“Inhumane and degrading”: How Canada’s Immigration Policies Fail Child Refugees

  • 17 novembre 2021

(uniquement en anglais)

by Maria Reisdorf


Almost half the world’s refugees are children, and yet, no international treaty provides a definition of the term ‘child refugee’.1 Despite the non-existent express definition of ‘child refugee’, widely-accepted interpretations of certain treaties do provide specific guarantees to children seeking refugee status, stemming from provisions in the Convention Relating to the Status of Refugees2 (Refugee Convention), International Convention for Civil and Political Rights3 (“ICCPR”), and the United Nations Convention on the Rights of the Child4 (“CRC”). Canada, a country often thought of as a safe haven for those fleeing persecution, consistently violates its international obligations regarding the protection of child refugees in three prominent ways. First, by failing to afford children legal protection and representation throughout the refugee application process itself; second, in erecting legal barriers to family reunification; and third, by making use of immigration detention, especially as it pertains to family interference and the Canada-United States Safe Third Country Agreement5 (Safe Third Country Agreement). As conflicts around the globe continue to rage, heightened by the COVID-19 pandemic and political turmoil, Canada must bring its child refugee policies in line with international law and standards to protect some of the world’s most vulnerable victims.

The displacement of children during conflict was first highlighted after World War I when British social reformers drafted what came to be the 1924 Geneva Declaration on the Rights of the Child.6 Eglantyne Jebb, one of the drafters of this Declaration, famously stated that “all wars, whether just or unjust, … are waged against children”.7

The issues facing displaced children were further brought to light in the aftermath of World War II. In 1946, the International Refugee Organisation (“IRO”) – a UN agency – was created to coordinate relief efforts for displaced persons.8 The IRO’s Constitution’s definition of refugee made express provisions for the care of displaced children, including a separate category for “unaccompanied children who are war orphans or whose parents have disappeared, and who are outside their countries of origin”.9

The CRC further identifies refugee children as rights-bearers, but it does not define the term.10 Article 22 posits that:

1. States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

Jason Pobjoy, a Research Associate at the Refugee Studies Centre at the University of Oxford, states that Article 22 of the CRC is the “only provision in any human rights treaty that deals expressly with the situation of refugee children and children seeking refugee status”.11 Article 22 works to draw in the CRC as an aid12 in interpreting the Refugee Convention.13

The Refugee Convention, which provides the universally accepted definition of the term ‘refugee’, does not provide a definition of ‘child refugee’. In fact, the Refugee Convention makes no mention of children at all. Despite leaving the protection of refugee children to a matter of inference, the Refugee Convention is considered the “most critical source of rights for migrant children” post World War II.14

In recent years, the United Nations High Commissioner for Refugees (UNHCR) and the United Nations General Assembly have encouraged supporting a child-focused approach to refugee law.15 In 2009, the UNHCR issued Guidelines16 advising how to approach child asylum claims, writing that as “noted by the UN Committee on the Rights of the Child, the refugee definition: ‘must be interpreted in an age and gender-sensitive manner, taking into account the particular motives for, and forms and manifestations of, persecution experienced by children”.17 These Guidelines affirmed that the State is responsible for taking special measures to protect refugee children and that human rights instruments should be read to include a framework that protects them.18

1. Becoming a Convention Refugee

a. Providing Legal Protection to Children During the Application Process

The CRC defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” For refugee claim purposes in Canada, a person under the age of eighteen is a child.19 The omittance of a specific definition of ‘child refugee’ becomes problematic in the Canadian context when determining responsibility for providing protection to this vulnerable group. The tension between the federal government’s jurisdiction over immigration, and provincial governments’ responsibility of child protection, means that some refugee children fall through the cracks, and do not receive the legal protection they are entitled to under international law.

In its 2012 Concluding Observations – the latest available – the UN Committee on the Rights of the Child (“UNCRC”) urged Canada to “bring its immigration and asylum laws into full conformity with the Convention and other relevant international standards”.20 The UNCRC was particularly concerned that Canada has no “national policy on unaccompanied and asylum-seeking children”.21

While Canada’s Immigration and Refugee Protection Act22 (“IRPA”) does not set out specific procedures for dealing with the refugee claims of children, para. 3(3)(f) requires that the IRPA be applied in a manner that “complies with international human rights instruments to which Canada is signatory”.

One of the fundamental human rights of a child is outlined in Article 3(1) of the CRC, which states that “[i]n all actions concerning children… the best interests of the child shall be a primary consideration”.23 This Article was reaffirmed in the 1999 Supreme Court of Canada’s (“SCC”) decision in Baker v. Canada (Minister of Citizenship and Immigration) 24, which stated that international human rights law principles may serve as an aid in interpreting domestic law. In Legault v. Canada (Minister of Citizenship and Immigration25), the Federal Court of Appeal clarified that the ‘best interests of the child’ principle is only one of many factors to be considered when making a decision; it need not prevail over other considerations.26

There is no minimum age for refugee claimants in Canada, and children may arrive either with their families or on their own.27 Children arriving with their parents may elect to submit their own refugee application or have their parents submit one for them.28 Those arriving without their parents are referred to as ‘unaccompanied children’ or ‘unaccompanied minors’, and may submit their own applications.29 In 2017, Canada received over 50,000 applications for asylum, over 26% of which were for those under the age of 14.30

Every year, up to 3000 unaccompanied children arrive in Canada seeking refugee status.31 The federal government’s Operational Bulletin Manual on “Processing in-Canada claims for refugee protection of minors and vulnerable persons” states that any child under the age of 18 that arrives in Canada without a guardian “should be considered abandoned and must be referred to the appropriate child protection agency without delay”.32 However, each province and territory has its own system for caring for children without guardians.33 Some of the provincial child care systems frustrate this federal government policy.

For example, the definition of ‘minor child’ for child protection purposes is a person under the age of 18 or 19 years old in British Columbia, Alberta, Manitoba, Quebec, and Prince Edward Island.34 Ontario, Nova Scotia, New Brunswick, and the three territories consider a child to be a person under the age of 16.35 Saskatchewan defines a minor child as an unmarried person under the age of 16.36 As a result of the differing definitions of ‘minor child’, there is inconsistency in providing legal protection and representation to child refugees across Canada.37

Any person subject to proceedings before Canada’s Immigration and Refugee Board (IRB) has the right to counsel at the hearing.38 In addition, any person under the age of 18 is entitled to the appointment of a Designated Representative to assist at this hearing.39 The Designated Representative’s role is to ensure the child understands the process and receives appropriate legal representation.40 Across Canada, the Designated Representative is only responsible for assisting with the hearing process; the physical protection and care of the child is assigned to provincial child welfare systems.41

The provincial child welfare systems are meant to provide legal representation to the children in their care.42 This includes refugee children appearing before the IRB. 43 Oftentimes, where a child protection agency is delayed in accepting a minor child into their care, the child’s refugee process and hearing may already be underway.44 An issue arises where, for example, a 17-year-old, considered a child for refugee determination purposes, arrives in Canada through Ontario, where they are not considered a child for protection purposes. The refugee child, now alone in Canada, is responsible for providing for themselves, and seeking their own legal representation. If Ontario considered them a minor, they would fall under the protection of the Children’s Aid Society of Ontario, would be placed in foster care or in an NGO-run refugee shelter and would receive access to free legal aid services for representation at their refugee hearing.45 This is what should happen under the federal policy, as those aged 18 and under are considered minor children. Because Ontario operates with a different definition of ‘minor child’, this 17-year-old would not receive the legal protections they are entitled to under international law.

As such, access to legal representation for refugee children varies from province to province. The UNCRC has repeatedly recommended that Canada ensure that children arriving alone receive social services in every part of Canada, but thus far, no national policy exists to ensure consistent physical and legal protection for unaccompanied children arriving in this country.46 As Designated Representatives only assist with the hearing itself, several children are left without legal assistance for the vast majority of the immigration and refugee application process.

b. Meeting the Refugee Convention Definition

Article 1A(2) of the Refugee Convention defines a refugee as a person who “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country”.47 Children and adults alike must meet each element of this definition to be considered a Convention refugee.48 For many refugee children, this is an impossible task.

i. “Well-founded Fear”

It is widely accepted that the ‘well-founded fear’ element of the Convention refugee definition requires the applicant to establish that they have both a subjectively held fear, and that that fear is objectively well-founded.49 This requirement poses difficulty for many children, who may be unable to articulate their subjective fear adequately.50 Children often express their fears differently than adults, and this may not be taken into consideration by the decision-maker while assessing their application.51 Additionally, the fear must apply to acts that may occur in the future, but children may not be able to appreciate the risk of prospective harm.52 A young child may not know what harm lies before them if they were to be returned to their home country, and are thus less likely to express this future apprehension of harm.

Children may face difficulty in articulating fear due to many reasons, including trauma, fear of authority, lack of education, or potentially even parental instruction or ready-made testimony provided to them by smugglers.53 Young children may not even be aware of this fear if the decision to flee was made for them by a parent or guardian.54 Forcing a child to prove subjective fear could result in a rejection of their refugee claim, even if they face a true risk of harm “as a matter of objective evidence”.55

To counter this issue, some decision-makers have dispensed with the inquiry into subjective fear for children who may be unable to articulate their fear.56 Some will impute fear from the parent onto the child, while others, like those in Canada, tend to give greater regard to the element of objective fear when dealing with children.57 Professor Mary Crock, an immigration lawyer and public law professor at the University of Sydney, argues that the best solution is to take a nuanced approach; that the true question before decision-makers should be whether “in all of the known circumstances, there is a ‘real chance’ that claimants could face persecution if returned to the country from which they have fled”.58 This understanding would work in favour of better protecting child refugees, and help them bolster their application claims as credibility is often raised as an issue in denying refugee status and protection to children.59

These nuanced and sophisticated arguments that are required to ensure children facing persecution are protected by the refugee scheme highlight the need for children to receive proper legal representation throughout this administrative process. Canada must adopt a more appropriate policy.

ii. “Being Persecuted”

Like all applicants, children will only be considered Convention refugees if they are threatened by a harm that constitutes a risk of “being persecuted”.60 To meet this condition, the claimant must show evidence of a “sustained or systemic violation of basic human rights demonstrative of a failure of state protection”.61 Thus, there must be both a human rights abuse and a lack of state protection.

Just as children are often unable to accurately articulate their well-founded fear, they may also struggle with proving this definition of persecution. Moreover, children may be persecuted for different reasons than adults – often for reasons that may not initially come to mind when thinking of the traditional forms of persecution.62

The CRC recognizes that children have a distinct set of human rights.63 If a violation of one of these rights occurs, and the state does not protect the child, it may be said that the child faces persecution. This was acknowledged in Kim v. Canada (Minister of Citizenship and Immigration),64 where the Federal Court stated that as persecution means the denial of basic human rights, which include the distinct set of rights of children set out in the CRC, that “if a child’s rights under the CRC are violated in a sustained or systemic manner demonstrative of a failure of state protection, that child may qualify for refugee status”.65

The CRC also acknowledges that children’s development needs and sensitivities mean that they experience harm differently than adults do.66 For example, Article 28 of the CRC guarantees a child’s right to education. As the right to education is integral to a child’s development, the risk of denial of the opportunity to obtain an education may be considered a form of persecution.67 The recruitment of children to participate in hostilities, forced child marriages, or the sale and trafficking of children are also common forms of persecution faced by children.68 The CRC provides ways for adapting the persecution threshold for cases involving children.69 The UN Committee on the Rights of the Child and the UNHCR have stated that the term ‘persecution’ as used in the Refugee Convention should be read in light of the CRC.70

Further, Canadian jurisprudence recognizes the specific types of persecution that children may face. In Cheung v. Canada (Minister of Employment and Immigration),71 the Federal Court of Appeal found that the treatment of a second-born child, contrary to the ‘One-Child Policy’ in China, would be persecutory as the child would receive the classification of a ‘black market’ person and be denied the ordinary rights of a child.72 Inanother case, the Federal Court found that Chinese children trafficked by their parents who were in danger of being trafficked again if they returned to China could also be accepted as refugees in Canada.73

The second element of persecution is that there must be a failure of the state to protect. The purpose of refugee law, as stated in Canada (Attorney General) v. Ward,74 is “to serve as a back-up protection to the protection owed a national by his or her state”.75 In many cases, children may not have previously sought protection from their state authorities, but are also not in a position to avail themselves to that protection.76 In Bueckert v. Canada (Minister of Citizenship and Immigration),77 in reference to a three-year-old child, the Federal Court stated that it “is not immediately apparent how anyone that age could ever personally test the adequacy of state protection”.78

For these reasons, children require special accommodations to help them prove their status as Convention refugees. As this definition is complicated when applied to children, Canada must implement a national policy for the care and protection of children that includes providing legal representation to all children throughout the refugee application process.

2. Family Reunification

Refugee children are in an extremely vulnerable position and are often highly dependent upon family members, especially their parents.79 In Singh v. Minister of Employment and Immigration,80 the SCC held that persons seeking refugee protection in Canada have the right to have their status as refugees determined in accordance with the principles of fundamental justice, including the opportunity for an oral hearing before the decision-maker.81 Following this case, Canada established a new refugee determination system. The new system allowed for family reunification of accepted refugees with their dependent family members. 82

New immigration legislation was passed in 2001 in the form of the IRPA. S.3(3(f) states that the IRPA is to be construed and applied in a manner that “complies with international human rights instruments to which Canada is signatory”.83

Some of these instruments and provisions include article 23(1) of the ICCPR, which recognizes that “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.84 The idea of family unity for refugees is set out in the Final Act of the Refugee Convention, which states that “[c]onsidering that the unity of the family… is an essential right of the refugee, and that such unity is constantly threatened… [the Committee] recommends to Governments to take the necessary measures for the protection of the refugee’s family, especially with a view to: (1) Ensuring that the unity of the refugee’s family is maintained”.85

The IRPA includes a specific objective for the reunification of refugee families.86 Not only does it seek the general objective of reunifying families, but s.3(2)(f) states that the IRPA has a specific objective “to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada”.87

In furtherance of these domestic and international provisions, the IRPA allows successful refugee claimants to apply for Permanent Residence status, and include their family members in that application, whether their family members are physically in Canada or abroad.88 In addition, once a refugee is granted permanent residence, they have a ‘one year window’ to add family members to their application.89 ‘Family member’ is defined as a spouse or common-law partner of the applicant, a dependant child of the applicant or of the applicant’s spouse or common-law partner, or a dependent child of a dependant child (a grandchild of the applicant).90 Notably, a family member of a protected person under the IRPA does not include one’s parents or siblings. Due to this strict definition, children are often denied the right to family reunification.91

If a child is granted Convention refugee status in Canada, they cannot include their parents or siblings in their permanent residence application.92 Child refugees cannot sponsor their parents.93 To sponsor a parent, the child refugee must wait until they have turned 18 years old, and must have been earning the necessary minimum income for the three years previous to their application.94 In 2019, the minimum necessary income to sponsor two people was $41,007.95

Lawyers and legal clinics across the country have attempted challenging the restrictive definition of ‘family member’ on the grounds that it discriminates against child refugees, contrary to both the Charter and international rights to family reunification.96 In the words of Jason Pobjoy, “there is no principled basis under international law for denying children the agency to extend protection to their parents when the child is a refugee”, and that “there is no basis for limiting the application of family unity principles”.97

Yet, these challenges continuously fail. Immigration, Refugees and Citizenship Canada argues that this deliberate restriction is necessary to deter parents from sending their children ahead of them to Canada, likely with smugglers, to establish an ‘anchor’ for the whole family to then immigrate to Canada.98 However, the government also admitted that there is no evidence that parents would actually do this to ‘anchor’ the family and gain “an immigration advantage”.99

As a result of this reunification denial, the only way for an unaccompanied child who has been granted refugee status to have their parents come to join them is through a humanitarian and compassionate (“H&C”) application filed by the parent outside of Canada, under s.25(1) of the IRPA.100 The Minister of Immigration, Refugees and Citizenship has discretion to grant a foreign national permanent resident status if it is justified by H&C considerations.101 However, H&C application reviews often take years.102

Children whose refugee claims are denied may also appeal to H&C considerations, in which the Minister must take “into account the best interests of a child directly affected”.103 There is no real consensus on how the best interests of the child principles should be interpreted in deciding H&C applications for permanent residence.104 Over the years, both immigration officers and judges have tried to limit the scope of the best interests of the child considerations.105 The focus on these limitations changed in 2015, in Kanthasamy v. Canada (Citizenship and Immigration),106 where the SCC established clear guidelines on how the best interests of the child principle must be applied in H&C applications.107

Kanthasamy dealt with the refused refugee claim of a 16-year-old unaccompanied minor who arrived in Canada seeking refugee protection on the basis of fear of persecution as a young Tamil male in Sri Lanka.108 His claim was refused on the grounds that the civil war in Sri Lanka had ended and thus his fear of persecution was no longer well-founded.109 He applied to stay with relatives in Canada on H&C grounds, arguing that it was in his best interests to remain in Canada due to the trauma he experienced in Sri Lanka and the emotional supports available to him here.110 The SCC found the decision to reject his humanitarian application was unreasonable as it failed to properly assess his best interests.111

For the vast majority of children, it would be hard to argue that being reunited with one’s parents is not in their best interests. This may be the case in situations where the parents pose the harm, as in some instances of human trafficking; but those cases should be the exception, not the rule. Refugee children must be allowed to include their parents and siblings on Permanent Residence applications and be reunited with their parents in Canada.

3. Detention

a. Family Separation

Similar to the issue of family reunification is that of family interference. Article 17(1) of the ICCPR states that “[n]o one shall be subjected to arbitrary or unlawful interference with his … family…”.112 In Marckx v. Belgium,113 the European Court of Human Rights held that under Article 8 of the European Convention on Human Rights, a central feature of respect for family life is the right to live together.114 Ben Saul, the Challis Chair of International Law at the University of Sydney, in applying these provisions to Australia’s immigration detention scheme, asks whether immigration detention will thus always interfere with family life.115 He argues that whether interference in families resulting from their detention is arbitrary or unlawful foremost depends on whether their detention is arbitrary or unlawful to begin with.116

In Canada, applicants and their families are routinely detained while awaiting immigration decisions. Children are consistently “collaterally detained” as a result of the security assessments of their parents.117 This incidental detention is generally unlawful under the CRC.118 Canadian authorities often refer to children as ‘guests’ of a detention facility where they live in order to remain with a migrant parent who has been detained.119 The child themself is not legally detained, but still living in detention as an accompaniment to their parent.120

In response to the several cases brought against Australia before the UN Human Rights Committee (“UNHRC”), Australia has argued that while interference may exist where family members are separated by government actions, there is no interference where the government action merely produces “substantial changes to long-settled family life”.121 In this view, there is no interference where family members are detained together as their ordinary family life is merely altered due to detention.122 Nor is there family interference where some members of the family are detained and others are not, where those outside of detention have the ability to periodically visit those in detention.123

Despite Australia’s attempted arguments, the ability to visit family members in detention does not enable the maintenance of ordinary family life.124 Family separation and detention can lead to serious depression and mental anguish for both children and parents, and does not allow them to create a broader social life.125

Australia explicitly rejected the UNHRC’s findings in Winata v. Australia,126 which held that there was an interference when Australia deported two parents, forcing the family to choose whether their 13-year-old Australian citizen child should stay in Australia alone, or accompany his parents. Australia claimed that this too does not amount to an inference and rather only involves “substantial changes to long-settled family life”.127 In response to several rulings against them, Australia continues to challenge the UNHRC’s interpretation of the ICCPR.128

This issue is surfacing in Canada with more regularity in recent years as Canada receives an influx of refugees from the United States, whereby U.S.-citizen children are arriving with their non-U.S. citizen parents.129 In this situation, the adults have fled from a third country to the United States, where they were unable to receive refugee status.130 After having U.S.-born children – who are thus U.S. citizens – the family attempts to receive refugee status in Canada, claiming they are fleeing the persecution they face in the United States.131

If their Canadian refugee application is denied, the parents will be deported to their state of origin, the country they had initially fled from to the U.S.132 The children, as U.S. citizens, may elect to be returned to the U.S. alone, or accompany their parents back to their original country.133 Parents who bore children in Canada while awaiting a decision on their asylum cases can either take their children back with them upon deportation or have their children remain in Canada without them.134

b. The Safe Third Country Agreement

Following the September 11, 2001, terrorist attacks, Canada and the U.S. signed the Safe Third Country Agreement, whereby the United States was designated a safe third country pursuant to s.101(1)(e) of the IRPA. Under this agreement, refugees entering Canada from the United States through a regular port of entry by land are ineligible to claim refugee protection status in Canada, and vice versa.135 The agreement is meant to cut off the flow of refugee applicants to Canada via the U.S., as it forces refugees to make their asylum claims in their first country of arrival. Refugees that arrive in the United States first must apply for refugee status there – they cannot wait to carry on to Canada to make their claim.

There are some exceptions to the Safe Third Country Agreement, including one for unaccompanied minors without a parent or guardian in either the United States or Canada.136 While the idea here is to provide greater protection and access to the refugee process for children, the policy remains flawed. The child must prove to the satisfaction of Canadian border authorities that they are under the age of 18 and have no parent or legal guardian in either country. This may be a difficult task for children, especially if they lack the requisite documents or do not speak the language. As a result, the unaccompanied child could end up in detention.

Article 37 of the CRC says that “State Parties shall ensure that… (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time”.137 Accordingly, international law requires that children only be detained as a measure of last resort and in the absence of less restrictive alternatives.

It appears that Canada, at least on paper, is trying to recognize this provision. Section 60 of the IRPA affirms that it is “a principle that a minor child shall be detained only as a measure of last resort, taking into account the other applicable grounds and criteria including the best interests of the child”. It is important to note here that the IRPA only requires a child’s best interests to be “taken into account”, as opposed to the CRC, which states that children’s interests must be a “primary consideration”. As a result, many immigration decisions affecting children continue to be made without appropriately considering the “best interests of the child”, and migrant children are regularly detained in Canada.

In 2012, the federal government introduced new legislation mandating detention for a period of six months without review for any refugee claimants aged 16 and older if they are designated by the Minister as foreign nationals who are irregular arrivals. Thus, this part of the scheme demands detention for a specific group of children.

The UNHRC has stated that mandatory detention violates Article 9(1) of the ICCPR, – whether applied to children or adults – which provides for the right to be free from arbitrary or unlawful detention. In A v. Australia,138 the UNHRC accepted that it is not per se arbitrary to detain asylum seekers, but that “the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individual, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal”. As mandatory detention by definition cannot take into account the various factors affecting any one individual and is rather a blanket policy for all those over the age of 16, Canada’s mandatory detention scheme violates international law. It also fails to take into consideration whether there are any other reasonable alternatives to detention for the children captured by this policy.


The Government of Canada argues that its immigration and detention policies are legal due to necessity. Former UN Special Rapporteur on the human rights of migrants and McGill Law Professor François Crépeau argues that these justifications themselves are a violation of international law as governments cannot construct barriers and use immigration policy as a way of deterring individuals from seeking protection.139 Professor Crépeau has stated that Canada’s policies toward child migrants are “inhumane and degrading”.140 The human rights abuses perpetuated by Canada’s refugee scheme run contrary to its international reputation as a safe haven for those seeking protection.

To best protect children and meet its international obligations, Canada must re-design its immigration scheme as it pertains to children. The federal and provincial governments must work together to develop a consistent policy across Canada to provide for the social, physical, and legal needs of children throughout the refugee application process. Children who arrive in Canada as unaccompanied minors must be provided with a lawyer to help the child and decision-maker navigate the process of interpreting the Refugee Convention in light of the CRC. Evidence from children must be allowed to meet an adapted threshold regarding the elements of ‘well-founded fear’ and ‘being persecuted’. All Canadian decision-makers and judges should follow the UNHCR guidelines in determining cases involving refugee children.

Children who have been granted refugee status should be permitted to include their parents in their applications for permanent residence. Canada must acknowledge the importance in a child’s development of having their parents present, and remove barriers to this unification. Child refugees should have the right to reunite with their family members in the same way that adult refugees in Canada do. If a child arrives with their parents, the family should not be detained, but rather placed in community-housing to avoid the de facto or collateral detainment of children or family separation. The best interests of a child should also be taken into consideration in decisions to detain their parents for immigration purposes. Parents of refugees who have not received refugee status themselves should be allowed to stay in Canada with their families on humanitarian grounds.

Finally, Canada must end the detention of migrant children. The detention of a child for immigration purposes is never in their best interests, and neither are many of Canada’s child refugee policies.


1 Geraldine Sadoway, “The Child in International Refugee Law, by Jason M. Pobjoy” (2018) 34:1 Refuge 79 at 79. [Sadoway, “The Child”].
2 “Convention Relating to the Status of Refugees”, 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) [Refugee Convention].
3 “International Covenant on Civil and Political Rights,” 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) [ICCPR].
4 “Convention on the Rights of the Child”, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) [CRC].
5 “Canada-United States Safe Third Country Agreement”, Canada and United States, 5 December 2002, Can TS 2004/2 (entered into force 29 December 2004) [STCA].
6 Mary Crock and Hannah Martin, “First things first: international law and the protection of migrant children” in Mary Crock and Lenni B. Benson, eds, Protecting Migrant Children (Cheltenham, UK: Edward Elgar Publishing, 2018) 75 at 76.
7 Ibid. Eglantyne Jebb established the international relief agency Save the Children.
8 Ibid.
9 Ibid. The four Geneva Conventions and their two Additional Protocols do specifically address the protection needs of children. However, these treaties only apply during times of armed conflict.
10 Jeanette A. Lawrence, Agnes E. Dodds, Ida Kaplan, and Maria M. Tucci, “The Rights of Refugee Children and the UN Convention on the Rights of the Child” (2019) 8:20 Laws 1 at 4.
11 Ibid.
12 Mary Crock and Phoebe Yule, “Children and the Convention Relating to the Status of Refugees”, in Mary Crock and Lenni B. Benson, eds, Protecting Migrant Children (Cheltenham, UK: Edward Elgar Publishing, 2018) 97 at 99.
13 Refugee Convention, supra note 2.
14 Crock and Martin, supra note 6 at 78.
15 Crock and Yule, supra note 12 at 97.
16 UNHCR, Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, UN Doc. HCR/GIP/09/08.
17 Ibid at 4.
18 Crock and Yule, supra note 12 at 98.
19 Government of Canada, “Processing in-Canada claims for refugee protection of minors and vulnerable persons” (11 April 2019), online: Government of Canada. [Government of Canada, “Processing”].
20 UN Committee on the Rights of the Child (UNCRC), Concluding Observations: Canada, 61st Sess., UN Doc. CRC/C/CAN/CO/3-4 (5 October 2012) at para. 74.
21 Ibid para 73.
22 Immigration and Refugee Protection Act, SC 2001, c 27.
23 CRC, supra note 4.
24 Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR 4th 193 at para 70.
25 Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125.
26 Ibid at para 13.
27 Government of Canada, “Processing”, supra note 19.
28 Ibid.
29 Ibid.
30 Statistics Canada, “Just the Facts, Asylum Claimants”, (17 May 2019), online: Statistics Canada.
31 Geraldine Sadoway, “Protection measures for unaccompanied child migrants in Canada” in Mary Crock and Lenni B. Benson, eds, Protecting Migrant Children (Cheltenham, UK: Edward Elgar Publishing, 2018) 299 at 299. [Sadoway, “Protection”].
32 Government of Canada, “Processing”, supra note 19.
33 Sadoway, “Protection”, supra note 31 at 300.
34 Government of Canada, “Provincial definitions of a minor” (25 February 2013), online: Government of Canada.
35 Ibid.
36 Ibid.
37 Sadoway, “Protection”, supra note 31 at 300.
38 Ibid.
39 Ibid.
40 Ibid at 301.
41 Ibid.
42 Ibid at 302.
43 Ibid.
44 Ibid.
45 Ibid.
46 Ibid at 302-303.
47 Refugee Convention, supra note 2.
48 Crock and Yule, supra note 12 at 300.
49 Ibid.
50 Ibid.
51 Ibid.
52 Ibid.
53 Ibid at 101.
54 Ibid.
55 Ibid.
56 Ibid.
57 Ibid.
58 Ibid at 102.
59 Ibid.
60 Refugee Convention, supra note 2.
61 Crock and Yule, supra note 12 at 103.
62 Ibid.
63 Ibid.
64 Kim v Canada (Minister of Citizenship and Immigration), 2010 FC 720.
65 Ibid at para 51.
66 Crock and Yule, supra note 12 at 103.
67 Ibid.
68 Ibid at 104.
69 Ibid.
70 Ibid.
71 Cheung v Canada (Minister of Employment and Immigration), [1993] 2 FC 314, 102 DLR (4th) 214.
72 Ibid.
73 Sadoway, “Protection”, supra note 31 at 309.
74 Canada (Attorney General) v Ward, [1993] 2 SCR 689, 103 DLR (4th) 1.
75 Ibid at 691.
76 Crock and Yule, supra note 12 at 105.
77 Bueckert v Canada (Minister of Citizenship and Immigration), 2011 FC 1042.
78 Ibid at para 18.
79 Sadoway, “Protection”, supra note 31 at 311.
80 Singh v. Minister of Employment and Immigration, [1985] 1 SCR 177, 17 DLR (4th) 422.
81 Ibid.
82 Sadoway, “Protection”, supra note 31 at 311.
83 IRPA, supra note 22.
84 ICCPR, supra note 3.
85 Refugee Convention, supra note 2.
86 Sadoway, “Protection”, supra note 31 at 311.
87 IRPA, supra note 22.
88 Sadoway, “Protection”, supra note 31 at 311. Pursuant to Regulations, s 176.
89 Ibid (pursuant to s 176(2) of the Regulations).
90 Ibid (pursuant to s 1(3) of the Regulations).
91 Sadoway, “The Child”, supra note 1 at 80.
92 Sadoway, “Protection”, supra note 31 at 313.
93 Ibid.
94 Government of Canada, “ How much income do I need to sponsor my parents and grandparents?” (28 April 2021) online: Government of Canada.
95 Ibid.
96 Sadoway, “Protection”, supra note 31 at 313.
97 Ibid at 314.
98 Ibid at 313.
99 Ibid.
100 Canadian Council for Refugees, “Canada deports children without considering their best interests”, online: Canadian Council for Refugees.
101 Sadoway, “Protection”, supra note 31 at 315.
102 Canadian Council for Refugees, supra note 100.
103 Sadoway, “Protection”, supra note 31 at 315.
104 Ibid at 316.
105 Ibid.
106 Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61.
107 Ibid.
108 Ibid.
109 Ibid.
110 Ibid.
111 Ibid.
112 ICCPR, supra note 3.
113 Marckx v Belgium (1979), ECHR (Ser A) 1.
114 Ben Saul, “Indefinite security detention and refugee children and families in Australia: international human rights law dimensions” (2013) 20:20 Austl Intl LJ 55 at 58.
115 Ibid at 57.
116 Ibid at 62.
117 Ibid at 65.
118 Ibid.
119 Sadoway, “Protection”, supra note 31 at 307.
120 Canadian Council for Refugees, “Detention and Best Interests of the Child” (2009), online (pdf): Canadian Council for Refugees.
121 Australian Government Response on Admissibility and Merits to UNHRC Communication No 2094/2011, 5 December 2012.
122 Saul, supra note 114 at 58.
123 Ibid.
124 Ibid at 60.
125 Ibid.
126 UN Human Rights Committee (HRC) Hendrick Winata and So Lan Li v Australia, CCPR/C/72/D/930/2000, UNHRC, (2001).
127 Ibid at 58.
128 Ibid at 63.
129 Emma Jacobs, “What happens to the American children of asylum-seekers in Canada?” (9 January 2020), online: Public Radio International.
130 Ibid.
131 Ibid.
132 Ibid.
133 Ibid.
134 Ibid.
135 STCA, supra note 5.
136 STCA, supra note 5.
137 CRC, supra note 4.
138 UN Human Rights Committee (HRC), A. v Australia, CCPR/C/59/D/560/1993, UNHRC (1997).
140 Ibid.