Tom Clark

Refugee Travel Rights and Status Cessation
Date Nov 2023

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For almost a decade 400 to 1000 refugee “permanent residents” of Canada each year lost refugee status by ‘cessation’, automatically lost permanent residence status, and faced deportation. Any refugee, whenever they came to Canada, whether resettled from overseas or recognized in Canada can lose Permanent Resident status by “cessation” of refugee status that became possible in 2013 as a result of foolish changes to the refugee law.

The law in Canada says that to have a home country passport and use it is a choice of cessation by a refugee. A Canadian official at an airport can then decide whether to call for an examination to confirm that the refugee status has thereby ceased. If the examination finds “cessation”, the loss of permanent resident status is automatic, deportation can begin and access to recourses is severely limited.

The law provision is destructive in many ways. Any refugee is vulnerable if they return back home for issues like death or illness of a remaining family member using a home country passport. This is virtually the only way they can return and return for family death or sickness is something normal permanent residents can just do. The UNHCR individual cessation guidance is confused. It allows almost automatic cessation of refugee status on the grounds that getting and using a home country passport can be confirm that the refugee has chosen to assume the protection of the home country and intended to resettle there. Virtually every case in Canada did not want to do that. Almost every other western country gives refugees a permanent residence status after 5 years and none of them will remove that status automatically as Canada does. Canada has applied this perverse law to refugees who have been living in Canada for decades.

The 1951 Convention relating to the status of refugees in article 34 sets an obligation to: “as far as possible facilitate the assimilation and naturalization of refugees.” This requires a secure and stable status. Earlier use of Canada’s general Permanent Resident Status for the resettlement of refugees provided that stability and it facilitated assimilation. Refugees were like all other kinds of permanent resident. They belonged. Properly understood, “cessation” facilitates a durable solution at hand for refugees. For refugees in Canada that solution at hand is assimilation and naturalization in Canada. That had understanding for over a hundred years. The case law shows it remains the intent of those refugees caught in the bizarre Canadian law around individual cessation.

Human rights obligations require Canada to protect family rights of refugees. Family includes the family like parents and siblings remaining in the homeland and the normal human customs among family members. By its cessation law, Canada blocks refugee visits for important family events like funerals for a grandmother or for a father’s stroke in the home country.

Provisions for most kinds of cessation set out in the UNHCR Handbook call for a status to be granted to a refugee “long settled” in Canada so he or she can remain with rights even if formal refugee status can be said to have ended. That should apply to anyone with status in Canada for 5 years or more. Most advanced countries have a permanent resident status in place after 5 years that will not automatically end however refugee status ceases. Such a status protects family life in Canada, often a nuclear family. International human rights law can preclude deportation that will separate a person from close family members living in Canada

The use of cessation in the 2013 law change was not justified by the stated intent of that legislation. The Canadian government used “cessation” to respond to its belief that there were illegitimate refugees.

“Article 1 C [of the cessation clauses] does not deal with the cancellation of refugee status. Circumstances may … indicate that a person should never have been recognized as a refugee in the first place; … In such cases, the decision by which he was determined to be a refugee will normally be cancelled.” UNHCR Handbook, article 117.

Canadian law already provides such a way to respond to a belief in an illegitimate refugee. The Immigration and Refugee Protection Act allows the government to appeal a refugee status decision. Cessation is different. It means the conditions that caused refugees have disappeared in the home country, or that the refugee has made an informed decided to live in the home country again.

The UNHCR Handbook gives mixed messages about cessation, but Guidelines 3 para 6 provides a basic approach that surely should be used for all forms of cessation - namely making sure the refugee has in fact a durable solution. Evidently, that is so if a refugee chooses to return to the country of origin and to continue life living there, Canada has no further obligation under the Convention. But that almost never arises. Moreover, if there is pressure on an individual to cause “cessation”, the decision should not be considered fully voluntary and refugee status cannot be considered lost:

“ … He may also be constrained, by circumstances beyond his control, to have recourse to a measure of protection from his country of nationality. He may, for instance, need to apply for a divorce in his home country because no other divorce may have the necessary international recognition. Such an act cannot be considered to be a ‘voluntary re-availment of protection’ and will not deprive a person of refugee status.” UNHCR Handbook para. 120

But the UNHCR Handbook also says:

“... obtaining an entry permit or a national passport for the purposes of returning will, in the absence of proof to the contrary, be considered as terminating refugee status.” UNHCR Handbook, para. 122

The UNHCR guidance seems perverse saying that getting a document for brief travel home under pressure of important home-country family matters can be described in cold legal terms as proof of voluntarily re-availing of the home country’s protection. It is not self-evident that getting a home country passport from a consulate in Canada to take a short trip to a family funeral by the only means available means that one has re-availed oneself of the protection of the home country. Why is it so different from getting a divorce certificate that UNHCR says does not indicate cessation?

Moreover, an affidavit and the simple fact of the person’s rapid return to Canada is not considered proof to the contrary. Instead, the UNHCR Handbook provides that if the refugee protests that it was not his intention to re-avail himself of the protection of the country of origin - the situation in most cases - his or her refugee status will need to be determined afresh:

“A refugee may have voluntarily obtained a national passport, intending either to avail himself of the protection of his country of origin while staying outside that country, or to return to that country. As stated above, with the receipt of such a document he normally ceases to be a refugee. If he subsequently renounces either intention, his refugee status will need to be determined afresh. He will need to explain why he changed his mind, and to show that there has been no basic change in the conditions that originally made him a refugee.” Handbook, para 123.

Yet Canada’s law around cessation does not allow such immediate re-determination of refugee status.

Adding some confusion, the UNHCR Handbook accepts that refugee status need not necessarily be lost by traveling to the home country to visit for urgent family matters provided the travel document used is from another country, and is not that of the country of origin.

“Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re‑availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.” Handbook para. 125.

Short trip travel needs around family matters are here recognized in the Handbook and Canadian case law around the perverse Cessation provisions shows family issues arise for many refugees resettled in Canada. True, Canada issues a refugee travel document, but that document precludes travel to the home country. Moreover, any unusual travel document will increase scrutiny and so increase the risk of forms of persecution for a refugee traveler trying to visit family for family reasons.

Most case experience on the cessation provisions that took effect in 2013 in Canada relates to refugees returning to a home country for reasons of family life. Refugees make a short trip and almost never have any intention to re-establish living there. The case law reveals persons resisting subsequent deportation with surprise, disillusionment, mental health issues and considerable financial cost.

A core family of spouse and children may be well settled in Canada. But family life is more than this. It involves grandparents, parents and siblings in a home country where strokes, heart attacks, funerals and weddings of parents and siblings create a family obligation. Family rights are important for governments to enable and facilitate in a stable settlement environment.

These travel needs arise for other normal permanent residents in Canada who can use their country-of-origin passport to travel without repercussions. The Canadian law changes of 2013 make no provision for such travel needs of refugee permanent residents, rather they place a threat over them. That sets refugees apart from other permanent residents which also undermines the climate for assimilation and naturalization required.

The UNHCR Handbook indicates that refugee status would not be lost if compulsion is used for a refugee to obtain and use the passport of the home country. In the modern world, family life for all newcomers involves being in touch with both one’s core family here and family members still there. Large scale air travel has arrived. Trips can be brief. If granny there dies, going to the funeral always was and still is expected. These days a refugee traveler is part of a crowd of travelers and the risks of return on short trips can be small. Rapid travel by air travel is an expectation. The pressure on refugees to travel to other family members at a critical time might be viewed as a form of compulsion. There can be risk in returning, but the simplest means of travel is usually a former home country passport.

The UNHCR perspective seems to stem from a world where holding a passport was unusual, had special meaning and attracted attention. Today having and using a passport is routine. You may fear persecution in a home country, but you remain a citizen on the books and you can get papers at a consulate. A refugee does not lack a country to ask for a passport. The lack of protection comes from trying to live and belong there for a majority of refugees. Getting and using a passport does not relate to wanting to resettle and live there. It is not viewed by those involved as a sign of voluntary repatriation.

UNHCR and Canada should review cessation circumstances so as to better prevent automatic cessation without an alternative on-going host country resident status to allow for brief travel for family issues to a home county using a home country travel document. Allowing refugees to travel to the home country for important family business - sickness, death, marriage fits well within the overarching 1951 Convention obligation of facilitating assimilation and naturalization for refugees. Canadian law should be relieved of its ability to cancel permanent residence on account of “cessation” so that refugees can again be real permanent residents like all the others.

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Refugee Travel Rights and Status Cessation Date Nov 2023 Click square for index For almost a decade 400 to 1000 refugee “permanent residents” of Canada each year lost refugee status by ‘cessation’, automatically lost permanent residence status, and faced deportation. Any refugee, whenever they came to Canada, whether resettled from overseas or recognized in Canada can lose Permanent Resident status by “cessation” of refugee status that became possible in 2013 as a result of foolish changes to the refugee law. The law in Canada says that to have a home country passport and use it is a choice of cessation by a refugee. A Canadian official at an airport can then decide whether to call for an examination to confirm that the refugee status has thereby ceased. If the examination finds “cessation”, the loss of permanent resident status is automatic, deportation can begin and access to recourses is severely limited. The law provision is destructive in many ways. Any refugee is vulnerable if they return back home for issues like death or illness of a remaining family member using a home country passport. This is virtually the only way they can return and return for family death or sickness is something normal permanent residents can just do. The UNHCR individual cessation guidance is confused. It allows almost automatic cessation of refugee status on the grounds that getting and using a home country passport can be confirm that the refugee has chosen to assume the protection of the home country and intended to resettle there. Virtually every case in Canada did not want to do that. Almost every other western country gives refugees a permanent residence status after 5 years and none of them will remove that status automatically as Canada does. Canada has applied this perverse law to refugees who have been living in Canada for decades. The 1951 Convention relating to the status of refugees in article 34 sets an obligation to: “as far as possible facilitate the assimilation and naturalization of refugees.” This requires a secure and stable status. Earlier use of Canada’s general Permanent Resident Status for the resettlement of refugees provided that stability and it facilitated assimilation. Refugees were like all other kinds of permanent resident. They belonged. Properly understood, “cessation” facilitates a durable solution at hand for refugees. For refugees in Canada that solution at hand is assimilation and naturalization in Canada. That had understanding for over a hundred years. The case law shows it remains the intent of those refugees caught in the bizarre Canadian law around individual cessation. Human rights obligations require Canada to protect family rights of refugees. Family includes the family like parents and siblings remaining in the homeland and the normal human customs among family members. By its cessation law, Canada blocks refugee visits for important family events like funerals for a grandmother or for a father’s stroke in the home country. Provisions for most kinds of cessation set out in the UNHCR Handbook call for a status to be granted to a refugee “long settled” in Canada so he or she can remain with rights even if formal refugee status can be said to have ended. That should apply to anyone with status in Canada for 5 years or more. Most advanced countries have a permanent resident status in place after 5 years that will not automatically end however refugee status ceases. Such a status protects family life in Canada, often a nuclear family. International human rights law can preclude deportation that will separate a person from close family members living in Canada The use of cessation in the 2013 law change was not justified by the stated intent of that legislation. The Canadian government used “cessation” to respond to its belief that there were illegitimate refugees. “Article 1 C [of the cessation clauses] does not deal with the cancellation of refugee status. Circumstances may … indicate that a person should never have been recognized as a refugee in the first place; … In such cases, the decision by which he was determined to be a refugee will normally be cancelled.” UNHCR Handbook, article 117. Canadian law already provides such a way to respond to a belief in an illegitimate refugee. The Immigration and Refugee Protection Act allows the government to appeal a refugee status decision. Cessation is different. It means the conditions that caused refugees have disappeared in the home country, or that the refugee has made an informed decided to live in the home country again. The UNHCR Handbook gives mixed messages about cessation, but Guidelines 3 para 6 provides a basic approach that surely should be used for all forms of cessation - namely making sure the refugee has in fact a durable solution. Evidently, that is so if a refugee chooses to return to the country of origin and to continue life living there, Canada has no further obligation under the Convention. But that almost never arises. Moreover, if there is pressure on an individual to cause “cessation”, the decision should not be considered fully voluntary and refugee status cannot be considered lost: “ … He may also be constrained, by circumstances beyond his control, to have recourse to a measure of protection from his country of nationality. He may, for instance, need to apply for a divorce in his home country because no other divorce may have the necessary international recognition. Such an act cannot be considered to be a ‘voluntary re-availment of protection’ and will not deprive a person of refugee status.” UNHCR Handbook para. 120 But the UNHCR Handbook also says: “... obtaining an entry permit or a national passport for the purposes of returning will, in the absence of proof to the contrary, be considered as terminating refugee status.” UNHCR Handbook, para. 122 The UNHCR guidance seems perverse saying that getting a document for brief travel home under pressure of important home-country family matters can be described in cold legal terms as proof of voluntarily re-availing of the home country’s protection. It is not self-evident that getting a home country passport from a consulate in Canada to take a short trip to a family funeral by the only means available means that one has re-availed oneself of the protection of the home country. Why is it so different from getting a divorce certificate that UNHCR says does not indicate cessation? Moreover, an affidavit and the simple fact of the person’s rapid return to Canada is not considered proof to the contrary. Instead, the UNHCR Handbook provides that if the refugee protests that it was not his intention to re-avail himself of the protection of the country of origin - the situation in most cases - his or her refugee status will need to be determined afresh: “A refugee may have voluntarily obtained a national passport, intending either to avail himself of the protection of his country of origin while staying outside that country, or to return to that country. As stated above, with the receipt of such a document he normally ceases to be a refugee. If he subsequently renounces either intention, his refugee status will need to be determined afresh. He will need to explain why he changed his mind, and to show that there has been no basic change in the conditions that originally made him a refugee.” Handbook, para 123. Yet Canada’s law around cessation does not allow such immediate re-determination of refugee status. Adding some confusion, the UNHCR Handbook accepts that refugee status need not necessarily be lost by traveling to the home country to visit for urgent family matters provided the travel document used is from another country, and is not that of the country of origin. “Where a refugee visits his former home country not with a national passport but, for example, with a travel document issued by his country of residence, he has been considered by certain States to have re‑availed himself of the protection of his former home country and to have lost his refugee status under the present cessation clause. Cases of this kind should, however, be judged on their individual merits. Visiting an old or sick parent will have a different bearing on the refugee’s relation to his former home country than regular visits to that country spent on holidays or for the purpose of establishing business relations.” Handbook para. 125. Short trip travel needs around family matters are here recognized in the Handbook and Canadian case law around the perverse Cessation provisions shows family issues arise for many refugees resettled in Canada. True, Canada issues a refugee travel document, but that document precludes travel to the home country. Moreover, any unusual travel document will increase scrutiny and so increase the risk of forms of persecution for a refugee traveler trying to visit family for family reasons. Most case experience on the cessation provisions that took effect in 2013 in Canada relates to refugees returning to a home country for reasons of family life. Refugees make a short trip and almost never have any intention to re-establish living there. The case law reveals persons resisting subsequent deportation with surprise, disillusionment, mental health issues and considerable financial cost. A core family of spouse and children may be well settled in Canada. But family life is more than this. It involves grandparents, parents and siblings in a home country where strokes, heart attacks, funerals and weddings of parents and siblings create a family obligation. Family rights are important for governments to enable and facilitate in a stable settlement environment. These travel needs arise for other normal permanent residents in Canada who can use their country-of-origin passport to travel without repercussions. The Canadian law changes of 2013 make no provision for such travel needs of refugee permanent residents, rather they place a threat over them. That sets refugees apart from other permanent residents which also undermines the climate for assimilation and naturalization required. The UNHCR Handbook indicates that refugee status would not be lost if compulsion is used for a refugee to obtain and use the passport of the home country. In the modern world, family life for all newcomers involves being in touch with both one’s core family here and family members still there. Large scale air travel has arrived. Trips can be brief. If granny there dies, going to the funeral always was and still is expected. These days a refugee traveler is part of a crowd of travelers and the risks of return on short trips can be small. Rapid travel by air travel is an expectation. The pressure on refugees to travel to other family members at a critical time might be viewed as a form of compulsion. There can be risk in returning, but the simplest means of travel is usually a former home country passport. The UNHCR perspective seems to stem from a world where holding a passport was unusual, had special meaning and attracted attention. Today having and using a passport is routine. You may fear persecution in a home country, but you remain a citizen on the books and you can get papers at a consulate. A refugee does not lack a country to ask for a passport. The lack of protection comes from trying to live and belong there for a majority of refugees. Getting and using a passport does not relate to wanting to resettle and live there. It is not viewed by those involved as a sign of voluntary repatriation. UNHCR and Canada should review cessation circumstances so as to better prevent automatic cessation without an alternative on-going host country resident status to allow for brief travel for family issues to a home county using a home country travel document. Allowing refugees to travel to the home country for important family business - sickness, death, marriage fits well within the overarching 1951 Convention obligation of facilitating assimilation and naturalization for refugees. Canadian law should be relieved of its ability to cancel permanent residence on account of “cessation” so that refugees can again be real permanent residents like all the others. TOP Click:
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