by the claimant’s counsel.

• Refusal to introduce the RAD: Over the next decade subsequent to the coming into force of the IRPA, there were several attempts by some members of Parliament to pass another act forcing the implementation of the RAD, including a very near success in summer 2008.
• Creation of CBSA: The Canada Border Services Agency was established in 2003. It operates as part of the Department of Public Safety Canada, also created in 2003 following the model of the US Department of Homeland Security.
• Increasingly merit-based Member appointment process: Additionally, there were changes to the appointment process for Governor in Council Members of the Division. Such GIC appointments to the IRB have always been controlled by the Minister of Citizenship and Immigration, although reforms implemented in the 1990s started to provide greater scope for management of the IRB to participate in the selection and reappointment of Members based on more merit-based criteria. These efforts were reversed in the winter of 2006 when the newly elected government introduced changes to give the Minister greater control and discretion. The Chair of the IRB, Jean-Guy Fleury, unexpectedly resigned at this time, eight months before the end of his mandate, leading to speculation that he did so in protest, having been a strong advocate for a more merit-based appointment process. Similarly, there were early exits of a deputy chair and the IRB executive director, as well as the resignation of all five members of an advisory panel that selected Immigration and Refugee Board adjudicators, who released a public letter indicating that they were resigning in protest.
• Introduction of the Safe Third Country Agreement with the United States: STCAs are bi- or multi-lateral agreements requiring refugees to seek refuge in the first country they reach, prohibiting them from seeking asylum in the other state(s) party to the agreement. A provision for safe third country agreements was included in Canada's Immigration Act in the 1980s. Canada attempted to negotiate such an agreement with the United States in the decades following, initially without success. For example, in 1993 Canada entered into a Memorandum of Agreement with the United States with the intent of the latter being declared as a safe third country, but in 1998 the Canadian government announced that negotiations with the U.S. pursuant to that Memorandum of Agreement, negotiations which aimed to see the US designed a safe third country, were being abandoned. It was only in the wake of 9/11 that Canada was able to successfully conclude such negotiations. Specifically, on December 5, 2002, Canada signed its STCA with the United States. That agreement came into effect on December 29, 2004, the first time that the safe third country regime in Canada's immigration legislation was first utilized. The agreement, modelled on the multilateral Dublin Regulation among European Union member states, prohibits most persons from seeking asylum at a regular land port of entry in either country if they first landed in the other one. The immediate impact of the STCA was to significantly lower the number of inland refugee claims in Canada; there was a 49 percent drop in claims made at the Canada-US border after the agreement came into effect. This trend, however, did not last. For those who did make a claim at the Canadian border, the vast majority fitted within one of the exceptions to the agreement - in 2005, of the 4033 claims made at the border, only 303 refugee claimants were returned to the United States as ineligible to apply in Canada.
• Enlargement of UNHCR ExCom: Canada has continued to sit on the UNHCR ExCom. Its size has grown from 25 states in the 1950s to 106 today. As a result, Gil Loescher writes, ExCom has become too large and politicized and it is frequently not an effective decision-making body.
• Regulation of immigration consultants: The Canadian Society of Immigration Consultants was established to regulate the activities of immigration consultants providing representation for a fee in 2004, the first time that such a regulatory body had been established in Canada.

As well, on June 22, 2006, the Prime Minister offered a public apology in the House of Commons to the Chinese-Canadian communities impacted by the head tax and previous exclusionary legislation. The government agreed to pay $20,000 in compensation to the survivors, or their spouses, who had paid the head tax; there were about 20 left alive at that point.

Refugee reform in 2010 and 2012

Two pieces of legislation made significant changes to the refugee system in 2010 and 2012, the Balanced Refugee Reform Act (BRRA, 2010) and the Protecting Canada’s Immigration System Act (PCISA, June 2012). The BRRA received royal assent on June 29, 2010. It was passed by Parliament during a minority government and among its substantial amendments to the IRPA were some compromises proposed by the opposition parties. A federal election was subsequently held on May 2, 2011 and following that election, the BRRA was amended by the new majority government in Parliament, before the substantial provisions of the BRRA came into force on December 15, 2012. Those subsequent amendments came in the form of PCISA. Key portions of PCISA were originally part of the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (Human Smugglers Act), which was introduced as Bill C-49 in October 2010. After the May 2011 Canadian federal election caused Bill C-49 to die on the order paper, the newly formed majority government re-introduced the provisions as Bill C-4 in June 2011. This Human Smugglers Act was then incorporated into Bill C-31, PCISA, in June 2012.

As Neil Yeates describes it, the thrust of these reforms was for faster processing of claims, with a view that bona fide claimants would be more quickly approved, and failed claimants, after access to the new Refugee Appeal Division of the IRB, would be more quickly removed from Canada. Various changes were made to assist this, including:

• Legislated timelines for hearings: The legislation included accelerated timelines for scheduling refugee hearings, with a requirement that a hearing take place within 60 days of a claimant making their claim. This initial date for the RPD hearing was fixed by an immigration officer.
• Implementation of the Refugee Appeal Division (RAD). As part of this reform, the RAD came into being on December 15, 2012. The RAD, as implemented at this point, had a broader mandate than that envisioned when the legislative provisions for the RAD were originally enacted at the time that the IRPA came into force. For example, the IRPA originally allowed the Minister and the person who is the subject of the appeal to present only written submissions. This was subsequently modified by the BRRA to allow them to submit documentary evidence as well, albeit “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”
• Public servant decision-makers: First-level decision makers at the IRB’s Refugee Protection Division began to be public servants appointed in accordance with the Public Service Employment Act as opposed to Governor-in-Council appointees. The shift away from Governor-in-Council appointees reflected a key recommendation from the government's own immigration-law advisory committee, namely that qualified public servants should be named to the Immigration and Refugee Board, not political appointees.
• Elimination of the Refugee Protection Officer position: A position that had variously gone by the name Refugee Hearing Officer (RHO), Refugee Claim Officer (RCO), and Refugee Protection Officer (RPO) was eliminated on the basis that it would no longer be necessary given the expertise that the public servant decision-makers would possess. These roles had previously assisted Members by conducting questioning at hearings.
• Creating a list of Designated Countries of Origin (DCOs), countries that were not generally considered to be refugee-producing, and where measures to deter and expedite such claims were consequently legislated. The Designated Country of Origin list was introduced in 2012 as part of the Protecting Canada’s Immigration System Act. The initiative was modelled on the European Safe Country of Origin list, which is used in that asylum system. The implications for asylum seekers coming from DCOs included an expedited hearing process with shortened timelines, no access to the Refugee Appeal Division, no automatic stay of removal for failed claimants seeking judicial review, limited access to PRRA, and no eligibility for a work permit or health care for the first 180 days during which they were awaiting a decision on their claim. Designation as a safe country was dependent on a combination of qualitative observations of countries’ levels of democratic process and human rights records and on two quantitative thresholds, including when 75 percent or more of previous claims by nationals of a country had been rejected by the IRB or 60 percent or more of previous claims by nationals of a country had been withdrawn. The initial DCO list included 25 countries and was eventually expanded to include 42 countries. On May 17, 2019, following a series of Federal Court rulings in which specific provisions of the DCO policy were struck down for not complying with the Canadian Charter of Rights and Freedoms, the Government of Canada announced that it would remove all countries from the DCO list and that the DCO regime would eventually be repealed through legislative amendment.
• Creating the concept of Designated Foreign Nationals: The PCISA reforms established a regime for what are termed Designated Foreign Nationals. DFNs, as defined in the Act, are groups of two or more refugee claimants suspected by the Minister of Public Safety 'irregular arrival' with the aid of smugglers. The implications of being so designated include that DFNs will be automatically detained until their refugee claim is determined if they are sixteen years of age or older. This built on the way that mandatory detention had already been utilized in Canada after the arrival of Tamil refugees aboard the MV Ocean Lady and MV Sun Sea in 2010. Furthermore, even if their claim is accepted, DFNs are unable to apply for permanent resident status for five years, as well as being unable to obtain a travel document and unable to sponsor family members. Soon after the introduction of these provisions in the Act, they were invoked by the government in multiple cases.
• Reforms to PRRA: In 2012, Parliament amended the IRPA to limit access to PRRA within twelve months following the rejection of a claim. Henceforth, the way PRRA has functioned is that if a refused asylum seeker is not removed from Canada within a year of the last decision on their refugee claim, they may be eligible for a PRRA to assess whether the risk faced by the refugee claimant changed over that year. An exception to this 12-month bar was made for claimants from DCOs, who were restricted from applying for PRRA for 36 months following their initial decision; this lengthier PRRA bar was struck down as a violation of s. 15 of the Charter in Feher v. Canada. The Balanced Refugee Reform Act also transferred authority over the PRRA from the Minister to the IRB, although this transfer was never actually brought into force, and was eventually repealed effective 2022.
• Limitations on the Interim Federal Health Program: The Interim Federal Health Program provides refugee claimants with access to health care while their claims are pending. As part of a strategy to create disincentives for refugee claimants to come to Canada, on December 15, 2012 the government cut access to health care for some categories of claimants. This policy change was introduced via Orders in Council which limited access to health care in Canada while select refugee claims were pending, principally claims from claimants who originated from DCOs. Such claimants were entitled to receive much lower levels of health care than other claimants. This policy was declared unconstitutional by the Federal Court in 2015, with the court concluding that the resultant regime amounted to "cruel and unusual treatment" prohibited by the Canadian Charter of Rights and Freedoms. This decision is one in a line of similar cases from courts that have pushed back against restrictive asylum legislation around the world. For example, the UK House of Lords, in Limbuela, found that decisions made to refuse support to asylum seekers risked violating the prohibition on inhuman and degrading treatment due to the risk of a claimant being "obliged to sleep in the street, save perhaps for a short and foreseeably finite period, or was seriously hungry, or unable to satisfy the most basic requirements of hygiene".
• Cessation: The new legislation provided for the loss of permanent resident status for certain persons if the RPD allows an application from the Minister for the cessation of their refugee protection. This renders such persons inadmissible to Canada.

The current version of the Refugee Protection Division rules came into force on October 26, 2012 following the coming-into-force of this legislation. The Immigration and Refugee Board, in its public comments, emphasized these rules and the importance of decisions being guided by them. This aligned with comments at the time from the Immigration Minister Jason Kenney of this sort: "I think most Canadians intuitively understand that broad public support for immigration, and, frankly, diversity in our society is contingent on having a well-managed, rules-based, fair immigration system. I think they understand that we all have a stake in maintaining such a system". Following the coming into force of this new legislation and RPD rules in 2012, there was a 49 percent decline in asylum claims.

In addition to the above legislation, in 2011, Bill C-35—which was originally called the Cracking Down on Crooked Consultants Act—amended section 91 of the IRPA. Through regulations made by the Minister of Citizenship and Immigration, the Immigration Consultants of Canada Regulatory Council (ICCRC) then became the regulator of immigration consultants.

2010s refugee protection initiatives

Changes to the regime for those with criminal records

Prior to 2013, the Immigration and Refugee Protection Act provided that no appeal to the Immigration Appeal Division was available if a permanent resident was inadmissible with respect to a crime that was punished in Canada by a term of imprisonment of at least two years. As of June 19, 2013, the Faster Removal of Foreign Criminals Act received Royal Assent. It changed the grounds for serious criminality in subsection 64(1) of the IRPA to “at least six months” instead of “at least two years”, restricting appeals to the IAD that has discretion about whether to effect the removal or not.

Resettlement programs

Canada actively resettles thousands of refugees per year within a voluntary burden-sharing scheme. This act places Canada near the top of a small group of approximately thirty countries worldwide willing to offer refugee protection through resettlement in addition to the promise of non-refoulement in the Refugee Convention. Three states have traditionally been the leaders in resettlement: Canada, Australia, and the United States. Combined, they have tended to receive approximately 90 percent of the UNHCR's resettlement referrals. By way of example, in the 2017 calendar year, the United States resettled 33,400 refugees, while Canada resettled 26,600 refugees, and Australia resettled 15,100 refugees. In line with this tradition, Canada launched a program to resettle more than 25,000 Syrian refugees in 2015.

Sanctuary city movements

Many people do not file for asylum but live in the margins of society as undocumented self-settled migrants fearing arrest, deportation, and other punitive measures. The 1906 Immigration Act made it the duty of municipal authorities to report select categories of removable immigrants, including those who had become a charge upon public funds or upon any charitable institution. This duty was subsequently removed from Canada’s immigration legislation. Nonetheless, persons without legal immigration status in Canada, whether that of a refugee, refugee claimant, or otherwise, have faced difficulties accessing government and private services lest immigration documents be demanded or they be referred to immigration authorities and deported. In Canada, since 2013, Toronto, London, Vancouver, Edmonton, Montreal, Ajax, and Hamilton have all declared themselves sanctuary cities. These sanctuary city policies have generally involved ordinances ensuring access to municipal services for the undocumented, though without going so far as prohibiting information-sharing with federal border enforcement authorities altogether.

Expanded information-sharing agreements between Five Eyes countries

The 2010s saw a significant increase in the use of biometric technologies by asylum systems around the world. By the end of 2018, for instance, the UN Refugee Agency alone reported the capture and storage of biometric identity for over 7.1 million refugees. Canada has long been collecting biometric information from refugee claimants and at this time it began to exchange such information more with partner countries. Canada has long had information-sharing agreements with the United States whereby information about refugee claimants is exchanged. For example, the Canada-US Smart Border Declaration of December 2001 committed that the two countries would develop common biometric identifiers and engage in the exchange of information. A 2003 agreement between the countries entitled Sharing of Information on Asylum and Refugee Status Claims allows for the automated, systematic sharing of information between Canada and the US about asylum seekers, including biometric and biographic data. The exchanged information includes: identity-related information, for example biographic and biometric data; previous refugee claim status (denied, abandoned, or granted); data that would indicate that a claim is inadmissible; and any evidence submitted to support a previous application. In 2009 the "Five Eyes" countries signed a Data Sharing Protocol to conduct a small number of "immigration checks" through biometric (fingerprint) data exchanges. This arrangement was intended as a pilot for automated data exchanges and it involved commitments to share 3000 fingerprints annually. Canada then reached information sharing agreements with the United Kingdom (2015), Australia (2016), and New Zealand (2016) which moved from the pilot model to the automated sharing of information.

Irregular border crossing controversy

Since the Board's 1989 founding, the number of people making refugee claims has increased greatly, both in Canada and internationally. Looking at the numbers globally, during decade of the 1980s, there were 2.3 million applications for asylum lodged worldwide, mostly in western Europe, the United States, and Canada. During the 1990s, this number grew to 6.1 million applications filed, and the list of receiving nations grew to include Australia, New Zealand, Scandinavia, and southern Europe. During the 2000s, there were 5.5 million new applications filed worldwide, and countries such as Ireland, Greece, Poland, and South Africa became popular new destinations. Today, roughly one million individuals apply for asylum globally each year, with those classified as refugees representing 7–8 per cent of the global migrant population. Similarly, in Canada, while the volume of new claims has gone through cycles, volume has trended upwards over time. Soon after the IRB started in 1989, the number of asylum seekers reaching Canada went up from a rate of several thousand a year to reach 37,000 in 1992. Since then, three notable case decision backlogs have occurred: in 2002 with over 57,000 claims, in 2009 with over 62,000 pending claims, and post-2017, where the Refugee Protection Division had 90,000 claims awaiting decision.

In this context, persons crossing irregularly from the United States into Canada became a significant political issue starting around 2017. Such crossings occurred primarily at Roxham Road on the Quebec-New York border and at Emerson, Manitoba. From 2017 to 2020 more than 59,000 people crossed the Canada-US border in an irregular manner and claimed asylum in Canada, in order to evade the restrictions put in place by the Safe Third Country Agreement. This included 20,593 claimants in 2017, 19,419 claimants in 2018, and then 16,077 claimants in 2019. Quebec received approximately 95% of the irregular border crossers from the United States. The total number of asylum claims in Canada similarly rose over this period, going from 23,870 in 2016, to 50,390 in 2017, to 55,040 in 2018, to 64,045 in 2019.

The resources dedicated worldwide to Refugee Status Determination (RSD) have been appropriately described as immense. States and UNHCR rendered 1.5 million decisions on individual asylum claims in 2017 and as of 2018 there were 3.5 million asylum seekers in the world. Although exact figures are difficult to determine, academics note that the combined cost of RSD performed by states and UNHCR exceeds the total cost of direct humanitarian assistance provided to refugees by UNHCR. In fact, Thériault has estimated that the Global North alone spends $20 billion on RSD, a number which is a multiple of the UNHCR’s budget, and, by his estimate, four times the budget made available to agencies that are responsible for the care of the refugee population in the Global South, despite the fact that 85% of refugees reside there.

Around the world, irregular arrivals generally have higher success rates for asylum claims than those who apply after arriving on some other temporary visa. For example, in Australia, the historical average success rate for asylum seekers who arrive by boat has been more than 80 per cent. The academic Daniel Ghezelbash states that this is largely due to the effectiveness of visa regimes in identifying persons with potential asylum claims and not giving them a visa which would allow them to travel to the country by regular means. Despite the comparative bona fides of such claimants, the journeys undertaken by claimants arriving in a country irregularly, and necessitated by state deterrence measures, are often hazardous. For example, several crossers into Canada lost limbs to frostbite after walking for hours in freezing temperatures, and Mavis Otuteye, a 57-year-old Ghanaian grandmother, was found dead from hypothermia in a ditch near the Canada-US border in 2017.

This increase in border crossings between the United States and Canada had political, procedural, and legal consequences, including:

• Challenges to Safe Third Country Agreement: There were post-2017 calls to suspend or end the Safe Third Country Agreement, including a legal challenge to the agreement, which, following a 2023 decision of the Supreme Court of Canada, is ongoing at the Federal Court. See: Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries#Constitutionality of the Safe Third Country Agreement with the United States.
• Increase in claims: The increase in claims caused the government to increase IRB capacity. One of the effects of this increase in refugee claims has been a growing backlog of claims to process at the Immigration and Refugee Board of Canada. In 2017, the IRB launched what it termed an "Irregular Border Crossing Response Team" with 20 decision-makers. In its 2019-20 departmental plan, the IRB noted that "an inventory of more than 75,000 claims has accumulated, representing more than two years of work at current funding levels". One of the federal government initiatives in response to this surge in claims was to temporarily expand the processing capacity of the IRB. The government increased resources at the Refugee Protection Division so that it could deal with up to 50,000 asylum claims annually by 2021.
• Calls to extend the Safe Third Country Agreement: There were post-2017 calls to extend the application of the Safe Third Country Agreement across the entire Canada-US border. As of 2017, polls indicated that 70 percent of Canadians felt that security along the Canada-US border should increase. A 2018 Angus Reid poll indicated that more than half of respondents said that Canada was too generous to asylum seekers who cross into Canada irregularly. In their 2019 platform, the Conservative Party of Canada committed to prioritizing "economic migration" and favouring those facing "true persecution" over "bogus" refugee claimants. The Conservative Party indicated that, if elected, it would hire 250 more CBSA officers and move IRB Members closer to crossing sites to expedite the process. A broadened Safe Third Country Agreement with the United States went into effect in 2023: Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries#Text of the Safe Third Country Agreement.
• Changes to eligibility for referral to the IRB: The irregular border crossing controversy led to Parliament making changes to which claimants were eligible for a hearing before the IRB. In June 2019, amendments were made to the Immigration and Refugee Protection Act in Bill C-97, the Budget Implementation Act, 2019. These changes introduced new grounds of ineligibility for refugee claimants if they have previously requested asylum in a country with which Canada has an information-sharing agreement or arrangement. In practice this means that individuals who made a previous claim in the United States, United Kingdom, Australia, or New Zealand (the "five eyes countries") are ineligible to claim refugee status in Canada and have their claims heard by Immigration and Refugee Board, though if information sharing agreements are made with other countries, they also will be included. This is so regardless of whether a decision was ever made on the previous claim. Those found to be ineligible to make a claim to the IRB may submit an application for a pre-removal risk assessment instead. Idil Atak describes this omnibus Bill as having been "adopted hastily in the lead-up to the 2019 federal election" as part of the government's measures to respond to the irregular border crossing controversy and this can be seen as an example of the Canadian government's capacity to respond to developing circumstances quickly with new immigration legislation.
• Changes to the process of referring a claim to the RPD: The Budget Implementation Act, 2019 also amended the IRPA to remove the three-day time limit for making a decision on the eligibility of a claim to be referred to the RPD and removed the “deemed referral” to the RPD if an eligibility decision was not made in that time period. Because of a lack of sufficient counsel in Quebec, the IRB issued a temporary practice notice directing that certain claimants were required to submit only certain basic information in their Basis of Claim Form by their usual deadline, and that their full details could be added at a later date.
• Changes to IRB scheduling: As the backlog of claims at the IRB rose, the average wait time for a first hearing at the RPD grew to two years, as opposed to the statutory timeline of two months for most asylum seekers. The increase in claims triggered a change in how the IRB scheduled and prioritized claims. The Immigration and Refugee Protection Regulation allows for exceptions to the time limit for the RPD to hold a hearing in the case of operational limitations. To deal with its backlog, the IRB began to prioritize older cases for scheduling before newer cases and abandoned the case processing timelines in the Regulations. Previously, when IRCC or CBSA referred a file to the RPD, the claimant was also provided a hearing date; the RPD then postponed that hearing for lack of capacity to hold it within the time limit. As of August 29, 2018, claimants were no longer provided a hearing date at the time of referral.

Covid-19

In 2020, in response to the Covid-19 virus, fifty-seven countries shut their borders to asylum seekers. At first, the Canadian government announced that all claimants arriving outside ports of entry would be screened for the virus and then quarantined if the test results were positive. The Canadian government changed its position days later, announcing that all claimants would be returned to the United States. As part of this, the two countries reached a temporary agreement which allows Canada to send back individuals entering Canada from the US to make an asylum claim. The agreement applies between official ports of entry along the land border and at air and marine ports of entry. The government also designated Roxham Road as a port of entry for the purposes of the Safe Third Country Agreement and began returning refugee claimants to the US at this point. In response to these measures, the number of those attempting to cross the border irregularly plummeted, for example, 24 irregular migrants sought to make claims between March 16, when the border closed, and May 8, 2020.

The pandemic saw a number of states temporarily suspend asylum procedures. Canada was one of them. The Refugee Protection Division shut down all hearings for several months as a result of the pandemic, resuming them in the summer of 2020, including with the introduction of virtual (remote) hearings for the first time. Referrals of claims to the IRB by IRCC and CBSA were delayed or suspended for far longer.

The Covid-19 pandemic also saw the Canadian government implement one of its periodic amnesty campaigns for asylum seekers, in this case a program that became colloquially known as the Guardian Angels initiative which granted permanent resident status to asylum seekers who were involved with front-line caregiving during the pandemic. This policy was formally called the Temporary public policy to facilitate the granting of permanent residence for certain refugee claimants working in the health care sector during the COVID-19 pandemic. The program became operational on December 14, 2020 and ended on August 31, 2021.

Bill S-8 amended the IRPA and the Regulations, as a response to Russia’s attack on Ukraine, to ensure that foreign nationals subject to sanctions under the Special Economic Measures Act are inadmissible to Canada. The amendments also affected eligibility to have a refugee claim referred to the RPD by broadening it.

Creation of College of Immigration and Citizenship Consultants

In June 2017, the House of Commons Standing Committee on Citizenship and Immigration (CIMM) issued a report entitled Starting Again: Improving Government Oversight of Immigration Consultants. It recommended that the new regulatory body for immigration consultants develop a system of tiered licensing, with the highest level reserved for litigation before the IRB. The ensuing College of Immigration and Citizenship Consultants officially opened on December 9, 2021. In 2019, Parliament passed legislation that permitted implementation of the tiered licensing. As a result, the College bylaws provided that a Class L3 license for representation at the IRB would be required “after July 1, 2022, or such other date as may be fixed by the Board by resolution”. In June 2022, the Board of Directors of the College passed a resolution setting July 1, 2023, as the new date for the requirement for a Class L3 licence. This Class L3 licence is also called “IRB-Certification” or the “Specialization Program”.

Conclusion

The next chapters in the story of refugee protection procedure in Canada remain to be written. What can be said is that the concept of the ‘refugee’ is as old as the state system, and, in the words of academic Eve Lester, it will remain with us for as long as the state system remains. As Emma Haddad writes, refugees are the consequence of erecting political boundaries and failing to protect all individuals as citizens, hence pushing insiders outside. So long as these conditions pertain - there are political borders constructing separate states and creating clear definitions of insiders and outsiders, and failures of protection - there will be refugees. As Alan Nash observes, the structure for protecting refugees is flawed and subject to a series of opposing tensions. Nevertheless, this structure sets out a charter of the rights and obligations owed to refugees and by doing so lays down the standards by which they should be treated.