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Refugee Law Notes

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REFUGEE LAW: SHORT OUTLINE Normative Assumptions of Refugee Law Hathaway - Reconceiving Refugee Law as Human Rights Protection
? Refugee law as it exists today is fundamentally concerned with the protection of powerful states: HR is a guise
? International human rights law is a means of delimiting state sovereignty.??

Problem in refugee law is that industrialized states are retrenching from their obligations (measures to prevent asylum seekers from claiming within their borders):
? selective burden sharing is occurring in which countries can turn away persons bc of host countries national interests
? Current decentralized regime has been unable to address issues like fair allocation of asylum-seekers bw 1st and 3rd worlds To address the issue of states retrenching from their obligations in refugee law -proposes that we take a pragmatic approach more rooted in international law as opposed to HR law and prioritize state sovereignty; we should reframe refugee law as a remedial regime for human rights protection. Proposes reform to international refugee law whereby we do away with national interdiction schemes, involve an international supervisory agency directly in provision of first asylum (and designation of appropriate protection pending safe return to state of origin). This involves the following: unequivocal granting of first asylum (non-refoulement), legally binding international system of resource sharing, the new international agency must be effective representation of international community as a whole (not just a creature of states alone), and system for sharing duty of protection should be formulated based on each state's resources and absorptive capacity. Broader reforms: need to address root causes of migration

Criticisms of Hathaway's approach: normative assum may result in giving too much power to govts (will close doesn't create incentives to address root causes of migr

-both authors express:
-concern that the definition of a refugee is too narrow
- a lack of faith in the current legal framework to fulfill th protect vulnerable persons
-that current approach fails to address root causes of m
-both address inequality (although in different ways, see

-Hathaway: reform is in supporting state sovereignty (ad ability to support)
-Alienkoff: loss of community needs to be addressed- po terms of sovereignty (addresses inequality re triggers m

Aleinikoff - From Refugee Law to the Law of Coerced Migration
? Argues to reposition refugee law to coerced migration law as this will allow it to include IDPs, who arguably are indistinguishable from refugees
? refugee status is a privileged category vis-a-vis other involuntary migrants??Need to address reasons why there is migration and inequality Three approaches to refugee law: statelessness model, human rights model, and coerced migration model Statelessness: refugee status is a response to anomalies in state system. Too much emphasis on state sovereignty, excludes IDPs and doesn't respond to humanitarian interests at stake. Human Rights: field of inquiry is in terms of providing remedies for violations. Includes IDPs and non-fleers but doesn't consider resettlement and integration policies in receiving states, too much focus on country of origin Coerced Migration: key underlying idea responding to is the flight from harm. Embraces IDPs and border crossers, also recognizes that there are reasons for flight which merit protection beyond the 5 protected convention grounds. Offers support for resettlement policies and diverse forms of relief.

Overview of Global Trends UNHCR 2010: Global Trends
? countries that can least afford to provide services are the ones that are hosting refugees

1 ?

major source countries incl Afghanistan, Iraq, Somalia, DRC, Myanmar, Colombia, Sudan, Viet Nam, Eritrea, China.
? main destination country by a long-shot is South Africa (economic pull, geographically closer, easier to enter unlawfully)
? although Canada is a major host state, it bears far less of the "burden" than many other countries
? high amounts of protracted refugees (those in situation for more than 5 yrs)
? highest no. of IDPs in 15 yrs Kelley, Protection Challenges
? developing countries bearing burden?increased trend of non-admission and removal- violates non-refoulement increasing closedness of borders- both developing and developed world violence in refugee camps and lack of integration into communities: developing world

International Refugee Law: History, Context and Overview Historical Context of Convention, 1951
? context: postwar Europe- many displaced peoples??

goal: giving refugee identity gives rise to certain rights 1951: Refugee Convention, UNHCR starts operating

Critiques of Convention:
-whole process delegated to state> lack of international implementation
-seeks to provide protection but doesn't address root ca

1967: Convention made worldwide, most important change to refugee definition through Optional Protocol to the 1951 Convention (removed temporal and geo restrictions) 1969: Canada ratified

Hathaway: "The Development of the Refugee Definition in International Law"
-"The strategic dimension of the [refugee] definition comes from successful efforts of Western states to give priority in protection matters to persons whose flight was motivated by pro-Western political values" 3 distinct historical stages: 1) juridical perspective (refugee as stateless person, de jure statelessness) 2) social perspective (1935-1939)(de facto statelessness, refugees = groups adversely affected by particular social/political event) 3) Individualist perspective (modern) (seeking to escape human rights violation in home country by moving abroad, decisions on individual rather than group basis)
- Results in excluding stateless persons
- Protection for civil rights only as opposed to also including socioeconomic rights Article 1A, Convention (as qualified by 1967 Convention): o Must be outside of country of origin o Well-founded fear of persecution on a convention ground Analysis
? context: definition was heavily negotiated- doesn't protect all stateless people (link to Aleinkoff's critique)
? It is forward looking, doesn't remedy for past violations

Article 1A, Convention (as qualified by 1967 Conven The term "refugee" shall apply to any person who... owi being persecuted for reasons of race, religion, nationalit particular social group, or political opinion, it outside his unable or, owing to such fear, unwilling to avail himself o country.

Interpretive Principles
-signing up makes Canada obligated to interpret them broadly and remedially
-only an interpretive tool, although some parts reflected in IRPA, not enforceable by domestic courts

2 Cessation and Exclusion Clauses, Articles 1C-1F of the Convention
-cessation: status can be lost if country of origin becomes safe
-exclusion: cannot claim status from more than one country; also can be excluded on basis of your past (e.g. war crimes)
- suggests retributive, punitive framework but also protects those who are seeking protection in country of refuge Jennifer Bond, Analysis of Exclusion Clauses
-provisions purpose is to protect abuse of system and that criminals don't escape prosecution
-more recently prominent bc of contemporary genocides
-exclusion tests are complicated and involve intl, crim and HR law in addition to refugee law
-problematic reliance on criminal law can lead to injustices by overlooking mitigating circumstances
-need to base sentencing in proportionality and mitigating factors as opposed to culpability only- to address complex nature of situations like Rwanda
-problem w application of criminal stigma, but those who it affects are not criminally charged or who were entitled to due process that accompanies other criminal charges
-this approach is conceptually favourable and would uphold commitment to HR
-long term restructuring may be more favourable Article 31, Unlawful Entry
-cannot control the entry of refugees by finding them guilty of an offence: (1): no penalties for those coming directly from a state where threatened as per article 1 (f), provided they present themselves to authorities without delay, show good cause...
(2): no restrictions on movement unless necessary, and only apply until status is regularized Article 32-33: Prohibition of Expulsion and Refoulement
-Article 33:
- significant article: basic right of a refugee to non-refoulement
-note: does not discuss persecution
-no right to asylum in int'l law
- Article 32
-not a significant clause but important in terms of how it relates to article 33 (refoulement)
-national security more contemporarily significant (1) but is qualified by (2): decision must be reached by due process of law, except where national security is compelling, applicant should be allowed to submit evidence, be represented, etc.... Universal Declaration of Human Rights, Articles 13 and 14
-contains references to asylum but they are ltd: does specifically state it is an entitlement, rather it is a privilege

Convention Against Torture
-only concerned with state action, not reasons behind it (contrast to Refugee Convention)
-no limitations on it; looks absolute
-Committee Against Torture, UN> enforcement mechanism Other HR Instruments
-Intl Covenant on Civil and Political Rightsz
- Convention on Rights of the Child

Article 1E. This Convention shall not apply to a person competent authorities of the country in which he has tak rights and obligations which are attached to the possess country.

Article 1F. The provisions of this Convention shall not a respect to whom there are serious reasons for consider (a) he has committed a crime against peace, a war c humanity, as defined in the international instruments dr respect of such crimes; (b) he has committed a serious non-political crime o refuge prior to his admission to that country as a refuge (c) he has been guilty of acts contrary to the purpose United Nations.

Article 33: (1) No Contracting State shall expel or retur any manner whatsoever to the frontiers of territories wh be threatened on account of his race, religion, nationalit particular social group or political opinion. (2) The benefit of the present provision may not, howev whom there are reasonable grounds for regarding as a country in which he is, or who, having been convicted b particularly serious crime, constitutes a danger to the co

-Article 13: (1) Everyone has the right to freedom of movement and borders of each state. (2) Everyone has the right to leave any country, includin his country.
-Article 14: (1) Everyone has the right to seek and to enjoy in other persecution. (2) This right may not be invoked in the case of prosecu non-political crimes or from acts contrary to the purpose
-Article 3: no State Party shall expel, return ("refouler") o another State where there are substantial grounds for b danger of being subjected to torture

Canadian Refugee Law: History & Context Seeking Refuge, Karen Cho (documentary)

3 ??

highlights human face of refugee system importance of credibility and identity in determining claims

role of lawyers asserts IRB a legal and not political creation bc of Singh History of Canadian System, Waldman Overview, Key Themes
-problematic nature of assessing credibility- concerns of justice
-efficiency and costly nature of system- concerns of illegality

Purposes of the Process
- determination process exists bc:
- legal obligations: IRPA: s. 26> can apply for PR status> gets rights
-creates legal distinctions: without process, there would be guaranteed acceptance which would erase distinction bw im refugee process
-socioeconomic and political reasons: security, concerns of those scamming the system

History of Canada as a Place of Asylum and Backlog in Current System
-not traditionally a place of asylum
-increase in refugees in '50's-'60s: policy: resettlement
-'70s: coups in SA
-provision in IRPA that allowed for a hearing- claims were increasing, govt realized it needed a mechanism to evaluate claims
-in 1978, Immigration Act enacted- created Refugee Status Advisory Committee:
-98% rejection rate
-resulted in ppl making claims of status to prevent being deported bc it would give them a right to a hearing, transcript
-resulted in backlog in system> encouraged more claims bc it gives an opportunity to remain in Canada
-process wasn't designed to handle this no. of claims
-Singh> applicants are entitled to an oral hearing; cannot be determined via a review of transcript> complicated assessment pr
-1986> announced reforms to system, amnesty announced, but legislation was not amended until 1989- increased backlog as
-backlog continues:
-delays in system creates fraudulent claims
- it now stands at about 50 000
-system remains pretty much the same
- still results in encouraging migrants to stay bc they can work illegally
-cannot afford to have an inefficient determination system- huge pressure for IRB to be efficient, but this hasn't occurre
-govt responses:
- Safe 3rd Country Agreement entered into 2003- post 9/11
- detention, preventing family reunification> reflected in current "anti smuggling legislation"- but this negatively impacts claimants Relevant Charter Sections Constitutional Foundations of System
-s. 7: life, liberty, security of the person:

Singh (SCC 1985)
-Issues: Does s. 7 of the Ch apply to refugee complainants? Is procedure for determination of refugee status in accordance w s. 7?
-Held: Refugee app are guaranteed protection under s. 7.
-Stands for:
-Refugee app on Canadian soil are guaranteed protection under s. 7> before determination is made so as procedure is fair as it is unjust to send refugees back to country where they face persecution
-procedure under the IA, 1976 is inconsistent bc it denies the applicant an opportunity to make their claim and respond to the case against them: applicants have procedural rights to know the case against them, are entitled to an oral hearing, as they are key for procedural fairness re assessment of credibility> ties credibility to procedural fairness?

pfjs: vagueness, overbreadth, arbitrariness

Hogg- s. 7 violations unlikely to be justified un
-s. 9: right against arbitrary detention
-s. 10(c): right to habeas corpus, right to release if unlaw
-s. 12: right not to be subjected to cruel and unusual pun
-s. 1: limits to rights if demonstrably justified in free and

Other Relevant Constitutional Principles: Liyange (U
-independence of the judiciary
- no retroactive legislation

Challenges re Independence of Decision Makers
-Mohammed: (1988)- challenged independence of IRB rejected, asserted they have sufficient independence
-CP v. Matsqui Indian Band: tribunals sufficiently inde tribunals> suggests that challenge to IRB would not be
-challenge to PRA (pre-risk assessment) officers failed
-issue re ministers delegates being independent- bc th not tribunal members, in context of security certificates

Consequences of decision:
-complicated the assessment process- increased backlog
-Galloway: Wilson hasn't addressed the question of what procedural fairness/fundamental justice actually requires, she has left open the option for

4 decision makers to create a really harsh hearing process re focusing on scrutiny re credibility
-oral hearing now mandated (see section in hearings, below)
- focus on process is credibility (highlighted in no credible determinations, proposed additional responses in BRRA: Designated Countries of Origin, Manifestly Unfounded Claims)
-case has also led to:
? taking statements outside the hearing?

eligibility determinations and admissibility hearings

hearings by video conference Trend of Interdiction
-trend in developing countries- potentially violates non-refoulement principle
-an assertion of state sovereignty (link to Hathaway)
-policy rationale: once migrants enter Canada, it has hard to get rid of them>
goal is to eliminate them from coming in the first place
-creates contradictory messages to applicants: no incentive to apply overseas bc lack of procedural rights, compared to more robust rights when you apply internally- thus spurns illegal migration
-solution: we need process outside the country to be adequate- this is the correct means of deterrence
-affects of interdiction:erodes civil liberties rights, CH, intl legal commitments, rule of law; reinforces xenophobia and criminalization of refugees Kelley, Challenges of Int'l Refugee Protection
-protection challenges in developed countries> responding with interdiction policies:
-trend of nations controlling their borders which means a narrowing of protection via barriers to access, expanded basis for removal and limitations on integration
-trend can be attributed to shift in that migrants are no longer coming from E Europe (less strategic interest in providing refuge); inefficiency and backlog in system
-suggested link bw intl terrorism and asylum systems- providing means to increase security systems- inaccurate as there is routine security regulations, statutorily embedded via 1F exclusion
-restrictive policies have been backed by popular approval, fuelled by economic recessions, increased in intercommunal violence, myths in media
-asylum systems in dev'd world are experiencing record low in applicants: doesn't reflect improvements in HR but increased barriers to access refuge
-results in an increase in smuggling
-examples abroad: sanctions for carriers who have improperly documented migrants; increased officials/personnel; pre-clearance control areas- e.g. racial profiling on Czech Roma; increased tracking and surveillance systems, interception at sea: e.g. Australia
-example once in host country: safe 3rd country agreements and safe country of origin designation, increased removal of migrants in host countries, accelerated procedures and filing deadlines, inconsistent application of protected status, readmission agreements: enable states to move individual to another state based on rationale of removing illegal migrants, limits to movement and social benefits Safe Third Country Agreement (STC), Regs. 159.1 - 159.7
* If claimant comes to Canada from a country that has been designated, they are ineligible to have claim referred to RPD (IRPA 101(1)(e))>
persons seeking refugee protection must make a claim in the first country they arrive in (US or Canada), unless they qualify for an exception to the Agreement
* Claimants who come under IRPA 101(1)(e) cannot make a PRRA (IRPA 112(2)(b))
* Minister should consider factors when designating country STC (IRPA 102(2))

R. v. Immigration Officer at Prague Airport (2004 UK UK sees increase in Roma from Czech republic making created pre-clearance program to deter migration. Prob subject to secondary inspection, vast majority turned aw challenged under Human Rights Act as violating right to law and EU human rights law, that it's effectively refoule Held: program violates equality norms and discriminates ethnicity, nationality, because it targets the Roma. If pre up, they must be uniformly applied to everybody.
-In-Class Examples of Interdiction:
-Clinton, Haitian arrivals
- Canada: visa requirements
-Christmas Island: detention
- Tamil Migrant Debate:?highlights public sentiment re anti immigration boat arrivals response: detention and deportation

Macklin and Waldman: deportation overlooks

Kelley, proposed reforms espoused as more efficien int'l law more than current pursuit of interdiction, de
-systemic issues need to be addressed
- comprehensive strategies to support host countries, e. operation protection programs
-bolstering role of NGOs in capacity bldg.
-developed countries must meet int'l obligations at home
- states must develop effective and reliable means of re claimants
-longer term investment in integration into host societies
-streamlined and fair asylum processes

Canadian Council for Refugees (FCA 2008): Safe 3rd constitutional

-CCR argued that Agreement and regulations (re analy are invalid because the preconditions set out in IRPA 10 that it violated ss. 7 and 15 of the CH
-Specifically, the litigants argued that the US regularly b Convention and the Convention Against Torture > thus t country
-FC agrees with claimant: Holds STC as ultra vires the because compliance with Article 33 of Refugee Conven condition precedent to cabinet's exercise of its delegate

5 *

United States is a designated STC (IRPR 159.3) has been challenged on constitutional and administrative law grounds>was successful in the Federal Court but was rejected in the Federal Court (see CCRA case>
resulted in decrease in refugee migration: successful re govt goals, indicative of trend of interdiction has created some problematic areas re ineligibility: weakness is that it is not absolute: has qualifications and exemptions (IRPR 159.5-6) o STC only applies at port of entry (IRPR 159.4)
? Does not apply if you fly in; or if you cross border unlawfully and are not caught
? If you cross border lawfully through port of entry, STC will apply


-analysis: STC = "chain refoulement" as contrary to officers at the border are enforcing STC, they are requir whether or not that person would meet the ref definition US, however, this if this is not being followed, thus can a not unconstitutional

family member in Canada and is Canadian citizen family member in Canada and is PR, protected person, or stay of removal adult family member in Canada seeking refugee protection adult family member in Canada w/ WP or SP claimant is unaccompanied minor and is not married and has no parent in Can/US claimant has the appropriate visa claimant does not need a visa to cross border weird exceptions - IRPR 159.5(h) where the claimant may face the death penalty (IRPR 159.6)

"Canada's Dysfunctional Refugee System," Gallagher
? critique that focuses on Canada as a preferred destination for human smugglers and system being "overly generous"
? used by govt to bolster new legislative reforms?

US a STC and, on this evidence, US did not comply with violation of ss. 7, 15
-FCA reversed:
- held that total compliance with UN Conventions is under IRPA- only a contextual analysis is required
-CH challenge rejected on lack of standing of claim
-NB: No explicit finding on constitutionally of STC b

criticisms of current system: we don't detain refugees and our removal process is not very effective =
attractive destination for fraudulent claims theme of system being "overly generous" and the access issues creating a situation where the people who get here aren't the most "deserving ones" creates backlog

- BRRA seems to largely agree with this perspective (e. makers, less opportunity for counsel, implementation of

-Gallagher's recommendations:
- create an early screening process to detect manifestly
- broaden the STC
- get rid of independent decision-makers at the IRB, rep can do a better job controlling success rates)
- create closed detention centres for asylum-seekers, w process during the detention
- Implement the RAD: institute an appeal of 1st determin tribunal> a way to cut down on appeals going to the FC
-harmonize refugee policy w other foreign nationals
-cut back on providing social benefits

system encourages 'asylum shopping' via unrestricted access to determination process, appeals asserts Cdn process is inconsistent with int'l norms

Definition of Refugee in Canadian Law and Overview of Entitled Rights

Objectives- IRPA s. 3(2)(b) One of the objectives of IRPA is to fulfill Canada's international legal obligations to refugees. UNHCR guidelines are not direct the refugee definition but NOTE: courts look to international instruments for guidance IRPA s. 96 Definition of a Refugee in IRPA, s. 96 A convention refugee is a person who, by reason of a w
? Summary: similar to convention: no protection for statelessness unless persecution for reasons of race, religion, nationality, me social group or political opinion, there is a fear of persecution (a) is outside each of their countries of nationality and is
? Must be outside of country of nationality fear, unwilling to avail themselves of the protection of ea?Must have a well-founded fear - subjective and objective (reasonable). To show reasonableness, must demonstrate that there was no IFA available. The fear must relate to persecution "for reasons of..." = must link to a convention ground, can't simply be a victim of crime

(b) not having a country of nationality, is outside the cou residence and is unable, or by reason of that fear, unwil

IRPA s. 97 (1) A person in need of protection is a person in Canada country or countries of nationality or, if they do not have their country of former habitual residence, would subjec (a) to a danger, believed on substantial grounds to exist

6 ?there must be a nexus between the persecution faced and a convention ground must show inability/unwillingness owing to well-founded fear to avail oneself of protection of home state

IRPA s. 97: Persons in Need of Protection
-supplements s. 96
-reflects humanitarian exception that was discretionary by government> now assessed by IRB
-s. 97 is more expansive than intl law: both Refugee and Torture Conventions
-as with the refugee definition, will not qualify as a person in need of protection if you are "excluded" from protection
-however, if a claimant demonstrates "inclusion", can be granted protection even if not deemed a Convention refugee.
-will also benefit from the principle of non-refoulement
-s. 97(1)(a) must be personally subjected to a set of possible risks:
? Substantial risk of torture (different from reasonable grounds)

meaning of Article 1 of the Convention Against Torture; o (b) to a risk to their life or to a risk of cruel and unusual t
-(i) the person is unable or, because of that risk, unwillin protection of that country,
-(ii) the risk would be faced by the person in every part o faced generally by other individuals in or from that coun
-(iii) the risk is not inherent or incidental to lawful sanctio disregard of accepted international standards, and
-(iv) the risk is not caused by the inability of that country or medical care.

Convention Against Torture Article 1.1 For the purposes of this Convention, torture severe pain or suffering, whether physical or mental, is person for such purposes as obtaining from him or a thi confession, punishing him for an act he or a third person suspected of having committed, or intimidating or coerc for any reason based on discrimination of any kind, whe inflicted by or at the instigation of or with the consent or official or other person acting in an official capacity. It do suffering arising only from, inherent in or incidental to laTorture within the meaning of article 1 of the Convention Against Torture (CAT). Must show: o Subject to/will be subject to severe pain of suffering o Intentionally inflicted o For a particular purpose (e.g. related to the enforcement of law, confessions, punishment, intimidation, coercion, etc.) o Has to be at the hands of or with the acquiescence of the state o Does not include pain/suffering arising from lawful sanctions
-s. 97(1)(b) risk to life, of cruel and unusual treatment or punishment
? Conditions: o 97(1)(b)(i) show that there is no state protection available to you o 97(1)(b)(ii) show that there is no IFA and that the risk is not generally faced by everyone else in your country o 97(1)(c)(iii) show that the risk is not the result of lawful sanctions, except when those sanctions are imposed in disregard of international standards o 97(1)(d)(iv) risk not related to inability of home country to provide medical care Exclusion: IRPA s. 98
? s. 98: person referred to in Art 1 E or F of the Refugee Convention is not a refugee
? sources of Law: 1951 Convention, IRPAexclusion v. non-refoulement:refoulement = sending a person with a well-founded fear back to a country where they will face persecution
? principle only applies to those included in refugee definition and not subject to exclusion exclusion v. ineligibility?

IRPA s. 99-106 (eligibility): security, violating human or international rights, serious criminality or organized criminality, committed criminal offence with a substantial sentence or a criminal offence outside of Canada and poses a danger to the public Rights Flowing from Refugee Status
? Protection- IRPA s. 115(1): If you are included in refugee definition or successful in PRRA and not subject to exclusion, you are in principle subject to non-refoulement (shall not be removed to a place where they would face persecution, torture, cruel and unusual treatment/punishment)
? Reflects international commitment to refoulement

IRPA s. 115 (1) A protected person or a person who is recognized as another country to which the person may be returned sh Canada to a country where they would be at risk of pers religion, nationality, membership in a particular social gr risk of torture or cruel and unusual treatment or punishm (2) Subsection (1) does not apply in the case of a perso
-(a) who is inadmissible on grounds of serious criminalit


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