Canada: no refuge from anti-Roma prejudice?
21 May 2015
The Canadian refugee system has come under increasing fire for its treatment of Roma claimants in the past six months. The first blow came with the publication by the Canadian Border Services Agency (CBSA) slamming the ‘Assisted Voluntary Return and Reintegration’ (AVRR) program introduced in 2012. AVRR aimed to reduce the costs of deporting failed claimants and reduce the rate of appeals by offering claimants money (up to CAD2000) if they returned voluntarily. Importantly, significantly less money was offered to claimants who chose to exercise their right of appeal. While the CBSA focused on the program’s poor management and high cost, AVRR has been heavily criticized for unfairly targeting vulnerable claimants coping with poverty and the fear of deportation or incarceration, and who are unfamiliar with their rights under Canadian law. With the majority of AVRR funding recipients originating from Hungary, it is no secret that thousands of Roma were pressured to waive their appeal rights through this programme. The AVRR program has subsequently been dismantled.
The second blow came in April 2015. The report No Refuge: Hungarian Romani Refugee Claimants in Canada, published by Sean Rehaag at Osgoode Law School, describes how Hungarian Roma faced systemic discrimination in their refugee claims between 2008 and 2012. Coupled with the news that several prominent lawyers handling Roma refugee claims are facing disciplinary hearings for their mishandling of those claims, it is no mystery why fewer than 10% of Roma claims have succeeded in recent years. Legal Aid Ontario has since vowed to strengthen its oversight of lawyers handling refugee claims to prevent a reoccurrence.
Are the elimination of AVRR and increased oversight of refugee lawyers enough? The most recent reforms to Canada’s immigration system, implemented under the Protecting Canada’s Immigration System Act in 2012 impose formidable obstacles for vulnerable groups – especially Roma claimants. What would the refugee process have been like for Roma refugees entering Canada after 2012 in the best of circumstances: that is, with the AVRR program gone and assuming they have competent legal representation?
Protecting Canada’s Immigration System Act
The most remarkable aspect of the 2012 immigration reforms was the introduction of the Designated Country of Origin (DCO) list, better known as the ‘safe country’ list. Any country listed as a DCO is considered ‘safe’ in the sense that its government and judicial institutions are assumed to recognize and protect the democratic and human rights of its population. With this designation comes the implicit assumption that most claimants from that country will not actually be in need of protection.
The DCO designation also comes with an abridgment of claimants’ procedural rights: claimants only have 45 days from the date of their initial claim to prepare their case, assuming they apply immediately at the port of entry into Canada. If they enter Canada and make a claim from an inland immigration office, this is reduced to 30 days, compared to the standard 60 days given to claimants from non-DCO countries regardless of where they apply.
DCO claimants also lose the right to appeal a rejection to the Refugee Appeal Division, leaving them only the right to have their case reviewed by the Federal Court, which may only return cases for reconsideration by the Immigration and Refugee Board (IRB).
Then-Minister of Citizenship and Immigration Jason Kenney cited “[t]he growing number of bogus claims from European Union democracies” as an important justification for the change, and in particular focused on Roma refugees. The new legislation was accompanied by a billboard campaign in Miskolc warning residents against making a claim ‘without sound reasons’.
What makes the DCO regime especially problematic is the minimal oversight that goes into ensuring that designated countries are genuinely safe. The Minister for Citizenship and Immigration has the sole discretion to add countries to the list based on a numerical formula for assessing the rate of rejected claims from any given country (the formula is also set by the Minister) and based on the fact that he or she is
“of the opinion that in the country in question
- There is an independent judicial system,
- Basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed, and
- Civil society organizations exist.”
There is no requirement for the Minister to engage in consultation with experts or advocates when formulating their opinion on whether or not a country meets these criteria. Neither do the criteria as formulated require the Minister to consider whether the situation of minority groups such as the Roma differ from that of the majority situation, thus ignoring the fact that in practice democratic countries which are safe for most are nonetheless unsafe for some. Currently, all European Union countries except Bulgaria are DCOs.
What this means for Roma claimants
Under Canadian law, the burden is on a potential refugee claimant to rebut the presumption of state protection in their country of origin – a presumption only reinforced by the DCO regime. The 30-45 day timeframe given to DCO applicants to find a lawyer and prepare their case adds to the difficulty of overcoming this presumption. If claimants lack evidence of having exhausted their available options for state protection at home, or lack convincing evidence that the protection was unavailable to them, their claim will be denied.
In the highly probable event of their claim being rejected, they only have 15 days to submit an application to have their claim reviewed by the Federal Court and, unlike non-DCO applicants, there is no automatic stay of deportation while this application is submitted. They must then make a separate application (also to the Federal Court) for a stay of deportation order.
Procedures for both applications are complex and require competent legal assistance to complete. Finally, assuming the Federal Court disagrees with the initial IRB decision, the claimant must return to the IRB to have their claim reconsidered.
While the current Canadian refugee framework is blind to minorities in DCOs in general, the context of its implementation and accompaniment with anti-Roma rhetoric from the Minister for Immigration mean that it actively discourages Roma refugee claimants in particular.
Given their situation in Europe, many Roma claimants will find it difficult if not impossible to afford the legal services they require to see the process through to the end. If they come from any part of the EU other than Bulgaria, they will not be given work permits.
While the Federal Court has ruled that denial of healthcare to DCO claimants and failed claimants is unconstitutional, the Canadian government is appealing this decision in order to reinstate the relevant provisions of the Protecting Canada’s Immigration System Act, which denied healthcare to DCO applicants and rejected applicants.
The more insidious effect of the introduction of the DCO regime is the close associations built between the word ‘Roma’ and the words ‘bogus refugee’. While Jason Kenney is no longer the minister for Immigration, his successor Chris Alexander is no different in his approach to refugee policy.
Alexander entered into office praising the reforms implemented under Kenney and actively defends them; for example he publicly condemned the province of Ontario (where the majority of refugee applications are made) for passing provincial legislation granting refugee claimants the right to healthcare, regardless of their country of origin or refugee status. Former Minister Kenney and current Minister Alexander have framed the discussion around refugee claimants so that DCO claimants and rejected claimants are vilified as liars and cheats. The resulting atmosphere places Romani claimants in an embattled position vis-à-vis the Canadian government and heightens the chances that, even if their claim is successful, the same prejudices and suspicions which caused them to leave Europe in the first place will surface again in their new Canadian community.
