Immigration and Refugee Law

The most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada. However, Canada’s Immigration and Refugee Protection Act (IRPA) requires that the Act be construed and applied in a manner consistent with the Charter. It must also comply with international human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child (CRC).

Under CRC Article 3, best interests of the child is a primary consideration in all actions concerning children, including the actions of public authorities, administrative authorities and courts of law. Although there are several areas where IRPA mandates a consideration of a child’s best interests and the Supreme Court of Canada has made clear that close attention must be given to a child’s interests and needs in certain immigration decisions, there are no overriding best interests considerations in immigration and refugee law.

For example, the best interests of the child principle does not apply to family reunification for refugee children in Canada whose parents are in other countries. Canada also lacks a clear policy framework consistent with the best interests of unaccompanied minors seeking asylum. Further, parents may sponsor their dependent children but children may not bring their parents to Canada, and children who remain in their country of origin are not permitted to join their parents in Canada if their parents did not name them as dependents in their applications for permanent residence. Children must wait for lengthy periods to reunite with resident parents and are often denied the ability to visit with a parent who resides in Canada, contrary to specific provisions in the CRC relating to the non-separation of children from their parents (unless it is necessary for their best interests), and contrary to the requirement that applications for the purpose of family reunification be dealt with in a positive, humane and expeditious manner (Articles 9 and 10).

The Committee on the Rights of the Child has expressed specific and significant concern that Canada has not appropriately applied the best interests of the child principle in asylum-seeking, refugee and/or immigration detention situations and has urged Canada to bring its immigration and asylum laws into full conformity with the CRC and other international standards.

Jurisdiction

Immigration is recognized as a concurrent power under the Canadian Constitution which means jurisdiction is shared between the federal government and the provinces. However, the federal government has exclusive jurisdiction over the admission and naturalization of foreign nationals, which enables it to determine the number of immigrants admitted to Canada and the criteria for selection as set out in IRPA and its regulations, although it will collaborate with the provinces to establish immigration goals and policies.

The provinces also exercise key powers over immigration policy in the provision of social services and education, consistent with the division of powers under the Constitution. As such, the provinces play an important role in immigration settlement services, such as housing, job training, and language education. The federal government also participates in this field through programs and services funded by Citizenship and Immigration Canada.

International Law

  • CRC Articles 2, 3, 6, 12, 8, 9, 10, 11, 20, 21, 22, 23, 24, 27, 28, 29, 30, 32, 34, 35, 36, 37, 38, 39

CRC Immigration Articles Summarized

General Principles 

  • Articles 2 (non-discrimination)
  • 3 (best interests as a primary consideration)
  • 6 (right to life, survival and development)
  • 12 (right of child to express views freely and to have due weight given to those views)

Other articles

Interpretive Sources

Canadian Law

  • Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA), s. 3, 25(1), 25.1, 28(2)(c), 60, 67(1)(c), 68 (1), 69(2), 167(1), 167(2):

    Key IRPA provisions which may be referenced in upholding the rights of children:
    • s. 3 of IRPA sets out the objectives of the Act which include the reunification of families in Canada (s. 3(1)(d)).
    • Other objectives include the recognition that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; the fulfilment of Canada’s international legal obligations with respect to refugees; to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; to offer safe haven to persons with a well-founded fear of persecution; and to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings (ss. 3(2)(a), (b), (c), (d) and (e))
    • Pursuant to s. 3(3)(d) and (f) of IRPA, the Act is to be construed and applied in a manner that ensures that decisions are consistent with the Charter, including its principles for equality and freedom from discrimination and that complies with international human rights instruments to which Canada is a signatory

    Although there are no overriding best interests of the child considerations in the immigration and refugee law context, there are several sections of IRPA that mandate an assessment of best interests, including:
    • s. 25(1) – humanitarian and compassionate considerations at the request of the foreign national
    • s. 25.1 – humanitarian and compassionate considerations on the Minister’s own initiative
    • s. 28(2)(c) – humanitarian and compassionate considerations in regard to a permanent resident seeking to retain their status despite a breach of the residency requirements
    • s. 60 – minor children are to be detained under Division 6 of Part I of the Act only as a measure of last resort, taking into account other applicable grounds and criteria, including the best interests of the child
    • ss. 67(1)(c), 68(1), 69(2) – Immigration Appeal Division proceedings where appeals may be allowed (s. 67(1)(c)); removals stayed (s. 68(1)); and a Minister’s appeal dismissed (s. 69(2)), on the basis of humanitarian and compassionate considerations, taking into account the best interests of the child

    Representation:
     
    • IRPA makes provision for a right to counsel, at the person’s expense, in relation to proceedings before any division of the Immigration and Refugee Board and Minister (s. 167(1))
    • In the case of a minor (a person under 18 years of age), although IRPA makes no specific provision for state-funded legal representation, the Division is required to designate a person to represent a minor (s. 167(2)). The Designated Representative (DR) is responsible for protecting the interests of the minor, as well as explaining the process to them, and the functions of a DR include deciding whether to retain counsel and if counsel is retained, instructing counsel or assisting the child in instructing counsel, as well as making other decisions regarding their case (ie. gathering and providing evidence) or assisting them to make those decisions (see Immigration and Refugee Board of Canada, Designated Representative’s Guide)
  • Immigration and Refugee Protection Regulations, SOR/2002-227
  • Refugee Protection Division Rules, SOR/2012/-256
  • Immigration Division Rules, SOR/2002-229
  • Immigration Appeal Division Rules, SOR/2002-30
  • Citizenship Act, S.C. R.S.C., 1985, c. C-29
  • Federal Courts Act, R.S.C. 1985, c. F-7
  • Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11

Case Law

Best Interests of the Child / Application of the Convention:

  • Baker v. Canada (Minister of Citizenship and Immigration), [1999] S.C.J. No. 39, [1999] 2 S.C.R. 817 (S.C.C.) Must an immigration officer give serious consideration to the child’s best interests in the exercise of discretionary powers that may affect them; in this case in the context of an application for permanent residence on humanitarian and compassionate grounds? Yes. The Court considered the CRC, as well as the importance of children's rights and the best interests of children in other international instruments ratified by Canada, highlighting that the values in international human rights law may inform the contextual approach to statutory interpretation and judicial review. Where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate traditions, as well as the guidelines issued by the immigration Minister, the decision will be held to be unreasonable. The Court required the immigration officer to take into account the children’s best interests “as an important factor, give them substantial weight, and be alert, alive and sensitive to them”.
  • Kanthasamy v. Canada (Minister of Citizenship and Immigration), [2015] S.C.J. No. 61, 2015 SCC 61 is significant in interpreting and strengthening the ‘best interests of the child’ principle and determining that the concept of ‘unusual or undeserved hardship’ is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief. The Supreme Court of Canada allowed the appeal and remitted the matter for reconsideration as the immigration officer’s decision was unreasonable, noting the need to consider the best interests of a child who is ‘directly affected’ as a ‘singularly significant focus and perspective’. International human rights instruments to which Canada is a signatory, including the CRC, stress the centrality of the best interests of a child. This includes deciding the kind of environment in which a particular child has the best opportunity for receiving needed care and attention, having regard to the ‘multitude of factors’ that may impact on a child’s best interests and being responsive to each child’s particular age, capacity, needs and maturity.
  • M.M. v. United States of America, [2015] S.C.J. No. 62, 2015 SCC 62 did not strictly arise in the immigration context, but is significant for how international instruments touching on the rights of children inform the role the best interests of the child should play in the Minister of Justice’s decision to surrender a mother for extradition and the impact this would have on her three minor children. The Court considers the best interests of the child in the extradition context as compared to an application for permanent residence on humanitarian and compassionate grounds in the immigration context. The majority cited the CRC and other instruments which call for being attentive to children's interests and rights when making decisions that affect their future and says such instruments weigh in favour of requiring the Minister to give careful consideration to the best interests of a child who may or will be impacted by an individual's extradition. However, the Court also indicates that the criminal law context of extradition differentiates the case from humanitarian and compassionate discretion in the immigration context, and ultimately determines that the consequences of the mother having to face criminal charges abroad cannot in themselves be seen to be unjust or oppressive. The minority decision viewed the Minister's inadequate consideration of the children's best interests and his conclusions with respect to the availability of a Criminal Code defence rendered his decision to order the mother's surrender unreasonable. The Minister's uncertainty as to the children's best interests ought to have led him to err on the side of the children's right to be with a loving parent, not on the side of surrendering the mother to face a criminal process in a different country where a key defence was unavailable.
  • Hawthorne v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1687, [2003] 2 F.C. 555, 2002 FCA 475 (C.A.) determined that the requirement that the best interests of the child be considered may be satisfied, depending on the circumstances of each case, by considering the degree of hardship to which the removal of a parent exposes the child. The concept of ‘undeserved hardship’ is ill-suited when assessing the hardship on innocent children. Children will rarely, if ever, be deserving of any hardship. Ultimately, the majority determined that the immigration officer had not been "alert, alive and sensitive" to the child's best interests and in a concurring opinion, confirmed earlier case law which stated that those interests must be “well identified and defined”.
  • De Guzman v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2119, 2005 FCA 436 (C.A.) considered the impact on IRPA of international human rights instruments to which Canada is a signatory, including the CRC. The appeal in this case arose from a decision of a visa officer refusing to issue visas to the Appellant’s two sons as members of the family class. The Appellant had failed to disclose their existence at the time of her application for permanent residence to Canada. They had remained in the Philippines with their father at that time. The Court determined that s. 3(3)(f) of IRPA “attaches more than mere ambiguity-resolving, contextual significance to "international human rights instruments to which Canada is signatory" and concluded that a legally binding international human rights instrument to which Canada is signatory, including the CRC, “is determinative of how IRPA must be interpreted and applied, in the absence of a contrary legislative intention.”

Rights of Refugee Child in Hague Convention Proceeding:                             

  • A.M.R.I. v K.E.R., 106 O.R. (3d) 1, 2011 ONCA 417 (C.A.) considered the interplay between Canada’s obligations under various international instruments, including the Hague Convention on the Civil Aspects of International Child Abduction and the Convention Relating to the Status of Refugees. The Court considered the CRC and determined that the weight to be given to the child's best interests in the CRC strongly supported the conclusion that a Hague application judge must treat the child's status as a refugee as giving rise to a rebuttable presumption of risk of persecution if forced to return to her country of origin. The Court also referenced Article 12 of the CRC in support of its conclusion that in the context of a child refugee, the views of the child gain greater importance. Given the interests at stake, the Court specifically found that where the proposed return engages the child’s s. 7 Charter rights, meaningful procedural protections must be afforded to the child, including legal representation. The fact that a child is not a party to the application does not detract from her right to be heard.

Medical Coverage:

  • Canadian Doctors for Refugee Care v. Canada (Attorney General), [2014] F.C.J. No. 679, 2014 F.C. 651 held the Orders in Council that significantly reduced the level of health care coverage available to refugee claimants under the Interim Federal Health Program were inconsistent with ss. 12 and 15 of the Charter and that the changes to the Program were not justifiable under s. 1, as the profoundly deleterious effects greatly outweighed the salutary objectives of the changes. The Court found that while the negative impact of the changes was by no means felt exclusively by the children of those seeking the protection of Canada, the cruelty of the changes to the IFHP were especially evident insofar as they affected children and noted that although children sometimes have to live with the procedural consequences of their parents’ choices, this should not expose them to “unnecessary pain and suffering potentially putting their very lives at risk, because of choices made by their parents”. The Court noted Canadian domestic law contemplates the exercise of parens patriae jurisdiction where necessary to ensure that the interests of children are protected. 

Stay of Removal and Best Interests of the Child: 

  • Martinez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1695, 2003 FC 1341 (T.D.) involved an application for a stay of a removal order pending determination of a father’s application for permanent residence on humanitarian and compassionate grounds. The Court found that it was contrary to the CRC to separate the Applicant and his children before a decision was made on the humanitarian and compassionate application because it is only during the assessment of that application that the best interests of the children could be fully addressed and treated as a primary consideration as required under Article 3 of the CRC. Stated another way, the existence of the undecided H&C application raised a serious issue necessitating a stay since it was through the assessment of the children’s best interests that Canada’s obligations under the CRC were fulfilled.

Designated Representatives: 

  • Hillary v. Canada (Minister of Citizenship and Immigration), [2011] F.C.J. No. 184, 2011 FCA 51 (C.A) Is a designated representative required? The Court held IRPA s. 167(2) recognizes that, if their interests are to be adequately protected in a proceeding before the Board, minors, and those unable to appreciate the nature of the proceedings, require the assistance of a designated representative who is sensitive to the particular needs of the individual concerned and alert to their best interests. A failure to comply with the express and implied procedural duties imposed by the Act may constitute a breach of a principle of natural justice. Without representation, an individual may not able to participate effectively in the decision-making process, especially when facing a more powerful adversary, such as a government department. 
  • Duale v. Canada (Minister of Citizenship & Immigration), [2004] F.C.J. No. 178, 2004 FC 150 (F.C.) Does a minor require both counsel and a designated representative? Although he was represented by counsel at the hearing, the young person went through each stage of the proceeding, except for the actual hearing, without the assistance of a designated representative. This was contrary to the intent and scheme of IRPA, the Rules, the "Guidelines concerning Child Refugee Claimants: Procedural and Evidentiary Issues", and the Commentary to the Rules published by the Immigration and Refugee Board. The need for the designation of a representative applies to the entirety of the proceedings in respect of a refugee claim and not just to the actual hearing of the claim. Thus, the duty upon counsel to notify the RPD that a claimant in the ‘proceedings’ is a minor applies to the status of the claimant at conferences, applications, interviews and the like. 

Other relevant cases regarding the best interests of the child in an H&C context: 

Special Considerations 

  • There is no statutory right to legal representation for children in immigration and refugee law 
  • If the person subject to the proceedings is under 18 years the Division (of the Immigration and Refugee Board) must appoint a designated representative (IRPA s. 167(2)) 
  • Family reunification of a refugee parent with a spouse and children is contemplated but there is no family reunification for a child found to be a refugee with parents and siblings (Immigration and Refugee Protection Regulations ss. 1(3) and 176(1)
  • Derivative citizenship is dependent on a genetic link to a Canadian parent (i.e. surrogacy through anonymous donors does not qualify (s. 3(1)(b) of the Citizenship Act; Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 85
  • Unaccompanied minors may be taken into the care and guardianship of a provincial child welfare authority but the definition of a minor is not consistent within provincial legislation - for example, in Ontario, a child must be under the age of 16 at the time of a child protection agency’s initial involvement (s. 37(1), Child and Family Services Act, R.S.O. 1990, c. C. 11); in British Columbia, protective services may be provided to a child/youth up to the age of 19 (s. 1, Child, Family and Community Service Act, [RSBC] Ch. 46) 
  • Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level (s. 30(2) of IRPA; see also s. 49.1 of Ontario’s Education Act, R.S.O. 1990, c. E.2, which states that a person who is otherwise entitled to be admitted to a school and who is less than eighteen years of age shall not be refused admission because the person or the person’s parent or guardian is unlawfully in Canada) 
  • The Interim Federal Health Program provides for different levels of medical coverage for various categories of refugees/claimants, including children, and other risk-based claimants within the immigration/refugee system.

Practice Essentials 

  • In written and oral advocacy highlight the ‘child/family-friendly’ objectives of IRPA (ss. 3(1), (2)) and make reference to the specific requirement that decisions be consistent with the Charter and in compliance with international instruments to which Canada is a signatory, i.e. CRC (s. 3(3)) 
  • Consider the appointment of a designated representative as early as possible in any immigration/refugee proceeding 
  • Advocate for the appointment of an appropriate, qualified designated representative who understands his or her role and responsibilities to the child – i.e. the presumptive appointment of a parent as a designated representative for accompanied children may be inappropriate in situations of domestic violence, gender or honour-based violence and/or forced marriage, or where a youth’s sexual orientation or gender identity may be a source of persecution and parental support has not been forthcoming 
  • Ensure that children are accompanied by an appropriate adult to all immigration interviews, ideally counsel and/or their designated representative (see concurring opinion of Trudel J.A. in Kisana v. Canada (Minister of Citizenship and Immigration), [2009] F.C.J. No. 713, 2009 FCA 189 (C.A.), at paras. 66-69) 
  • Consider the need to seek out / apply for identity documents for the child as soon as possible 
  • If acting for a child in another context (ie. family law, child protection, YCJA proceedings), consider the impact of any order made on the child’s immigration status and liaise with immigration counsel 
  • Consider the need for and extent of the Minister’s (Minister of Public Safety and Emergency Preparedness) participation in any non-immigration proceedings, having regard to s. 50(a) of IRPA which states that a removal order is stayed if a decision that was made in a judicial proceeding, at which the Minister shall be given an opportunity to make submissions, would be directly contravened by the enforcement of the removal order 
  • Take a cautious approach to sharing information from another proceeding with immigration officials, having regard to issues of privacy/confidentiality and consistency of information 
  • Consider any particular linguistic, cultural and/or developmental issues that the child may have, as well as any potential trauma that the child may have experienced and the need for supportive services 
  • Advocate for the implementation of the recommendations regarding asylum-seeking and refugee children contained in the Committee on the Rights of the Child’s December 6, 2012 report (CRC/C/CAN/CO/3-4, at paras. 73-74) regarding Canada’s compliance with the CRC (primacy of the best interests of the child in all immigration and asylum processes; use of detention only in exceptional circumstances, subject to judicial review; expedited institution of guardianship for unaccompanied minors; expeditious processing of asylum claims) 

Resources 

  • Caterina Tempesta, “Background document on “Immigration and Refugee Law”” (2016) [unpublished archived at the Canadian Bar Association].
  • James C. Hathaway & Michelle Foster, The Law of Refugee Status, 2nd edition, (Cambridge: Cambridge University Press, 2014) online.
  • Leigh Salsberg, “The Child as Immigrant” in Jeffery Wilson et al., eds, Wilson on Children and the Law (LexisNexis Canada, 1994) (QL)
  • Michael Battista. & Kelly D Jordan Canadian Family and Immigration Law: Intersections Developments and Conflicts, (Toronto: Carswell, 2015)(Carswell).
  • Canadian Bar Association, Designated Representatives in Immigration and Refugee Matters: Using Them to the Fullest Potential, Submission to the IRCC, (Ottawa: December 2015)

Facta and Precedents

Relevant Guidelines, including Immigration Operational Guidelines

Education (Ontario) 

Social Science Articles and Books 

  • Jon G Allen, Coping with Trauma, Second Edition: Hope Through Understanding (American Psychiatric Association, 2004). 
  • Judith L Herman, Trauma and Recovery (Basic Books, 1997). 
  • Laura Simich  & Lisa Andermann  eds, Refuge and Resilience: Promoting Resilience and Mental Health among Resettled Refugees and Forced Migrants, (Springer Netherlands, 2014). 
  • Lisa Andermann L. & Hung-Tat (Ted) Lo, “Cultural Competence in Psychiatric Assessment” in Davud Goldbloom, ed, Psychiatric Clinical Skills (Toronto: Centre for Addiction and Mental Health, 2010). 
  • Cultural Consultation Service, Guidelines for Cultural Assessment and Cultural Formulation(2016) online. 
  • Cultural Formulation Interview DSM-V (APA Press)