Vol. 145, No. 12 — March 19, 2011
ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations
Immigration and Refugee Protection Act
Department of Citizenship and Immigration
(This statement is not part of the Regulations.)
Resettlement is the process of bringing a refugee to Canada to live as a permanent resident. Globally, the need for resettlement increases each year. Canada’s resettlement program receives far more applications than there are resettlement spaces available. To partly address this issue, the Government of Canada committed as part of the measures to reform Canada’s refugee protection system through the Balanced Refugee Reform Act, to increase the number of resettled refugees by 2 500. As a second step, the Government is also streamlining the resettlement program to focus on priority populations where Canada can work with partners, like the United Nations High Commissioner for Refugees (UNHCR), other resettlement countries and private sponsors of refugees. Geographically, the resettlement program will continue to operate globally, with significant resources devoted to refugees in the Middle East, Africa, Asia and South America.
The Immigration and Refugee Protection Regulations (hereafter referred to as the Regulations) describe three refugee classes which are used to resettle refugees to Canada from abroad. The three classes are the Convention refugee abroad class, the country of asylum class and the source country class.
Canada’s principal refugee resettlement class is the Convention refugees abroad class, which primarily relies on the UNHCR to identify and refer refugees for resettlement in Canada. The source country class is a complementary refugee class, which allows Canada to also resettle persons who are not under the protection mandate of the UNHCR. The UNHCR’s mandate to identify persons for resettlement extends only to Convention refugees, who must reside outside their country of origin. The source country class is for persons who are inside their country of origin.
Section 148 of the Regulations states that, to be eligible for the source country class, applicants must be seriously and personally affected by civil war or armed conflict, have been detained without charges or punished for an act that in Canada would be considered a legitimate exercise of civil rights pertaining to political dissent or trade union activity, or have a fear of persecution for reasons of race, religion, nationality, political opinion, or membership in a particular social group. In addition, the applicant must live in a country that has been designated as a source country in Schedule 2 of the Regulations.
There are currently six countries designated in Schedule 2: Colombia, Guatemala, El Salvador, Sudan, Sierra Leone and the Democratic Republic of Congo. This list has not changed since 2002. Previously designated countries include Bosnia-Herzegovina, Croatia, Liberia, and Cambodia. Subsection 148(2) of the Regulations states that, to be designated as a source country, the country must be a place where persons are in a refugee-like situation, applications can be processed without endangering the embassy staff or the applicant, and the intervention would be in line with Canada’s overall humanitarian strategy and the work of the UNHCR.
In 2009, Citizenship and Immigration Canada (CIC) conducted a review of the source country class to determine whether it continued to be an effective part of the resettlement program. The source country class was intended to be a flexible tool for humanitarian intervention, capable of responding to a variety of populations and situations. However, the review found that the class can only be used successfully in a narrow range of humanitarian situations in a small number of countries around the world.
Four key issues were identified that prevent the class from meeting its objective:
1. Many persons of concern to Parliamentarians and Canadians are not eligible for resettlement under the source country class because they do not live in a designated source country. Changing the schedule of designated source countries requires a regulatory amendment, which makes the class impractical for responding in a timely way to humanitarian crises. The schedule has changed only four times since 1997, with the same six countries remaining listed for over 10 years (see Table 1). This suggests that the class lacks the flexibility originally intended.
Table 1: Designated source countries by year
Bosnia-Herzegovina, Croatia, El Salvador, Guatemala, Sudan
Bosnia-Herzegovina, Croatia, El Salvador, Guatemala, Sudan, Colombia, Cambodia, Liberia
Bosnia-Herzegovina, Croatia, El Salvador, Guatemala, Sudan, Colombia, Democratic Republic of Congo
El Salvador, Guatemala, Sudan, Colombia, Democratic Republic of Congo, Sierra Leone
2. Under subsection 150(1) of the Regulations, all applications for resettlement must be accompanied by a referral from a referral organization (defined in section 138 as the UNHCR or another organization with which the Minister has entered into a memorandum of understanding under section 143) or by an undertaking from a private sponsor. There is one exception to this rule, outlined in subsection 150(2), which states that
A foreign national may submit a permanent resident visa application without a referral or an undertaking if the foreign national resides in a geographic area that the Minister has determined under subsection (3) to be a geographic area in which circumstances justify the submission of permanent resident visa applications not accompanied by a referral or an undertaking.
Granting this exception is often referred to as granting direct access, and subsection 150(3) lists the following factors which the Minister may use in making his determination to grant direct access:
(a) advice from referral organizations with which the Minister has entered into a memorandum of understanding under section 143 that they are unable to make the number of referrals specified in their memorandum of understanding for the area;
(b) the inability of referral organizations to refer persons in the area;
(c) the resettlement needs in the area, after consultation with referral organizations that have substantial knowledge of the area; and
(d) the relative importance of resettlement needs in the area within the context of resettlement needs globally.
Since there is no international organization like the UNHCR mandated to identify and refer for resettlement persons who are inside their own country, direct access was established for all source countries. Using direct access was not the original intent when the source country class was created. CIC had intended to use a referral organization. However, there were no organizations willing to refer source country class applicants without funding and no funding was available.
Direct access was granted in the six source countries to accommodate applications from source country class nationals. However, the provision is also being used by non-nationals residing in the source countries who would normally be required to have a referral or a private sponsor, since Canada cannot restrict the application of direct access based on nationality. As a result, any foreign national living in a source country may use the direct access provision to apply for resettlement without a referral. This was not the intent when direct access was granted in these countries. Further to this, with direct access, any number of applicants can apply each year. In some countries, processing capacity has been overwhelmed. Between 2005 and 2009, the Canadian embassy in Colombia received on average approximately 4 700 applications annually, representing 13 250 persons. This is more than the upper range set for all resettled refugees in Canada’s annual immigration plan (the upper range is 12 000). The same problem was experienced in Bosnia. From 1998 to 2001, the embassy received approximately 6 236 applications representing 18 685 persons. This represented more than 50% of the upper range set for all resettled refugees. Canada has no secure, affordable alternative to direct access for applicants in their own countries.
In this particular situation, the use of direct access was a policy decision. As the Minister has the discretion to make a determination under subsection 150(3), and no mechanism is in place to revoke that decision, as long as there is evidence that the Minister’s decision would not constitute an abuse of process or a violation of Charter rights, the Minister could, without considering these factors, revoke his decision.
3. Without referral organizations to work with potential applicants, vulnerable persons of concern are in some source countries unable to access the application or the mission. Some do not have access to regular mail, telephone or Internet service. They may lack the skills required to read and fill out an application in English or French, or the ability to physically go to a visa office. In other cases, potential applicants may not even be aware that they are eligible for Canada’s resettlement program and so they do not apply.
These problems reflect the reality that Canada’s resettlement program is most effective when CIC works with partners like the UNHCR, other resettlement countries and private sponsors. By repealing the source country class, the resettlement program will be streamlined to focus on partnerships that can deliver protection to those who are most in need, within the fixed resources that have been provided for Canada’s resettlement program. Because resettlement levels are fixed under CIC’s annual levels plan, the resources dedicated to the Government Assisted Refugee (GAR) and Privately Sponsored Refugees (PSR) programs will remain unchanged.
CIC has two objectives in repealing the source country class:
(1) Responsible management: As part of the federal government’s responsibility to constantly monitor and evaluate the effectiveness of its policies and programs, the Regulations are periodically reviewed to verify that they are achieving their objectives. The proposed repeal would allow CIC to manage application intake by eliminating the need to offer direct access in the designated source countries and would make it easier for CIC to allocate adequate resources to process resettlement applications.
(2) Working with partners: The Government would focus the resettlement program on priority refugee situations where Canada can work with partners like the UNHCR, private sponsors and other resettlement countries. As a discretionary measure, the Minister may also choose to offer admission to Canada to vulnerable persons who do not qualify for the refugee classes by using subsection 25.1(1) or subsection 25.2(1) of the Immigration and Refugee Protection Act.
The proposed amendments would remove the source country class by repealing sections 148, 149 and Schedule 2 from the Regulations, along with any other references in the Regulations to the source country class.
The source country class was intended to be a flexible tool for humanitarian intervention, capable of responding to a variety of populations and situations. However, it has only proven to be effective under certain conditions in particular countries. The number of applications submitted and the acceptance rates for the class have both varied significantly depending on the country and year in question. For example, in Croatia, over 2 100 applications were submitted while the country was designated, but in Cambodia and Liberia, no applications were submitted while the countries were designated. In Sierra Leone and Sudan, fewer than 100 applications have been submitted in each country. In the Democratic Republic of Congo, El Salvador and Guatemala, fewer than 350 applications have been submitted per country.
In most countries, because so few applications are received each year, acceptance rates vary significantly from year to year. In some countries, one acceptance or refusal can result in a 100% or 0% acceptance rate. In Colombia and Bosnia-Herzegovina, the only two countries where several thousand applications are/were submitted annually, average acceptance rates are low at 13% and 23% respectively. In some years, acceptance rates fell as low as 4% in both countries.
Taken together, the low approval and application intake rates suggest the class has not been very effective or efficient. Without the assistance of a referral organization, only a small number of applicants are able to apply in most countries, while in others so many ineligible persons are able to apply that the number of applications and expressions of interest becomes administratively burdensome, with negative impacts on other areas of visa processing. These problems are structural in nature and reflect the reality that it may not be possible to construct an efficient and flexible regulatory class for persons in their own countries. Therefore, the Government is proposing to repeal the class so that resources can be focused on populations where Canada can work with partners like the UNHCR, private sponsors and other resettlement countries.
Consultations with the UNHCR have suggested that repealing the class could benefit the organization and persons in need of humanitarian protection by making available more resettlement spaces for UNHCR-referred refugees. Improving CIC’s planning and resource allocation would also improve forecasting for the number of UNHCR referrals required to meet the levels established in the Annual Report to Parliament on Immigration. This would bring more predictability into UNHCR’s role as a referral organization and better enable CIC and UNHCR to work together to meet the increased resettlement levels committed to under the Balanced Refugee Reform Act.
Benefits and costs
Because resettlement levels are fixed under CIC’s annual levels plan, the resources dedicated to the Government Assisted Refugee (GAR) and Privately Sponsored Refugees (PSR) programs will remain unchanged. Funding for the source country class comes from the funding set aside for the Refugee Program in the Main Estimates and, following a proposed repeal, the money would remain within the Refugee Program.
Due to the fact that the administrative cost to issue a visa in the source country class is slightly higher than the cost to issue a visa in the Convention refugee and country of asylum classes, the proposed changes are estimated to result in savings of approximately $15,600 annually, which would be absorbed by CIC’s visa offices overseas to meet demand in other areas of visa processing.
Additional pressure may be put on the private sponsorship community and certain ethnic communities in Canada, in particularly the Eritrean community, to sponsor refugees who would have previously applied for resettlement through direct access and been eligible for government assistance. The cost to sponsor a single refugee is approximately $11,800. Colombians in Canada may also face pressure to sponsor relatives abroad through the family class, or the PSR program, in the case of refugees who have fled across the border. These persons would no longer be eligible for resettlement unless they have a private sponsor or a referral.
Citizenship and Immigration Canada has undertaken consultations in person and in writing with the United Nations High Commissioner for Refugees (UNHCR), the Canadian Council for Refugees (CCR), the Province of Quebec and the Department of Foreign Affairs and International Trade (DFAIT).
In January 2011, the UNHCR indicated that it can refer enough applicants to fill all resettlement spaces that would be made available if the source country class is repealed. The proposed repeal of the class and the transfer of resettlement spaces to UNHCR-referred refugees would be consistent with UNHCR’s appeals for more resettlement spaces for Convention refugees.
In the past, the Province of Quebec has received a large number of source country class refugees from Colombia. Since 2009, the Province has been adapting its settlement and integration programs to accommodate refugees from other countries. The Province has agreed to work with CIC to identify other refugee populations that could also be resettled to Quebec. Further discussions in January 2011 confirmed this position.
In March 2010, the CCR indicated that they believe the source country class is not benefitting those who need it most. Although they agreed that the class is not working effectively for many potential applicants, they did express concern about the impact that repealing the class might have on Colombians in need of protection. However, once the class is repealed, CIC can increase the number of resettlement spaces for UNHCR-referred refugees, some of which may go to Colombian refugees in need of protection in Ecuador.
DFAIT has not identified any significant foreign policy considerations with the proposed regulatory change.
Implementation, enforcement and service standards
The following administrative transitional measures would be used for applications already received by CIC at time of coming into force of the proposed Regulations:
— Applications that have been approved in principle at the time of the proposed repeal would be processed to completion under the source country class. Applicants who meet all the relevant criteria would be issued a visa.
— Applications that have not been approved in principle would be assessed under the remaining refugee resettlement classes. Applicants who meet all the relevant criteria would be issued a visa.
Unsuccessful applicants who feel they are in need of international protection would be counselled to contact the UNHCR.
Web notices would be posted on mission Web sites where the source country class operates to notify potential applicants that the source country class has been repealed.
Comments on the proposed regulatory amendments should be submitted to CIC within 30 days. Please address your submissions to
Refugee Affairs Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
PROPOSED REGULATORY TEXT
Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) and sections 14 and 89 of the Immigration and Refugee Protection Act (see footnote a), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Derek Kunsken, Acting Director, Resettlement, Department of Citizenship and Immigration, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-946-7510; fax: 613-957-5836; email: Derek.Kunsken@cic.gc.ca).
Ottawa, March 10, 2011
Assistant Clerk of the Privy Council
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. Paragraph 70(2)(c) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:
(c) the Convention refugees abroad class and the country of asylum class.
2. The heading “CONVENTION REFUGEES ABROAD AND HUMANITARIAN-PROTECTED PERSONS ABROAD” before section 138 of the Regulations is replaced by the following:
CONVENTION REFUGEES ABROAD, HUMANITARIAN-PROTECTED PERSONS ABROAD AND PROTECTED TEMPORARY RESIDENTS
3. The portion of the definition “urgent need of protection” in section 138 of the Regulations before paragraph (a) is replaced by the following:
“urgent need of protection”
« besoin urgent de protection »
“urgent need of protection” means, in respect of a member of the Convention refugee abroad or the country of asylum class, that their life, liberty or physical safety is under immediate threat and, if not protected, the person is likely to be
4. Subparagraph 139(1)(f)(ii) of the Regulations is replaced by the following:
(ii) in the case of a member of the Convention refugee abroad class, financial assistance in the form of funds from a governmental resettlement assistance program is available in Canada for the foreign national and their family members included in the application for protection, or
5. Section 146 of the Regulations is replaced by the following:
Person in similar circumstances to those of a Convention refugee
146. (1) For the purposes of subsection 12(3) of the Act, a person in similar circumstances to those of a Convention refugee is a member of the country of asylum class.
Humanitarian-protected persons abroad
(2) The country of asylum class is prescribed as a humanitarian-protected persons abroad class of persons who may be issued permanent resident visas on the basis of the requirements of this Division.
6. Sections 148 and 149 of the Regulations are repealed.
7. Paragraph 295(2)(b) of the Regulations is replaced by the following:
(b) a person who makes an application as a member of a humanitarian-protected persons abroad class and the family members included in the member’s application.
8. Paragraph 299(2)(c) of the Regulations is replaced by the following:
(c) a person who is a member of the Convention refugees abroad class or a member of a humanitarian-protected persons abroad class, and their family members;
9. Paragraph 300(2)(c) of the Regulations is replaced by the following:
(c) a person who is a member of the Convention refugees abroad class or a humanitarian-protected persons abroad class, and their family members;
10. Paragraph 303(2)(e) of the Regulations is replaced by the following:
(e) a person who is a member of a humanitarian-protected persons abroad class, and the family members included in their application.
11. Paragraph 305(2)(d) of the Regulations is replaced by the following:
(d) a person who is a member of the Convention refugees abroad class or a humanitarian-protected persons abroad class;
12. Schedule 2 to the Regulations is repealed.
COMING INTO FORCE
13. These Regulations come into force on the day on which they are registered.
S.C. 2001, c. 27