Proposed new legislation aimed at tackling human smuggling falls far short of Canada’s international human rights and refugee protection obligations and will result in serious violations of the rights of refugees and migrants, said Amnesty International in response to the tabling in Parliament of Bill C-49, the Preventing Human Smugglers from Abusing Canada’s Immigration System Act, on October 21st.
The Bill severely restricts a number of essential rights of refugees and migrants if they arrive “irregularly” in Canada as part of a group that the government designates to be a “human smuggling event.” In effect, their rights are violated solely on the basis of how they have travelled to Canada and how many others have traveled with them. The restrictions include harsh powers of detention without timely review, denial of access to appeal processes, and serious limitations on freedom of movement and family unity.
This discriminatory treatment, with respect to such a range of important rights, contravenes the well-established right to be free from discrimination, enshrined in several treaties binding on Canada, including the 1951 Refugee Convention and the International Covenant on Civil and Political Rights. The proposal not only violates rights, it ignores the reality that many refugees, who have a well-founded fear of persecution, turn to smugglers for assistance in reaching a country of safety such as Canada, because of desperation and a lack of other options.
“Particularly outrageous is the proposal that all refugees arriving with a group that the government decides to designate as a human smuggling event would face mandatory detention for up to one year, with very little opportunity for review. This constitutes a serious violation of Canada’s international and constitutional obligation not to subject individuals to arbitrary detention. As well, using detention to penalize refugees for irregular entry into a country very clearly contravenes Canada’s obligations under Article 31 (2) of the Refugee Convention,” stated Alex Neve, Secretary General of Amnesty International Canada’s English Branch.
Neve added that, “detention of refugee claimants should always be a measure of last resort and must be for reasons clearly recognized in international law, such as demonstrated concerns about security or an inability to confirm an individual’s identity. Punishing refugee claimants through automatic detention based solely on the mode of transport and the number of fellow travelers is impermissible. Detention should never be used as a means of deterring other refugees from seeking safety.”
If an individual does arrive in an irregular group that is designated by the Minister, under the Bill their right to apply for permanent or temporary residency in Canada would be restricted for five years. This would make it virtually impossible for the individual to travel anywhere outside of Canada during that time. The Refugee Convention requires States to provide refugees lawfully staying in their territory with travel documents so that they may travel outside the country, unless compelling reasons of national security or public order otherwise require. That is not possible without a permanent or temporary resident’s permit.
The Bill will also lead to violations of the right to family life, which is protected in both the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child. Individuals who arrive as part of a designated “human smuggling event” will not be able to apply for family reunification for five years, even though their claim for refugee status in Canada is accepted by the Immigration and Refugee Board. “Keeping families apart for such lengthy periods violates rights, is mean-spirited and impedes the ability of newcomers to integrate and begin new lives in Canada,” said Béatrice Vaugrante, Director General of Amnesty International Canada’s francophone branch. “Such an approach is in nobody’s interests. Nobody wins.”
Individuals arriving in Canada in this way will also be denied equal access to justice. Unlike other refugee claimants, they will not be allowed to appeal a negative refugee decision to the Immigration and Refugee Board’s Refugee Appeal Division. “An appeal is a fundamental safeguard in refugee decision-making, where a person’s life and liberty may be at stake. To withhold the opportunity to appeal solely on the basis of how an individual has arrived in Canada is punitive and discriminatory,” said Béatrice Vaugrante.
Amnesty International agrees that countries should take action to discourage human smuggling that is dangerous, exploitative and involves criminal elements. Smugglers often abuse the rights of the individuals to whom they provide passage. Measures to tackle smuggling must, however, ensure that the rights of refugees and migrants relying on smugglers are protected. “Bill C-49 does not get it right in drawing the line between tackling crime and upholding rights. It goes after smugglers, in large part, by punishing the individuals who turn to them – in desperation – for assistance,” said Alex Neve. “Those provisions of the Bill that are discriminatory and will lead to human rights violations must be withdrawn.”
Full Text of Amnesty International Canada Press Release