Refugee Survey Quarterly, 2017, 36, 168–186
doi: 10.1093/rsq/hdw024
Article
Unwanted but Unremovable: Canada’s Treatment
of “Criminal” Migrants Who Cannot be Removed
Jennifer Bond*
ABSTRACT
This article reports on Canada’s treatment of migrants who are deemed “undesirable” for
reasons of actual or alleged criminality, but who cannot be removed from Canadian territory.
It identifies five potential outcomes for these individuals: eligible for permanent residence;
granted temporary stay of removal until impediment removed; granted temporary status
while still under active removal order; placed in legal limbo; or subjected to suspect deportation. The specific rights and restrictions that flow from each of these outcomes vary significantly, but the result in a given case does not appear to reflect deliberate policy choices that
consider and treat criminal-unremovable persons as a class. This arbitrariness is exacerbated
by the fact that the majority of impediments to removal are not the specific subject of any
decision-making process in Canada: a series of sequential tables are used to demonstrate that
most impediments to removal are relevant only in highly discretionary contexts where they
may be deemed insignificant or given minimal weight. The overall conclusion is that although individuals in this situation face significant hardship, Canada does not have a coherent or deliberate policy regarding their interim or long-term treatment.
K E Y W O R D S : criminal, migrant, refugee, exclusion, Article 1F, unremovable,
unreturnable
1. INTRODUCTION
This article aims to report on Canada’s treatment of migrants who are “undesirable”
for reasons of alleged criminality but who cannot be removed. It is a contribution to
a larger, multi-scholar project that considers this issue across a variety of States and
through the lens of numerous specific policy considerations. A network of international
* Jennifer Bond, Associate Professor, Faculty of Law, University of Ottawa, Ottawa, Canada.
Many thanks are due to David J. Cantor and Joris van Wijk for putting together an excellent international network to consider these important issues. I am very grateful for the support many individuals have given to my
work on this project, including several who shared important off-the-record information. Joseph Rikhof, Peter
Edelmann, Andrew Brouwer, Aviva Basman, Janet Dench, Lorne Waldman, Gloria Nafziger, Peter Showler,
Maarten Bolhuis, Sarah Singer, and participants at two international workshops all provided valuable comments on earlier drafts. Particular thanks are also owed to members of the University of Ottawa Refugee Law
Research Team (RLRT): Emily Bates, Nathan Benson, Michelle Bloodworth, Laurel Hogg, Brian Kells, and
Jillian Peddle have each spent many hours scouring documents and tracking down leads trying to figure out
this puzzle and excellent editorial assistance was provided by Amanda Bergmann, Jessica Earle, and Alina
Seagal. All errors and omissions are of course my own.
C Author(s) [2017]. All rights reserved. For Permissions, please email: [email protected]
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experts identified the need for dedicated study after noting the dearth of research in this
area, and a two-year comparative initiative entitled “Undesirable and Unreturnable” was
conceived of, and led by, Professors David Cantor and Joris van Wijk. The details of the
overall study are explained in the introduction to this collection.
It is important to clarify at the outset the scope of this article. For the purposes of my
research, I considered an individual “undesirable” when Canada is seeking to remove her
on the basis of actual or alleged criminality, or actual or alleged security concerns. No distinction was made based on a migrant’s specific legal status. I considered an individual
“unremovable” when she could not be physically removed from Canadian territory. As
will be discussed in more detail below, my research revealed six distinct impediments to
removal, some legal, others pragmatic. In every case the result is that the individual remains in Canada despite the State’s desire for her to leave.
Canada’s opaque decision-making processes in this area complicated the research for
this report, and my conclusions draw on a variety of on- and off-the-record sources. In
addition to public documents (including policy manuals and operational bulletins), I
have benefited greatly from numerous conversations with refugee lawyers and advocates,
support workers, and government officials. I have also submitted several information requests under Canada’s Access to Information and Privacy (ATIP) legislation. While I
have attempted to verify all information provided in this report, some valuable insights
remain available only in anecdotal form or come from an off-the-record source. As a result, not all of my underlying material can be fully cited.
Overall, I have identified five potential outcomes for unremovable individuals
Canada deems “undesirable” as a result of alleged criminality:
•
•
•
•
•
eligible for permanent residence;
granted temporary stay of removal until impediment removed;
granted temporary status while still under active removal order;
placed in legal limbo; and
subjected to suspect deportation.
The specific rights and restrictions that flow from each of these outcomes vary significantly, but the result in a given case does not appear to reflect deliberate policy choices
that consider and treat criminal-unremovable persons as a class. Rather, factors such as
the nature of the underlying criminality, the specific impediment to removal, and the
legal availability of certain formal decision-making mechanisms intersect in complex and
seemingly arbitrary ways to dictate which outcomes are available in each case.
This arbitrariness is exacerbated by the fact that the majority of impediments to
removal are not the specific subject of any decision-making process in Canada.
These obstacles are also not factors that must be considered as part of a multi-faceted
decision. Instead, most impediments to removal are relevant only in highly discretionary contexts where they may be deemed insignificant or given minimal weight.
The overall conclusion of my research is that Canada does not have a coherent or
deliberate policy for dealing with individuals who are “undesirable” on the basis of
alleged criminality but are unremovable. Further, individuals in this group frequently
face significant hardship.
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Jennifer Bond j Unwanted but Unremovable
Figures relating to this issue were particularly challenging to obtain and the scope
of the problem in Canada remains unclear. Repeated efforts to secure either a global
number of individuals who are “undesirable” for alleged criminality but cannot be
removed, or related numbers that would allow reasonable deductions to be made,
were unsuccessful. This may reflect the fact that Canada does not treat criminal unremovables as a class and, therefore, does not track the necessary data in an accessible
form. Details regarding key characteristics about these individuals are also lacking.
The related figures listed in Tables 1 and 2 of this section were obtained through
ATIP requests and may nonetheless be of interest (note that descriptions of the legal
schemes referenced in these Tables are provided in Section 2).
Table 1. Figures relating to criminality1
Immigration and Refugee Board figures
2004–2014
Total persons excluded under Art. 1F, removal order issued
Total persons found inadmissible for security concerns, removal order issued
Total findings of human/international rights violations, removal order issued
Total findings of serious criminality, removal order issued
Total findings of criminality, removal order issued
Total findings of organised criminality, removal order issued
315
161
78
10,357
1,724
5
Table 2. Figures relating to removals2
Canada Border Services Agency figures
2009 to June 2014
Total persons removed for reasons of criminality and security
10,563
Total inventory of pending removals (as of June 2014)
18,631
War crimes statistics
2011–2012 2012–2013
Total persons removed for 1F(a) or violating human/
24
41
international rights
Inventory of enforceable removal orders for 1F(a)
96
57
or violating human/international rights, with an
impediment to removal
1 Please note the following data weaknesses: while Article 1F and security figures are by individual, other inadmissibility figures are by finding. This means that a single case may be double counted where multiple
grounds of inadmissibility were relevant. In addition, these figures were provided by Canada’s Immigration
and Refugee Board, the first-level decision-maker. They do not account for subsequent reversals or for individuals still engaged in some aspect of the substantive decision-making process.
2 Please note the following data weaknesses: these removals are not a subset of criminality figures, meaning
it is not possible to compare the figures to draw conclusions about the number of persons who are unremovable. In addition, the only figure that directly reflects individuals who are unremovable due to an impediment is narrow and does not reflect individuals alleged to have committed many forms of criminality
of relevance to this project.
Refugee Survey Quarterly
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2. CANADIAN DECISION-MAKING REGARDING CRIMINALITY
Canada’s Immigration and Refugee Protection Act (IRPA) is explicit that one of its
objectives is to “promote international justice and security by denying access to
Canadian territory to persons who are criminals or security risks”.3 This objective is
evident in both Canada’s direct incorporation of Article 1F of the Refugee
Convention4 (the “exclusion clause”) into domestic Canadian law and a series of
statutorily-created “inadmissibility” provisions. The former makes refugee protection
unavailable to asylum-seekers alleged to have been involved in certain serious criminal conduct before their arrival in Canada, while the latter apply to all non-citizens,
and serve to deny or remove status on a series of grounds, including where there are
security concerns, alleged human or international rights violations, serious criminality, criminality, or organised criminality.5 Canada’s inadmissibility and exclusion provisions deal with many identical acts, meaning that the same conduct may trigger
either scheme.6
A finding of either criminal inadmissibility or exclusion results in serious consequences: in both cases, refugee protection (and/or permanent residence) is usually
made unavailable and a removal order is issued.7
In 2012, Canada reformed its refugee status determination (RSD) process,8 and
some of the changes are relevant to the issue of unremovables. The reformed system
introduced different processes for claimants from “designated countries of origin”
(DCOs),9 or who are determined by the Government to be “designated foreign nationals” (DFNs),10 and, as is explained in my analysis below, claimants in both of
these “categories” may face particular restrictions on having potential impediments
to removal fully considered. There has also been an increased emphasis on faster removals of individuals who have been denied status on the basis of criminality,11 and
3 Immigration and Refugee Protection Act, SC 2001, ch. 27, s. 3(i).
4 Convention relating to the Status of Refugees, 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr.
1954). The entirety of Art. 1(F) is incorporated directly through s. 98 of the IRPA.
5 IRPA, ss. 34–37.
6 For more on some of the overlapping criminal conduct covered by these provisions, see J. Bond, “The
Defence of Duress in Canadian Refugee Law”, Queen’s Law Journal, 41(2), 2016, 409–454.
7 See IRPA, ss. 44(2), 45(d).
8 See especially Balanced Refugee Reform Act, SC 2010, ch. 8; Protecting Canada’s Immigration System
Act, SC 2012, ch. 17.
9 The modified IRPA gives the Minister the authority to designate certain countries of origin (DCO)
(IRPA, s. 109.1). The stated objective of the DCO regime is to “deter abuse of the refugee system by people who come from countries generally considered safe”; see Citizenship and Immigration Canada,
Designated Countries of Origin, last modified 1 Dec. 2016, available at: http://www.cic.gc.ca/english/refu
gees/reform-safe.asp (last visited 3 Dec. 2016). Individuals from a DCO who make a claim for asylum in
Canada lose a significant number of procedural protections to which they would otherwise be entitled and
are subjected to even more accelerated timelines than other claimants.
10 The modified IRPA introduces a special regime for DFNs; see IRPA, s. 20.1. DFNs are designated when
the Minister declares a group of asylum-seekers to be “irregular”. The size of the group required for such a
designation is undefined, and the criteria are also vague: the Minister may designate a group when he/she
believes that verifying their identities may take a long time, or when suspects that someone has profited
from assisting the group enter Canada. DFNs lose a number of procedural and substantive rights, regardless of whether their claim for refugee protection is ultimately successful.
11 See especially Faster Removal of Foreign Criminals Act, SC 2013, ch. 16.
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Jennifer Bond j Unwanted but Unremovable
the introduction of a widely publicised and sensationalistic “30 Most Wanted List”,
which identifies individuals who have been excluded or found criminally inadmissible
and who the Canada Border Services Agency (CBSA) is attempting to locate for the
purposes of removal.12 It is also noteworthy that between 2006 and 2015, the general
legal and rhetorical environments in Canada became increasingly harsh toward both
criminals and non-citizens, with criminal non-citizens facing a compounding degree
of denunciation.
The election of a new federal Government in October 2015 has changed the
rhetorical tone around migration in Canada dramatically: in addition to a departmental name change, which reflects Canada’s commitment to refugees,13 the
new Government successfully, and very publically, welcomed more than 25,000
Syrian refugees within four months of taking office. Furthermore, the new
Government has decided not to appeal several court decisions striking down certain portions of the previous administration’s regressive refugee policy as unconstitutional, including a decision that struck down limited access to the Refugee
Appeal Division for claimants from DCOs14 and a decision that held restrictions
on interim federal health coverage for some refugees constituted cruel and unusual treatment.15 It also introduced an ambitious target for immigration, tabling
a plan that will bring more newcomers to Canada than anytime over the past
four decades.16
Despite these significant changes, the vast majority of the 2012 reforms to Canada’s
asylum system remain in place at the time of writing, including those targeting faster
removal of migrants “undesirable” for reasons of actual or alleged criminality.
Canada is a signatory to the Refugee Convention and the Convention
Against Torture,17 both of which place some restrictions on the ability to remove individuals to certain risks of harm.18 In addition, the Supreme Court of
Canada has held that deportation of a refugee to a “substantial risk of torture”
would generally violate the Canadian Charter of Rights and Freedoms—
Canada’s constitutionally entrenched human rights instrument.19 These obligations are, in at least some circumstances, in tension with the objective of
12 The current list is available online at Canada Border Services Agency, Wanted by the CBSA, last modified
21 Sep. 2016, available at: http://www.cbsa-asfc.gc.ca/wc-cg/menu-eng.html (last visited 3 Dec. 2016).
13 The Department of Citizenship and Immigration Canada has now become the Department of
Immigration, Refugees and Citizenship Canada.
14 Federal Court of Canada (FC), YZ v. Canada (Citizenship and Immigration), 2015 FC 892, para. 170.
15 FC, Canadian Doctors for Refugee Care v. Canada (Attorney General), 2014 FC 651, paras. 1080–1085.
16 Government of Canada, Supplementary Information on 2016 Immigration Levels Plan, Ottawa,
Government of Canada, 8 Mar. 2016, available at: http://www.cic.gc.ca/english/department/media/no
tices/2016-03-08.asp (last visited 3 Dec. 2016).
17 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465
UNTS 85, 10 Dec. 1984 (entry into force: 26 Jun. 1987).
18 See especially the principle against non-refoulement codified in Refugee Convention, Art. 33(1) (although
note too the exception for security concerns in Art. 33(2)) and Convention Against Torture, Art. 3.
19 Supreme Court of Canada (SCC), Suresh v. Canada, 2002 SCC 1, para. 5, applying Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(UK), 1982, ch. 11. Particularly, relevant is s. 7 of the Charter, which states that deprivations of life, liberty, and security of the person can only occur in accordance with the principles of fundamental justice.
Refugee Survey Quarterly
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denying access to Canadian territory on the basis of alleged criminality, complicating policy decisions in this area.
3. P OTE N TIAL I MP EDI M EN TS TO REMO VAL F R OM C ANADA
The following six circumstances may impede removal from Canada:
•
•
•
•
•
•
personalised risk in the country of origin;
generalised risk in the country of origin;
uncertain identity and/or country of origin;
statelessness;
refusal of country of origin to repatriate; and
refusal to sign statutory declaration necessary for removal to Somalia.20
In addition, Canada has a long history of respecting those who have sought sanctuary
in places of worship, and CBSA has never forcibly violated sanctuary for the purpose
of enforcing a removal order.21 The agency does, however, have the legal authority
to do so, meaning that this impediment, unlike others, can be overcome if Canada
decides removal must be executed.22 Other logistical barriers such as physical protests and the financial costs of transportation have also delayed removal in certain
20 Canada requires that individuals being removed to Somalia sign a statutory declaration that provides certain identity information, including tribe or clan affiliation. This declaration is a condition of removal because transport to Somalia happens by way of a private airline (African Express Airways) that flies people
(unaccompanied by CBSA) from Nairobi to Somalia in exchange for payment, and African Express will
not do the transport without the statutory declaration. It appears there are currently no alternative modes
of removal available, presumably because of the dangers in Somalia. As a result, refusal to sign the declaration creates an impediment that frustrates the removal. See e.g. FC, Mohamed v. Canada (31 Oct. 2014)
Ottawa IMM-7177-14 (FC). For more on removals to Somalia, generally see The Current, “To No
Man’s Land: The Story of Saeed Jama’s Deportation to Somalia”, Canadian Broadcasting Corporation, 4
Nov. 2014, available at: http://www.cbc.ca/radio/thecurrent/a-story-of-deportation-to-somalia-and-can
ada-s-voice-at-war-1.2907289/to-no-man-s-land-the-story-of-saeed-jama-s-deportation-to-somalia-1.
2907291 (last visited 3 Dec. 2016).
21 One possible exception occurred in 2004, when Quebec City Police entered a church on the auspice of
executing an arrest warrant for a minor criminal charge against an individual who was in sanctuary there.
The criminal charge was dropped immediately upon arrival at the police station and the individual was
transferred to CBSA for removal. See Rheal Seguin, “Churches no Longer Safe Havens for Refugees”,
The Globe and Mail, 9 Mar. 2004, available at: http://www.theglobeandmail.com/news/national/
churches-no-longer-safe-haven-for-refugees/article1129236/ (last visited 3 Dec. 2016). For more on sanctuary in Canada generally, see Canadian Sanctuary Network, The Legal Implications of Offering Sanctuary,
Canadian Sanctuary Network, May 2014, available at: http://sanctuarycanada.ca/userfiles/downloads/
Legal-implications-of-offering-sanctuary-May302014.pdf (last visited 3 Dec. 2016).
22 CBSA may enter private dwellings, including places of worship, under a “Special Entry Warrant” to enforce removal orders, issued pursuant to Criminal Code, RSC 1985, ch. C-46, s. 529.1. However, policy
manuals specify that this is only to be done in cases involving security threats, serious criminality, or exceptional circumstances. See Citizenship & Immigration Canada, Enforcement Operational Manual on
Removals, ENF 10, 2010, s. 14, 33, available at: http://www.cic.gc.ca/english/resources/manuals/enf/
enf10-eng.pdf (last visited 15 May 2016). For a detailed analysis of the legality of sanctuary practices in
Canada, see S. Rehaag, “Bordering on Legality: Canadian Church Sanctuary and the Rule of Law”,
Refuge: Canada’s Journal on Refugees, 26(1), 2009, 43–56.
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Jennifer Bond j Unwanted but Unremovable
circumstances,23 but these barriers are temporary in nature and can also be overcome. Likewise, an interim stay of removal can result from a complaint to certain
United Nations (UN) bodies that Canada is violating core international commitments in its treatment of a particular foreign national. However, as the stay continues
only while the complaint is examined, this process also merely delays, rather than impedes, the removal:24 any permanent barrier resulting from the UN process is ultimately attributable to one of the underlying impediments identified above. Finally,
engagement in Canada’s criminal system (e.g. as a result of a pending trial or an ongoing sentence) is also a temporary barrier that Canada can choose to circumvent if
it favours removal.25 As a result, only the six barriers identified above represent true
impediments to removal. They will be considered in the remainder of this analysis.
4 . FO R M A L D E C I S I O N - M A K I N G RE G A R D I N G P O T E N T I A L
I M P E D I M E N T S TO RE M O V A L F R O M C A N A D A
There are five formal decision-making mechanisms that are relevant to individuals
who face a potential impediment to removal from Canada. It is important to note
that some of these mechanisms are explicitly denied to individuals who have been
excluded or found criminally inadmissible. These restrictions based on criminality
are not discussed in the summaries of the general scheme provided immediately
below, but are depicted in Figure 2 and following.
4.1. Pre-removal risk assessment
The pre-removal risk assessment (PRRA) provides an opportunity for individuals
facing removal from Canada to seek protection on the basis of a personalised risk
they would face if removed. All persons facing removal have traditionally had access
to a PRRA, but a “PRRA bar” has now been introduced for individuals who have had
a negative refugee or PRRA decision in the previous 12 months (this is extended to
36 months for claimants from DCOs).26 There are also now three different types of
PRRAs in Canada:
1. PRRA-1 assesses risk of persecution according to the criteria in Article 1A
of the Refugee Convention, as well as risk of torture, death, and cruel and
unusual treatment or punishment (without the need for a nexus to Refugee
Convention grounds);27
2. PRRA-2 assesses the same risks but is also subject to a “danger opinion”, a
distinct process which considers not only risk upon return, but also whether
23 See e.g. P. Cain, “Behind Closed Doors, Feds Decide to Keep Iranian Refugee Claimant in Jail”, Global
News, 24 Nov. 2014, available at: http://globalnews.ca/news/1689569/behind-closed-doors-feds-decideto-keep-iranian-refugee-claimant-in-jail/?hootPostID¼3541ec388d0eab2b3359c9646e5283c2 (last visited
3 Dec. 2016).
24 See ENF 10, paras. 40–41.
25 Although Canada may choose to prioritise removal over criminal proceedings, individual decisionmakers, including CBSA officers, cannot. This means that an ongoing criminal proceeding or sentence
may delay removal in some circumstances. See IRPA, ss. 50(a) and 50(b).
26 IRPA, s. 112(2)(b.1).
27 Convention refugees are described in IRPA, s. 96. Grounds of protection that do not need a nexus are
described in IRPA, s. 97.
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someone poses a danger to Canada and, in some circumstances, the severity
of the relevant criminality;
3. PRRA-3 assesses only risk of torture, death, and cruel and unusual treatment or punishment, and is also subject to a danger opinion.28
A total of 51,944 PRRAs were submitted between 2005 and 2010, and 78 per cent of
these were refused, meaning that personalised risk was not a barrier to removal in
those cases.29 Significantly, 914 PRRAs rejected during the period included a danger
opinion,30 thus opening the possibility that the potential impediment of “risk upon
return” could be outweighed by other factors as part of the assessment. The result in
that circumstance would be removal despite the potential of physical harm.31
4.2. Temporary suspension of removal and administrative
deferral of removal
Canada’s Minister of Immigration, Refugees and Citizenship (the Minister) has
broad authority under the IRPA to stay removal orders through regulation.32 This
power has been used to declare temporary suspensions of removals (TSRs), “where
return to a specific country or place presents a generalised risk that the Minister considers dangerous and unsafe to the entire general civilian population of that country
or place”.33
More recently, the same power and criteria traditionally used to create TSRs appear to form the bases for administrative deferrals of removals (ADRs) as well.
ADRs also temporarily suspend removals to particularly dangerous countries, and
the distinction between these two mechanisms is unclear. This lack of clarity arises
in part because a striking amount of secrecy surrounds both the ADR decisionmaking process and, bizarrely, the list of countries that currently fall under this
status.34
For many years Canada had a moratorium on removals to eight countries:
Afghanistan, Burundi, the Democratic Republic of Congo (the DRC), Haiti, Iraq,
28 IRPA, ss. 96, 97, 113. The danger assessment required under s. 113 actually takes two different forms,
meaning that there are four PRRA variants. For the sake of simplifying the analysis, I have used the term
“danger opinion” to describe the factors from both s. 113(d)(i) and 113(d)(ii).
29 PRRA statistics available online for members only through Canadian Council for Refugees, available at:
http://ccrweb.ca/en/system/files/prra-stats-2005-2010_0.pdf (last visited 3 Dec. 2016).
30 A total of 621 applications were denied on the ground of posing a danger to the public of Canada and
293 were denied on the ground of posing a danger to the security of Canada. The total figure of 914 may
be slightly lower if any of these applications were denied on both grounds simultaneously.
31 Ibid., s. 115 of the IRPA is explicit that Canada’s commitment to non-refoulement may be outweighed by a
danger opinion, resulting in removal to risk. It is unclear whether deportation to torture (or death) is
ever permissible under the Canadian Charter (see SCC, Suresh v. Canada), and the danger opinion balancing has not been fully subjected to constitutional scrutiny. For an example of a (rare) federal court
case where risk was found to be outweighed by danger, see: FC, Nlandu-Nsoki v. Canada, 2005 FC 17.
32 IRPA, s. 53(d).
33 Immigration and Refugee Protection Regulations, SOR/2002-227, s. 230.
34 According to communication between CBSA and the Canadian Council for Refugees, the same criteria
and bars on applications apply to both TSRs and ADRs. Bars based on criminality are depicted in Figure
2 and following (Email on file with author).
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Jennifer Bond j Unwanted but Unremovable
Liberia, Rwanda, and Zimbabwe. Burundi, Liberia, and Rwanda lost their TSR status
in July 2009, while Haiti and Zimbabwe lost theirs in December 2014. Afghanistan,
the DRC, and Iraq are still on the TSR list.35
A number of countries are currently on the ADR list. Due to a resurgence in violence, a new ADR-based moratorium was issued for removals to Burundi in 2015.36
The ADR list also includes certain regions in Somalia (Middle Shabelle, Afgoye, and
Mogadishu); the Gaza Strip; Syria; Mali; the Central African Republic; South Sudan;
Libya; Nepal; and Yemen.37
4.3. Humanitarian and compassionate application
Canada allows individuals who would not normally be eligible to become permanent
residents (PR) to apply for PR status on humanitarian and compassionate (H&C)
grounds. Applications can be made from within Canada, at a port of entry, or
through a visa office abroad.
H&C decisions are highly discretionary and traditionally have only been successful in exceptional cases,38 with applicants typically needing to show “unusual and undeserved or disproportionate hardship”.39 However, the Supreme Court of Canada
has now clarified that these factors are “instructive but not determinative [. . .] requirements”: immigration officers must substantively consider and weigh all relevant
circumstances cumulatively in order to determine whether relief is justified in a particular case.40 According to the Court, the purpose of H&C applications is to provide
equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”.41 Furthermore, in
cases pertaining to applicants under the age of 18, the “best interests” of the child
must be a significant factor in the analysis that influences the way other circumstances are evaluated, and the concept of “unusual or undeserved hardship” is presumptively inapplicable in the assessment. A child may thus qualify for H&C relief in
circumstances where an adult would not.42
An H&C bar prevents applications within 12 months of a failed refugee claim
(five years for DFNs, who also face five-year bars from both the date of a PRRA
35 For a current list of TSRs, see ENF 10, 33 and update via Citizenship and Immigration Canada,
Government of Canada, “News Release: Temporary Suspension of Removals Lifted for Haiti and
Zimbabwe”, Government of Canada, News Release, 1 Dec. 2014, available at: http://news.gc.ca/web/art
icle-en.do?nid¼910599 (last visited 3 Dec. 2016).
36 Government of Canada, “Government of Canada Suspends Removals to Burundi”, Government of
Canada, News Release, 1 Dec. 2014, available at: http://news.gc.ca/web/article-en.do?nid¼1023239&
tp¼1 (last visited 3 Dec. 2016).
37 Ibid.
38 SCC, Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, para. 90.
39 This standard was first articulated in a policy manual but has now been judicially adopted. See FC, Singh
v. Canada, 2009 FC 11.
40 SCC, Kanthasamy v. Canada, paras. 29, 33.
41 Ibid., para. 21, quoting Immigration and Refugee Board, Chirwa v. Canada (Minister of Citizenship and
Immigration) (1970) 4 IAC 338, para. 350.
42 Ibid., para. 41.
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177
application and the date they were designated).43 The H&C acceptance rate for inland claims for 2012 was 32 per cent, resulting in 3,683 visas being issued.44
4.4. Temporary resident permit
Canada may issue a temporary resident permit (TRP) to individuals who do not meet
the requirements of the IRPA, including those who are excluded or inadmissible on
the basis of alleged criminality.45 A TRP is an “exceptional and discretionary” remedy
that can be issued inland or at a port of entry for a duration of one day to three
years.46 It can be cancelled at any time.47 Inland TRP applications require a balancing
between the need to remain in Canada and the risk to Canadians or Canadian society,
and are frequently used to admit individuals to Canada for a limited period despite, for
example, a minor criminal record in an individual’s home country. There is nonetheless no legislative restriction on the use of TRPs for more serious forms of criminality,
and the relevant policy manual specifically contemplates the issuance of a TRP where
“enforcement of the removal order is not possible”.48 In practice, however, the fact
that decision-makers must weigh the “gravity of the inadmissibility or violation” as part
of the TRP assessment49 precludes the issuance of a permit to many individuals
alleged to have been involved in more serious forms of criminality.
A TRP bar prevents applications within 12 months of a failed refugee claim (five
years for DFNs, who also face five-year bars from both the date of a PRRA application
and the date they were designated).50 Between 1 January 2013 and 31 December
2013, 7,686 TRPs were issued to individuals found inadmissible for criminality (both
inland and port of entry applications).51 A significant majority of these, 6,816, were
issued to individuals who were inadmissible on the basis of minor criminality.52
4.5. Ministerial discretion
Several provisions of the IRPA give the Minister discretion to provide relief in situations involving individuals who have been denied status due to actual or alleged criminality. The Minister has, for example, discretion to determine that certain apparently
43 IRPA, ss. 25(1.2)(c), 25(1.01), 25(1.02). Exceptions are made to this bar where the individual’s life
would be at risk if removed as a result of inadequate healthcare, or if removal would have an adverse effect
on the best interests of a child (s. 25(1.2)).
44 H&C statistics available online for members only through Canadian Council for Refugees, available at:
http://ccrweb.ca/en/system/files/hc-decisions-and-processing-times-2012_0.pdf (last visited 3 Dec.
2016; also on file with author).
45 IRPA, s. 24(1).
46 IRPR, s. 63.
47 IRPA, s. 24(1).
48 Citizenship and Immigration Canada, Inland Processing 1: Temporary Resident Permits, IP1, 2007, available
at: http://overseastudent.ca/migratetocanada/IMMGuide/CICManual/ip/ip01-eng.pdf (last visited 3
Dec. 2016).
49 Ibid., s. 5.13.
50 IRPA, ss. 24(4)–(5).
51 Citizenship and Immigration Canada, 2014 Annual Report to Parliament on Immigration, last modified 31
Oct. 2014, Table 5, available at: http://www.cic.gc.ca/english/resources/publications/annual-report2014/index.asp#sec-2-2 (last visited 3 Dec. 2016).
52 Ibid. The IRPA distinguishes between two degrees of criminality, in theory based on severity of the act
and available sentences. See IRPA, s. 36(1)–(2).
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Jennifer Bond j Unwanted but Unremovable
criminal acts are not grounds for a finding of inadmissibility (where it is not contrary
to the national interest),53 as well as a discretion to grant permanent residence on the
basis of H&C grounds or policy considerations.54 She also has a broad discretion to
stay removals,55 although there is no public evidence this power has been delegated or
used other than for the purpose of establishing TRPs and ADRs.56
Ministerial discretion is unique from the other formal decision-making mechanisms discussed in this section because it represents a direct government intervention
that allows an individual to stay in Canada. In my view, such a decision means that
the individual is no longer “undesirable” by the State (at least temporarily), and thus
renders her beyond the purview of this analysis. For this reason, ministerial discretion is not considered in the section that follows.
5. CON S IDE RAT IO N O F POT EN TI A L I M P E D I M E N T S I N TH E F O R M A L
DECISION-MAKING PROCESSES
The three figures that follow depict the relationships between potential impediments
to removal, type of criminality finding, and Canada’s formal decision-making mechanisms. Bars based on type of criminality are introduced in Figure 2. Note that while the
temporal bars mentioned above are not reflected in these figures, restrictions based on
the allegation of criminality itself mean that in some circumstances certain impediments to removal will never be considered. The legend below applies to each figure.
Impediment is subject of decision-making
Impediment may be considered in decisionmaking
Impediment not considered in decision-making
PRAA is subject to danger opinion
The figures build on each other to show various inter-related relationships. Figure 1
identifies which impediments to removal are considered in each type of decisionmaking mechanism, with shading showing the nature of the consideration. It is evident that the majority of impediments are never the subject of a formal decisionmaking process, but rather may be one consideration that could inform a discretionary decision. Figure 2 demonstrates the effect of various restrictions based on the
criminality itself, and depicts the availability of each decision-making mechanism according to type of criminality. Here it is significant to note that despite the general
schemes outlined in the previous sections, a number of decision-making mechanisms
are completely unavailable for individuals who are “undesirable” on certain grounds.
53
54
55
56
IRPA, s. 42.1.
IRPA, ss. 25.1, 25.2.
IRPA, ss. 50(e), 53(d).
The issue of this lack of delegation was argued, but not squarely addressed, by the court in FC, Samra v.
Canada, 2005 FC 247.
Refugee Survey Quarterly
179
Figure 1. Impediments to removal by relevant decision-making mechanism
Figure 2. Availability of formal decision-making mechanisms by type of
criminality
Figure 3 combines the findings from the previous two figures. Here it is evident that
only a personalised risk of torture, death, or cruel and unusual punishment is the subject of a formal decision-making mechanism for all individuals who are deemed “undesirable” by Canada. Persecution on convention grounds is also directly considered
for those deemed inadmissible on the basis of criminality or serious criminality. All
other impediments to removal are considered only as part of the discretionary decision-making processes involved in TRPs and H&Cs.
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Jennifer Bond j Unwanted but Unremovable
Figure 3. Decision-making regarding impediments to removal by type of
criminality
6 . I N F O R M A L D E C I S I O N - M A K I N G RE G A R D IN G P O T E N T I A L
I M P E D I M E N T S TO RE M O V A L F R O M C A N A D A
Many potential impediments to removal are considered outside of Canada’s formal
decision-making processes. This is particularly the case where impediments manifest
themselves as barriers to execution of the removal order. For example, where there
are identity issues or a country of origin refuses to repatriate, CBSA may be unable
to acquire the necessary travel documents, thus frustrating execution of the removal.
In these circumstances, removal is prevented notwithstanding the absence of any formal decision regarding the consequence of the impediment.
In addition, I have confirmed a number of situations in which formal decisionmaking processes have been completely stalled for many years. This seems to occur
primarily where a PRRA is virtually certain to be positive because of a clear risk upon
removal, but there are examples of lengthy delays in other areas as well. Individuals
facing a prolonged formal process are generally “unremovable” from Canada during
the interim period, which may continue indefinitely.57
The absence of a formal decision regarding an impediment to removal has the
effect of placing people into legal limbo. This and other potential outcomes are
treated in the section that follows.
57 A noteworthy exception is the H&C, where the pending process does not stay a removal. As a result, individuals may be removed even while their application to remain in Canada due to the exceptional hardship
associated with removal is still under consideration. See Citizenship and Immigration Canada,
Humanitarian and Compassionate Consideration, Assessment & Processing, 24 Jul. 2014, available at: http://
www.cic.gc.ca/english/resources/tools/perm/hc/processing/canada/removal.asp (last visited 3 Dec.
2016); IRPR, s. 233.
Refugee Survey Quarterly
181
7 . P O S SI B L E O U T C O M E S A S S O C I A T E D WI T H B E I N G
“U N D ESI RAB LE ” F O R AL LE GE D C RI M IN A LI TY B UT U N RE MO VAB L E
There are five global outcomes relevant to individuals who are deemed “undesirable”
due to alleged criminality but are nonetheless unremovable:
•
•
•
•
•
eligible for permanent residence (PR);
granted temporary stay of removal until impediment removed (TS);
granted temporary status but removable due to an active removal order (SBR);58
placed in legal limbo, with no particular status (limbo); and
Subjected to suspect deportation, despite apparent impediment to removal (SD).
The three figures that follow depict the relationships between potential impediments
to removal, type of alleged criminality, Canada’s formal decision-making mechanisms, and these five available outcomes. Bars based on type of criminality are introduced in Figure 5, but the impacts of the various temporal bars are once again not
shown.
Figures 4 and 5 identify potential outcomes for individuals who are “undesirable”
and unmovable. Figure 4 identifies which potential outcomes are available for each
of the formal decision-making mechanisms and where no formal decision is rendered, while Figure 5 reminds us that despite the general scheme depicted in Figure
4, many decision-making mechanisms are unavailable for individuals who are “undesirable” on certain grounds. These restrictions significantly reduce the occurrence
of various potential outcomes.
Figure 4. Available outcomes by decision-making mechanism
58 This anomalous situation occurs where a TRP is issued to someone with an active removal order because
while its issuance grants status, it does not stay the underlying removal order. See IP1, 10, s. 5.6.
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Jennifer Bond j Unwanted but Unremovable
Figure 5. Available outcomes of decision-making mechanisms by type of
criminality
Finally, Figure 6 builds on the previous five figures and illustrates the lack of a cohesive
Canadian approach to individuals who are “undesirable” for alleged criminality but cannot be removed. There are only two clearly discernible patterns reflected in this figure.
The first relates to individuals facing a risk of torture, death, or cruel and unusual treatment or punishment. Impediments of this nature are squarely considered for all individuals (subject to indefinite delays in the decision-making process and temporal PRRA
bars), with a temporary stay being granted for all forms of criminality except the most
minor, where permanent residence may be available. The second is that permanent residence is never available to individuals found inadmissible for security, human or international rights violations, or organised criminality, regardless of the severity or duration
Figure 6. Available outcomes of impediments to removal by type of
criminality*
Refugee Survey Quarterly
183
of the impediment to removal. Collectively, the figures reveal that in the vast majority
of situations, impediments to removal may only be considered as a factor in one or
more highly discretionary decision-making processes, with no assurances that they will
carry any or significant weight. The result is a very unpredictable and arbitrary approach
to the complex and important issue of what will happen to these individuals.
There is also no indication that the wide range of possible outcomes, and the discretionary processes through which they are reached, the result of a deliberate
Canadian policy regarding “undesirable” but unremovable persons.
It is worth briefly noting that Canada has experimented with both a security certificate regime that enabled automatic, long-term detention for certain individuals
found criminally inadmissible, as well as a voluntary return programme. Several features of the former were found unconstitutional by the Supreme Court of Canada,59
and although Canada’s security certificate regime still facilitates the use of secret evidence and modified detention rules in certain inadmissibility proceedings, regular detention reviews and releases are now part of that scheme just as they are for nonsecurity certificate cases.60
Canada’s Assisted Voluntary Return and Reintegration Programme (AVRR) has
likewise been abandoned. The programme was introduced on a pilot basis in 2012
with the Government seeking to facilitate faster removals by paying failed refugee
claimants up to CDN $2,000 to leave voluntarily. An assessment deemed the AVRR
unsuccessful and the programme was not renewed after its expiry in March 2015.
Significantly, the AVRR was never available to individuals who were excluded or
found inadmissible on criminal grounds.61
The lack of a coherent and thoughtful policy in this area is both surprising and
troubling given the significant interests involved for both affected individuals and the
State.
8. TH E P RACTI C AL R EAL IT IE S OF B EI N G “U N D ES IR AB LE ” F OR
A L LE G E D C R I M IN A L IT Y B UT UN R E M O V AB L E
When an individual is removed notwithstanding an apparent impediment to removal,
the spectre of significant human rights violations is raised. While it is beyond the
scope of this contribution to offer detailed analysis of Canada’s use of suspect deportations, I do note that there is evidence that this technique is sometimes being
used deliberately (and covertly) to deal with problematic cases. In other situations, a
suspect deportation may result from the fact that a particular impediment was not
squarely considered in any formal decision-making process and thus did not function
to prevent removal. This appears to occur with particular frequency countries where
59 SCC, Charkaoui v. Canada, 2007 SCC 9, see, in particular, paras. 97–98, 105, 107.
60 For details of Canada’s current security certificate scheme, see generally IRPA, ss. 76–87.2.
61 Citizenship & Immigration Canada, Assisted Voluntary Return and Reintegration Pilot Program Policy
Manual, ENF 34, 2012, available at: http://www.cic.gc.ca/english/resources/manuals/enf/enf34-eng.pdf
(last visited 3 Dec. 2016).
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Jennifer Bond j Unwanted but Unremovable
there is a generalised risk of harm. In both circumstances, the deportation raises
serious concerns.62
For those individuals who are unremovable and remain in Canada without being
eligible for permanent residence, life can be extremely challenging. The IRPA authorises immigration detention in certain circumstances, including where there are security concerns, identity issues, a perceived flight-risk, or ongoing inquiries into
potential criminality.63 Although the Supreme Court of Canada has criticised indefinite detention where removal is not possible,64 lengthy detention with regular detention reviews is permissible in Canadian law, and there are currently some individuals
who are “undesirable” for alleged criminality and have been held in detention for
over five years because they cannot be removed.
In 2012, Canada subjected 9,571 people to immigration detention.65 Canada has
299 beds in designated immigration holding centres. If the number of persons being
detained exceeds that number at any given time, the remainder are held in provincial
correctional facilities alongside individuals who have been incarcerated through the
criminal justice system.66
For those who have been detained but are eventually released, other restrictions
may apply, including: house arrest, use of electronic monitoring devices, mail and
phone intercepts, prohibitions on computer and phone use, security cameras installed and monitored by CBSA, restrictions on the ability to leave a particular geographical region, prohibitions on visitors without prior CBSA approval, and more.67
Cumulatively, these conditions can be so restrictive that one individual notoriously
requested a return to detention as a preferable alternative.68 For the majority of individuals, restrictions will be less severe but will include, at a minimum, regular reporting requirements with a CBSA officer (often as frequently as every week). In some
circumstances, the frequency of this reporting may create a barrier to gaining and
maintaining employment, particularly where travel is required to fulfil the duty to
report.
Another significant barrier to employment is the nature of work permits available
to individuals who are not eligible for permanent residence. A temporary work
62 For examples of potentially “suspect deportations” that have been covered by the media, see M. Chown
Oved, “Canada Border Services Deports Man to DRC in Secret”, The Toronto Star, 16 Jul. 2014, available
at: http://www.thestar.com/news/gta/2014/07/16/canada_border_services_deports_man_to_drc_in_
secret.html (last visited 3 Dec. 2016); The Current, “To No Man’s Land”.
63 For more on Canada’s detention scheme, see generally IRPA, ss. 54–61; and IRPR, ss. 244–250.
64 SCC, Charkaoui v. Canada.
65 N. Keung, “Hundreds held in Canada’s immigration cells”, Toronto Star, 18 Nov. 2013, available at:
http://www.thestar.com/news/canada/2013/11/18/hundreds_held_in_canadas_immigration_cells.
html (last visited 3 Dec. 2016).
66 Ibid. Approximately 30 per cent of immigration detainees are held in Canadian jails.
67 Many of these conditions, and numerous others, were imposed on Mohamed Harkat, an individual who
has been deemed “undesirable” for alleged criminality but unremovable for the past 13 years. See e.g.
“Ottawa Reviews Release Conditions for Accused Terrorist Harkat”, CBC News, 9 Jun. 2013, available at:
http://www.cbc.ca/news/politics/ottawa-reviews-release-conditions-for-accused-terrorist-harkat-1.
1382441 (last visited 3 Dec. 2016).
68 See: The Canadian Press, “Terrorism Suspect Back in Jail after Family Protests Bail Conditions”, CBC
News, 18 Mar. 2009, available at: http://www.cbc.ca/news/canada/toronto/terrorism-suspect-back-injail-after-family-protests-bail-conditions-1.801032 (last visited 3 Dec. 2016).
Refugee Survey Quarterly
185
permit can be issued to individuals who receive a TRP valid for more than six
months69 or to any foreign nationals who are the subject of an unenforceable removal order and who “cannot support themselves without working”.70 It appears,
however, that it is increasingly common for these work permits to be issued for a
period of only six months, a limitation that necessitates a costly renewal process and
makes it difficult for many individuals to find employment because employers are
seeking longer term commitments. Further, it is significant that this too is a highly
discretionary decision, which once again leads to inconsistencies and uncertainty regarding who will actually receive a permit. Particular difficulties exist for individuals
who are in legal limbo, as it may be challenging for them to demonstrate they are
subject of an unenforceable removal order.
Individuals who are unremovable from Canada may or may not be eligible for
some limited forms of healthcare and/or social support. Both of these domains are
under provincial power and the specifics of eligibility and coverage vary by jurisdiction. It is noteworthy that individuals without status in Canada are generally not entitled to traditional provincial healthcare coverage, and they may thus be entirely
reliant on special community health centres or be required to pay out-of-pocket for
these expenses.71 The Interim Federal Health Program also provides basic (e.g. hospital, family doctor, and ambulance access), supplemental (e.g. limited dental, vision,
home, psychological, and long-term care), and prescription drug coverage to resettled refugees, claimants, and other groups who are ineligible to receive provincial or
territorial health insurance.72
Finally, individuals who are deemed “undesirable” are frequently not the only
ones impacted by their precarious status in Canada – their families are impacted as
well. Individuals who are not eligible for permanent residence face major restrictions
on their ability to leave Canada and are unable to sponsor any family member to join
them in the country. In many cases, these limitations have significant implications
for family reunification. It is also common for an individual who has been found inadmissible but unremovable to be in Canada with a partner and children who have
69 IP1, 39.
70 IRPR, s. 206(1)(b).
71 S. Elgersma, Immigration Status and Legal Entitlement to Insured Health Services, Library of Parliament,
Political and Social Affairs Division, 28 Oct. 2008, available at: http://www.parl.gc.ca/Content/LOP/
ResearchPublications/prb0828-e.pdf (last visited 3 Dec. 2016).
72 Government of Canada, “Interim Federal Health Program: Summary of Coverage”, last modified 13 Oct.
2016, available at: http://www.cic.gc.ca/english/refugees/outside/summary-ifhp.asp (last visited 3 Dec.
2016). Further, in an effort to save $100 million over five years, the former Government instituted cuts
that restricted refugee claimants’ access to supplemental health benefits, and barred failed DCO claimants’
access altogether. The Federal Court later found these cuts unconstitutional on the basis that some of the
gaps constituted cruel and unusual treatment. Canada’s current Government reinstated full coverage as of
1 April 2016, with a promise to extend certain services of this interim healthcare programme to refugees
identified for resettlement before they come to Canada by 1 April 2017. Government of Canada,
“Restoring Fairness to the Interim Federal Health Program”, Government of Canada, News Release, 18
Feb. 2016, available at: http://news.gc.ca/web/article-en.do?nid¼1034619 (last visited 3 Dec. 2016). For
a detailed breakdown of changes to the IFHP and subsequent Federal Court decision, see N. Keung,
“Ottawa to Restore and Expand Refugee Health Benefits”, The Star, 18 Feb. 2016, available at: https://
www.thestar.com/news/immigration/2016/02/18/ottawa-to-restore-and-expand-health-care-for-refu
gees.html (last visited 3 Dec. 2016).
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Jennifer Bond j Unwanted but Unremovable
status (frequently the partner will be a Convention refugee and the children will be
either refugees or Canadian citizens). In these circumstances, the ongoing uncertainty and instability surrounding one family member (frequently the head of household) can lead to significant financial and psychological consequences for the entire
family unit.
Overall, for individuals who are deemed “undesirable” for alleged criminality but
cannot be removed from Canada, the lack of a deliberate policy appears to be creating both systemic uncertainty and hardship. Indeed, while preparing this report, I
learned of several situations where persons in this class committed suicide after years
of being in a state of indefinite limbo. More than any table, factor, or point of analysis, these tragic stories demonstrate the failings of the current approach to migrants
who are “unwanted” but unremovable.