Vulnerability in the Canadian Protection Regime: Research Report on the Policy Framework

Executive Summary

This research report has been published as part of the EU Horizon 2020 VULNER research project (www.vulner.eu). The VULNER research project is an international research initiative, which objective is to reach a more profound understanding of the experiences of vulnerabilities of migrants applying for asylum and other humanitarian protection statuses, and how they could best be addressed. It therefore makes use of a twofold analysis, which confronts the study of existing protection mechanisms towards vulnerable migrants (such as minors and victims of human trafficking), with the one of their own experiences on the ground.

This research report presents some of the intermediary results of the VULNER project based on the first phase of the project, which consisted of mapping out the vulnerability assessment mechanisms developed by state authorities in Canada. Given the massive amount of documentation that the Canadian team had to review in the first phase of the project, this first report only includes a presentation and analysis of desk research data. At the time of writing (December 2020), interviews with civil servants and practitioners had not begun and were expected to begin shortly.

The following research questions are addressed: What do the relevant domestic legislation, case-law, policy documents, and administrative guidelines reveal about how “vulnerabilities” are being assessed and addressed in the countries under study? Do the relevant state and/or aid agencies have a legal duty to assess migrants’ vulnerabilities, and if yes, using which procedures, when and how? Following which legal and bureaucratic criteria?

In Canada, there are a variety of pathways for vulnerable migrants to gain legal status and protection. Each pathway has its own specific criteria as to who can apply and under which conditions protection is granted. Additionally, protection can be granted from abroad (as in the case of refugee resettlement) or
from within Canada. Therefore, this research covers a much broader range of protection procedures currently in place in Canada compared to the EU:

• Refugee protection, granted to individuals who meet the strict 1951 Geneva Convention definition of a refugee, who are in circumstances considered similar to those of a Convention refugee, or whose removal to their country of origin would subject them to torture or inhumane and degrading treatment according to the Convention Against Torture (permanent residency status, with pathway to citizenship).

• Permanent residency (with pathway to citizenship), granted to individuals who are about to be removed from Canada and who demonstrate an imminent danger of torture, risk of persecution or of cruel and unusual treatment or punishment if sent back to their country of origin (Pre-Removal Risk Assessment (PRRA)).

• Permanent residency (with pathway to citizenship), granted to individuals who are inadmissible or who do not meet the requirements of the immigration legislation, but have compelling Humanitarian and Compassionate (H&C) grounds to remain in Canada (Humanitarian and Compassionate Grounds (H&C)).

• Permanent residency (with pathway to citizenship), granted to individuals who are inadmissible or do not meet the requirements of the existing immigration legislation, but are justified by public policy considerations to remain in Canada (Public Policy Grounds).

• Temporary protection granted to migrant workers on a valid employer-specific work permit who demonstrate experiencing abuse - or being at risk of abuse- in the context of their employment in Canada (Vulnerable Worker Open Work Permit (VWOWP)).

• Temporary protection granted to individuals recognized as victims of human trafficking or of family violence (Temporary Resident Permit (TRP)).

In addition, the Canadian government will take into account the specific situation of certain categories of migrants – such as immigration detainees, unaccompanied minors, stateless persons, or individuals from countries to which there is a moratorium on removals – who are likely to experience heightened vulner-
ability in immigration/asylum proceedings. Such categories are also the focus of our study.

In Canada, there are three key immigration “players”: the Canada Border Services Agency (CBSA), Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration and Refugee Board (IRB). CBSA manages Canada’s border, including determining an individual’s initial admissibility at ports of entry and
carrying out enforcement duties (detention, removal, etc.). IRCC is responsible for developing and ad- ministering all of Canada’s immigration programs from economic to humanitarian admission, including Canada’s overseas refugee resettlement programs and applications to remain in Canada on humanitarian and compassionate grounds. The IRB is an independent tribunal with four distinct divisions, including the Refugee Protection Division (RPD), which is responsible for adjudicating eligible inland claims for refugee protection, and the Refugee Appeal Division (RAD), which reviews most denials of protection by the RPD.  Additionally, there are six main sources of immigration and refugee law (and policy) in Canada: the Immigration and Refugee Protection Act (RSC 2001, c 27 [IRPA]), the Immigration and Refugee Protection Regulations (SOR/2002-227 [IRPR]), Ministerial Instructions, Ministerial Guidelines (IRCC and CBSA), Chairperson’s Guidelines (IRB) and case law. Much of the operation of law takes place through Ministerial Guidelines (i.e., operational manuals, program delivery instructions etc.), which provide details on the interpretation of the IRPA and IRPR to IRCC’s and CBSA’s officers. Furthermore, the IRB’s Chairperson’s Guidelines provide guiding principles for IRB personnel who manage and adjudicate cases. IRB’s Guidelines are not mandatory but board members do need to justify any non-compliance in their written decisions (IRB, 2018b). As for IRCC’s and CBSA’s Ministerial Guidelines, “… they are ‘not legally binding’ (….) Officers can (…) consider [them]in the exercise of their (…) discretion but should turn ‘[their] mind[s] to the specific circumstances of the case’” (Kanthasamy v. Canada, 2015 SCC 6, at para. 32).

This report examined over 377 legal and policy documents, including legislation and regulations, guidelines and ministerial instructions produced by the IRB, the IRCC and the CBSA. Our study was complimented by an analysis of over 884 cases of the Supreme Court, the Federal Court, Provincial Courts, and the IRB. Over 100 secondary sources from UN agencies, NGOs, lawyers, and academic scholarships were also analysed. The aim of these multiple research efforts was to understand how the concept of vulnerability is approached in these documents; what obligations (if any) this recognition of ‘vulnerability’ provides to migrants; if there is a focus on the vulnerabilities of certain migrants, and if so, what consequences are attached to this recognition of vulnerability.

It is important to take note of the many positive advancements that are unique to the Canadian protection regime. Among these is a growing recognition in government documents of ‘vulnerability’ among migrants, and the development of guides aimed at assisting decision-makers in proceedings concerning ‘vulnerable’ migrants. Since 2018, Canada has also been the world leader in refugee resettlement. Despite such important efforts, we find ‘vulnerability’ an elusive concept that is rarely defined, difficult to under stand and consequently, not always properly addressed in Canadian documents. More particularly, there is a lack of clarity on who is a vulnerable person, and how exactly their vulnerability must be addressed. This raises critical questions regarding how officials use their broad discretionary powers to address such vulnerabilities in practice. Additionally, while there are procedural accommodations available for most ‘vulnerable’ migrants in immigration/asylum proceedings, being identified as ‘vulnerable’ does not lead – on its own – to obtaining protection status (an exception to this is found in the administration of Canada’s overseas resettlement program). Equally, a recognition of vulnerability is rarely paired with the promise
to address the underlying issues that contribute to the vulnerability. The findings presented in this report will be refined in the next phase of the research through interviews with civil servants and practitioners.