Tom Clark

Refugees - the Non-permanent Permanent Residents
November 2021

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In July 2021 I learned about numbers of long-time permanent residents of Canada who had lost that status and so faced deportation. All had been refugees. One lawyer friend had six cases where this had happened. Some of the people were grandfathers or grandmothers of Canadian grandchildren and some had children who were Canadian citizens. One of the younger ones came as a child accompanying a Mexican refugee over 20 years ago. He has several Canadian children and a business here that employs 40 people. He took his children to Mexico to see the country their father came from. His Permanent Resident status was taken away and he faced deportation. Another lawyer helped a woman and her children who fled from domestic violence to get refugee status in Canada. As a refugee “permanent resident” she applied for a passport from her home country to travel. Her alternative, a refugee travel document, is difficult to obtain, unusual, attracts attention and so brings travel difficulties for a user. In 2014 her “permanent resident” status was taken from her. She has spent 2014 until now (November 2021) trying to regain a status in Canada. She still has a well-founded fear in her home country and she and her children have established here in Canada. But that didn’t matter. It is not considered in the procedure.

Since 2012, a refugee who becomes a permanent resident in Canada is not like other permanent residents. A refugee can lose permanent resident status and face deportation if he or she ever loses refugee status. And refugee status can be lost in Canadian law by a narrow interpretation of “re-availing oneself of the protection of the home government”. The process depends on an action by the refugee like getting a passport from the home country or visiting the home country. In addition, it requires a Canadian official to call for an examination that refugee status has ceased. If the hearing finds refugee status has ceased, the loss of permanent resident status is automatic.

It is not clear to the ordinary person that getting a home country passport from a consulate in Canada means that one has fully availed oneself of the protection of the home country. It simply means taking advantage of the fact that the home country still views the refugee as a citizen and so will provide a usable document for travel. The 2012 law means that doing something that every other variety of permanent resident can do in order to travel can be used by the authorities to end the status for almost any refugee permanent resident they select. The obligation of Canada to protect the refugee then ceases without a serious examination of whether a well-founded fear of the original persecution still remains and whether there really was any intent by the refugee to re-avail themselves of the full protection of the former home country.

Moreover this 2012 change in permanent resident status for a refugee was retroactive. There is a special unfairness in changing the rules of permanent resident status so that refugees who were given the same secure form of permanent resident status as everyone else before 2012 can now be stripped of the status they were granted. Stripping of permanent resident status, if it needed to be done at all, should have only been possible for refugees who received the new non-permanent status after 2012. It is a bizarre twist of the law that a person who fails the refugee test on arrival in Canada but is subsequently allowed to remain in Canada as the result of a decision by the immigration authorities based on humanitarian and compassionate grounds (H&C) will receive the permanent permanent resident status.

It is to be expected that over the years the risk of persecution of a refugee living in Canada by a country-of-origin would generally fade, so that a serious re-examination for refugee status by Canada ten years later might find that refugee status had ceased. But there is no such full re-examination of refugee status or risk of persecution. And Canada claims that it intends a person found to be a refugee will establish in Canada. Yet this 2012 law is set up so that an official can essentially remove status from a refugee permanent resident who takes any action that can trigger a hearing – like getting a home country passport. This law leaves some who thought they were permanent residents struggling for years to regain a secure status in Canada under risk of deportation. This impairs the rights of refugee permanent residents to travel and prevents them from enjoying family life with family members remaining in the country of origin.

Lawyers aware of the post 2012 situation will council a refugee who became a permanent resident to get citizenship before travel to a home country. A citizen cannot lose citizen status by cessation of refugee status. However, there were instances in 2014 where the act of seeking citizenship triggered the authorities to examine a citizenship applicant for travel to the home country. That caused the authorities to call a cessation hearing and a loss of permanent resident status. And that then ended the possibility of getting citizenship!

Permanent residents in Canada are aware that the risk of persecution on return to their former home country falls with their years away. Naturally, many want to visit with a wider family. Canada prevents visits of that wider family to Canada by its visa policy that is set up to prevent potential refugees from travel to Canada. Persons closely related to a refugee are viewed as potential refugees themselves. The refugee in Canada may be aware of the risk that a Canadian official will call for a hearing and loss of status in Canada, but the hearing is not called in every case. There could already be a risk of losing permanent resident status if they had got a home country passport or visited their home country already. After a period of time the risk of losing that resident status could seem unlikely. But it can happen.

When there is a death in the family back home or a big family wedding a refugee permanent resident is under pressure to risk traveling there for a short time. Travel there and back is nowhere near as risky as living there. How can a refugee with permanent resident status travel? The simplest way is to renew their home country passport like every other permanent resident does, and go. Unless they were a profile national figure, renewing that passport at a consulate in Canada is unlikely to attract too much attention from a home government. But now this permanent resident has opened the door to the challenge from a Canadian border official that he or she has re-availed him or herself of that country’s protection. The original basis for refugee status is no longer an issue. And another of Canada’s 10- or 20-year permanent residents may well have refugee status declared ceased if an official calls for a cessation hearing. Permanent resident status ends and the person could face deportation.

Most caught by the 2012 law have truly become permanent residents in Canada within the ordinary meaning of those words. Many have their children in Canada. Instead of getting on with their lives, many will be forced to spend years trying to regain a status in Canada. Many will try to challenge a cessation decision using the limited judicial review mechanism available. Even if successful, that only brings a repeat of the cessation hearing – the treadmill of “judicial review - rehear” can just continue. Many will try the administrative Humanitarian and Compassionate application that brings uncertain timelines stretching from months to years for a decision and uncertain results. All of this means protracted uncertainty.

In July 2021 lawyers said there was a “wave” of applications by officials to take away refugee status from permanent residents living in Canada who have visited their countries of origin. A lawyer friend observed that there was a huge amount of effort being put into this by the Canadian Border Services Agency. It seemed the cessation file was a top priority. Various attempts had been made by different lawyers to seek compromises or to fight the cases. But lawyers can't seem to get anywhere because they are constrained by what their client is willing to do. And the client is usually fearful.

Hard statistics don’t exist, but it seems to lawyers that the cessation hearings particularly target refugees who have "non-traditional" grounds for fear of persecution. They are refugees who do not fear persecution by the state itself, but who lack adequate protection from the state – like women who are fleeing domestic violence, LGBTQ cases, people with disabilities, or children who have been granted refugee protection because they are part of a family of a refugee. The law is unfair in that it allows officials discretion. So refugees found with ceased status are disproportionately “non-traditional” refugees. There is even a suspicion that some with eased refugee status are refugees who were found to be refugees with the help of a lawyer whose work or success is unpopular with the authorities.

Beyond its discretionary unfairness, there seems no good justification for this procedure of ceasing permanent resident status. A grant of refugee status can be appealed by the authorities at the time the status is granted. And there is a procedure to revoke refugee status if story fabrication or lying comes to light. In practice, the 2012 discretionary procedure targets the refugee who needs to travel and gets a home country passport. But why? It boggles the mind that one would create a crude legal tool to end the status of a person who has de facto become a long-term permanent resident. Yet the law is clear and precise. Since 2012, a person can lose permanent resident status on one additional ground: “on a final determination … that their refugee protection has ceased for any of the reasons described …” It is difficult to challenge a clear law in the courts.

Of course, other permanent residents have conditions that always came with that status - like a required residence time in Canada – something that relates directly to the notion of being a permanent resident. However, refugee permanent residents always had a particular handicap that the others do not. It is their need to travel, and to travel to a home country for their right to family life. Their family will have difficulty getting to see them in Canada on account of the visa policy. Meeting family in a third country is not feasible except for meeting with the odd brother or sister. So getting home to the things of family life that can realistically only take place “back home” – family weddings and funerals - matters. It matters for all permanent residents. Freedom – the right to be able to travel like everyone else matters. And without visits to a home country the right to family life can be impaired. Unlike other permanent residents, refugees will always face some risk of persecution if they travel to their home country. But that is their risk to judge.

There are only two ways a refugee can travel. A refugee can apply for an international refugee travel document. This is not a common travel document so its use will attract far more attention and scrutiny than a routine passport. It makes more sense for general travel by a permanent resident who was a refugee to use a regular passport from the home country issued in Canada. That is what most other permanent residents will do. In any case, the international refugee travel document cannot be used to go to the home country. The refugee traveller needing to risk a short trip home on family matters after a time in Canada will be tempted to use the regular passport of the home government.

There is a third option for travel: Canadian citizenship and a Canadian passport. However, the process will take time. It is worth remembering that Canadian citizenship does not bring complete safety for a refugee travelling to a home country either. Nonetheless, there is pressure on permanent residents of refugee origin to become citizens of Canada if they want to travel with a little more safely. Other permanent residents – the permanent permanent residents - have no comparable pressure to become a Canadian citizen.

Refugees and immigrants take a certain time to feel comfortable with getting Canadian citizenship. And there are costs and a process to get it. For older refugees the language requirement for obtaining citizenship can present a serious obstacle. So some may feel more comfortable with just a permanent resident status. Leaving them with that choice makes some sense. It maximises their choices. Deporting long-term residents on the basis of their having lost refugee status makes little sense.

As noted above, there are side effects of the current law. The refugees involved are dominated by the need to regain status. Lawyers are occupied with these cases and that impacts provincial legal aid funds as well as a lawyer’s time and energy. Tribunals conduct hearings spending time to decide on refugee status of long-term residents of Canada instead of keeping up with adjudicating backlogs of new arrivals. Judges undertake some judicial reviews. Their decisions on these long-term residents who end up facing deportations, and this process, again use lawyers, and again legal aid funding can be at issue. And the account of the single mom and her children struggling to regain status in Canada since 2014 is worth remembering.

Canada has argued that, unlike many countries, it allows refugees to become permanent residents. This is deceitful. That refugee permanent resident is not like other permanent residents. The refugee permanent resident is limited by refugee status and the willingness of government officials not to call for a hearing about any travel that would allow the cessation of that status. It is a status that comes with a danger.

The honest way forward is to let refugees enjoy a true permanent resident status that is like that of all the other permanent residents. That requires a tiny change to the law: removing the offending section in the law – section 108(1)(c1). Yet is that feasible? On the one hand it seems a small and simple change. On the other, it is unlikely to be a change that appears important and necessary and that will bring accolades for the person who introduces it. Perhaps the change could be part of a bigger package that aims to clean up and add greater fairness and efficiency to the processes in the Immigration and Refugee Protection Act so as to allow Canada’s effort to concentrate on reducing backlogs.

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Refugees - the Non-permanent Permanent Residents November 2021 Click square for index In July 2021 I learned about numbers of long-time permanent residents of Canada who had lost that status and so faced deportation. All had been refugees. One lawyer friend had six cases where this had happened. Some of the people were grandfathers or grandmothers of Canadian grandchildren and some had children who were Canadian citizens. One of the younger ones came as a child accompanying a Mexican refugee over 20 years ago. He has several Canadian children and a business here that employs 40 people. He took his children to Mexico to see the country their father came from. His Permanent Resident status was taken away and he faced deportation. Another lawyer helped a woman and her children who fled from domestic violence to get refugee status in Canada. As a refugee “permanent resident” she applied for a passport from her home country to travel. Her alternative, a refugee travel document, is difficult to obtain, unusual, attracts attention and so brings travel difficulties for a user. In 2014 her “permanent resident” status was taken from her. She has spent 2014 until now (November 2021) trying to regain a status in Canada. She still has a well-founded fear in her home country and she and her children have established here in Canada. But that didn’t matter. It is not considered in the procedure. Since 2012, a refugee who becomes a permanent resident in Canada is not like other permanent residents. A refugee can lose permanent resident status and face deportation if he or she ever loses refugee status. And refugee status can be lost in Canadian law by a narrow interpretation of “re-availing oneself of the protection of the home government”. The process depends on an action by the refugee like getting a passport from the home country or visiting the home country. In addition, it requires a Canadian official to call for an examination that refugee status has ceased. If the hearing finds refugee status has ceased, the loss of permanent resident status is automatic. It is not clear to the ordinary person that getting a home country passport from a consulate in Canada means that one has fully availed oneself of the protection of the home country. It simply means taking advantage of the fact that the home country still views the refugee as a citizen and so will provide a usable document for travel. The 2012 law means that doing something that every other variety of permanent resident can do in order to travel can be used by the authorities to end the status for almost any refugee permanent resident they select. The obligation of Canada to protect the refugee then ceases without a serious examination of whether a well-founded fear of the original persecution still remains and whether there really was any intent by the refugee to re-avail themselves of the full protection of the former home country. Moreover this 2012 change in permanent resident status for a refugee was retroactive. There is a special unfairness in changing the rules of permanent resident status so that refugees who were given the same secure form of permanent resident status as everyone else before 2012 can now be stripped of the status they were granted. Stripping of permanent resident status, if it needed to be done at all, should have only been possible for refugees who received the new non-permanent status after 2012. It is a bizarre twist of the law that a person who fails the refugee test on arrival in Canada but is subsequently allowed to remain in Canada as the result of a decision by the immigration authorities based on humanitarian and compassionate grounds (H&C) will receive the permanent permanent resident status. It is to be expected that over the years the risk of persecution of a refugee living in Canada by a country-of-origin would generally fade, so that a serious re-examination for refugee status by Canada ten years later might find that refugee status had ceased. But there is no such full re-examination of refugee status or risk of persecution. And Canada claims that it intends a person found to be a refugee will establish in Canada. Yet this 2012 law is set up so that an official can essentially remove status from a refugee permanent resident who takes any action that can trigger a hearing – like getting a home country passport. This law leaves some who thought they were permanent residents struggling for years to regain a secure status in Canada under risk of deportation. This impairs the rights of refugee permanent residents to travel and prevents them from enjoying family life with family members remaining in the country of origin. Lawyers aware of the post 2012 situation will council a refugee who became a permanent resident to get citizenship before travel to a home country. A citizen cannot lose citizen status by cessation of refugee status. However, there were instances in 2014 where the act of seeking citizenship triggered the authorities to examine a citizenship applicant for travel to the home country. That caused the authorities to call a cessation hearing and a loss of permanent resident status. And that then ended the possibility of getting citizenship! Permanent residents in Canada are aware that the risk of persecution on return to their former home country falls with their years away. Naturally, many want to visit with a wider family. Canada prevents visits of that wider family to Canada by its visa policy that is set up to prevent potential refugees from travel to Canada. Persons closely related to a refugee are viewed as potential refugees themselves. The refugee in Canada may be aware of the risk that a Canadian official will call for a hearing and loss of status in Canada, but the hearing is not called in every case. There could already be a risk of losing permanent resident status if they had got a home country passport or visited their home country already. After a period of time the risk of losing that resident status could seem unlikely. But it can happen. When there is a death in the family back home or a big family wedding a refugee permanent resident is under pressure to risk traveling there for a short time. Travel there and back is nowhere near as risky as living there. How can a refugee with permanent resident status travel? The simplest way is to renew their home country passport like every other permanent resident does, and go. Unless they were a profile national figure, renewing that passport at a consulate in Canada is unlikely to attract too much attention from a home government. But now this permanent resident has opened the door to the challenge from a Canadian border official that he or she has re-availed him or herself of that country’s protection. The original basis for refugee status is no longer an issue. And another of Canada’s 10- or 20-year permanent residents may well have refugee status declared ceased if an official calls for a cessation hearing. Permanent resident status ends and the person could face deportation. Most caught by the 2012 law have truly become permanent residents in Canada within the ordinary meaning of those words. Many have their children in Canada. Instead of getting on with their lives, many will be forced to spend years trying to regain a status in Canada. Many will try to challenge a cessation decision using the limited judicial review mechanism available. Even if successful, that only brings a repeat of the cessation hearing – the treadmill of “judicial review - rehear” can just continue. Many will try the administrative Humanitarian and Compassionate application that brings uncertain timelines stretching from months to years for a decision and uncertain results. All of this means protracted uncertainty. In July 2021 lawyers said there was a “wave” of applications by officials to take away refugee status from permanent residents living in Canada who have visited their countries of origin. A lawyer friend observed that there was a huge amount of effort being put into this by the Canadian Border Services Agency. It seemed the cessation file was a top priority. Various attempts had been made by different lawyers to seek compromises or to fight the cases. But lawyers can't seem to get anywhere because they are constrained by what their client is willing to do. And the client is usually fearful. Hard statistics don’t exist, but it seems to lawyers that the cessation hearings particularly target refugees who have "non-traditional" grounds for fear of persecution. They are refugees who do not fear persecution by the state itself, but who lack adequate protection from the state – like women who are fleeing domestic violence, LGBTQ cases, people with disabilities, or children who have been granted refugee protection because they are part of a family of a refugee. The law is unfair in that it allows officials discretion. So refugees found with ceased status are disproportionately “non-traditional” refugees. There is even a suspicion that some with eased refugee status are refugees who were found to be refugees with the help of a lawyer whose work or success is unpopular with the authorities. Beyond its discretionary unfairness, there seems no good justification for this procedure of ceasing permanent resident status. A grant of refugee status can be appealed by the authorities at the time the status is granted. And there is a procedure to revoke refugee status if story fabrication or lying comes to light. In practice, the 2012 discretionary procedure targets the refugee who needs to travel and gets a home country passport. But why? It boggles the mind that one would create a crude legal tool to end the status of a person who has de facto become a long-term permanent resident. Yet the law is clear and precise. Since 2012, a person can lose permanent resident status on one additional ground: “on a final determination … that their refugee protection has ceased for any of the reasons described …” It is difficult to challenge a clear law in the courts. Of course, other permanent residents have conditions that always came with that status - like a required residence time in Canada – something that relates directly to the notion of being a permanent resident. However, refugee permanent residents always had a particular handicap that the others do not. It is their need to travel, and to travel to a home country for their right to family life. Their family will have difficulty getting to see them in Canada on account of the visa policy. Meeting family in a third country is not feasible except for meeting with the odd brother or sister. So getting home to the things of family life that can realistically only take place “back home” – family weddings and funerals - matters. It matters for all permanent residents. Freedom – the right to be able to travel like everyone else matters. And without visits to a home country the right to family life can be impaired. Unlike other permanent residents, refugees will always face some risk of persecution if they travel to their home country. But that is their risk to judge. There are only two ways a refugee can travel. A refugee can apply for an international refugee travel document. This is not a common travel document so its use will attract far more attention and scrutiny than a routine passport. It makes more sense for general travel by a permanent resident who was a refugee to use a regular passport from the home country issued in Canada. That is what most other permanent residents will do. In any case, the international refugee travel document cannot be used to go to the home country. The refugee traveller needing to risk a short trip home on family matters after a time in Canada will be tempted to use the regular passport of the home government. There is a third option for travel: Canadian citizenship and a Canadian passport. However, the process will take time. It is worth remembering that Canadian citizenship does not bring complete safety for a refugee travelling to a home country either. Nonetheless, there is pressure on permanent residents of refugee origin to become citizens of Canada if they want to travel with a little more safely. Other permanent residents – the permanent permanent residents - have no comparable pressure to become a Canadian citizen. Refugees and immigrants take a certain time to feel comfortable with getting Canadian citizenship. And there are costs and a process to get it. For older refugees the language requirement for obtaining citizenship can present a serious obstacle. So some may feel more comfortable with just a permanent resident status. Leaving them with that choice makes some sense. It maximises their choices. Deporting long-term residents on the basis of their having lost refugee status makes little sense. As noted above, there are side effects of the current law. The refugees involved are dominated by the need to regain status. Lawyers are occupied with these cases and that impacts provincial legal aid funds as well as a lawyer’s time and energy. Tribunals conduct hearings spending time to decide on refugee status of long-term residents of Canada instead of keeping up with adjudicating backlogs of new arrivals. Judges undertake some judicial reviews. Their decisions on these long-term residents who end up facing deportations, and this process, again use lawyers, and again legal aid funding can be at issue. And the account of the single mom and her children struggling to regain status in Canada since 2014 is worth remembering. Canada has argued that, unlike many countries, it allows refugees to become permanent residents. This is deceitful. That refugee permanent resident is not like other permanent residents. The refugee permanent resident is limited by refugee status and the willingness of government officials not to call for a hearing about any travel that would allow the cessation of that status. It is a status that comes with a danger. The honest way forward is to let refugees enjoy a true permanent resident status that is like that of all the other permanent residents. That requires a tiny change to the law: removing the offending section in the law – section 108(1)(c1). Yet is that feasible? On the one hand it seems a small and simple change. On the other, it is unlikely to be a change that appears important and necessary and that will bring accolades for the person who introduces it. Perhaps the change could be part of a bigger package that aims to clean up and add greater fairness and efficiency to the processes in the Immigration and Refugee Protection Act so as to allow Canada’s effort to concentrate on reducing backlogs. TOP Click:
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