Proposed federal tool to ‘blacklist a country,’ stop visa processing alarms immigration lawyers

Of note, a further sign of tightening immigration policies (and the ongoing expansive use of budget omnibus legislation). Questions regarding the numbers involved are legitimate and necessary as part of evidence-based policy making, where transparency is important:

The Liberals’ omnibus budget bill gives the government a political tool to stop issuing some visas or permits to people from countries it deems difficult to deal with in deportation proceedings, a measure some immigration lawyers are calling “overly broad” and a “blunt instrument” without the necessary checks and balances.

One of the measures in the almost 400-page budget implementation bill, C-97, would change the Immigration and Refugee Protection Act to give cabinet the ability to make orders about processing applications for temporary resident visas, work permits, and study permits from nationals of a country where its government is “unreasonably refusing to issue or unreasonably delaying the issuance of travel documents” for its citizens or nationals “who are in Canada.” Such travel documents are necessary for deportations. The person being deported needs to be able to travel back home.

Lawyers see it as a political tool to apply pressure to countries delaying that process, and are divided on whether the proposed provision would be misused—because the power could simply be in the threat—but many agree the potential is there.

The tool would allow the Canadian government to retaliate by stopping visas or permits “to whatever extent it wants,” said lawyer Raoul Boulakia, who said he found it especially worrying that there are no checks and balances on what he called a “very radical” measure.

“I think it’s making a very big hammer to hit what might be a straight nail. The wording is overly broad. It can have impacts that have nothing to do with the probable policy intent and it allows for a situation that becomes unmeasured relative to the original problem,” said Mr. Boulakia, president of the Refugee Lawyers Association.

“There’s no mechanism for testing the argument that [another] government has been unreasonable,” he said.

Chantal Desloges, a lawyer who specializes in immigration and refugee law, called it a “blunt instrument” allowing the government to “blacklist a country” for certain types of visas or permits. That would mark a shift in approach, she said, and while there are restrictions in Canada’s immigration system through lottery systems or quotas, Canada still looks at those applications. If cabinet makes an order, it would mean Canada could “refuse to even entertain the application.”

The new tool is a “catch-all provision” that’s likely going to lead to legal challenges and “where it lands could be problematic for a number of reasons,” said Mario Bellissimo, a former chair of the Canadian Bar Association’s (CBA) national immigration law section. The current CBA national chair, Marina Sedai, said the group is studying the section and still developing a position.

The provision has “far-reaching potential,” said Mr. Bellissimo, who said it’s concerning that it could be retroactive in that it could apply to people who already submitted applications, for example.

“It alters rights that were previously held,” he said of the section of the bill that says that applications would be “suspended during the period or periods set out” in the government order and that the processing of any applications “that are pending on the coming into force of the order” may be “terminated.”

For him and Ms. Desloges, it raises a number of questions: how serious is the problem? What’s the current number of would-be deportees stuck in Canada who need travel documents? Where and how would the application being applied? What would be the criteria for its use?

“I assume [the government] will have to develop criteria otherwise they’re opening themselves up to issues of bias or discrimination,” said Ms. Desloges. “It’s such a sweeping thing.”

The CBC reported last fall that Canada’s border agency was boosting efforts to deport failed refugee claimants and others unwelcome in Canada, having 18,000 cases in its deportation inventory. Delays can happen not only due to a lack of valid travel documents, but also medical issues, appeals and other legal proceedings, a temporary suspension of removals, and other factors.

Canada has faced a wave of asylum seekers entering from the United States at unofficial entry points in recent years. The CBC reported that last spring officials said that of the 68,000 asylum claimants who had come to Canada since the start of 2017, less than one per cent had been removed, despite the fact that many had been deemed ineligible to stay.

Marie-Emmanuelle Cadieux, press secretary to Border Security Minister Bill Blair, said Canada “always looks to co-operate with countries when attempting to remove inadmissible persons, but there are instances when others countries refuse to give needed travel documents to their own nationals that Canada.”

“In instances when delays by such countries are unreasonable, our proposed legislative changes would also allow Canada to respond by‎ stopping the processing of certain visa and permit applications from that country.”

Asked at what point Canada would make such an order, if there are parameters to inform that decision, and whether it could be applied to address a single case or would require a pattern of delay, Ms. Cadieux said that it is “a targeted measure that will address certain visa and permit applications. Decisions will be made case-by-case.” She did not respond to queries about the number of people in Canada who have been flagged for removal, and lack travel documents, and the top countries with outstanding travel documents.

Measure ‘less problematic than other ‘earth-shaking’ changes to immigration system: lawyer

This measure is “less problematic” than the other “earth-shaking” changes to the immigration system proposed in the Liberals’ budget bill, said immigration lawyer Sarah Boyd.

Most refugee and immigration lawyers are focused on proposed changes to asylum laws that would prevent applicants from making refugee claims in Canada if they have made such claims in some other countries, including the United States. Ms. Cadieux said the changes are meant to “better manage, discourage, and prevent irregular migration,” while Mr. Blair (Scarborough Southwest, Ont.) said the intent is to prevent “asylum shopping.”

The Liberals campaigned on a promise to stop making legislative changes in this manner, Ms. Boyd noted, calling the omnibus bill a broken promise and a “really problematic” parliamentary development due to the last few governments.

It also means the House Finance Committee is most likely to study the provisions, when lawyers say they really should be before the House Immigration Committee, which is more likely to pick up on unintended consequences.

On April 29, Speaker Geoff Regan (Halifax West, N.S.) ruled against an NDP motion to split the bill, saying “all of the measures…appear to arise out of” budget commitments, including the immigration measures under the section saying the government would enhance the integrity of Canada’s borders and asylum system.

NDP immigration critic Jenny Kwan (Vancouver East, B.C.) had argued the omnibus bill includes “many unrelated measures” to the budget, highlighting the immigration changes as especially disheartening, saying the measures would “significantly transform the Canadian immigration system.”

The Canadian Association of Refugee Lawyers has been focused on these provisions and said by email it doesn’t have a comment on the provision dealing with travel documents.

The bill shows the government is “changing gears,” said immigration lawyer Ravi Jean, pivoting from the infamous 2017 tweet from Prime Minister Justin Trudeau (Papineau, Que.) saying Canada welcomed those fleeing persecution, war, and terror.

“Those moves around restricting the ability of refugees to make claims and trying to tighten up Safe Third Country [Agreement with the U.S.] show that the government feels vulnerable with respect to refugees,” said Mr. Jain, who is vice-chair of the CBA immigration law section.

The change to travel documents likely comes from frustration, he said, noting the government gets a “bad rap” for detaining people too long, but also for people staying too long in Canada who have been told they must leave.

Lawyers weren’t sure which countries the government had in mind when creating the provision, and Mr. Blair’s office didn’t answer which countries were the most unresponsive to requests for travel documents, but in the past some observers said China, Iran, and India, and some African nations have been problematic.

Use of the measure raises the prospect of pushback from within Canada too, from postsecondary institutions if the government targets educational visas, from businesses if it targets work permits, from trade and tourism industries if visitor visas are affected, and so on.

“That’s the balance they’re going to have a strike. Maybe the threat will be enough,” said Mr. Jain.

Ms. Boyd said it’s not an unusual legislative tool for countries and would “make sense” to deploy when a country generally refuses to accept deportation of its nationals.

“It would really depend on whether government misuses this,” she said, like in a case where countries may not have the resources to conduct full investigations on their own, or when identity documents simply don’t exist.

“I don’t know what good it would do, to put political pressure on that country,” she said, calling it a “strong-arm tactic,” to “bully” an outcome.

Anything that moves away from individualization and becomes country-based will “run right into potential constitutional challenges,” said Mr. Bellissimo, “because then you’re not dealing with individuals, you’re dealing with pre-determined countries of origin.”

He said the law should be more explicit, noting lawyers will often look at parliamentary debates to understand legislative intent because that can be brought to court. Such discussions are less likely with the time constraint and limited study for omnibus bills.

“It sets a pattern of lawmaking,” that he and CBA has said “ violates the rule of law and does not lead for ultimately good decision making down the road.”

Source: Proposed federal tool to ‘blacklist a country,’ stop visa processing alarms immigration lawyers

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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