Precarious Immigration Status and Access to Social Assistance in Ontario

1. Precarious Immigration Status and Access to Social Assistance in Ontario Presented by: Rathika Vasavithasan, Staff Lawyer South Asian Legal Clinic of Ontario

2. What we are seeing • Increased reporting by Canada Border Services Agency to OW/ODSP when refugee claim denied • People being cut-off social assistance without first being given a chance to provide updated information about immigration status • Misinterpretation of recent changes to immigration/refugee system in Canada by OW/ODSP • Termination of benefits although person continues to meet the eligibility requirements • Settlement and clinic workers facing greater obstacles in advocating on behalf of clients

3. Topics to be covered • How someone's immigration status and/or a removal order impacts their eligibility for OW/ODSP • Recent changes to the Immigration and Refugee Protection Act and how OW/ODSP is interpreting the changes • How to advocate on behalf of your client with their OW/ODSP caseworker on this issue • Resources and referrals

4. OW and ODSP Legislation and Policy Directives regarding Immigration Status in Canada

5. OW and ODSP Legislation • OW Act O. Reg. 134/98 s.6(1) and and ODSP Act s.8(1) provides the following: • Person is not eligible if: • removal order has become enforceable • A person who is a visitor, unless the person • made a claim for refugee protection • has made an application for status as a permanent resident • A person who is a tourist

6. Important Exception • The ineligibility outlined in first part DOES NOT apply if the Administrator is satisfied that: (a) for reasons wholly beyond the control of the person, the person is unable to leave the country; or (b) the person has made an application for status as a permanent resident on the basis of humanitarian or compassionate considerations

7. Requirement to provide information • Applicants and recipients are also required to provide information necessary to determine and verify the their initial and ongoing eligibility for basic financial assistance, including information about the person’s immigration status in Canada

8. Acceptable Documentation • Acceptable immigration documents are listed in OW policy directive 2.1 and ODSP policy directive 3.5 • Mostly refers to CIC or CBSA issued documents, but also proof of application for permanent residence and “other acceptable proof” • In the past, it was much easier for advocates to write letters explaining current status, immigration processes or provide documents not specifically listed (court documents, etc.)

9. Changes to the Immigration and Refugee System in Canada since 2012

10. Summary of key changes • Changes to eligibility requirements to make a refugee claim for those with criminal convictions • Unreasonable timelines for making a refugee claim in Canada • Designated Countries of Origin (DCO) – reduced rights for claimants from certain countries • 1 year or 3 year bar on making a Pre-Removal Risk Assessment (PRRA) application • 1 year bar on making a humanitarian and compassionate (H&C) application (with limited exceptions); no simultaneous H&C and refugee claim

11. Appeals & Judicial Review • After refugee claim is refused; • Non-DCO must appeal to Refugee Appeal Division (RAD) first and then Judicial Review – automatic stay of removal at both levels until appeal decided • DCO claimants do not have access to Refugee Appeal Division • DCO claimants may apply to Federal Court for judicial review, but no automatic stay of removal while application is being considered

12. “Wholly beyond control” • Just because a removal order has become enforceable, it does not mean it can actually be enforced, including because of: • Statutory or court ordered stay of removal • No travel or identity documents • Moratorium on removal to person’s country • Pending criminal charges • Country refuses to take the person back • Waiting for Canada Border Services Agency (CBSA) to make removal arrangements

13. Assisted Voluntary Return and Reintegration Program (AVRRP) • Collaboration between CBSA and International Organization for Migration (IOM) to deport people • Eligible claimants referred by CBSA to IOM who then takes over removal • Claimants are given either in-kind assistance or some cash to leave Canada • What and how much you get depends on where you are from and what rights you give up • IOM anticipates removal within 30 days of referral to program (depends on country and other factors)

14. AVRRP – Eligibility Applicant is NOT eligible if they: • Withdrew or abandoned claim • Claim was deemed to have had no credible basis • Is from a country subject to a temporary suspension of removals • Are being held in immigration detention • Have a criminal record (minor or serious) • Are inadmissible to Canada on the grounds of national security, human or international rights violations, or organized criminality • Have an outstanding application for permanent residence along with a spousal sponsorship application.

15. Advocating with OW/ODSP • Negotiating with individual workers • Internal Review and SBT appeals – document conversations with CBSA, letters from immigration counsel, expert affidavits, court documents, etc. • Interim Assistance – not automatic; must pay back if appeal denied; consider likely timeframe of removal

16. Internal Review & Appeals • All decisions must be in writing from the Administrator or Director • Must first ask for Internal Review in writing • within 30 days of decision to refuse • Can use form or any written method – “I disagree…” • Provide any missing information • Appeal to Social Benefits Tribunal • Cannot appeal unless you asked for IR first • Submit appeal form within 30 days of IR decision • Will receive Director’s submissions • Appellant must provide submissions 20 days before hearing (30 days for new medical evidence)

17. Resources • Canadian Council for Refugees – plain language information on refugee changes: • http://ccrweb.ca/en/refugee-reform • Income Security Advocacy Centre (ISAC): • www.incomesecurity.org/contactus.html • Ontario Council of Agencies Serving Immigrants (OCASI): • www.ocasi.org/contact-us • Health 4 All has a list of medical services for uninsured and undocumented people: • www.health4all.ca/get-the-facts/toronto-services-for-migrants/

18. Resources Continued… • Community Legal Education Ontario – Refugee Rights in Ontario: www.refugee.cleo.on.ca • Community Legal Education Ontario – Social Assistance Publications: www.cleo.on.ca/en/resources-and-publications/pubs?language=en&field_legal_topic_tid_i18n=93

19. Community Legal Clinics • You can find your community legal clinic by going on the Legal Aid Ontario web-site and typing in your postal code: • www.legalaid.on.ca/en/contact/contact.asp?type=cl • Language-specific and specialty legal clinics may also be able to assist. Call first and ask if they can help: • South Asian Legal Clinic of Ontario (416-487-6371) • Metro-Toronto Chinese and Southeast Asian Legal Clinic (416-971-9674) • HIV & AIDS Legal Clinic Ontario (416-340-7790)