Senate Committee — RIDR — Brief — ridr_ss-1_fgd_brief_liew_e

RIDR / Brief / ridr_ss-1_fgd_brief_liew_e

Senate Committees

A submission by Jamie Liew to the Standing Senate Commitee on Human Rights Forced Global Displacement (December 4, 2023) 1 My name is Jamie Liew and I am a lawyer and a professor at the University of Otawa, Faculty of Law. I am an expert on immigra�on law and have in�mate knowledge of the ways in which Canadian laws aﬀect migrants and non-ci�zens.

I wish to focus my short �me with you today by explaining in 5 minutes what I usually do in an en�re semester, which is to explain the many applica�ons that migrants coming to the Canada-US border, who are ineligible to submit a refugee claim, supposedly have access to. 1.

The Supreme Court of Canada’s decision regarding the Safe Third Country Agreeement My comments today are in response to the recent Supreme Court of Canada’s decision that dealt with a Charter challenge of the Safe Third Country Agreement. 1 I will be focusing on one aspect of that decision, in par�cular, the fact that migrants may have access to alterna�ve immigra�on applica�ons and processes if they are ineligible to make a refugee claim. The Court called these “safety valves”. 2. Overview of the concept of Safety Valves in the Immigration and Refugee Protection Act and why they are prac�cally limited.

The Supreme Court stated, “The IRPA does… contain mechanisms for temporary or permanent exemp�ons from return to the United States”. In my limited �me today, I want to give you a brief descrip�on of this extremely complicated regime, and then discuss why they don’t operate as the Court may envision. A Pre-Removal Risk Assessment (PRRA) is a writen applica�on where you explain why you are afraid to return to your country and you provide documenta�on to support your fear.2 Sta�s�cs from IRCC show a rate of approval at around 3.5%.

Between and this rate was between 1.4% and 3.1%.3 A Permanent Residence Applica�on on Humanitarian and Compassionate Grounds (H&

C) is a writen applica�on where you are asking to be exempt from the requirements in the IRPA and granted permanent residence based on hardships you may face if you are not given such status. 4 Government ﬁgures from showed the rate of applica�ons refused climbed to 70%.5 Canadian Council for Refugees v.

Canada (Ci�zenship and Immigra�on), 2023 SCC 17 (CanLII), htps://canlii.ca/t/jxp04. 2 Immigration and Refugee Protection Act, SC 2001, c 27, s 112(1) [IRPA]. 3 Government of Canada, Evaluation of the Pre-Removal Risk Assessment Program (April 22, 2016) [online: htps://www.canada.ca/en/immigra�on-refugees-ci�zenship/corporate/reports-sta�s�cs/evalua�ons/removal-risk- assessment-program/prra.html#toc1-2]. 4 Ibid, s 25(1).

See also public policy considera�ons under s 25.2(1) but again this is a highly discre�onary remedy. 5 The Canadian Press (Maan Alhmidi), “Canada refusing more immigra�on on humanitarian, compassionate grounds: data” (July 14, 2021) [online: htps://globalnews.ca/news/8026341/canada-immigra�on-humanitarian- compassionate-undocumented-migrants/].

A submission by Jamie Liew to the Standing Senate Commitee on Human Rights Forced Global Displacement (December 4, 2023) 2 A Temporary Residence Permit (TRP) requires a writen applica�on and is a special permit from Immigra�on, Refugees and Ci�zenship Canada (IRCC) that lets a person live in Canada for a certain period for compelling reasons.6 This permit may be valid from one day to three years and can be cancelled at any �me. A person who has a date set for their removal from Canada may submit a request to the Canada Border Services Agency (CBSA) to ask for a Deferral of Removal.

The person has to demonstrate why they might suﬀer irreparable harm outside the normal hardship from removal or if the short-term interests of a child are directly impacted. They are only granted where “compelling personal circumstances” or “exigent personal circumstances” warrant the gran�ng of a deferral request. The discre�onary powers aﬀorded to an oﬃcer to defer removals is quite narrow. I want to emphasize that the PRRAs, H&C applica�ons, TRPs and deferrals of removal are discre�onary. Immigra�on oﬃcers have wide discre�on to grant or deny these applica�ons. It is ul�mately up to an assessing oﬃcer.

Further TRPs are temporary and don’t provide a permanent solu�on. An Administra�ve Deferral of Removal (ADR) is a temporary measure when immediate ac�on is needed to defer removals in situa�on of humanitarian crisis.7 Once the situa�on in a country stabilizes, the ADR is li�ed and removals to that country resume. An ADR is currently in place for certain regions including in Somalia, the Gaza Strip, Ukraine, Syria, Mali, the Central African Republic, South Sudan, Libya, Yemen, Burundi, Venezuela, Hai�, Iran and Sudan.

A Temporary Suspension of Removals (TSR) interrupts removals to a country or place when general condi�ons pose a risk to the en�re civilian popula�on such as armed conﬂict or an environmental disaster.8 Canada currently has a TSR in place for Afghanistan, the Democra�c Republic of Congo, and Iraq. The diﬀerence between the TSR and the ADR is that the ADR is put in place within a short period of �me to immediately respond to a change in country condi�ons. ADRs and TSRs are thus only available to individuals that may be removed to countries listed by the Canadian government.

Individuals who are inadmissible to Canada on the grounds of criminality, serious criminality, interna�onal or human rights viola�ons, organized crime or security, can be removed despite an ADR or TSR. It is an alterna�ve only available to a limited group of persons. Persons may also seek a Judicial Stay of Removal to prevent the execu�on of their removal from Canada.9 To do this, a person must have a mater already before the Federal Court and the stay of removal prevents removal pending the decision of that mater. 6 Ibid, s 24(1). 7 Ibid, s 48(2). 8 Ibid. 9 Federal Court Rules, SOR/98-106, s 373.

A submission by Jamie Liew to the Standing Senate Commitee on Human Rights Forced Global Displacement (December 4, 2023) 3 The existence of these mechanisms found in the IRPA have been used to jus�fy our treatment of migrants at the Canada-US border. Some may not be eligible for the applica�ons depending on the requirements. It is not within the prac�ce of border oﬃcials to oﬀer the menu of alterna�ve op�ons to those at a port of entry and lay persons would not be expected to know that these legisla�ve op�ons exist.

In fact, when I polled a group of law students in class, only two of them knew that these applica�ons existed prior to taking the class, and only because they had prior work experience with an immigra�on law oﬃce or the government. All these immigra�on processes and applica�ons require not only a writen request, but many require substan�ve documentary evidence to show that these requests are merited. They are prac�cally unavailable to migrants unless they hire a lawyer and coordinate the submission of their applica�ons and requests when they reach a port of entry.

For those who do not speak or write in English or French, who are unfamiliar with our legal system, and who have no legal support, these avenues are unreachable. The judicial stay of removal requires an underlying court mater and an addi�onal applica�on made to a court, something a lay person would be unable to do at a border crossing. While there have been few excep�ons where migrants have been able to access such alterna�ves, including the applicants in the Safe Third Country Agreement li�ga�on – these were done with a substan�ve amount of eﬀort on the part of many lawyers and are the rare excep�on.

The reality is many do not seek legal advice before crossing a border, and many cannot pull together applica�ons at the border. While alterna�ves may exist in legisla�on, it is the prac�cal availability of those op�ons that is important to consider. Would migrants ask for these applica�ons? If they do, would they be able to put their best foot forward in a paper applica�on at a border crossing given their linguis�c and legal capacity? Finally, what are the chances that these applica�ons would be granted? Many of the remedies sought are discre�onary and rely heavily on the whim of an individual oﬃcer.

Success rates are dismal for some of these applica�ons. The reality is these so-called safety valves are illusory and do not provide the checks and balances we think they do. I hope I have given you a sober picture of how feasible it is for migrants to not only access but obtain relief with the so-called “safety valves” in the IRPA. Given that we know many will not be able to access the processes and remedies in the IRPA, the Canadian government should revisit its decision to maintain and expand the Canada-US Safe Third Country Agreement.

Countless people may be put at risk because of the current misunderstandings we have on how the en�re immigra�on regime func�ons. We cannot rely on the fact that some mechanisms exist on paper to jus�fy a system that is counter to our interna�onal obliga�ons under refugee law, including the right to nonrefoulement.

Document details

Collection	Senate Committees
Citation	RIDR / Brief / ridr_ss-1_fgd_brief_liew_e
Type	committee
Volume / chapter	441 / Brief / ridr_ss-1_fgd_brief_liew_e
Language	en
Format	pdf
Source	COMM_SEN
Identifier	157be3df582793b52e46099fcf34bb90513c0e7e

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