These provisions were part of the broad refugee system reform passed in 2012.
Under the Protecting Canada’s Immigration System Act, the Minister of Public Safety will have the power to designate any group of over two refugee claimants as “irregular arrivals” if:
- they do not have visas or other required documents and
- the Minister has reasonable grounds to believe that they travelled with documents provided by smugglers, or
- the Minister believes that investigations concerning these persons cannot be conducted in a “timely manner”
The implications of being a Designated Foreign National for these refugee claimants are significant. All “designated” claimants over the age of 16 face automatic and mandatory detention for a minimum of two weeks. If they cannot establish their identity within two weeks, they will be detained for an additional six months, with the potential for another six months after that. There is no judicial review of their imprisonment. The new law does not require that children under the age of 16 be detained, but it does allow for their detention. If they are not automatically detained, these children must either stay with their parents in detention or be placed in foster care by child protection services. The law allows designated claimants who make successful refugee claims to be released from detention; however it does not compel their release. Further, designated claimants who are granted refugee status are denied the right to apply for permanent resident status in Canada for five years. Consequences of this restriction include:
- claimants will be prohibited from applying to reunite in Canada with spouses and children;
- claimants may be required to report regularly to immigration authorities for questioning and to produce documents; and
- claimants will be unable to obtain a travel document.
Designated claimants who are denied refugee status have no access to the Refugee Appeal Division, and are subject to immediate removal.
The designation of irregular arrivals gives the Minister of Public Safety broad, vague and subjective discretion to designate arrivals as “irregular”.
The long term mandatory detention without judicial review is unconstitutional. It is imposed on refugee claimants without consideration of their age, gender, health, family circumstances or whether they have faced persecution. These claimants could be sent to a provincial medium security prison and placed with the general criminal population regardless of their language comprehension, the merits of their claim or their psychological condition. Further, they will face the disadvantage of proving their refugee claim while in prison, with limited access to legal counsel, interpreters and community support. By detaining refugees for arriving without documentation, Canada is breaching the UN Refugee Convention, which Canada has signed.
By detaining claimants for using smugglers, the government has failed to distinguish between the victims and the criminals. The designation system is justified by claims that it protects the Canadian refugee system from being exploited by “bogus” refugees that pay human smugglers to get them to Canada. This negative portrayal of refugee claimants promotes negative stereotypes of refugee claimants in Canadian society and “victimizes the victims”.