E1 changes to the refugee system

Policy Policy Changes Changes

and refugee and refugee reformreform

FCJ Refugee FCJ Refugee CentreCentre

Supported by:

Recent PolicyRecent Policy

Changes Changes

Skilled Workers and Skilled Workers and ProfessionalsProfessionals

Fed

era

l S

kille

d

Work

ers

Can

ad

ian

Exp

eri

en

ce C

lass

Ch

an

ges t

o t

he

Refu

gee

Pro

tecti

on

Act

Cit

izen

sh

ip

Gu

idelin

es

Federal Skilled Worker Federal Skilled Worker ClassClass

Skilled workers are people who have education and work experience that will help them become economically established in Canada. They must:

(New World Immigration website)http://www.visa808.com/english/worker.shtml#federal

Federal Skilled Worker ... Federal Skilled Worker ... What’s new?What’s new?

(CIC website)http://www.cic.gc.ca/english/DEPARTMENT/MEDIA/releases/2008/2008-11-28.asp

Canadian Experience Canadian Experience Class (2008)Class (2008)

Temporary foreign workers Temporary foreign workers encouraged to apply if: encouraged to apply if: they have a secondary school they have a secondary school

diploma, diploma, trade certificate or apprenticeship trade certificate or apprenticeship

and and have at least 2 yrs of recent (within 3 have at least 2 yrs of recent (within 3

yrs. of the application) full-time yrs. of the application) full-time Canadian skilled work experience. Canadian skilled work experience.

Applicants can apply for Permanent Applicants can apply for Permanent Resident Status in CanadaResident Status in Canada

Canadian Experience Canadian Experience Class... What’s new?Class... What’s new?

Application based on employer trustApplication based on employer trust Applicants must meet at least minimum English language Applicants must meet at least minimum English language

proficiency. proficiency.

International students encouraged to apply International students encouraged to apply if:if:they have 2 years of Canadian post-secondary they have 2 years of Canadian post-secondary

education (10 academic months) and education (10 academic months) and have 1 year of full-time Canadian skilled work have 1 year of full-time Canadian skilled work

experience (within 2 yrs. of the application) in experience (within 2 yrs. of the application) in management, professional, and skilled and management, professional, and skilled and technical occupations (defined by the NOC) technical occupations (defined by the NOC)

Temporary Temporary Foreign Workers Foreign Workers Program (TFWP)Program (TFWP)

There were 2 main proposals to this There were 2 main proposals to this program put forth in 2009: program put forth in 2009: TFW’s can stay for a maximum of 4 years TFW’s can stay for a maximum of 4 years

followed by a period of 6 years during which followed by a period of 6 years during which they will not be allowed to work in Canada.they will not be allowed to work in Canada.

To restrict employer’s access to TFWP for 2 To restrict employer’s access to TFWP for 2 years when the employer has provided years when the employer has provided previous TFW’s with wages, working previous TFW’s with wages, working conditions/occupations that are significantly conditions/occupations that are significantly different from those typically offered.different from those typically offered.

(CCR- Comments on proposed changes to the TFWP, (CCR- Comments on proposed changes to the TFWP, Canada Gazette, Part 10 October 2009)Canada Gazette, Part 10 October 2009)

Proposed Changes to the Proposed Changes to the Live-In Caregiver Program Live-In Caregiver Program

To eliminate the required 2To eliminate the required 2ndnd medical medical examination before Permanent Residence examination before Permanent Residence (PR) is granted.(PR) is granted.

The time period in which to meet the The time period in which to meet the requirements to apply for PR will be requirements to apply for PR will be extended from 3 years to 4.extended from 3 years to 4.


…cont…cont Caregivers working overtime can apply for Caregivers working overtime can apply for

PR in a shorter time provided they finish the PR in a shorter time provided they finish the required 3,900 hours of work.required 3,900 hours of work.

Employers required by the federal and Employers required by the federal and provincial governments to pay travel costs, provincial governments to pay travel costs, medical insurance, workplace safety medical insurance, workplace safety insurance, recruiting fees to 3insurance, recruiting fees to 3rdrd parties. parties.


Employment contracts to include:Employment contracts to include: employer-paid benefits employer-paid benefits employers must sign mandatory clauses in the contract employers must sign mandatory clauses in the contract

clearly outlining caregiver duties, hours of work, clearly outlining caregiver duties, hours of work, overtime and holidays, sick leave and termination and overtime and holidays, sick leave and termination and resignation terms.resignation terms.

New agreements with provinces to ensure monitoring New agreements with provinces to ensure monitoring and enforcement of these mandatory contracts. and enforcement of these mandatory contracts.

To improve information packages so caregivers know To improve information packages so caregivers know their rights, what action they can take and who to their rights, what action they can take and who to call to protect themselves before they come to call to protect themselves before they come to Canada.Canada.


To open a 24 hour Live-In Caregiver hotline for To open a 24 hour Live-In Caregiver hotline for people to call for help.people to call for help.

To implement an agreement between CIC and To implement an agreement between CIC and Human Resources and Social Development to allow Human Resources and Social Development to allow for fast-track emergency issuing (within 3 weeks) for fast-track emergency issuing (within 3 weeks) of new work permits and Labour Market Opinions.of new work permits and Labour Market Opinions. If a caregiver is in an abusive situation she will If a caregiver is in an abusive situation she will

no longer be stuck for months and months no longer be stuck for months and months searching for a new employer.searching for a new employer.

Getting a Labour Market Opinion, and getting Getting a Labour Market Opinion, and getting the work permit as the clock ticks on her three-the work permit as the clock ticks on her three-year maximum to permanent residency. year maximum to permanent residency.

New Law – Live-In New Law – Live-In Caregiver ProgramCaregiver Program

December 2009 – A new law was December 2009 – A new law was passed in Ontario to penalize persons passed in Ontario to penalize persons charging a placement/recruitment charging a placement/recruitment fee to a Care-giver: – $50, 000 and up fee to a Care-giver: – $50, 000 and up to 1 year in prison. to 1 year in prison.

(CIC website (CIC website -http://www.cic.gc.ca/english/DEPARTMENT/media/releases/2009/2009--http://www.cic.gc.ca/english/DEPARTMENT/media/releases/2009/2009-12-12.asp)12-12.asp)

New Citizenship LawNew Citizenship Law

Took effect on April 17, 2009. Took effect on April 17, 2009.

Restores or gives Canadian citizenship to those who never had Restores or gives Canadian citizenship to those who never had it or lost it it or lost it Certain people who became Canadian citizens on or after Certain people who became Canadian citizens on or after

January 1, 1947, when the first January 1, 1947, when the first Citizenship ActCitizenship Act took effect, took effect, and who then lost it, now have their status restored and who then lost it, now have their status restored retroactively to the date they lost it. retroactively to the date they lost it.

People who have never been Canadians, but who are part of People who have never been Canadians, but who are part of the first generation born outside Canada to a Canadian the first generation born outside Canada to a Canadian parent, became Canadians under the new law. Their parent, became Canadians under the new law. Their citizenship is retroactive to their date of birth.citizenship is retroactive to their date of birth.

(CIC website http://www.cic.gc.ca/english/information/faq/citizenship/cit-rules-faq01.asp)(CIC website http://www.cic.gc.ca/english/information/faq/citizenship/cit-rules-faq01.asp)

Recent Policy Changes to Recent Policy Changes to Refugee ProtectionRefugee Protection

On July 23, 2009 a change On July 23, 2009 a change was made to the ‘Canada – was made to the ‘Canada – U.S. Safe Third Country U.S. Safe Third Country Agreement:Agreement: The exception clause in the The exception clause in the

Safe Third Country Safe Third Country Agreement that allowed Agreement that allowed people from countries under people from countries under a ‘temporary suspension of a ‘temporary suspension of removals’ (TSR) to make a removals’ (TSR) to make a refugee claim in Canada at a refugee claim in Canada at a Canada-U.S. land border, Canada-U.S. land border, was removed. was removed.

The TSR countries are: The TSR countries are: Afghanistan, the Democratic Afghanistan, the Democratic Republic of Congo, Haiti, Republic of Congo, Haiti, Iraq and ZimbabweIraq and Zimbabwe

Changes to the Safe Third Changes to the Safe Third Country are:Country are:

Since October 2009: Persons from TSR Since October 2009: Persons from TSR Countries arriving at a Canada-U.S. land Countries arriving at a Canada-U.S. land border will be ineligible to make a refugee border will be ineligible to make a refugee claim in Canada. claim in Canada. They would instead need to apply for They would instead need to apply for

protection in the United States.protection in the United States. People already in Canada or arriving at a port People already in Canada or arriving at a port

of entry that is not a land border with the of entry that is not a land border with the United States will not be affected.United States will not be affected.

People from Haiti? People from Haiti?

(CIC website- (CIC website- http://www.cic.gc.ca/ENGLISH/department/media/noticeshttp://www.cic.gc.ca/ENGLISH/department/media/notices/notice-removal.asp)/notice-removal.asp)

Changes to Visa Changes to Visa RequirementRequirement

In July 2009, CIC imposed In July 2009, CIC imposed a visa requirement on a visa requirement on persons from Mexico and persons from Mexico and the Czech Republic. the Czech Republic.

Before the changes were Before the changes were made, persons from made, persons from these countries were these countries were making almost 35% of all making almost 35% of all refugee claim in Canada. refugee claim in Canada. (CCR website -

http://www.ccrweb.ca/en/bulletin/09/07/14)

REFUGEREFUGEEE

REFORREFOR

MM

What Has Already What Has Already Changed?Changed?

Most of the changes of the Act will not be Most of the changes of the Act will not be implemented until 2011 or even 2012. implemented until 2011 or even 2012.

Changes affecting Humanitarian and Changes affecting Humanitarian and Compassionate (H&C) Applications already Compassionate (H&C) Applications already apply.apply.

H&C ChangesH&C Changes

The Key Change is that officers studying H&C The Key Change is that officers studying H&C applications: applications: May not consider the factors relating to a refugee May not consider the factors relating to a refugee

claimclaim11, but, but Must Consider elements related to the hardships that Must Consider elements related to the hardships that

affect the applicantaffect the applicant

This change affects H&C applications made on or This change affects H&C applications made on or after 29 June 2010. H&C applications made before 29 after 29 June 2010. H&C applications made before 29 June 2010 will be processed according to the old June 2010 will be processed according to the old rules. rules.

11 Exact wording is “factors that are taken into account in the determination of whether a person is a Exact wording is “factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1).” (97(1) Convention refugee under section 96 or a person in need of protection under subsection 97(1).” (97(1) covers danger of torture, risk to life or risk of cruel and unusual treatment or punishment.)covers danger of torture, risk to life or risk of cruel and unusual treatment or punishment.)


What does this mean?What does this mean? In explaining why a person should be accepted on H&C In explaining why a person should be accepted on H&C

grounds, we must not argue that the person meets the grounds, we must not argue that the person meets the definition of a refugee or a person in need of protection. definition of a refugee or a person in need of protection. On the other hand, hardships that the person may face if On the other hand, hardships that the person may face if obliged to leave Canada are absolutely relevant.obliged to leave Canada are absolutely relevant.

What is unclear?What is unclear? How will H&C officers deal with evidence that shows a How will H&C officers deal with evidence that shows a

person does meet the definition of a refugee or a person person does meet the definition of a refugee or a person in need of protection? Will they simply treat it as evidence in need of protection? Will they simply treat it as evidence of “hardship” or will they refuse to consider the evidence, of “hardship” or will they refuse to consider the evidence, and possibly refuse the application if there is insufficient and possibly refuse the application if there is insufficient evidence of other hardships?evidence of other hardships?


Other InformationOther Information CIC is working on a priority basis on CIC is working on a priority basis on

updating manuals and preparing Operation updating manuals and preparing Operation Bulletins.Bulletins.

Also Note:Also Note: The Minister can accept a person on H&C The Minister can accept a person on H&C

grounds without an application having been grounds without an application having been submitted, or a fee being paid. It is not submitted, or a fee being paid. It is not known what type of cases might be known what type of cases might be accepted, or how they will be processed.accepted, or how they will be processed.

Changes to the Refugee Changes to the Refugee Determination SystemDetermination System

The Changes to the refugee determination The Changes to the refugee determination system have not yet been implemented. The system have not yet been implemented. The law says they must take effect no later than 29 law says they must take effect no later than 29 June 2012. The Minister has said June 2012. The Minister has said implementation will be in 12 to 18 months (i.e. implementation will be in 12 to 18 months (i.e. somewhere between July 2011 and January somewhere between July 2011 and January 2012.2012.

A lot of details of the process still need to be A lot of details of the process still need to be decided (through rules, regulations and decided (through rules, regulations and policies). These decisions will be made over policies). These decisions will be made over the coming months. the coming months.

Key ChangesKey Changes

InterviewInterview Refugee claimants will have to attend an interview Refugee claimants will have to attend an interview

with an official (not a decision-maker) of the with an official (not a decision-maker) of the Immigration and Refugee Board (IRB). The interview Immigration and Refugee Board (IRB). The interview will be 15 days or more after the claim is referred. The will be 15 days or more after the claim is referred. The claimant has a right to counsel at the interview. The claimant has a right to counsel at the interview. The date of the hearing will be scheduled at the interview.date of the hearing will be scheduled at the interview.

Members of the Refugee Protection DivisionMembers of the Refugee Protection Division The person deciding a refugee claim will no longer be The person deciding a refugee claim will no longer be

appointed by Cabinet, but will instead be a civil appointed by Cabinet, but will instead be a civil servant. The decision makers will continue to be servant. The decision makers will continue to be members of the Refugee Protection Division of the IRB.members of the Refugee Protection Division of the IRB.


AppealAppeal Refused claimants will be able to appeal a negative Refused claimants will be able to appeal a negative

decision to the Refugee Appeal Division. In addition to decision to the Refugee Appeal Division. In addition to arguing that the first decision was wrong, claimants arguing that the first decision was wrong, claimants can submit new evidence at the appeal (but only can submit new evidence at the appeal (but only evidence not available at initial hearing). In most evidence not available at initial hearing). In most cases, submissions will be entirely in writing, but in cases, submissions will be entirely in writing, but in some cases the Refugee Appeal Division can hold a some cases the Refugee Appeal Division can hold a hearing. The Minister can also appeal a positive hearing. The Minister can also appeal a positive refugee determination.refugee determination.

Designated Country of OriginDesignated Country of Origin Claimants who come from a country designated by the Claimants who come from a country designated by the

Minister will face different (shorter) timelines for their Minister will face different (shorter) timelines for their initial hearing and for the appeal.initial hearing and for the appeal.


Manifestly UnfoundedManifestly Unfounded If the Refugee Protection Division thinks that a claim is If the Refugee Protection Division thinks that a claim is

“clearly fraudulent” it may declare it “manifestly “clearly fraudulent” it may declare it “manifestly unfounded”. Such claimants will face the same shorter unfounded”. Such claimants will face the same shorter timelines in the appeal as claimants from designated timelines in the appeal as claimants from designated countries of origin.countries of origin.

Pre-Removal Risk Assessment (PRRA)Pre-Removal Risk Assessment (PRRA) The PRRA will be decided by the Refugee Protection Division The PRRA will be decided by the Refugee Protection Division

of the IRB, rather than CIC.of the IRB, rather than CIC.22 However, the transfer of PRRA to However, the transfer of PRRA to IRB will take place one year after the implementation of the IRB will take place one year after the implementation of the other provisions.other provisions.

Claimants removed within 12 months following rejection, Claimants removed within 12 months following rejection, withdrawal or abandonment of the claim will not be given a withdrawal or abandonment of the claim will not be given a PRRA. However, the Minister may grant the PRRA to nationals PRRA. However, the Minister may grant the PRRA to nationals of a specific country, or a subset of nationals of a country, of a specific country, or a subset of nationals of a country, within the 12 month period.within the 12 month period.

22In the case of claimants who are inadmissible on grounds of serious criminality or security, or In the case of claimants who are inadmissible on grounds of serious criminality or security, or excluded from refugee protection by the IRB (IRPA 112(3)), CIC will continue to decide the PRRAexcluded from refugee protection by the IRB (IRPA 112(3)), CIC will continue to decide the PRRA

TimelinesTimelinesAbove Line = Above Line =

proposed, proposed, may be may be changedchanged

Below Line = Below Line = Established Established in law in law

Key Questions Still to be Key Questions Still to be DecidedDecided

Many crucial questions about the new law are Many crucial questions about the new law are still to be decided, although Minister Kenney still to be decided, although Minister Kenney has announced certain intentions. Some has announced certain intentions. Some questions will be determined through questions will be determined through Regulations Regulations (prepared by Citizenship and (prepared by Citizenship and Immigration Canada); other questions will be Immigration Canada); other questions will be part of the Immigration and Refugee Board part of the Immigration and Refugee Board Rules. Instructions and training will also Rules. Instructions and training will also influence influence implementation.implementation.

NB: nationals of designated countries of origin NB: nationals of designated countries of origin = DCO= DCO


Issue Government Proposals

Advocacy Points

Interview Will be 15 days after referral or soon after; won’t postpone for counsel. Focus of interview will be claimant’s “story” (i.e. what makes the person a refugee). There may be a summary (not decided). Interview will be recorded and copy given to the claimant. Interview will also be used to give claimant information about the refugee claim process in Canada

Major concerns about the difficulties for many vulnerable claimants3, especially LGBT, women, children, torture survivors, etc. (see Anti-Oppression (A/O) Considerations). Process will need to:

• Allow postponements for vulnerable claimants.• Take into account that important elements of the claim will not surface in the interview.

The interview could support vulnerable claimants by:• Designating representatives early• Identifying vulnerable claimants (Guideline 8)• Giving claimants information about the process.

Interviewers will need to be well-trained and very sensitive.

PIF (Personal Information Form)

May consider some kind of form, but not expecting to maintain PIF.

For many claimants (see A/O), working with counsel is best; to present information in writing is best.



Advocacy Points

Hearing Date 90 days after interview for most claimants60 days after interview for nationals or designated countries of origin (DCO)

Will be too short for many claimants to prepare themselves and gather documentation (see A/O)

Postponements must be granted where necessary to be fair, especially to vulnerable claimants.

Decision makers must reduce their expectations of supporting documentation, (which are currently very high) given shortened timelines.

Hiring RPD members (civil servants)

Grade of position not yet decided. Will have two selection processes: internal (for IRB employees) and external (everyone else).

Critical that position be ranked senior enough that decision makers are highly qualified and independent. Selection process must allow broad recruitment and selection on basis of merit.



Advocacy Points

Designated Countries of Origin

Process Interministerial committee with 2 external human rights experts. Will consult with UNHCR.

NB. CCR is completely opposed on principle to discriminatory treatment based on country of origin.

Periodic Review Unclear: the list “would be reviewed periodically by the panel of experts.”

Important to have a clear schedule for review.

Criteria (NB some criteria are in Act)

Quantitative: 1% of claims in 1 of the preceding 3 years; 15% or less of which are accepted.

Extremely broad quantitative criteria. Qualitative criteria should take account of rights of oppressed groups (e.g. LGBT, women, ethnic minorities).



Advocacy Points

Timelines for Refugee Appeal Division

Filing and perfecting and application

15 days This timeline is completely unworkable. In most cases, it would be impossible to complete a meaningful application within 15 days, especially for vulnerable claimants (A/O).

Timelines must be at least those for judicial review: 15 days to file the application, 30 days to perfect (complete) it.

Decision by the RAD 120 days regular; 30 days DCO and manifestly unfounded

Interesting idea of deadline for making a decision – this could be used in other immigration decisions, e.g. family reunification, H&C.Important that quality of decision-making not be made to suffer if Cabinet doesn’t appoint enough RAD members.

RAD members Existing RPD and Immigration Appeal Division (IAD) members can put their names forward.

RAD members must be adequately qualified to review and correct RPD decisions.

Anti-Oppression Anti-Oppression ConsiderationsConsiderations

GenderGender Speaking to authority figuresSpeaking to authority figures Speaking openly about experiences (esp. sexual violence)Speaking openly about experiences (esp. sexual violence) Availability of documentation of human rights violationsAvailability of documentation of human rights violations Persecuted in apparently “safe countries”Persecuted in apparently “safe countries” Tendency to focus on male family member’s storyTendency to focus on male family member’s story

LGBT (Lesbian, Gay, Bisexual, Transgender/Transexual)LGBT (Lesbian, Gay, Bisexual, Transgender/Transexual) Speaking openly about experiences (esp. sexual violence)Speaking openly about experiences (esp. sexual violence) Availability of documentation on human rights violationsAvailability of documentation on human rights violations Persecuted in apparently “safe countries”Persecuted in apparently “safe countries”


ChildrenChildren Speaking to authority figuresSpeaking to authority figures Tendency to focus on adult family member’s storyTendency to focus on adult family member’s story

PoorPoor Getting good legal representation (esp. quickly)Getting good legal representation (esp. quickly)

Survivors of tortureSurvivors of torture Speaking to authority figuresSpeaking to authority figures

People with psychiatric illnessesPeople with psychiatric illnesses Understanding and negotiating legal processUnderstanding and negotiating legal process


Claimants in detentionClaimants in detention Getting good legal representation (esp. Getting good legal representation (esp.

quickly)quickly) Access to advice and documentationAccess to advice and documentation

Claimants outside major centresClaimants outside major centres Getting good legal representation (esp. Getting good legal representation (esp.

quickly)quickly) Access to advice and documentationAccess to advice and documentation

E1 changes to the refugee system

Business

Transcript of E1 changes to the refugee system