A. Context

Normally when a person does not have legal immigration status in Canada, a removal order is issued against him or her and they either depart voluntarily or with the assistance of the Canada Border Services Agency (CBSA). Those facing removal from Canada include people who travelled to Canada to make a claim for refugee protection, were denied and have exhausted all appeals, those who have overstayed the duration of their temporary residence visa or permit, or those who entered Canada without proper authorization in the first place.

However, Canada does not carry out all removal orders; in certain situations removals may be suspended or deferred. The Minister of Public Safety and Emergency Preparedness, for example, may announce a temporary suspension of removals to a particular country after a review of country conditions, conducted with the Minister of Immigration, Refugees and Citizenship, determines there is a generalized risk to the population as the consequence of natural disasters, civil unrest or armed conflict. A temporary suspension of removals is currently in place for Afghanistan, Democratic Republic of the Congo, and Iraq.[2]

On account of improved country conditions, the ministers concerned announced on 1 December 2014 that the temporary suspension of removals to Zimbabwe and Haiti was lifted.[3] The temporary suspension of removals to Zimbabwe had been in place since 2002 and for Haiti since 2004. During the years when people could not be removed to these two countries, affected individuals became established in Canada, despite encountering numerous difficulties related to their temporary immigration status.

1. Impact on the Haitian Community of the Temporary Stay of Removals

Witnesses who appeared before the Committee shared some of the difficulties faced by Haitian nationals subject to a temporary suspension of removals, but also spoke of the community’s resilience in the face of adversity.

Representatives of the Haitian community who appeared before the Committee, such as Ms. Jocelyne Simon and Mr. Pierreson Vaval, indicated that living with a temporary suspension of removal from Canada has created considerable instability for families. Having work permits of short duration (six months or one year) that must be renewed at a cost of $255 was identified as “a hassle” that at best was an inconvenient loss of time and money and, at worst, cost people their jobs.[4] Because it takes Immigration, Refugees and Citizenship Canada (IRCC) three to four months to process a work permit renewal request, they informed the Committee that people are often caught in a cycle of applying for and renewing work permits.

Difficulty with acquiring and renewing work permits was raised as a concern not only for adults, but also for young people who wanted to work or attend school. According to Simon and Vaval, those with valid work permits can attend post-secondary institutions, including cégep, college, and university while paying regular tuition.[5] Those without a valid work permit had to pay international student rates to attend higher education, at $6,000 for cégep and $10,000 for university.[6]

Simon and Vaval also identified access to health care as an issue, despite the fact that people subject to a temporary suspension of removals are entitled to benefits under the federal government’s Interim Federal Health Program (IFHP). They described the administrative burden on families that have to renew individual family member benefits on different days, and of the reluctance of many medical service providers to accept the IFHP certificate. Further, Mr. Vaval informed the Committee that in Montreal, only the Hospital Santa Cabrini would accept IFHP certificates, meaning that people had to travel from across the city to reach this sole service provider.[7]

In addition to these concerns, the earthquake that struck near Port-au-Prince, Haiti, on 12 January 2010, killing more than 300,000 people and devastating local infrastructure had a significant impact on Haitians in Canada as well. At the time the federal government put in place special immigration measures, which included temporary resident visas for more than 1,700 people and more than 500 temporary resident permits.[8] The earthquake galvanized the Haitian-Canadian community, who raised funds and formed organizations to help those in Haiti and those who came to Canada having lost everything.

B. The Special Immigration Measures

Shortly before the temporary suspension of removals to Haiti and Zimbabwe was lifted on 1 December 2014, the government announced “special measures” allowing affected individuals six months to apply for permanent residence on humanitarian and compassionate grounds, during which time the CBSA would not enforce removals.

Drawing on data primarily from failed refugee claims, officials from IRCC estimate that 3,200 Haitians and 300 Zimbabweans were facing removal at the time the temporary suspension was lifted and potentially interested in the special measures.[9] However, they informed the Committee that there was no way of knowing with certainty how many people had outstanding removal orders, given that Canada does not have exit controls. Some people with removal orders may have left Canada voluntarily; others may have never applied for refugee protection and therefore would not be included in IRCC’s estimate.

Officials from IRCC told the Committee that during the six-month period between 1 December 2014 and 1 June 2015 they received 1,700 applications for permanent residence on humanitarian and compassionate grounds under the special measure, covering 2,200 people.[10] The vast majority (742 applications and 1,038 people) were approved in principle; only 67 applications were refused. This represents an approval rate of 93%, significantly higher than the 40% of applications for permanent residence on humanitarian and compassionate grounds usually approved.

On 4 February 2016, the federal government announced that nationals from Haiti and Zimbabwe still in Canada under removal orders or out of status could apply for permanent residence on humanitarian and compassionate grounds under a second special measure, effective until 4 August 2016.[11] For failed refugee claimants who would normally not be allowed to submit an application on humanitarian and compassionate grounds, the Minister of Immigration, Refugees and Citizenship established a temporary public policy to facilitate this initiative.[12]

Using the same figures, IRCC estimates that 900 out of 3,200 Haitians (28%) and 125 out of 300 Zimbabweans (42%) have not yet applied for permanent residence on humanitarian and compassionate grounds and might apply for the recently announced second special measure.

Informing people of the special measure and correcting possible misconceptions is a high priority for the department, according to the officials’ testimony. As such, IRCC was using a multi-pronged outreach strategy, including issuing a news release (targeting Quebec and ethnic media in particular), messages on Twitter and Facebook, the IRCC website, and working with stakeholders. They also planned to send letters to the last known address of affected individuals.[13]

1. Eligibility Criteria and Application Requirements

Section 25 of the Immigration and Refugee Protection Act[14] provides the flexibility to grant permanent residence status or a permanent resident visa to certain foreign nationals who would otherwise not qualify in any class, in cases in which there are compelling humanitarian and compassionate grounds.

In deciding on applications, immigration officers are guided by department-issued policy and procedures, in addition to the legislative framework. The guidelines for factors to consider in a humanitarian and compassionate assessment include, but are not limited to, the following:

• establishment in Canada;
• ties to Canada;
• the best interests of any children directly affected by the decision;
• factors in their country of origin including adverse country conditions;
• health considerations including inability of a country to provide medical treatment;
• family violence considerations;
• consequences of the separation of relatives;
• inability to leave Canada has led to establishment; and
• any unique or exceptional circumstances that might merit relief.[15]

The degree of the applicant’s establishment may be measured with questions such as whether he or she has a history of stable employment, has been involved in the community, has shown integration by undertaking academic studies, or has family members in Canada.

Applications submitted under the special measures for nationals of Haiti and Zimbabwe have to meet the regular requirements under humanitarian and compassionate considerations. Further eligibility criteria include:

• never having been found to be ineligible to have a refugee claim referred to the Immigration and Refugee Board of Canada (IRB);
• not being inadmissible on grounds of security, human or international rights violations, criminality, serious criminality or organized criminality;
• not having been excluded by the IRB from refugee protection under the United Nations Convention Relating to the Status of Refugees;
• not having had criminal charges dropped by the Crown to effect a removal order; and
• not having an outstanding criminal warrant.[16]

While some people might be excluded from applying for the special measure as a result of these criteria, all persons facing removal from Canada are eligible for a Pre-Removal Risk Assessment (PRRA), which is generally a paper review evaluating the risks that the individual would face if he or she were returned to their country of origin.

Persons submitting an application for permanent residence on humanitarian and compassionate grounds have to complete the required forms, attach photos, and provide photocopies of identity and relationship documents, such as passports and marriage certificates.[17] The application must also include the fee of $550 per adult and $150 per dependent.

2.   Witness Testimony Concerning the Special Measures and Humanitarian Applications

Witnesses shared with Committee members that the lifting of the temporary suspension on removals generated considerable fear in the Haitian community, even as some were optimistic about the opportunity to gain permanent resident status through the special measure. According to Ms. Simon, President of the Concertation-action des citoyens et des citoyennes d'origine haïtienne, people were afraid of being removed from Canada and sent back to Haiti, where, as she observed, they do not know what awaits them. Their friends and family may be dead, and houses and other assets destroyed. Further, she noted ongoing concern over political, social and economic instability in Haiti, and problems such as kidnapping, contagious diseases, reprisals, and locals’ suspicions of returnees.[18]

The United Nations High Commissioner for Refugees (UNHCR) shared these concerns, informing the Committee of a letter on returns to Haiti issued jointly by the UNHCR and the United Nations High Commissioner for Human Rights (OHCHR) in June 2011, but still considered valid.[19] In it, the two bodies requested that governments renew, on humanitarian grounds, residence permits that have allowed Haitians to remain outside the country. Failing that, the letter put forward principles to guide any returns. Specifically, the UNHCR and OHCHR suggested that governments:

• “give special consideration and refrain from returning to Haiti persons with special protection needs;
• prevent situations where returns lead to separation of family members;
• verify the nationality of persons of Haitian origin when doubts arise; and
• ensure that forced returns are undertaken in a humane manner in full respect for human rights and dignity, and with adequate advance notification provided to the competent Haitian authorities so they can prepare for their reception”.[20]

In terms of applying for permanent residence through the special measure, witnesses suggested that the documents required in support of each application were difficult for many Haitians to obtain. Mr. Vaval explained that it is difficult, for example, to obtain baptismal certificates, identity cards and passports, adding that:

It's difficult to get all the information you need in the permanent residence application process. People are often unable to apply because the situation in Haiti has changed. The documents and people who could testify are no longer there. The more time passes, the more complicated the situation becomes, so that it is more and more difficult for these people to meet the requirements.[21]

The personal story of Mr. Jean-Fritz Cima, who also appeared before the Committee, revealed that applicants are not always well served by the immigration representatives hired to assist with the application process, often at high personal cost. Mr. Cima reported that his representative had completed the paperwork for a refugee claim without involving him. Discrepancies between what Mr. Cima told the IRB and what was written in his application caused the IRB member to doubt his credibility, and his refugee claim was denied. His subsequent application for permanent residence on humanitarian and compassionate grounds was refused because he had not signed the affidavit at certain places.[22]

On behalf of the Haitian community in Montreal, Ms. Simon offered to partner with the government in the important work of outreach to people affected by lifting the temporary suspension of removals, as well as to those whose applications were refused under the first special measure. She suggested that people might be more comfortable completing paperwork with community organizations rather than seeking advice from lawyers or consultants.

C. Recommendations

The Committee would like to commend the department and other stakeholders for the success of the initial special measure for Haitians and Zimbabweans now subject to removal. In the spirit of building on that success, we offer the recommendations that follow. It is our hope that as many people as possible now facing removal to Haiti and Zimbabwe will have the opportunity to make an application to remain in Canada on humanitarian and compassionate grounds, and that those deserving will receive favourable decisions.

The following recommendations address four areas related to the special immigration measures: publicity, the application process, collaboration with community groups, and the cost. Our final recommendation applies to the administrative burden faced by people living under a temporary suspension of removals.

(I) Publicity

The Committee applauds IRCC’s efforts to publicize the special measure for nationals of Haiti and Zimbabwe. However, it is concerned that the people who did not apply under the first measure are those more difficult to reach. The estimated 125 nationals from Zimbabwe are of particular concern in this regard, as they are more geographically dispersed across Canada than the Haitian community, 90% of whom reside in Quebec. The key message for any publicity of the special measure, the Committee believes, should be that it is safe to come forward and apply. As such, we recommend the following:

RECOMMENDATION 1

That Immigration, Refugees and Citizenship Canada redouble its efforts to publicize the special immigration measure for nationals of Haiti and Zimbabwe with a focus on:

• The form of media most likely to reach the intended audience;
• Positive messaging to address fears of coming forward, including the high approval rate on applications already submitted; and
• Correcting myths, such as the myth that people who already had an application on humanitarian and compassionate considerations denied could not apply again under the special measure.

(II) Application Process

The Committee heard that the application process for the special measure is arduous and not necessarily sensitive to the realities of obtaining original documents from Haiti that confirm identity and relationships. The Committee notes that the application process for all permanent resident applications on humanitarian and compassionate grounds is essentially the same as those in place for the special measure, and suggests that the federal government may wish to review them from a client service perspective.

Given the serious consequence of a negative decision on an application under the special measure, the Committee suggests that the decision-making process be more flexible. In particular, there could be benefit in allowing applicants to respond to flags in the application before a final decision is rendered. Further, as the August deadline nears, the Committee suggests the department take a flexible approach in assessing applications. So, for example, if an application is lodged, but missing some supporting documentation, that the applicant be allowed to provide it after the deadline.

In order to make the application process for the special measure easier, the Committee recommends as follows:

RECOMMENDATION 2

That Immigration, Refugees and Citizenship Canada review the process of applying for permanent residence under humanitarian and compassionate grounds, with a view to making it less onerous for applicants.

RECOMMENDATION 3

That Immigration, Refugees and Citizenship Canada consider alternate methods of verifying identity and relationships, such as the use of affidavits, and make these alternatives available to applicants under the special measure.

(III) Collaboration with Community Organizations

Normally those who submit an application to remain in Canada on humanitarian and compassionate grounds complete the forms either on their own or pay an immigration representative or lawyer to assist them. Limited legal aid assistance is available in some provinces to defray the costs for those who cannot afford a lawyer.

For the special measure concerning nationals of Haiti and Zimbabwe, the Quebec government funded five organizations to assist people with their application: Maison d'Haïti, Service d'aide et de liaison pour immigrants La Maisonnée, Accueil aux immigrants de l'Est de Montréal, Carrefour d'intercultures de Laval, and Carrefour le Moutier.[23] Otherwise, no special funding was earmarked to assist applicants.

The Committee finds it is a worthwhile idea to direct applicants to community organizations for assistance with applying for the special measure. If possible, an official could be designated at IRCC regional offices to act as a resource for them. These groups have established relationships of trust with the local population, likely have employees that speak the same language, and they are well placed to reinforce the message that coming forward is a safe option that will not lead to immediate removal from Canada. Ms. Simons indicated the willingness of the Haitian community to work together in coalition to assist applicants. Furthermore, providing community groups with appropriate resources to help with the application process minimizes reliance on paid representatives and reduces the risk of vulnerable people being taken advantage of by unscrupulous professionals. Accordingly, the Committee recommends as follows:

RECOMMENDATION 4

That Immigration, Refugees and Citizenship Canada identify organizations that could help with completing applications under the special measure and consider providing them with extra resources for so doing. Further, that these arrangements be well publicized so that affected persons know where to turn for assistance.

(IV) Cost

The application fee under the special measure is $550 per adult and $150 per dependent. However, one witness advised the Committee that he had spent $16,000 on multiple immigration applications.[24] The Committee finds that the fees are high, especially considering that many of the Haitians resident in Canada and affected by the lifting of the temporary suspension of removals came here in the aftermath of an earthquake. The testimony before the Committee concerning work permit difficulties also suggests that these applicants are likely not well off financially. In light of these realities, the Committee recommends:

RECOMMENDATION 5

That Immigration, Refugees and Citizenship Canada examine the cost of applying for permanent residence on humanitarian and compassionate grounds, particularly for lower income applicants, and consider lowering fees or providing fee assistance where appropriate; and that IRCC ensure that this review applies to the current applicants under this special measure.

(V) Administrative burden of living under a temporary suspension of removal

While the temporary suspension of removals has been lifted for nationals of Haiti and Zimbabwe, it is still in place for nationals of Afghanistan (since 1994), Democratic Republic of the Congo (since 1997), and Iraq (since 2003).

Witnesses before the Committee suggested that the administrative burden of applying for and renewing work permits and health coverage certificates interfered with people’s ability to secure and maintain employment. They suggested that the validity periods for such documents be extended from 6 to 12 months to 18 or 24 months. Given that many people live under a temporary suspension of removals for extended periods, the Committee agrees that the department should consider issuing permits with longer validity periods. Given that many of these individuals become established in Canadian society and are ultimately successful in applying for permanent residence on humanitarian and compassionate grounds, it is in Canada’s interests to remove barriers to their short-term integration. To this end, the Committee recommends:

RECOMMENDATION 6

That Immigration, Refugees and Citizenship Canada consider issuing work permits and Interim Federal Health Program certificates valid for 18 months to people who have been in Canada for one year or longer with a temporary suspension of removal.

RECOMMENDATION 7

That Immigration, Refugees and Citizenship Canada work to ensure that healthcare providers do not refuse healthcare services to individuals covered by the Interim Federal Health Program.

D. Conclusion

People from Haiti and Zimbabwe facing removal to their countries of origin have been living in limbo, unable to become fully integrated in Canada. The special measure provides a generous option allowing many of them to stabilize their lives in Canada and prepare for a future here. The Committee is pleased that the special measure has worked well for so many people already. We believe that the second special measure could likewise be a success, and urge IRCC to implement our recommendations for improvement. Most importantly, we urge IRCC to take advantage of the opportunity to partner with community organizations in order to publicize the special measure and encourage people to come forward without fear.