Canadian Refugee Procedure/History of refugee procedure in Canada: Difference between revisions

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== United Nations Relief and Rehabilitation Administration (UNRRA) and the International Refugee Organization (IRO) ==
In 1943, with the end of World War II in sight, the allied powers began to lay the foundations of a post-war refugee regime. In that year, they established the United Nations Relief and Rehabilitation Agency (UNRRA) in preparation for the liberation of Europe.<ref name=":30">Shauna Labman, ''Crossing Law’s Border: Canada’s Refugee Resettlement Program,'' 2019, UBC Press: Vancouver, page 21.</ref> TheAt UNRRAthis waspoint, notthere were over a refugeemillion displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp agencysurvivors, butothers were individuals who had been dispatched to labour camps in Germany and Austria, ratherand still others were those refusing to be repatriated to communist regimes.<ref>Valerie Knowles, was''Strangers focusedat onOur Gates: Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 157.</ref> Canada provided funding to the repatriationUNRRA, ofwhich operated more than 800 displaced persons camps in Europe;<ref>Robert J. AsShalka, Shauna''The LabmanResettlement writesof Displaced Persons in Canada (1947-1952),'' itin wasCanadian duringImmigration thisHistorical periodSociety, thatBulletin the96, focusMarch 2021, <http://cihs-shic.ca/bulletin-96-march-2021/> (Accessed April 17, 2021), page 8.</ref> distributed about $4 billion worth of refugeegoods, lawfood, medicine, and institutionstools, shiftedat froma antime individual'sof inabilitysevere toglobal returnshortage; homeand toalso theirassisted displaced persons in unwillingnessreturning to returntheir home countries in Europe in 1945-46.<ref>Valerie Knowles, ''Strangers at Our name="Gates:30" Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 155.</ref> The UNRRA was also focused on the repatriation of displaced persons back to their homeland.
 
The activities of the UNRRA immediately began to be enmeshed in Cold War politics. The organization was faced with large numbers of displaced persons who were reluctant to return to countries where communist parties were taking a firm hold. Many Polish, Ukrainian, and Baltic persons were thus residing in camps, asking to be referred to a non-communist country, as opposed to their country of citizenship. Soviet officials objected to any willingness to countenance such demands. In response, in December 1946 Western governments decided to stop funding the UNRRA and to transfer the task of organizing resettlement work from the UNRRA, to a new entity, the International Refugee Organization. Unlike the UNRRA, the IRO had no Soviet participation<ref name=":31" /> and its chief function was not repatriation, but instead the overseas resettlement of refugees and displaced persons.<ref name=":58">Gil Loescher, ''Refugees: A Very Short Introduction'', May 2021, Oxford, ISBN: 9780198811787, page 34.</ref> As Shauna Labman writes, it was at this point that the focus of refugee law and institutions shifted from an individual's inability to return home to their unwillingness to return home.<ref name=":30" /> In retrospect, this move to accommodate those with objections to returning to communist countries represented a sea-change in the international approach to refugees. Previously, international organizations had dealt only with specific groups of refugees, such as Russian or German refugees, and, in Gil Loescher's words, governments had never attempted to formulate a general definition of the term 'refugee'. For the first time, therefore, with the establishment of the IRO, the international community was making refugee eligibility dependent on the individual rather than group membership and accepted the individual's right to flee from political persecution to a safe country.<ref name=":58" />
After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons.<ref>Mark Rook, ''Identifying Better Refugee Policies for an Evolving Crisis'', April 21, 2020, University of Pennsylvania Honors Thesis, <https://repository.upenn.edu/cgi/viewcontent.cgi?article=1037&context=ppe_honors> (Accessed May 9, 2020), page 128.</ref> There were over a million displaced persons and refugees in crowded shelters maintained by United Nations agencies in Europe. Some of these people were concentration camp survivors, others were individuals who had been dispatched to labour camps in Germany and Austria, and still others were those refusing to be repatriated to communist regimes.<ref>Valerie Knowles, ''Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 157.</ref> Canada started by providing funding to the UNRRA, which operated more than 800 displaced persons camps in Europe;<ref>Robert J. Shalka, ''The Resettlement of Displaced Persons in Canada (1947-1952),'' in Canadian Immigration Historical Society, Bulletin 96, March 2021, <[http://cihs-shic.ca/bulletin-96-march-2021/ http://cihs-shic.ca/bulletin-96-march-2021/]> (Accessed April 17, 2021), page 8.</ref> distributed about $4 billion worth of goods, food, medicine, and tools, at a time of severe global shortage; and also assisted displaced persons in returning to their home countries in Europe in 1945-46.<ref>Valerie Knowles, ''Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 155.</ref> In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.<ref name=":5">Marlene Epp, “Refugees in Canada: A Brief History,” Immigration And Ethnicity In Canada 35 (2017), <https://cha-shc.ca/_uploads/5c374fb005cf0.pdf> (Accessed May 9, 2020), at 10.</ref>
 
To achieve its mandate, the IRO had its own specialized staff, a fleet of more than 40 ships, and, most importantly, the political and economic support of the developed world. With the opening up of this IRO resettlement program, the number of repatriations to Eastern Europe was reduced to a small trickle and the IRO began operations that would relocate more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania.<ref>Hathaway, James C. ''The Rights of Refugees under International Law''. 2nd ed., Cambridge University Press, 2021, page 27.</ref> After the Second World War, the Canadian government began to receive more pressure both domestically and internationally to fulfill its humanitarian responsibility of hosting displaced persons.<ref>Mark Rook, ''Identifying Better Refugee Policies for an Evolving Crisis'', April 21, 2020, University of Pennsylvania Honors Thesis, <https://repository.upenn.edu/cgi/viewcontent.cgi?article=1037&context=ppe_honors> (Accessed May 9, 2020), page 128.</ref> In 1946, the Canadian government signed an order-in-council that allowed Canadians to sponsor displaced family members in Europe.<ref name=":5">Marlene Epp, “Refugees in Canada: A Brief History,” The Canadian Historical Association Immigration And Ethnicity In Canada Series 35 (2017), <https://cha-shc.ca/_uploads/5c374fb005cf0.pdf> (Accessed May 9, 2020), at 10.</ref> In 1947, Canada began to accept refugee referrals from the International Refugee Organization.<ref name=":7">Shauna Labman, ''Refugee Protection in Canada: Resettlement's Role'', Canadian Diversity Magazine, Volume 17 No. 2 2020, <https://dalspace.library.dal.ca/bitstream/handle/10222/79384/Labman%203C.pdf?sequence=1> (Accessed June 20, 2020), at page 7 of the document.</ref> Canada also deployed its own immigration officers overseas for the purposes of selecting from among the displaced persons.<ref>Andreas Zimmermann (editor), ''The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary''. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 45 (para. 14).</ref> Collectively, these arrivals comprised what was called the Displaced Persons Movement, which successfully resettled 186,154 refugees to Canada over the course of six years.<ref name=":5" /> Of these, 100,000 entered Canada between 1947 and 1951 through what were termed labour-sponsored movements whereby an employer could show the government that a job could not be filled locally and the government in turn would have the IRO refer two or three potential immigrants from among available refugees for each needed labourer.<ref name=":55">Kelley, Ninette, and Michael J. Trebilcock. ''The Making of the Mosaic: A History of Canadian Immigration Policy''. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 340-341.</ref> During the four and a half years of IRO operations, Canada would accept 12% of all refugees resettled by the organization, when compared to Australia at 18%, Israel at 13%, and Britain at 8%.<ref name=":58" />
The activities of the UNRRA immediately began to be enmeshed in Cold War politics. The organization was faced with large numbers of displaced persons who were reluctant to return to countries where communist parties were taking a firm hold. Many Polish, Ukrainian, and Baltic persons were thus residing in camps, asking to be referred to a non-communist country, as opposed to their country of citizenship. Soviet officials objected to any willingness to countenance such demands. In response, in December 1946 Western governments decided to stop funding the UNRRA and to transfer the task of organizing resettlement work from the UNRRA, to a new entity, the International Refugee Organization. Unlike the UNRRA, the IRO had no Soviet participation<ref name=":31" /> and its chief function was not repatriation, but instead the overseas resettlement of refugees and displaced persons.<ref name=":58">Gil Loescher, ''Refugees: A Very Short Introduction'', May 2021, Oxford, ISBN: 9780198811787, page 34.</ref> In retrospect, this move to accommodate those with objections to returning to communist countries represented a sea-change in the international approach to refugees. Previously, international organizations had dealt only with specific groups of refugees, such as Russian or German refugees, and, in Gil Loescher's words, governments had never attempted to formulate a general definition of the term 'refugee'. For the first time, therefore, with the establishment of the IRO, the international community was making refugee eligibility dependent on the individual rather than group membership and accepted the individual's right to flee from political persecution to a safe country.<ref name=":58" />
 
To achieve its mandate, the IRO had its own specialized staff, a fleet of more than 40 ships, and, most importantly, the political and economic support of the developed world. With the opening up of this IRO resettlement program, the number of repatriations to Eastern Europe was reduced to a small trickle and the IRO began operations that would relocate more than 1 million Europeans to the Americas, Israel, Southern Africa, and Oceania.<ref>Hathaway, James C. ''The Rights of Refugees under International Law''. 2nd ed., Cambridge University Press, 2021, page 27.</ref> In 1947, Canada began to accept refugee referrals from the International Refugee Organization.<ref name=":7">Shauna Labman, ''Refugee Protection in Canada: Resettlement's Role'', Canadian Diversity Magazine, Volume 17 No. 2 2020, <https://dalspace.library.dal.ca/bitstream/handle/10222/79384/Labman%203C.pdf?sequence=1> (Accessed June 20, 2020), at page 7 of the document.</ref> Canada also deployed its own immigration officers overseas for the purposes of selecting from among the displaced persons.<ref>Andreas Zimmermann (editor), ''The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary''. Oxford University Press, 2011, 1799 pp, ISBN 978-0-19-954251-2, at p. 45 (para. 14).</ref> Collectively, these arrivals comprised what was called the Displaced Persons Movement, which successfully resettled 186,154 refugees to Canada over the course of six years.<ref name=":5" /> Of these, 100,000 entered Canada between 1947 and 1951 through what were termed labour-sponsored movements whereby an employer could show the government that a job could not be filled locally and the government in turn would have the IRO refer two or three potential immigrants from among available refugees for each needed labourer.<ref name=":55">Kelley, Ninette, and Michael J. Trebilcock. ''The Making of the Mosaic: A History of Canadian Immigration Policy''. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Pages 340-341.</ref> During the four and a half years of IRO operations, Canada would accept 12% of all refugees resettled by the organization, when compared to Australia at 18%, Israel at 13%, and Britain at 8%.<ref name=":58" />
 
When announcing the government's willingness to allow the movement of war survivors to Canada on May 1 1947, Prime Minister Mackenzie King articulated the government's position as follows: "It is not a 'fundamental human right' of any alien to enter Canada. It is a privilege. It is a matter of domestic policy. Immigration is subject to the control of the parliament of Canada."<ref>Statement to the House of Commons, May 1, 1947, as cited in Kaprielian-Churchill, I. (1994). Rejecting “Misfits:” Canada and the Nansen Passport. ''International Migration Review'', ''28''(2), 281–306. <nowiki>https://doi.org/10.1177/019791839402800203</nowiki> at page 297.</ref> Despite such protestations to the contrary, this speech is seen as the beginning of Canada accommodating the concept of human rights enshrined in the then-new United Nations Charter. For example, in deference to the UN Charter, Mackenzie King announced that the Chinese Immigration Act of 1923 would be repealed and that Chinese residents of Canada would be able to apply for naturalization.<ref>Valerie Knowles, ''Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 163.</ref> Similarly, it was at this time that Canada was involved in discussions about the Universal Declaration of Human Rights, which would emerge in 1948 recognizing that “everyone has the right to seek and enjoy in other countries asylum from persecution.”<ref>Smieszek M. (2021) Rights of Asylum: Overview of International and European Laws Concerning Inclusion and Exclusion. In: The Evolving Psyche of Law in Europe. Springer, Cham. https://doi-org.peacepalace.idm.oclc.org/10.1007/978-3-030-74413-7_2 at 2.2.</ref> 1947 also saw the birth of the modern concept of Canadian citizenship, with the coming into force of the ''Canadian Citizenship Act'' that January''.''<ref>''Taylor v. Canada (Minister of Citizenship and Immigration),'' 2006 FC 1053 (CanLII), at para 2, <https://canlii.ca/t/1p7ch#par2>, retrieved on 2021-09-05.</ref> The new Citizenship Act merged the pre-existing legal concepts of “nationality” and “citizenship” into a single status, that of “Canadian citizen”, and in so doing sought to create a unifying symbol for Canadians.<ref>''Taylor v. Canada (Minister of Citizenship and Immigration),'' 2006 FC 1053 (CanLII), at para 122, <https://canlii.ca/t/1p7ch#par122>, retrieved on 2021-09-11.</ref> Despite this growing accommodation to human rights rhetoric, King's realpolitik was reflected in Canada's actions: the tens of thousands of displaced persons that Canada accepted during this post-war period were "carefully selected, and most of them would have satisfied our standards if they had been applying as immigrants", according to one contemporary author.<ref>Shauna Labman, ''Crossing Law’s Border: Canada’s Refugee Resettlement Program,'' 2019, UBC Press: Vancouver, page 34.</ref>
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By the 1960s, values were changing across Canada, and around the world, and Canada’s racially-based, Eurocentric approach to immigration and refugee policy was becoming less and less aligned with how the country both viewed itself and wished itself to be seen. Canada’s unofficial ban on black immigrants was costing it diplomatic legitimacy with newly independent former colonies and, by 1961, Britain began to pressure Canada to change its policies as it had an open door to immigrants, such as those from the West Indies, that were barred entry into Canada.<ref>Kelley, Ninette, and Michael J. Trebilcock. ''The Making of the Mosaic: A History of Canadian Immigration Policy''. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 337.</ref> Further, this race-based approach clearly contradicted the then-new Canadian Bill of Rights.<ref>Clare Glassco, ''Before the Sun Comes Up: The Making of Canadian Refugee Policy amidst the Refugee Crisis in Southeast Asia, 1975-1980'', April 1, 2020 <https://heartsoffreedom.org/wp-content/uploads/2020/04/Revised-FINAL-April-3-Before-the-Sun-Comes-Up.pdf> (Accessed April 17, 2020), page 9 of the document.</ref>
 
Canada began to repeatedly liberalize who it was prepared to admit, for example admitting 325 tubercular refugees and their families around 1960, the first time that Canada had waived its health requirements for refugees.<ref name=":16" /> In 1962, Prime Minister Diefenbaker's Immigration Minister tabled new regulations in the House that eliminated racial discrimination as a major feature of Canada's immigration policy. With this revision, historian Valerie Knowles states that the last vestige of discrimination which remained in the immigration regulations was a provision that allowed immigrants from Europe and the Americas to sponsor a wider range of relatives, something that was inserted at the last moment because of a fear that there would be an influx of sponsorships by persons from India.<ref>Valerie Knowles, ''Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540-2015'', March 2016, ISBN 978-1-45973-285-8, Dundurn Press: Toronto, p. 187.</ref> In 1965, Canada ratified the four Geneva Conventions which form the basis of international humanitarian law,<ref>Humanrightscommitments.ca, ''Geneva Conventions and Protocols'', <http://humanrightscommitments.ca/wp-content/uploads/2019/03/Geneva-Conventions.pdf> (Accessed September 26, 2021).</ref> including the 1949 ''Geneva Convention Relating to the Protection of Individuals in Times of War'' which includes a provision that refugees should not be considered enemy aliens if they had formerly had the nationality of an enemy power.<ref>Haddad, E. (2008). The Refugee in International Society: Between Sovereigns (Cambridge Studies in International Relations). Cambridge: Cambridge University Press. doi:10.1017/CBO9780511491351, page 78.</ref> Then, in 1966 Lester B. Pearson's government created the ''Department of Manpower and Immigration'' and mandated it with the responsibility of processing refugees without “discrimination by race, country or religion”.<ref name=":2" /> That department set to work and in 1967 all vestiges of discrimination were removed from the immigration regulations, if not the statutes themselves, and the government implemented its much-vaunted 'points system' in the regulations to guide the selection of many categories of immigrants.<ref name=":26" />
 
== Immigration Appeal Board Act ==