BRIEF OF THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS

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1 BRIEF OF THE CANADIAN ASSOCIATION OF REFUGEE LAWYERS Regarding sections 172 and 173 of Budget Bill C-43, thus amending the Federal- Provincial Fiscal Arrangements Act Presented to the Citizenship and Immigration Committee of the House of Commons November 19, 2014 Because of the predictable, dramatic and inhumane impact of the proposed changes on a vulnerable population of refugees, we urge you not to change the Federal Provincial Fiscal Arrangements Act. The preservation of a nondiscriminatory national standard, which guarantees the basic necessities of life for refugees while they make their claims, is the means by which this government ensures it s obligations under the Charter and international law are honoured. Anything less, constitutes an abdication of these important legal and humanitarian responsibilities.

2 All Refugees Require Food and Shelter to Seek Asylum 1. INTRODUCTION The Canadian Association of Refugee Lawyers (CARL) is a national organization of refugee lawyers, academics, law students, and other professionals who work with refugees in Canada. CARL has made numerous submissions to parliamentary committees and appeared in the Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada on important refugee issues. We have prepared this brief to express our concerns about the proposed changes to the Federal-Provincial Fiscal Arrangements Act and the profound negative impact these changes will have on refugees. The amendments allow provinces to impose minimum residency requirements on some residents who are seeking social assistance. The bill does not specify the minimum residency period to be imposed. However, any minimum period would apply to all refugee claimants who are in financial need, since their eligibility for social assistance begins from the date of their claim. If the minimum residency period were more than three or four months, then it could also apply to refugee claimants who have been initially refused by the Refugee Protection Division of the Immigration and Refugee Board (IRB) but are seeking an appeal or judicial review of that decision. By the very nature of being refugees in a new country, many claimants do not have the means or capacity to support themselves. Both national and international legal standards require that Canada, like all signatories to fundamental human rights instruments, provide basic assistance food, shelter and basic necessities to all those refugees who are legally seeking Canada s protection and are without the means to support themselves. CARL submits that both amendments should be struck down or revised to ensure that no refugee be denied the basic necessities of life including food and shelter. 2. AMENDMENTS DEPRIVE REFUGEE CLAIMANTS OF A FAIR OPPORTUNITY TO PROVE THEIR REFUGEE CLAIMS All refugee claimants who are in financial need deserve basic social assistance. At the beginning of the refugee claim process, all refugees are also refugee claimants since they have not had an opportunity to prove their claim. Although acceptance rates vary from year to year, historically, more than half of all claimants are eventually accepted as refugees. Currently, 55% of claimants are being accepted by the Refugee Protection Division of the IRB. The initial claim process normally takes four to five months. If a claimant is initially refusal by the Refugee Protection Division, this does not mean that he/she is not a refugee. Approximately 18% of claimants who appeal their refusal will have the decision overturned by the Refugee Appeal Division of the IRB. They will either be accepted as a refugee or have their claim sent back to the RPD for another hearing. Another 7 8 % of refused claimants will have their refusal overturned by the Federal Court and have their claim sent back for another hearing. Even if their claim is ultimately refused, most claimants seek refugee protection because they genuinely fear returning to their country. Frequently claims are refused because some element of the claim does not meet the technical legal definition of a refugee. In other words, the claimants believed 1

3 they were refugees and made their claim in good faith. On average, only 3% of claims are found not to have any credible basis, which is the legal measure of a fraudulent claim. Since there is no way of knowing who is and who is not a refugee at the time of making a claim, and since only 3% of claims are found to be fraudulent, all refugee claimants who are in need should be provided with social assistance upon making their claim. Refugee Claimants have no legal right to work, and often cannot support themselves Refugee claimants are not legally permitted to work. Some claimants may apply for a work permit but the processing time, on average, is three months. Other claimants from certain designated categories are not permitted to apply for a work permit for three months, meaning they have no legal means of working for five or six months when work permit processing times are added. Unless they have savings when they arrive in Canada, and the majority of refugees do not, they have no means of supporting themselves. Many refugees are eager to work. Although seeking protection from persecution, they do not want to be a burden on Canadian society. However, in the beginning, many are unable to support themselves. Many Refugee Claimants are Unemployable Many claimants are simply unemployable, including: children, elderly claimants, single parents who have childcare responsibilities, physically and psychologically injured claimants, claimants who are unable to speak English or French, and claimants without sufficient education, skills, and cultural knowledge. Until they are legally permitted to work and are able to find employment, refugee claimants should be provided with social assistance. All Refugee Claimants are Vulnerable Upon arrival, many refugees are exceptionally vulnerable and profoundly disadvantaged during their first months in Canada. Many refugees are children, the elderly, and other who have suffered serious physical and psychological injuries from the persecution suffered in their home country and/or during the flight to Canada, which can take years. These people are extremely vulnerable. Apart from their lack of employability on arrival, claimants often have difficulty negotiating their way through Canadian society, particularly when they are impoverished. Many factors contribute to their need for assistance: lack of fluency in English or French, lack of a social support network, lack of cultural knowledge about schools, transport, banks, businesses, medical services, and social mores. If they do not have access to social assistance they will be destitute, begging for food and living on the streets. There are two particular points of vulnerability that should be mentioned: Children: Refugee children are legally entitled to attend school. It is unthinkable that they could successfully do so if their families lacked clothing, school supplies, transport, and food. Winter: The Canadian climate is a harsh reality that strikes refugees with no experience of snow and winter cold during their first year in Canada. Again, without means to obtain food, clothing, and shelter, their lives become dangerous and unendurable. 2

4 Refugee Claimants Must Incur Expenses to Prove their Refugee Claim Upon arrival, refugees are immediately confronted with the demands of the refugee claim system. Upon making a claim, claimants have only 15 days to find a lawyer and file a detailed refugee narrative, and only days to gather and file evidence, and prepare for their refugee hearing. Basic claim expenses can include bus fare for several meetings with the lawyer, photocopy and postage or courier costs to prepare evidence, phone calls and mailing fees to obtain evidence from the home country. These expenses are not normally covered by legal aid. The proposed legislation seriously undermines the fairness of the refugee claim system. Many wellfounded claims would be denied because claimants did not have the means to get the evidence and adequately prepare for their hearing. A destitute claimant is not an effective claimant. Without basic social assistance, it would be almost impossible for many refugees to undertake all the necessary steps to prove their claim. Given their inability to support themselves, and their exceptional vulnerability, it would be profoundly cruel to deny basic food, shelter, and necessities to refugee claimants. 3. AMENDMENTS VIOLATE LEGAL OBLIGATIONS AND STANDARDS The Immigration and Refugee Protection Act Since the inception of the inland refugee claim system in 1989, refugee claimants have always received social assistance through provincial social assistance programs. The requirement to provide social assistance lies within provincial jurisdiction. Therefore, the Immigration and Refugee Protection Act does not expressly require the federal government to provide social assistance to refugees. However the objectives in regard to refugees contained in Section 3 (2) of the Act clearly contemplate that refugee protection will include basic social assistance. The most relevant provisions are: S. 3(2)(a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; and S. 3(2)(c) to grant as a fundamental expression of Canada s humanitarian ideals, fair consideration to those who come to Canada claiming persecution. The denial of housing, food and basic necessities is antithetical to the notion of saving lives or offering genuine protection. Hampering a refugee s ability to prove his or her claim is not fair consideration, nor is it a fundamental expression of Canada s humanitarian ideals. By permitting the provinces to deny social assistance to refugees, the government is acting in a manner inconsistent with the objectives for the care and treatment of refugees contained in the Immigration and Refugee Protection Act. The Canadian Charter of Rights and Freedoms The Canadian Charter of Rights and Freedoms extends protection to all refugee claimants who are physically present on Canadian soil (Singh v Canada, [1985] 1 SCR 177). The proposed amendments violate the sections 7, 12, and 15 rights of refugee claimants and thus fail to comply with the Charter. 3

5 Section 7: Canadian courts have seen s. 7 as protecting interests fundamentally related to human life, liberty, personal security, physical and psychological integrity, dignity, and autonomy. The Supreme Court of Canada has held that these interests are protected because they are intrinsically concerned with the well-being of the living person...based upon respect for the intrinsic value of human life and on the inherent dignity of every human being (Rodriguez v B.C. (A.G.), [1993] 3 S.C.R. 519 at 585, per Sopinka J.) Depriving refugee claimants of basic public assistance would result in precisely the kinds of physical and psychological harm prohibited by s.7 of the Charter. Section 12: In Canadian Doctors for Refugee Care et al v Canada, 2014 FC 651, the Federal Court of Canada ruled that a state decision to eliminate a benefit previously provided to refugee claimants, a discrete minority that comes within the administrative control of the Government of Canada, constitutes treatment for the purposes of s. 12 of the Charter. The Court said that state action that is deliberately designed to make the lives of poor, vulnerable, and disadvantaged refugee claimants more difficult is cruel and unusual and constitutes a rights violation under s.12 of the Charter. By denying refugees the means necessary to achieve a basic standard of living, and to meaningfully advance their refugee claims, the legislation is both cruel and unusual. The legislation intentionally targets poor, vulnerable, and disadvantaged refugees for no valid social purpose. Section 15: The denial of social assistance is profoundly related to the dignity interests underlying the Charter s s.15 equality guarantee. The provision of adequate social assistance is fundamental to the discharge of governments constitutional obligation to protect the most vulnerable, and a cornerstone of the right to substantive equality guaranteed by s. 15. In R v Sharpe, 2001 SCC 2, L Heureux-Dubé, Gonthier & Bastarache JJ. made clear that the twin considerations of social justice and equality warrant society s active protection of its vulnerable members. Democratic and constitutional principles dictate that every member of society be treated with dignity and respect and accorded full participation in society (at para.133). In order for people to participate meaningfully in Canadian society, or to benefit from other Charter rights, they must have access to adequate income, food, shelter, education, and medical care. The denial of social assistance to people who do not have the means to provide these themselves, is a failure of the government to treat them with the dignity and equal concern and respect that s. 15 demands. 4. AMENDMENTS FAIL TO COMPLY WITH INTERNATIONAL STANDARDS: International legal standards for refugees require that host countries provide public assistance for refugees in the same manner as their own nationals. Many poor countries, who host hundreds of thousands of refugees, have been unable to provide assistance to their own citizens or to refugees. However, wealthy nations can and do provide public assistance to those in need, and Canada, as one of the wealthiest of nations, should be affirming that standard, rather than undermining it. The Convention Related to the Status of Refugees (the Convention) The Convention sets out the rights and responsibilities of host nations and refugees. It sets the standards by which host nations should provide meaningful protection for refugees. S. 23 of the Convention requires that all host nations ( contracting states ) shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals. Canada is a signatory to the Convention and has ratified it. If Canada is to fully respect its obligations as a signatory, it should provide public relief and assistance to refugees in the same manner as its citizens and permanent residents. 4

6 Covenant on Economic, Cultural and Social Rights Article 11 of the International Covenant on Economic, Social and Cultural Rights requires governments to take appropriate steps to ensure the realization of the right of everyone to an adequate standard of living for himself [or herself] and his [or her] family, including adequate food, clothing and housing. Canada is a signatory to the Covenant and has an obligation to meet the standards set out in Article 11. Convention on the Rights of the Child The amendments take no consideration of child refugees in denying all refugees access to social assistance. By so doing, they conflict with Articles 22 and 26 of the Convention on the Rights of the Child. Article 22 requires all state parties to take appropriate measures to ensure that a child who is seeking refugee status... receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. Article 26 obliges state parties to recognize for every child the right to benefit from social security, including social insurance, and compels states to take the necessary measures to achieve the full realization of this right in accordance with their national law. The highest courts in Canada have clarified that these human rights obligations are both important and enforceable through the Charter, and taken as a whole, place obligations on Canada to take reasonable and effective measures to ensure the right to the necessaries of life. As early as 1987, Chief Justice Dickson stated that, [T]he Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified (Reference re Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 313, at Para. 59). This principle is well established in Canadian law. 4. NO POLICY JUSTIFICATIONS SUPPORT THE DENIAL OF SOCIAL ASSISTANCE TO REFUGEES Since the amendments were first proposed through a private member s bill, the government has offered no rationale or policy justifications for a law that would have serious negative consequences for refugees. These amendments have been hatched in a policy vacuum. There are no evidence-based policy justifications for denying social assistance to refugees. Although not directly linked to these amendments, the government has claimed the cuts to the Interim Federal Health Program would allegedly deter fraudulent claimants from seeking refugee protection in Canada. In Canadian Doctors for Refugee Care et al v Canada, the Federal Court found that there was no evidence that a denial of medical benefits would deter fraudulent refugee claims. The Court also noted that refused claims were not necessarily fraudulent and the more accurate measure for fraudulent claims was the 3% of claims found to have no credible basis. There has been no drastic increase in refugee claims that might justify such a draconian measure. In 2013, the number of annual claims fell to slightly more than 10,000, the lowest number of claims received since the establishment of the IRB in There are simply no policy rationales to justify the denial of basic social assistance to refugees. 5