Family Reunification for Refugees

1. Family Reunification for Refugees Presented by Neighbourhood Legal Services 333 Queen Street East Toronto, ON M6G 1S5 (416) 861-0677 www.nlstoronto.org Funded through the Law Foundation of Ontario Photos by Anna Hill for Settlement Arts

2. Context Why do families become separated? What are the impacts? What are Canada’s responsibilities to reunite separated families?

3. Canadian Legislation Immigration and Refugee Protection Act, 2001. [IRPA] Link: http://www.canlii.org/en/ca/laws/stat/sc-2001-c-27/latest/sc-2001-c-27.html Regulations: http://www.canlii.org/en/ca/laws/regu/sor-2002-227/latest/sor-2002-227.html CIC Operational Manuals: http://www.cic.gc.ca/english/resources/manuals/index.asp

4. What does “family” mean in terms of reunification in Canada? Siblings Parents or Grandparents Spouse Dependent children

5. Definition of “family” cont’d Spouse includes conjugal or common law partner, as well as same-sex partnerships Dependent children under age 22 and not married or in common law relationship; or full-time student since before age 22; or over-22 but a physical or mental health condition makes them dependent on parent Also includes “de facto” children and children to whom you are the legal guardian

6. Def’n of “family” cont’d - R117(9)(d) The regulation states that a person is not a family member if they were not examined by a visa officer when the person sponsoring them immigrated to Canada. What is a scenario that could involve this particular exclusion? Policy rationale: to deter fraud 16

7. Def’n of “family” cont’dRemedying 117(9)(d) Frequency and impact Request for humanitarian and compassionate exemption (s.25(1) of IRPA) Best interests of the child must be considered (Convention on the Rights of the Child) Fact-based submissions

8. Family Reunification Processes Family class Regulatory exceptions (Live-in Caregivers, Spouse-in-Canada) Refugees

9. 1. Family Class Sponsorships • Available to PRs, Citizens • Other eligibility requirements • Undertaking required

10. 2. Regulatory Exceptions • Live-in Caregiver class • In-Canada spousal sponsorship • Sponsoree must have some kind of status

11. 3. Refugees • Overseas Refugees: • Government-Assisted Refugees (CRs abroad class, or Country of Asylum Class), Joint Assisted Refugees • Private Sponsorship through Sponsorship Agreement Holders (SAHs), Constituent Groups, or Groups of Five • “resettlement” process – largely UNHCR and overseas visa post referrals. Must be determined to be CRs by visa post

12. Refugees cont’d • Concurrent processing of families of in-Canada protected persons* - Family are “DR2s”, not CRs - Concurrent processing or One Year Window • no undertaking, no LICO • no $490 ROLF • Some lower admissibility thresholds • No right of appeal to IAD: only JR possible • Otherwise looks a lot like family class process • (*includes Convention Refugees and protected persons determined under PRRA)

13. Convention Refugees in Canada CRs and their dependents are processed differently than other immigration classes based on the following policy objectives: Fulfilling international legal obligations including commitment to rapid reunification of refugee families; A shift toward protection rather than ability to establish

14. Family Reunification for Refugees in Canada Processes and Pitfalls

15. Processes • Positive refugee determination • No longer a limit of 180 days to submit APR – the APR and fees for o/s family can be sent at any time • CPC-V alerts O/S visa office to begin “concurrent” processing • Only those family members for whom fees were paid will be examined

16. Pitfalls • Family member’s whereabouts are unknown at the time of applying for Permanent Residence • The “One Year Window” provisions can apply to add them later

17. Pitfalls cont’d Admissibility Issues Medical Criminal Security

18. Medical Admissibility All family members require medical clearances (including CR categories) Must be renewed every year May be inadmissible if: danger to public health danger to public safety “excessive demand” – this waived for family of CRs 20

19. Criminal Admissibility All sponsored adults require criminal background checks Can be found inadmissible if found to have serious criminality Punishable by at least 10 years Danger to the public

20. Security Admissibility Violation of international human rights Association or reasonable belief of involvement in organizations which may threaten national security CIC policy manual: ENF2

21. Overcoming Admissibility/Eligibility Problems The law: section 25(1) of IRPA provides wide discretion based on humanitarian and compassionate considerations to grant exemptions from any applicable criteria or obligation Obligation to consider best interests of the child 24

22. Policy vs Practice In practice, the processing of CR dependents often does not conform with CIC policies.

23. Proving A Relationship government-issued documents (birth/marriage certificates sworn affidavits DNA testing photos, letters, financial support

24. Proving A Relationship Common law or conjugal: Bona fide or genuine relationship Demonstrate physical, emotional, financial, and social dependence 35

25. A Note About DNA DNA testing is not supposed to be required Expensive, but CIC considers conclusive if they oversee the collection process Requested when documents alone don’t establish relationship 36

26. Other Practical Issues Fees Processing times Forms and guides Contacting visa offices 37

27. Processing Times Varies depending on class of applicant and location of visa office (Bejing processes 80% of dependent children in the family class within 4 months. For Nairobi, it is 38 months). http://www.cic.gc.ca/english/information/times/international/06-fc-children.asp For dependents of refugees, the wait times are even longer: Bejing – 16 months; Nairobi – 42 months) Recall: policy rationale for “expediting” CR class family members 39

28. Processing Times Practically, how can we try to expedite applications? Complete and correct application package Address any known problems at the front-end of the application Evidence to prove relationship. If weak, consider affidavits and requesting DNA testing Advocacy

29. Advocacy MP office Community legal clinics Refugee/ immigration NGOs Overseas intermediary

30. Recent Amendments “Balanced Refugee and Reform Act” Refugee claimant provisions Only H&C provisions in force immediately after Royal Assent How does this affect family reunification cases?

31. Amendments • Bill C-31, the Protecting Canada’s Immigration System Act. • How does this affect family reunification cases?

32. Bill C-31 & impact on family reunification • No H&Cs or PRRAs permitted until one year after negative refugee claim • Unrealistically short time frames in refugee determination process • Designated Countries of Origin • New powers of Minister to simultaneously and concurrently strip a refugee of PR status if refugee status is cessated.

33. Bill C-31 & impact on family reunification • New designation of “Irregular” arrivals • Transitional provisions

34. Other Resources • Advocacy re Bill C31 • http://ccrweb.ca/eng/refugee-reform; • http://www.amnesty.ca/iwriteforjustice/take_action.php?actionid=843; • http://www.ccla.org/protectrefugees/ • http://www.refugeelawyersgroup.ca/billc-31 • Postcards!

35. Contacting Us Neighbourhood Legal Services 333 Queen Street East Toronto, ON M5A 1S5 (416) 861-0677