On July 5, 2016, the Government of Canada launched consultations on the immigration program.

JFCY’s response:

JFCY submits that for the Federal Government must ensure that Canada’s immigration system and all its benefits are available to the most vulnerable and marginalized. Specifically, we speak of the ability of migrant children to naturalization, have access to social services, and have access to the right of family reunification.

A. FAMILY REUNIFICATION FOR UNACCOMPANIED MINOR ASYLUM SEEKERS

Legislative Framework

Under the current immigration structure in Canada, minors who arrive in Canada unaccompanied and are granted asylum after an in-land refugee protection hearing do not have the right to then bring their immediate family members to Canada.  This is in contrast to adult refugee claimants, who, once they receive a positive refugee protection decision, have the right to bring their spouses (marriage or common-law) and dependent children to Canada. These family members arrive in Canada as Permanent Residents. Unaccompanied children who wish to bring their parents or siblings must first reach the age of 18 and meet income requirements that are of out of reach for most young people, in order to sponsor family members.

Effect of Legislation

In this legislative scheme children do not have access to family reunification. Our position that this is discriminatory, in violation of children’s rights under the United Nations Convention on the Rights of the Child,[1] and runs contrary to the objectives set out in the IRPA.[2]

The Committee on the Rights of the Child has previously expressed concerns that Canada has not addressed the issue of family reunification for refugee children.[3] Several cases raising constitutional challenges have also been brought before the Federal Court of Canada with respect to this provision. It was alleged that restricting family reunification from accompanied minor refugee claimants violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms. [4] In the cases that JFCY is aware of, the matter was settled prior to trial and the parents of the child were issued Permanent Residence under Canada’s “Humanitarian & Compassionate” grounds scheme.[5] In one matter, the Respondent Minister of Citizenship and Immigration filed an affidavit of the then Manager of the Post Determination Procedures Unit in the Refugees Branch of Citizenship and Immigration Canada. [6] In that affidavit he stated that the rationale for restricting children from bringing their parents to Canada following a positive refugee determination decision was to “protect” children from risks their parents or other adults may expose them to – mainly, the risk of sending children overseas to then be used as anchors to help the family come to Canada.[7] This, they asserted, was a balancing of best interests considerations.[8] There was no evidentiary foundation for their position.[9]

This is example of the detrimental policies that are made on the basis of deterrence that in effect punish children.  Although applicants’ eventually were able to reunite with their parents, in the above-mentioned cases applications were initially denied before being settled at the Judicial Review stage.  This represents an additional delay in the reunification process that may take years. Further, the process is a considerable hurdle for children who may not be able to access legal assistance.

Recommendations with Respect to Family Reunification for Unaccompanied Refugee Children 

JFCY recommends that Canada ensure that family reunification is accessible for unaccompanied refugee children at the time they are accepted as Convention Refugees. Forcing children to apply for an exemption to the rule, or to Judicially Review the denial of their family applications, is a barrier to children that causes unnecessary delay and has uncertain outcomes. Moreover, it is dependent on children who are able to access legal assistance. Not all will.

B. ACCESS TO CANADIAN CITIZENSHIP FOR UNACCOMPANIED MINORS

Legislative Framework and Effects

Canadian legislation requires that Canadian Permanent Residents who wish to apply for citizenship must be at least age 18, or be included in a parent’s or guardian’s application.[10] An exemption is built into the Citizenship Act that allows for the Minister to waive the age requirement on compassionate grounds.[11]  This exemption is discretionary and must be requested.

Through our work at JFCY we have witnessed many migrant children who are in Canada unaccompanied by their parents or guardians, or who have become estranged from their parents or guardians after migrating to the country.  These children often have precarious immigration status and have not yet acquired Canadian citizenship.  We have observed that children in these situations may end up living in shelters or on the street. Mental health issues among some migrant children are also present.

Sadly, we have continuously observed that unaccompanied migrant children who do not obtain their Canadian citizenship before they turn 18, find themselves at heightened risk of having removal orders issued against them once they are of age, due to their personal circumstances and increased marginalization  For example, some young people, may come into contact with the criminal justice system and once convicted of a crime lose their Permanent Residency or other status; others lose the benefit of BIOC considerations in H&C applications, or are removed before obtaining access to legal help.

We believe that had the right to citizenship been more accessible to minors, they would not be facing removal as adults.  Requiring minors to request compassionate consideration from the Minister presents a barrier that puts citizenship out of reach for some.  Children will likely require legal or other assistance seeking the compassionate exemption. This, in addition to the high application fees, makes citizenship near inaccessible to unaccompanied migrant children and thereby delays their full integration into the country.

Recommendations with Respect to Access to Citizenship

Canada should implement policy that makes the nationalization of eligible migrant children a priority, particularly refugee children. Government should prioritize nationalizing children at the earliest point in time possible; not waiting until age 18. All children-serving agencies that come into contact with migrant children should be instructed to inform children of the option of applying for citizenship and assist them in the process, thereby taking into account the special needs and the vulnerable situation of migrant children. Furthermore, fees for citizenship should be reduced or eliminated.

[1] Convention on the Rights of the Child, 20 November 1989, 3 UNTS 1577, Can TS 1992/3 [Convention].

at art 22(2).

[2] Immigration and Refugee Protection Act, SC 2001, c 27 ss 55(2), (3) [IRPA] at s 2(f).

[3] UN Committee on the Rights of the Child (CRC), Concluding observations on the combined third and fourth periodic report of Canada, adopted by the Committee at its sixty-first session, 6 December 2012, CRC/C/CAN/CO/3-4at 34, 73.

[4] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11; Section 7 of the Charter states:  “everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”; Section 15 of the Charter calls for equal treatment and protection under the law.

[5]AOF et al v MCI (18 April 2005) Toronto IMM-3458-04 (FCC); DT et al v MCI (3 August 2005) Ottawa IMM-2508-05 (FCC0; MAH et al v MCI (9 June 2005) Toronto IMM-3530-05 (FCC).

[6] MAH et al v MCI (9 June 2005) Toronto IMM-3530-05 (FCC).

[7] MAH et al v MCI (affidavit of JB sworn 12 September 2005) Toronto IMM-3530-05 (FCC), filed with the FCC on September 14, 2005.

[8] Ibid.

[9] ZSL and KCL v MCI (affidavit of GS sworn 20 November 2014) Toronto IMM-7057-14 (FCC); refer also to MAH et al v. MCI, supra note 30 (cross-examination of JB) Toronto IMM-3530-05 (FCC), filed with the FCC on May 15, 2006.

[10] Citizenship Act, RSC 1985, c C-29 s 5(1)(b).

[11] Ibid s 5(3)(b)(i).