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E1 changes to the refugee system

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    • 1. Policy ChangesPolicy Changes and refugeeand refugee reformreform FCJRefugeeFCJRefugee CentreCentre Supported by:
    • 2. Recent PolicyRecent Policy ChangesChanges
    • 3. Skilled Workers and ProfessionalsSkilled Workers and ProfessionalsFederalSkilled Workers Canadian Experience Class Changestothe Refugee ProtectionAct Citizenship Guidelines
    • 4. Federal Skilled Worker ClassFederal Skilled Worker Class Skilled workers are people who have education and work experience that will help them become economically established in Canada. They must: (New World Immigration website) http://www.visa808.com/english/worker.shtml#federal
    • 5. Federal Skilled Worker ... What’sFederal Skilled Worker ... What’s new?new? (CIC website) http://www.cic.gc.ca/english/DEPARTMENT/MEDIA/releases/2008/2008-11-28.asp
    • 6. Canadian Experience Class (2008)Canadian Experience Class (2008) Temporary foreign workers encouraged toTemporary foreign workers encouraged to apply if:apply if: they have a secondary school diploma,they have a secondary school diploma, trade certificate or apprenticeship andtrade certificate or apprenticeship and have at least 2 yrs of recent (within 3 yrs. ofhave at least 2 yrs of recent (within 3 yrs. of the application) full-time Canadian skilledthe application) full-time Canadian skilled work experience.work experience. Applicants can apply for Permanent ResidentApplicants can apply for Permanent Resident Status in CanadaStatus in Canada
    • 7. Canadian Experience Class... What’sCanadian Experience Class... What’s new?new? Application based on employer trustApplication based on employer trust  Applicants must meet at least minimum English languageApplicants must meet at least minimum English language proficiency.proficiency. International students encouraged to apply if:International students encouraged to apply if: they have 2 years of Canadian post-secondarythey have 2 years of Canadian post-secondary education (10 academic months) andeducation (10 academic months) and have 1 year of full-time Canadian skilled workhave 1 year of full-time Canadian skilled work experience (within 2 yrs. of the application) inexperience (within 2 yrs. of the application) in management, professional, and skilled andmanagement, professional, and skilled and technical occupations (defined by the NOC)technical occupations (defined by the NOC)
    • 8. Temporary ForeignTemporary Foreign Workers ProgramWorkers Program (TFWP)(TFWP) There were 2 main proposals to this program putThere were 2 main proposals to this program put forth in 2009:forth in 2009:  TFW’s can stay for a maximum of 4 years followed by aTFW’s can stay for a maximum of 4 years followed by a period of 6 years during which they will not be allowed toperiod of 6 years during which they will not be allowed to work in Canada.work in Canada.  To restrict employer’s access toTFWP for 2 years when theTo restrict employer’s access toTFWP for 2 years when the employer has provided previousTFW’s with wages, workingemployer has provided previousTFW’s with wages, working conditions/occupations that are significantly different fromconditions/occupations that are significantly different from those typically offered.those typically offered. (CCR- Comments on proposed changes to theTFWP, Canada Gazette, Part 10(CCR- Comments on proposed changes to theTFWP, Canada Gazette, Part 10 October 2009)October 2009)
    • 9. Proposed Changes to the Live-InProposed Changes to the Live-In Caregiver ProgramCaregiver Program  To eliminate the required 2To eliminate the required 2ndnd medical examination beforemedical examination before Permanent Residence (PR) is granted.Permanent Residence (PR) is granted.  The time period in which to meet the requirements toThe time period in which to meet the requirements to apply for PR will be extended from 3 years to 4.apply for PR will be extended from 3 years to 4.
    • 10. Proposed Changes to the Live-InProposed Changes to the Live-In Caregiver Program …contCaregiver Program …cont  Caregivers working overtime can apply for PR in a shorterCaregivers working overtime can apply for PR in a shorter time provided they finish the required 3,900 hours of work.time provided they finish the required 3,900 hours of work.  Employers required by the federal and provincialEmployers required by the federal and provincial governments to pay travel costs, medical insurance,governments to pay travel costs, medical insurance, workplace safety insurance, recruiting fees to 3workplace safety insurance, recruiting fees to 3rdrd parties.parties.
    • 11. Proposed Changes to the Live-InProposed Changes to the Live-In Caregiver ProgramCaregiver Program  Employment contracts to include:Employment contracts to include:  employer-paid benefitsemployer-paid benefits  employers must sign mandatory clauses in the contract clearlyemployers must sign mandatory clauses in the contract clearly outlining caregiver duties, hours of work, overtime and holidays,outlining caregiver duties, hours of work, overtime and holidays, sick leave and termination and resignation terms.sick leave and termination and resignation terms.  New agreements with provinces to ensure monitoring andNew agreements with provinces to ensure monitoring and enforcement of these mandatory contracts.enforcement of these mandatory contracts.  To improve information packages so caregivers know theirTo improve information packages so caregivers know their rights, what action they can take and who to call to protectrights, what action they can take and who to call to protect themselves before they come to Canada.themselves before they come to Canada.
    • 12. Proposed Changes to the Live-InProposed Changes to the Live-In Caregiver ProgramCaregiver Program  To open a 24 hour Live-In Caregiver hotline for people to call forTo open a 24 hour Live-In Caregiver hotline for people to call for help.help.  To implement an agreement between CIC and Human ResourcesTo implement an agreement between CIC and Human Resources and Social Development to allow for fast-track emergencyand Social Development to allow for fast-track emergency issuing (within 3 weeks) of new work permits and Labour Marketissuing (within 3 weeks) of new work permits and Labour Market Opinions.Opinions.  If a caregiver is in an abusive situation she will no longer beIf a caregiver is in an abusive situation she will no longer be stuck for months and months searching for a new employer.stuck for months and months searching for a new employer.  Getting a Labour Market Opinion, and getting the workGetting a Labour Market Opinion, and getting the work permit as the clock ticks on her three-year maximum topermit as the clock ticks on her three-year maximum to permanent residency.permanent residency.
    • 13. New Law – Live-In CaregiverNew Law – Live-In Caregiver ProgramProgram December 2009 – A new law was passed inDecember 2009 – A new law was passed in Ontario to penalize persons charging aOntario to penalize persons charging a placement/recruitment fee to a Care-giver:placement/recruitment fee to a Care-giver: – $50, 000 and up to 1 year in prison.– $50, 000 and up to 1 year in prison. (CIC website(CIC website -http://www.cic.gc.ca/english/DEPARTMENT/media/releases/2009/2009-12-12.asp)-http://www.cic.gc.ca/english/DEPARTMENT/media/releases/2009/2009-12-12.asp)
    • 14. New Citizenship LawNew Citizenship Law  Took effect on April 17, 2009.Took effect on April 17, 2009.  Restores or gives Canadian citizenship to those who never had itRestores or gives Canadian citizenship to those who never had it or lost itor lost it  Certain people who became Canadian citizens on or afterCertain people who became Canadian citizens on or after January 1, 1947, when the firstJanuary 1, 1947, when the first Citizenship ActCitizenship Act took effect,took effect, and who then lost it, now have their status restoredand who then lost it, now have their status restored retroactively to the date they lost it.retroactively to the date they lost it.  People who have never been Canadians, but who are part ofPeople who have never been Canadians, but who are part of the first generation born outside Canada to a Canadianthe first generation born outside Canada to a Canadian parent, became Canadians under the new law.Theirparent, became Canadians under the new law.Their citizenship is retroactive to their date of birth.citizenship is retroactive to their date of birth. (CIC website http://www.cic.gc.ca/english/information/faq/citizenship/cit-rules-faq01.asp)(CIC website http://www.cic.gc.ca/english/information/faq/citizenship/cit-rules-faq01.asp)
    • 15. Recent Policy Changes to RefugeeRecent Policy Changes to Refugee ProtectionProtection On July 23, 2009 a change was madeOn July 23, 2009 a change was made to the ‘Canada – U.S. SafeThirdto the ‘Canada – U.S. SafeThird Country Agreement:Country Agreement:  The exception clause in the SafeThe exception clause in the Safe Third Country Agreement thatThird Country Agreement that allowed people from countriesallowed people from countries under a ‘temporary suspension ofunder a ‘temporary suspension of removals’ (TSR) to make a refugeeremovals’ (TSR) to make a refugee claim in Canada at a Canada-U.S.claim in Canada at a Canada-U.S. land border, was removed.land border, was removed.  TheTSR countries are:TheTSR countries are: Afghanistan, the DemocraticAfghanistan, the Democratic Republic of Congo, Haiti, Iraq andRepublic of Congo, Haiti, Iraq and ZimbabweZimbabwe
    • 16. Changes to the SafeThird CountryChanges to the SafeThird Country are:are:  Since October 2009: Persons fromTSR Countries arrivingSince October 2009: Persons fromTSR Countries arriving at a Canada-U.S. land border will be ineligible to make aat a Canada-U.S. land border will be ineligible to make a refugee claim in Canada.refugee claim in Canada.  They would instead need to apply for protection in theThey would instead need to apply for protection in the United States.United States.  People already in Canada or arriving at a port of entry that isPeople already in Canada or arriving at a port of entry that is not a land border with the United States will not be affected.not a land border with the United States will not be affected.  People from Haiti?People from Haiti? (CIC website-(CIC website- http://www.cic.gc.ca/ENGLISH/department/media/notices/notice-http://www.cic.gc.ca/ENGLISH/department/media/notices/notice- removal.asp)removal.asp)
    • 17. Changes toVisa RequirementChanges toVisa Requirement In July 2009, CIC imposed a visaIn July 2009, CIC imposed a visa requirement on persons fromrequirement on persons from Mexico and the Czech Republic.Mexico and the Czech Republic. Before the changes were made,Before the changes were made, persons from these countriespersons from these countries were making almost 35% of allwere making almost 35% of all refugee claim in Canada.refugee claim in Canada. (CCR website - http://www.ccrweb.ca/en/bulletin/09/07/14)
    • 18. REFUGEEREFUGEE REFORMREFORM
    • 19. What Has Already Changed?What Has Already Changed?  Most of the changes of the Act will not be implementedMost of the changes of the Act will not be implemented until 2011 or even 2012.until 2011 or even 2012.  Changes affecting Humanitarian and CompassionateChanges affecting Humanitarian and Compassionate (H&C) Applications already apply.(H&C) Applications already apply.
    • 20. H&C ChangesH&C Changes  The Key Change is that officers studying H&C applications:The Key Change is that officers studying H&C applications:  May not consider the factors relating to a refugee claimMay not consider the factors relating to a refugee claim11 , but, but  Must Consider elements related to the hardships that affectMust Consider elements related to the hardships that affect the applicantthe applicant  This change affects H&C applications made on or after 29This change affects H&C applications made on or after 29 June 2010. H&C applications made before 29 June 2010 willJune 2010. H&C applications made before 29 June 2010 will be processed according to the old rules.be processed according to the old rules. 11 Exact wording is “factors that are taken into account in the determination of whether a person is a ConventionExact wording is “factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1).” (97(1) covers danger ofrefugee under section 96 or a person in need of protection under subsection 97(1).” (97(1) covers danger of torture, risk to life or risk of cruel and unusual treatment or punishment.)torture, risk to life or risk of cruel and unusual treatment or punishment.)
    • 21. H&C ChangesH&C Changes  What does this mean?What does this mean?  In explaining why a person should be accepted on H&C grounds,In explaining why a person should be accepted on H&C grounds, we must not argue that the person meets the definition of awe must not argue that the person meets the definition of a refugee or a person in need of protection. On the other hand,refugee or a person in need of protection. On the other hand, hardships that the person may face if obliged to leave Canada arehardships that the person may face if obliged to leave Canada are absolutely relevant.absolutely relevant.  What is unclear?What is unclear?  How will H&C officers deal with evidence that shows a person doesHow will H&C officers deal with evidence that shows a person does meet the definition of a refugee or a person in need of protection?meet the definition of a refugee or a person in need of protection? Will they simply treat it as evidence of “hardship” or will theyWill they simply treat it as evidence of “hardship” or will they refuse to consider the evidence, and possibly refuse the applicationrefuse to consider the evidence, and possibly refuse the application if there is insufficient evidence of other hardships?if there is insufficient evidence of other hardships?
    • 22. H&C ChangesH&C Changes  Other InformationOther Information  CIC is working on a priority basis on updating manualsCIC is working on a priority basis on updating manuals and preparing Operation Bulletins.and preparing Operation Bulletins.  Also Note:Also Note:  The Minister can accept a person on H&C groundsThe Minister can accept a person on H&C grounds without an application having been submitted, or a feewithout an application having been submitted, or a fee being paid. It is not known what type of cases might bebeing paid. It is not known what type of cases might be accepted, or how they will be processed.accepted, or how they will be processed.
    • 23. Changes to the RefugeeChanges to the Refugee Determination SystemDetermination System  The Changes to the refugee determination system haveThe Changes to the refugee determination system have not yet been implemented.The law says they must takenot yet been implemented.The law says they must take effect no later than 29 June 2012.The Minister has saideffect no later than 29 June 2012.The Minister has said implementation will be in 12 to 18 months (i.e.implementation will be in 12 to 18 months (i.e. somewhere between July 2011 and January 2012.somewhere between July 2011 and January 2012.  A lot of details of the process still need to be decidedA lot of details of the process still need to be decided (through rules, regulations and policies).These decisions(through rules, regulations and policies).These decisions will be made over the coming months.will be made over the coming months.
    • 24. Key ChangesKey Changes  InterviewInterview  Refugee claimants will have to attend an interview with an officialRefugee claimants will have to attend an interview with an official (not a decision-maker) of the Immigration and Refugee Board(not a decision-maker) of the Immigration and Refugee Board (IRB).The interview will be 15 days or more after the claim is(IRB).The interview will be 15 days or more after the claim is referred.The claimant has a right to counsel at the interview.Thereferred.The claimant has a right to counsel at the interview.The date of the hearing will be scheduled at the interview.date of the hearing will be scheduled at the interview.  Members of the Refugee Protection DivisionMembers of the Refugee Protection Division  The person deciding a refugee claim will no longer be appointed byThe person deciding a refugee claim will no longer be appointed by Cabinet, but will instead be a civil servant.The decision makers willCabinet, but will instead be a civil servant.The decision makers will continue to be members of the Refugee Protection Division of thecontinue to be members of the Refugee Protection Division of the IRB.IRB.
    • 25. Key ChangesKey Changes  AppealAppeal  Refused claimants will be able to appeal a negative decision to theRefused claimants will be able to appeal a negative decision to the Refugee Appeal Division. In addition to arguing that the firstRefugee Appeal Division. In addition to arguing that the first decision was wrong, claimants can submit new evidence at thedecision was wrong, claimants can submit new evidence at the appeal (but only evidence not available at initial hearing). In mostappeal (but only evidence not available at initial hearing). In most cases, submissions will be entirely in writing, but in some cases thecases, submissions will be entirely in writing, but in some cases the Refugee Appeal Division can hold a hearing.The Minister can alsoRefugee Appeal Division can hold a hearing.The Minister can also appeal a positive refugee determination.appeal a positive refugee determination.  Designated Country of OriginDesignated Country of Origin  Claimants who come from a country designated by the Minister willClaimants who come from a country designated by the Minister will face different (shorter) timelines for their initial hearing and for theface different (shorter) timelines for their initial hearing and for the appeal.appeal.
    • 26. Key ChangesKey Changes  Manifestly UnfoundedManifestly Unfounded  If the Refugee Protection Division thinks that a claim is “clearly fraudulent”If the Refugee Protection Division thinks that a claim is “clearly fraudulent” it may declare it “manifestly unfounded”. Such claimants will face theit may declare it “manifestly unfounded”. Such claimants will face the same shorter timelines in the appeal as claimants from designatedsame shorter timelines in the appeal as claimants from designated countries of origin.countries of origin.  Pre-Removal Risk Assessment (PRRA)Pre-Removal Risk Assessment (PRRA)  The PRRA will be decided by the Refugee Protection Division of the IRB,The PRRA will be decided by the Refugee Protection Division of the IRB, rather than CIC.rather than CIC.22 However, the transfer of PRRA to IRB will take place oneHowever, the transfer of PRRA to IRB will take place one year after the implementation of the other provisions.year after the implementation of the other provisions.  Claimants removed within 12 months following rejection, withdrawal orClaimants removed within 12 months following rejection, withdrawal or abandonment of the claim will not be given a PRRA. However, the Ministerabandonment of the claim will not be given a PRRA. However, the Minister may grant the PRRA to nationals of a specific country, or a subset ofmay grant the PRRA to nationals of a specific country, or a subset of nationals of a country, within the 12 month period.nationals of a country, within the 12 month period. 22 In the case of claimants who are inadmissible on grounds of serious criminality or security, or excluded from refugeeIn the case of claimants who are inadmissible on grounds of serious criminality or security, or excluded from refugee protection by the IRB (IRPA 112(3)), CIC will continue to decide the PRRAprotection by the IRB (IRPA 112(3)), CIC will continue to decide the PRRA
    • 27. TimelinesTimelines Above Line =Above Line = proposed, mayproposed, may be changedbe changed Below Line =Below Line = Established inEstablished in lawlaw
    • 28. Key Questions Still to be DecidedKey Questions Still to be Decided  Many crucial questions about the new law are still to beMany crucial questions about the new law are still to be decided, although Minister Kenney has announceddecided, although Minister Kenney has announced certain intentions. Some questions will be determinedcertain intentions. Some questions will be determined throughthrough RegulationsRegulations (prepared by Citizenship and(prepared by Citizenship and Immigration Canada); other questions will be part of theImmigration Canada); other questions will be part of the Immigration and Refugee BoardImmigration and Refugee Board Rules. Instructions andRules. Instructions and training will also influencetraining will also influence implementation.implementation.  NB: nationals of designated countries of origin = DCONB: nationals of designated countries of origin = DCO
    • 29. Key Questions Still to be DecidedKey Questions Still to be Decided Issue Government Proposals Advocacy Points Interview Will be 15 days after referral or soon after; won’t postpone for counsel. Focus of interview will be claimant’s “story” (i.e. what makes the person a refugee). There may be a summary (not decided). Interview will be recorded and copy given to the claimant. Interview will also be used to give claimant information about the refugee claim process in Canada Major concerns about the difficulties for many vulnerable claimants3 , especially LGBT, women, children, torture survivors, etc. (see Anti-Oppression (A/O) Considerations). Process will need to: • Allow postponements for vulnerable claimants. • Take into account that important elements of the claim will not surface in the interview. The interview could support vulnerable claimants by: • Designating representatives early • Identifying vulnerable claimants (Guideline 8) • Giving claimants information about the process. Interviewers will need to be well-trained and very sensitive. PIF (Personal Information Form) May consider some kind of form, but not expecting to maintain PIF. For many claimants (see A/O), working with counsel is best; to present information in writing is best.
    • 30. Key Questions Still to be DecidedKey Questions Still to be Decided Issue Government Proposals Advocacy Points Hearing Date 90 days after interview for most claimants 60 days after interview for nationals or designated countries of origin (DCO) Will be too short for many claimants to prepare themselves and gather documentation (see A/O) Postponements must be granted where necessary to be fair, especially to vulnerable claimants. Decision makers must reduce their expectations of supporting documentation, (which are currently very high) given shortened timelines. Hiring RPD members (civil servants) Grade of position not yet decided. Will have two selection processes: internal (for IRB employees) and external (everyone else). Critical that position be ranked senior enough that decision makers are highly qualified and independent. Selection process must allow broad recruitment and selection on basis of merit.
    • 31. Key Questions Still to be DecidedKey Questions Still to be Decided Issue Government Proposals Advocacy Points Designated Countries of Origin Process Interministerial committee with 2 external human rights experts. Will consult with UNHCR. NB. CCR is completely opposed on principle to discriminatory treatment based on country of origin. Periodic Review Unclear: the list “would be reviewed periodically by the panel of experts.” Important to have a clear schedule for review. Criteria (NB some criteria are in Act) Quantitative: 1% of claims in 1 of the preceding 3 years; 15% or less of which are accepted. Extremely broad quantitative criteria. Qualitative criteria should take account of rights of oppressed groups (e.g. LGBT, women, ethnic minorities).
    • 32. Key Questions Still to be DecidedKey Questions Still to be Decided Issue Government Proposals Advocacy Points Timelines for Refugee Appeal Division Filing and perfecting and application 15 days This timeline is completely unworkable. In most cases, it would be impossible to complete a meaningful application within 15 days, especially for vulnerable claimants (A/O). Timelines must be at least those for judicial review: 15 days to file the application, 30 days to perfect (complete) it. Decision by the RAD 120 days regular; 30 days DCO and manifestly unfounded Interesting idea of deadline for making a decision – this could be used in other immigration decisions, e.g. family reunification, H&C. Important that quality of decision-making not be made to suffer if Cabinet doesn’t appoint enough RAD members. RAD members Existing RPD and Immigration Appeal Division (IAD) members can put their names forward. RAD members must be adequately qualified to review and correct RPD decisions.
    • 33. Anti-Oppression ConsiderationsAnti-Oppression Considerations  GenderGender  Speaking to authority figuresSpeaking to authority figures  Speaking openly about experiences (esp. sexual violence)Speaking openly about experiences (esp. sexual violence)  Availability of documentation of human rights violationsAvailability of documentation of human rights violations  Persecuted in apparently “safe countries”Persecuted in apparently “safe countries”  Tendency to focus on male family member’s storyTendency to focus on male family member’s story  LGBT (Lesbian, Gay, Bisexual,Transgender/Transexual)LGBT (Lesbian, Gay, Bisexual,Transgender/Transexual)  Speaking openly about experiences (esp. sexual violence)Speaking openly about experiences (esp. sexual violence)  Availability of documentation on human rights violationsAvailability of documentation on human rights violations  Persecuted in apparently “safe countries”Persecuted in apparently “safe countries”
    • 34. Anti-Oppression ConsiderationsAnti-Oppression Considerations  ChildrenChildren  Speaking to authority figuresSpeaking to authority figures  Tendency to focus on adult family member’s storyTendency to focus on adult family member’s story  PoorPoor  Getting good legal representation (esp. quickly)Getting good legal representation (esp. quickly)  Survivors of tortureSurvivors of torture  Speaking to authority figuresSpeaking to authority figures  People with psychiatric illnessesPeople with psychiatric illnesses  Understanding and negotiating legal processUnderstanding and negotiating legal process
    • 35. Anti-Oppression ConsiderationsAnti-Oppression Considerations  Claimants in detentionClaimants in detention  Getting good legal representation (esp. quickly)Getting good legal representation (esp. quickly)  Access to advice and documentationAccess to advice and documentation  Claimants outside major centresClaimants outside major centres  Getting good legal representation (esp. quickly)Getting good legal representation (esp. quickly)  Access to advice and documentationAccess to advice and documentation

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