Canadian Refugee Procedure/History of refugee procedure in Canada

Early refugee policiesEdit

(Im)migration and refugee processes have long been present in the territory of Canada. For example, some First Nations would absorb war captives and refugees from neighbouring First Nations, as with the Haudenosaunee (Iroquois) who are said to have pursued an ancient ideal that they “extend the rafters of the longhouse” by absorbing their neighbours into one nation, thereby producing a universal peace.[1] Warfare between First Nations also created what could be called refugees who would flee to new regions, for example, with the coming of the fur trade in the 16th century, the Haudenosaunee embarked on campaigns to subjugate or disperse neighbouring groups and the French-allied Huron-Wendat were dispersed from their homeland after several villages were destroyed in 1649; such dispersal campaigns would also impact the Petun, Neutral and Erie in the following decade.[2] Forced displacement of indigenous persons also resulted from the actions of the colonial regimes that emerged in Canada, for example, with the physical displacement inherent in the reserve system, which abrogated many relationships with traditional territories, as well as related social, cultural, and political displacements.[3] 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.[4]

Globally, the first record of the term ‘refugee’ is popularly credited in application to French Huguenots who relocated to neighbouring European territories around Louis XIV’s revocation of the Edict of Nantes in 1695.[5] One million Huguenots left France and settled across the European continent. Meanwhile, in the 1700s and 1800s, the British instituted policies to encourage immigration to British North America, including by those 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.[6] Many of them migrated northward not by choice but by default, either because they did not wish to become citizens of the new American republic or because they feared retribution for their public support of the British during the War of Independence.[7] The retribution meted out to loyalists in the United States included beatings, imprisonment, and other forms of harassment.[8] Among these 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 offered the best hope for preserving their independence and protecting their territories from land-hungry colonists.[9] The loyalists also included thousands of free 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 of freedom made late in the conflict that guaranteed that all slaves who made formal claim to protection behind British lines would receive their freedom.[10] Upon arrival, many of these black loyalists faced the scourge of racism and dismal agricultural prospects in Nova Scotia, and, bitterly disappointed, 1,200 sailed for Sierra Leone to start afresh on the west coast of Africa in 1792.[10] 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.[11]

Overall, from the point of view of western states, before the First World War (WWI) people used to enjoy a certain freedom of movement in the world and, as such, defining a refugee was not a major concern for the reigning powers.[12] In the 19th and early 20th centuries, displaced, persecuted, and poor populations in Europe and North America simply moved to new jobs and opportunities in other regions.[13] Passports, for example, were not generally required for European and North American travel until the First World War.[14] There were also explicit efforts to entice refugees to choose to come to Canada. 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.[15] A century later, in the 1870s and 1880s the Canadian government specifically 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.[16] 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.[16] Other people who immigrated to Canada during this time period included 138,000 Jews who immigrated between 1900 and 1921, many of them refugees fleeing pogroms in Czarist Russia and Eastern Europe,[17] as well as the arrival of Doukhobors from Russia, where they suffered persecution.[17]

Not all migrants, however, were similarly welcomed by Canadian society. Canada's first Immigration Act, passed in 1869, initially reflected the laissez-faire philosophy of the time by saying nothing about which classes of immigrants should be admitted and which categories should be proscribed.[18] Subsequent amendments to the legislation, however, specifically discriminated against people on the grounds of class, race, and disability.[19] Through policies such as the Chinese head tax at the turn of the century, and the internment of Ukrainians,[20] the government selectively excluded certain groups of migrants.[11] As Jan Raska describes it, the Canadian government admitted refugees based on prevailing sociocultural, economic, and political views of the ‘desirable’ immigrant.[21] The government amended the Immigration Act in 1910 to prohibit all "charity cases" who had not received written authority to emigrate 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.[22] 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."[7] Canada also turned away ships bearing refugees, such as the 376 passengers, most of whom were Sikhs, on the SS Komagata Maru in 1914, which was not allowed to dock in Vancouver. After a two-month stalemate, the Komagata Maru was forced to turn around and sail back across the Pacific Ocean, only to have some of its passengers massacred by the British Indian police upon arrival in India.[11] 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."[23] Canada, like many states at the beginning of the 20th century, also 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.[24]

During this pre-WWII era, Canada refused to endorse key international initiatives aimed at aiding refugees. In 1922, the 'Nansen Passport' for Russian refugees was created.[25] 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. It has also been pinpointed as the beginning of international refugee law.[26] In 1925, the Refugee Service of the International Labor Organization (ILO) took on responsibility for issuing these Nansen Passports. Five years later, the humanitarian aspect of refugee work was entrusted to the International Refugee Office ("Nansen International Office for Refugees").[27] Canada steadfastly refused to recognize the Nansen Passport on the basis that Canada would only accept Nansen 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.[28] Even once other countries strove to accommodate the Canadian demand for returnability, Canadian officials continued to refuse refugees, finding other grounds for rejection.[29] In 1931, Canadian officials spoke with pride that only "a dozen refugees" had been admitted to Canada on the League of Nations' Nansen Passport.[30] In order to address the fact that the agreements underpinning the Nansen Passport lacked the status of treaty law,[31] an international conference was convened in 1933 which led to the Convention Relating to the International Status of Refugees. Canada neither attended the conference nor subscribed to the agreement.[32]

WWII-era refugee policiesEdit

Irving Abella and Petra Molnar write that “Xenophobia and Anti-Semitism permeated Canada, and there was little public support for, and much opposition to, the admission of refugees... until after the Second World War.”[11] 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.[21] 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.[33] The Intergovernmental Committee on Refugees (ICGR) that was established in the late 1930s, mandated to assist Jews from Germany and Austria, operated without Canadian involvement.[34]

A visible manifestation of the antisemitism that marked Canadian policy was the 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. 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", with Quebec opposition leader Maurice Duplessis holding rallies to charge 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.[35] Ultimately, Canada admitted 5,000 Jewish refugees during the Second World War. In contrast, the US welcomed 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.[11] When Canadian immigration officials were asked how many Jews the country would admit after the war, their famous response was, “None is too many.”[36]

Measures were also employed to exclude "enemy aliens" during the Second World War, such as the internment of Japanese persons.[11] 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.[33] 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.[35]

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.[37]

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

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.[38] 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 individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to Communist regimes.[39] Canada started by providing funding to the United Nations Relief and Rehabilitation Administration (UNRRA), which distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortages, and also assisted displaced persons in returning to their home countries in Europe in 1945-46.[40] In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.[41] In 1947, Canada began to enact additional ad-hoc agreements allowing displaced persons to enter the country in what was called the Displaced Persons Movement, which successfully resettled 186,154 refugees to Canada over the course of six years.[41] Many of these were referred by the International Refugee Organization[42] after its December 1946 creation, and still others were selected by Canadian immigration officers who were deployed overseas for the purposes of selecting from among the displaced persons.[43] 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."[44] This speech was also notable because it can be seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter -- 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.[45]

When the June 1950 termination date for International Refugee Organization arrived, refugees continued to abound in Europe. Indeed, they were increasingly arriving across Western European borders from the Eastern Bloc.[46] As a result, on December 14, 1950, the UN General Assembly formed the United Nations High Commissioner for Refugees (UNHCR) and gave it the 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.[47] At this point, the UNHCR was only meant to be temporary, with the UN General Assembly giving the organization a 3-year mandate to address the needs of displaced Europeans from the Second World War.[48]

The next year, the foundational treaty for modern refugee protection, the 1951 United Nations Convention Relating to the Status of Refugees, emerged on July 28, 1951 from negotiations spearheaded by the UNHCR. This treaty sought to deal with situations arising immediately after World War II, and by its terms was limited to persons who became refugees before January 1, 1951.[49] During the drafting of the Convention, Canada was seen to be a leader in its creation: Canada was one of twenty-six countries to send a delegate to participate in the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons which negotiated the Convention,[21] it was a part of the working group vested with the responsibility of drafting the definition of a refugee in Art. 1 of the Convention, and it 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.[50] Canadian chairman Leslie Chance reported “we have been regarded throughout as taking a forward attitude.”[51] 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.[52] In any event, Canada did ultimately advocate at the conference "in favour of the widest possible definition" given that, in its words at the time, "The purpose of the Convention was to protect refugees, not States."[53]

In 1951, Canada declined to ratify the resultant Convention. By way of explanation, then Secretary of State for External Affairs Lester B. Pearson announced the government was concerned that 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.”[51] Without Canada, the Refugee Convention entered into force on April 22, 1954.[54] Despite not signing the convention, Canada financially supported the UNHCR from its establishment[42] and in 1959, began to sit on the then-new UNHCR Executive Committee, an advisory body of states that gives guidance to the High Commissioner.[55]

In the years following the UNHCR's creation, Canada also allowed for refugee entry on an ad-hoc basis, 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,[56] to larger movements, including the 37,000 Hungarian refugees Canada admitted following the Hungarian Revolution in 1956.[57] By 1962, Canada had also admitted nearly 250,000 displaced persons from Europe,[58] many of whose journeys to Canada had been subsidized by a Canadian government seeking to recruit more workers for a booming economy.[59] That said, Canada's overall immigration laws continued to restrict manner persons for reasons of race, class, and health, and "national security" concerns, related to the fear of communism, were used to reject more than 29,000 applications to enter Canada between 1946 and 1958.[58]

Non-discrimination measures and Canada's ratification of the Refugee ConventionEdit

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. Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights.[60] Canada began to see repeated liberalizations of 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.[17] 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 regulation was a provision that allowed European immigrations and immigrants from 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.[61] 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”.[51] 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.[22]

In the late 1960s, negotiations were underway to expand the temporal and geographic scope of the 1951 Refugee Convention. As articulated by the UNHCR, one of the motivations behind this initiative was to ensure that the de facto racial distinctions built into the 1951 Convention yielded to a growing 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.[62]

Canada refused to commit to the initiative to negotiate a protocol to the Refugee Convention while it was preparing what it termed its White Paper on Immigration.[63] In 1966, the government released the White Paper in order to, in researcher Clare Glassco's words, "test the waters" for making more fundamental changes to the immigration regime. Among many initiatives, the White Paper committed to the establishment of an immigration admissions policy that was free from discrimination on the grounds of race, religion, or ethnicity. 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.”[64] 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 effective protection elsewhere.[65] Canada was increasingly seeing itself as a country of first asylum as Cold War crises caused thousands to seek safe haven in the West.[21]

In 1969 Canada ratified the Convention Relating to the Status of Refugees (signed at Geneva in 1951) as well as the Protocol Relating to the Status of Refugees (signed at New York in 1967),[66] which extended the territorial and temporal scope of the Refugee Convention to cover refugees outside of Europe and those displaced for newly emerging reasons.[67] Despite these ratifications, no statute-based, official refugee policy existed in Canada until the implementation of the 1976 Immigration Act.[68] Instead, Canada issued a “Guideline for Determination of Refugee Status” in 1970 to give immigration officers criteria for selecting refugees overseas.[69] 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 would remain in Canada or be deported.[21] 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.[21]

Founding of the Immigration Appeal BoardEdit

In 1967, the Immigration Appeal Board Act was passed, giving anyone ordered deported the right to appeal to the Board on grounds of law or compassion.[17] This Board had 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. Chief among the recommendations was the establishment of a completely independent immigration appeal board.[70] Almost immediately, the Board was swamped with a backlog that, at existing case processing rates, it was expected to take more than 20 years to go through.[71] 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. In order to clear the backlog, the government also instituted a one-time amnesty program, which more than 39,00 people available themselves of, including a significant number of US draft dodgers.[72]

1976 Immigration ActEdit

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 statute, for example by lifting a ban prohibiting gay men and women from immigrating,[21] and, after a broad national debate, introduced a series of objectives into the statute which largely remain to this day. 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.[30] It was this legislation that also incorporated Canada's Refugee Convention obligations into domestic law.[73] The refugee status determination program that the legislation created for asylum seekers already within or arriving in Canada set up a new process where the claims began to be decided by the Minister of Immigration. The program was very small: it processed only a few hundred claims per year throughout the late 1970s, mostly in the form of paper applications.[74] 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.[75] The system did include limited appeal rights to the Immigration Appeal Board;[76] 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.[77]

At the same time that Canada incorporated its obligations under these international treaties into domestic law, a series of (ultimately fruitless) international efforts to expand the scope of those treaties were underway. In 1967 the United Nations adopted a Declaration on Territorial Asylum[78] 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,[79] and while a draft was produced,[80] the conference ended in failure.[81]

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.[82] Tibetan refugee hosting opened the doorway to other refugee resettlement, as Canada accepted about 7,000 ethnic South Asians expelled from Uganda under the dictatorship of Idi Amin in 1972-73, 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.[83] 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.[17] 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.[84] 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.[58]

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 the numbers, which is what limited Canada to only accepting about 7,000 Chileans during that 30-year conflict.[11] Similarly, while 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 that this initiative cost the government seats in that year's election.[85] 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.[86]

Founding of the Immigration and Refugee BoardEdit

The background to the creation of the Immigration and Refugee Board of Canada lies in the growing number of refugee claims that were being made during the 1980s. 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.[87] In 1980 Canada received what today looks like a very modest 1,488 refugee claims.[76] By the middle of the 1980s, however, 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.[76] 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 annually.[88]

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 the newly created Refugee Status Advisory Committee.[89] This system involved only written submissions, assessed by the committee in private, with the committee ultimately making recommendations to the Minister of Immigration,[90] although in 1983 having an oral hearing began as a pilot project in Toronto and Montreal.[21] The government also commissioned a series of major studies, specifically the Robertson Report (1983) entitled Illegal Migrants in Canada, the Ratushny Report (1984) entitled A New Refugee Status Determination Process for Canada, and a report by Rabbi Gunther Plaut (1985) entitled Refugee Determination in Canada, to recommend approaches for a new asylum determination system that would address both the need to be heard, and balance the competing interests of fairness and efficiency.[76] This impetus for change was bolstered by a 1985 decision from the Supreme Court of Canada, Singh, which established that where the credibility of a claimant is at stake, an oral hearing before the then-Immigration Appeal Board must be held. 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 then-extant refugee determination process to ensure that fair oral hearings started to be offered.[76] At the same time, concerns about the integrity of the then-extant system were being expressed; for example, in their 1988 platform, the Reform Party invoked what has been labelled "inflammatory language" about "immigration abuses, bogus refugees, [and] improper selection of immigrants".[91]

The Canadian government of the day proposed a tribunal model for the new asylum system. The relevant legislation, Bill C-55, or the Refugee Reform Act, was introduced in the House of Commons in 1986. There was lengthy debate about the legislation and it was not passed until 1988.[76] One concern raised by civil society about the bill was with the Safe Third Country Regime that it introduced. In response to public criticism of the Safe Third Country Regime, Barbara McDougall, who as then minister of employment and immigration, came to entertain apprehensions regarding the United States as she was persuaded that the US 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."[92] The Immigration and Refugee Board of Canada was the body that emerged in order to constitute a fresh start for asylum policy-making. It came into existence as an independent administrative tribunal on January 1, 1989 with 115 members.[93] At that time, it consisted of only two divisions: the Convention Refugee Determination Division and the Immigration Appeal Division. Gordon Fairweather, a former Attorney General of New Brunswick and the first Chief Commissioner of the Canadian Human Rights Commission, was appointed the first Chairman of the IRB.[21]

As part of the transition to the new system, the government instituted a one-time expedited review program that amounted to a general amnesty for people with pending asylum applications. While under the previous system, overall, 30% of applicants had been accepted,[94] under the expedited review program, acceptance rates were much higher - approximately 85% of the 28,000 applicants processed in 1986, for example, were accepted. The amnesty was designed to clear the decks and allow for a fresh start in asylum policy-making.[74] It essentially amounted to an amnesty for refugee claimants who had entered Canada before 21 May 1986 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.[21]

Growing numbers of claims and increased resourcesEdit

Increasing numbers of claims and resourcesEdit

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.[95] Today, roughly one million individuals apply for asylum globally each year,[96] with those classified as refugees representing 7–8 per cent of the global migrant population.[97] Similarly, in Canada, while the volume of new claims has gone through cycles, volume has trended upwards over time. Since the inception of the IRB in 1989, three notable case decision backlogs have occurred: in 2002 with over 57,000 claims, in 2009 with over 62,000 pending claims,[98] and post-2017, where the Board has 90,000 claims awaiting decision.[99] The resources dedicated worldwide to Refugee Status Determination (RSD) are appropriately described as "immense". For example, although exact figures are difficult to determine, academics note that it is likely that the combined cost of RSD performed by states and UNHCR approaches or exceeds the total cost of direct humanitarian assistance provided to refugees by UNHCR.[100] Hathaway has estimated that the Global North alone spends $10 billion on RSD, a number which is a scale of magnitude larger than UNHCR’s budget and exceeds even total UN expenditures.[101] At the same time as the IRB has been operating, Canada has continued its overseas resettlement programs for refugees and has had the capacity to scale these initiatives up when crisis have occurred, for example when the former Yugoslavia was imploding in 1991-92, Canada fast tracked the admission of more than 25,000 refugees from Bosnia.[102]

Processes at the Board have varied and evolved since the IRB's founding, often in response to claim backlogs and perceived crisis situations. For example, in the late 1980s, Bill C-84, the Refugee Deterrents and Detention Act, came into force.[103] The law emerged 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.[21] Bill C-86, passed by the Senate in December 1992, transferred authority previously exercised by Board Members to senior immigration officers who were able to decide if an applicant was eligible to claim refugee status.[104] Also, the Canadian refugee system used to have a screening process designed to eliminate claims with “no credible basis” but it was abandoned in 1993 as an efficiency measure.[105] Another 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. This aspect of the new process that was much criticized by legal counsel for refugees at the time.[106] That said, during the 1990s, refugee claimants appeared before panels of two decision-makers, only one of whom needed to accept their claim for their application to be successful (a cost-saving initiative announced in March 1995 to move to one-person panels was not implemented until the next decade).[107] Furthermore, 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.[108] Approximately 2-3% of such applications were accepted.[109] As discussed below, this process eventually became the foundation for what is now s. 97 of the IRPA.

Broader interpretations of the refugee definitionEdit

Canada's interpretation of the Refugee Convention was marked by an expansive and progressive turn by the newfound Immigration and Refugee Board. In 1991, Canada became one of the first countries in the world to recognize sexual orientation-related persecution as a basis for claiming asylum.[110] Canada then issued guidelines on the handling of gender-based asylum claims in 1993, something that was associated with a growing acceptance of claims related to gender-based persecution.[111] In 1996, the IRB adopted guidelines on child refugee claimants, reportedly the first such policy initiative of its kind adopted by any State system.[112] Much later, in May 2017, the Board, for the first time, implemented guidelines on the adjudication of claims involving Sexual Orientation and Gender Identity and Expression (SOGIE).[113]

Deterrence and Restrictive MeasuresEdit

Bríd Ní Ghráinne writes that as refugee numbers have grown, and have come from further afield, and concomitant RSD costs have increased, states have begun to employ increasingly "creative" means to constrain refugee flows and restrict the number of individuals they recognize as refugees.[114] 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”[114] such as the following, which have been deployed by Canada to an increasing extent in recent decades:

  • Restrictive Visa Policies: Limited access to visas for entry into Canada restricts access to the asylum process.[113]
  • 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.[115]
  • Biometric requirements: In the early 1990s, the Mulroney government introduced a requirement that asylum applicants be fingerprinted.[116]
  • First country of asylum principles: Canadian immigration legislation has permitted the designation of safe countries since 1998.[117] This provision has been used to authorize the safe third country agreement between Canada and the United States.
  • Stricter port-of-entry interviews and security screening: In the early 1990s, the Mulroney government introduced deterrence measures design to push down the number of refugee claims, including stricter port-of-entry interviews.[116] 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) of refugees as they arrive in Canada.[118]
  • Returning boats at sea: 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.[119]
  • Limitations on appeal: In the early 1990s, the Mulroney government introduced limitations on the ability to appeal decisions.[116] To this day, there are a number of restrictions on the ability to appeal negative decisions, including that claims by designated foreign nationals (DFNs) do not have a right of appeal.[120]
  • Stricter enforcement: CBSA employees called migration integrity officers work overseas, ensuring that individuals who are travelling to Canada have proper travel documentation.[121] 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.[122] In 2012 the government reported that there were 63 such officers in 49 locations worldwide.[123] Between 2001 and 2014, such liaison officers intercepted over 86,000 persons offshore.[124]
  • Restrictions on employment for claimants: In the early 1990s, the government prevented refugee claimants from working. This was changed later in the 1990s.

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."[87]

The 2002 move from the Immigration Act to the IRPAEdit

In the late 1990s, the federal government began a process to overhaul the then-Immigration Act, including with a lengthy public consultation period.[125] It commissioned a report entitled Not just numbers: a Canadian framework for future immigration which set out priorities for the system. 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.[126] The shift from the Immigration Act to the IRPA in June 2002 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 had been 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, 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.[127] Highlights of the new legislative framework include the following:

  • 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.[128] 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.[129]
  • Shift from the CRDD to the RPD: The Convention Refugee Determination Division (CRDD) became the Refugee Protection Division (RPD), to reflect the fact that it now had jurisdiction over the consolidated grounds for refugee protection and, 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 so that half the number of Board members would be required for each case.[130]
  • Consoliated grounds for refugee protection: The IRPA also expanded the categories of persons who are entitled to refugee protection. Under the former immigration legislation, the only category of person who was clearly entitled to protection 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 and to persons who are at risk of cruel and inhumane treatment upon deportation to their country of nationality or former habitual residence.[131] Canada had ratified the Convention against Torture on June 24, 1987, but did not implement it directly in Canadian domestic law until this point.[132] Rebecca Hamlin writes that there is no evidence to suggest that Parliament considered the introduction of s. 97 to be monumental when it discussed IRPA 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."[133] 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".[133]
  • PRRA: The IRPA transitioned from the Post-Determination Refugee Claimants in Canada Class (PDRCC) to the Pre-Removal Risk Assessment (PRRA) process.[134] 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.[135]
  • Increased security provisions: Sharryn Aiken, et. al., write that the most significant shift signalled by the IRPA is that it demonstrates 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.[125]

Over the next decade, 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.[136]

Safe Third Country AgreementEdit

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, and it was only in the wake of 9/11 that Canada was able to successfully conclude such an agreement.[137] Specifically, on December 5, 2002, Canada signed its Safe Third Country Agreement (STCA) with the United States.[138] That agreement came into effect on December 29, 2004 when the hitherto dormant safe third country regime in Canada's immigration legislation was first utilized.[139] The immediate impact of the STCA was to significantly lower the number of inland refugee claims in Canada; there was a 40 percent drp in claims made at the Canada-US border after the agreement came into effect. This trend, however, did not last.[140]

2010 and 2012 refugee reformEdit

Two pieces of legislation made significant changes to the refugee system in 2010 and 212, the Balanced Refugee Reform Act (2010) and the Protecting Canada’s Immigration System Act (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 (RAD) of the IRB, would be more quickly removed from Canada.[141] Various changes were made to assist this, including:

  • Legislated timelines for hearings.
  • Implementation of the Refugee Appeal Division (RAD). As part of this reform, the RAD came into being on December 15, 2012.[142]
  • Public servant decision-makers: Shifting from Governor-in-Council appointees to public servants as first-level decision makers at the IRB’s Refugee Protection Division. 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.[143]
  • Creating a list of Designated Countries of Origin (DCOs), countries that were not generally considered to be refugee-producing, and where claimants therefrom consequently received an expedited hearing.[144] The Designated Country of Origin list was introduced in 2012 by the Conservative government as part of the Protecting Canada’s Immigration System Act. The implications for asylum seekers coming from DCOs included an expedited Immigration and Refugee Board (IRB) hearing process with shortened timelines, no access to the Refugee Appeal Division, no automatic stay of removal for failed claimants, and no eligibility for a work permit or associated benefits while awaiting a decision on their claim. Designation as a safe country was dependent on a combination of qualitative observations about countries’ levels of democratic process and human rights records and 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.[145]
  • The IRB doing PRRA: The Balanced Refugee Reform Act also transferred authority over the PRRA from the Minister to the IRB, although this transfer has never actually been brought into force.[146]
  • Limitations on the Interim Federal Health Program: A strategy to create disincentives for refugee claimants to come to Canada was a 2012 policy decision to cut access to health care for some categories of claimants.[147] 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.[59]

The current version of the Refugee Protection Division rules came into force on October 26, 2012 following the coming-into-force of this legislation.[148] 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".[91]

Irregular Border Crossing ControversyEdit

The number of asylum claims worldwide has grown in recent years; as of 2018 there were 3.5 million asylum seekers in the world.[149] Canada launched a program to resettle more than 25,000 Syrian refugees in 2015. The issue of persons crossing irregularly from the United States into Canada later became a significant political issue starting around 2017 and has continued in years subsequent.[91] Such crossings occurred primarily at Roxham Road on the Quebec-New York border and Emerson, Manitoba. Since 2017 more than 59,000 people have crossed the Canada-US border in an irregular manner and claimed asylum in Canada,[150] including 20,593 claimants in 2017, 19,419 claimants in 2018, and then 16,077 claimants in 2019.[150] In their 2019 platform, the Conservative Party of Canada reiterated a commitment to prioritizing "economic migration" and favouring those facing "true persecution" over "bogus" refugee claimants.[91]

Elimination of Designated Countries of Origin (DCO) ListEdit

On May 17, 2019, following a Federal Court ruling 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.[145]

Eligibility for claimants who have claimed in other "Five Eyes" countriesEdit

In April 2019, amendments were made to the Immigration and Refugee Protection Act in Bill C-97, the Budget Implementation Act. These changes introduced new grounds of ineligibility for refugee claimants where a person is ineligible to make a refugee claim in Canada if they have previously requested asylum in a country with which Canada has an information-sharing agreement or arrangement. In practice this means that if they made a previous claim in the United States, United Kingdom, Australia, or New Zealand they are ineligible to claim refugee status in Canada via the Immigration and Refugee Board. 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.[151] Those found to be ineligible to make a claim to the IRB submit applications for a pre-removal risk assessment instead.[152]

Covid-19Edit

In 2020, and in response to the Covid-19 virus, 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 deflected back into the United States.[153] As part of this, the two countries reached a temporary agreement which allows Canada to send back to the US individuals entering Canada from the US to make an asylum claim.[154] The agreement applies between official ports of entry along the land border and at air and marine ports of entry. The Refugee Protection Division also shut down all hearings for several months as a result of the pandemic.

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