Focus On
Federal election 2019

Refugees and the federal election: Setting the record straight

Friday, September 27, 2019 @ 8:32 AM | By Maureen Silcoff


Maureen Silcoff %>
Maureen Silcoff
When it came time for the 2015 federal election campaign, we had slipped as a nation. The former government’s views on refugees were crystal clear. Not mincing words, it threw around terms like “bogus refugees” and referred to people coming to Canada for “gold-plated” health care, casting refugees from certain regions as unworthy scammers. The courts have since ruled that there was no evidence for any of this rhetoric and in fact, it flew in the face of s. 15 of the Charter.

During the campaign, party leaders sparred over refugee health care and the sponsorship of Syrian refugees. And let’s not forget the debates about wearing a niqab at citizenship ceremonies and the notion of setting up a “barbaric cultural practices” hotline.

What has happened since then and where do refugee issues stand heading into the 2019 election?

The new government made good on its promise to boost the sponsorship of Syrian refugees. As countless groups of concerned people sprang up across the country eager to sponsor Syrian refugees, the government devoted resources to implementing a program. To date, more than 50,000 have arrived in Canada.

But the government also inherited a host of problematic refugee laws and policies.

The courts took care of some of those, striking as unconstitutional refugee health care cuts in Canadian Doctors for Refugee Care v. Canada (Attorney General) 2014 FC 651; the appeal bar for persons from designated countries of origin in Y.Z. v. Canada (Citizenship and Immigration) 2016 2015 FC 892; and the extended bar for pre-removal risk assessments for persons from designated countries of origin in Feher v. Canada (Public Safety and Emergency Preparedness) 2019 FC 335. Recently, the government de-listed all countries from this designation, essentially ending the regime.

The former government had revamped the refugee determination system in 2012, but the reforms proved themselves fundamentally flawed. Measures such as tightened timelines, coupled with limited resources, were based on the misguided notion of deterrence rather than on reality. The system lacked the necessary elasticity to deal with ebbs and flows of the global refugee scene.

The 2019 budget allocated historic resources for the refugee determination system to boost efficiency and the Immigration and Refugee Board implemented innovative systems, which are moving cases along at a quickened pace.

When faced with the Ontario government’s reckless legal aid cuts for refugees and immigrants, the federal government stepped up to fill the gap with close to $26 million. This funding preserved the efficiency of the refugee determination system, which depends on legal representation to run properly. But the funding is limited to the current fiscal year and a sustainable legal aid system is needed. Both levels of government must work together make this happen before a new crisis erupts next year.

Other troubling laws persist. For example, the Immigration and Refugee Protection Act (IRPA) bars refugee access to humanitarian relief for 12 months after their refugee claim was rejected, and the starting point for that 12-month period was just extended. People who fail to meet the precise refugee definition may still face hardship if sent home and require Canada’s humanitarian relief to remain here. The faster that hardship is assessed, the better.

We also need to reflect on the Safe Third Country Agreement (STCA) that bars people in the U.S. from entering Canada to seek refugee protection unless they meet an exemption.

Evidence that the asylum system in the U.S. fails to meet international standards is plentiful, calling into question why the STCA remains in effect. Fearing deportation from the U.S. without a fair shot at obtaining asylum, people who are barred because of the STCA cross into Canada between ports of entry to seek protection.

Any attempt to characterize such crossings as illegal is wrong in law, because Canada is obliged under its international obligations to assess people’s protection needs when they arrive. And the people crossing between ports of entry bump no one from “the line,” because there is no one line. People seeking status in Canada based on economic immigration programs, refugees sponsored from camps abroad and refugees who arrive at ports of entry and between them, each are subject to different systems. We also know that mode of entry into Canada says absolutely nothing about the merits of a refugee claim.

And then in June this year, the federal budget amended the IRPA to include a new ineligibility provision. The new law renders people ineligible to enter the refugee system if they sought protection in a country with which Canada shares intelligence data and mostly blocks people who make asylum claims in the U.S. from seeking refugee protection in Canada. This bar will have a stark impact for women fleeing domestic violence when they have first passed through the U.S. —  a 2018 decision by former Attorney General Jeff Sessions dictates that the U.S. will generally not recognize domestic violence as grounds for asylum.

To make matters worse, such people are subject to removal to their home country also immediately after a sole immigration officer reaches a decision. They have no right of appeal, only the possibility of the Federal Court judicially reviewing the decision which is subject to a leave provision and notably, seeking judicial review does not automatically stay removal proceedings.

Moving forward, we can’t lose sight that our Charter and international human rights obligations must be at the forefront of refugee policy.

Maureen Silcoff is a partner at Silcoff Shacter in Toronto and practises in the areas of refugee and immigration law. She was a member of the Immigration and Refugee Board for five years and is the president of the Canadian Association of Refugee Lawyers.

Interested in writing for us? To learn more about how you can add your voice to The Lawyer’s Daily, contact Analysis Editor Richard Skinulis at Richard.Skinulis@lexisnexis.ca or call 437- 828-6772.