Author: SarahLBoyd

If you are planning to make a refugee claim at the airport in Canada

DO

Before flying to Canada

  • Tell a friend or family member in Canada when you are coming, so someone is aware if you don’t make contact
  • Make good-quality scans of all your important documents, and save them to a cloud platform or send them to someone you trust
  • If you cannot travel with them, arrange to have any other original identity documents sent by secure mail to someone you trust in Canada
  • Do not destroy any travel documents – real or false – before arrival

Upon arrival

  • Tell the Canada Border Services Agency (CBSA) officers that you are making a refugee claimeven if they are checking people as they get off the plane, or even on the plane if it has landed
  • Tell them if you need an interpreter, and what specific language and dialect interpreter you need – if at any point you do not understand the interpreter, you must say so!
  • Try to be pleasant, patient, and cooperative, but know your rights and insist on them
  • Ask to be allowed to recover your luggage, or have CBSA recover your luggage, as this usually comes after making the claim and sometimes the airline has put it aside
  • If you would be more comfortable, ask to be interviewed by an officer of the same sex/gender
  • Expect to wait a long time for your identity to be verified and the paperwork to be done so you can be released
  • Expect to be photographed and fingerprinted
  • Expect to have your identity documents seized
    • CBSA must give you a certified copy, and a “Notice of Seizure” for each document
  • Tell the officials if you are hungry, thirsty, have to use the washroom or have any medical needs
    • At various points you will be asked about whether you have any medical issues – no medical issue will be held against you in a refugee claim, so be honest
  • Tell the truth about who you know in Canada and who you plan to stay with (if anyone)
  • Be very clear about names and family relationships – terms like “aunt”/”uncle” and “brother”/”sister” do not always translate properly
  • If asked to write out the reason you are making a refugee claim in your own language, include the fact that it is a summary, that you do not have access to any documents, and note where you are not sure about dates or details
  • Be honest – but also explain that you do not know the answer if you do not know – when asked about how you traveled to Canada, what documents were used, and how arrangements were made
    • Under most circumstances, a refugee cannot be punished for using improper means to reach safety as long as they are truthful about it as soon as they know they are safe

NOTE: CBSA cannot release you until they are satisfied about your identity. In some cases, this may mean that they feel they have to detain you until, for example, they are able to receive your genuine identity documents. This is unpleasant, but it does not change the fact that you are a refugee claimant. You will be fed and housed. You will receive medical treatment where necessary. Your detention will be reviewed by a tribunal within 48 hours, 7 days, and 30 days, and then every 30 days. You will be allowed to continue your refugee claim.

DON’T

  • Be intimidated by CBSA uniforms
  • Lie to CBSA officials
  • Try to bribe CBSA officials – this is a serious crime in Canada
  • Destroy identity documents
  • Take advice from interpreters or human smugglers
  • Agree that information is correct when it isn’t
  • Give incomplete answers in order to try to make the process faster or more simple
  • Say that you understand an interpreter when you don’t
  • Sign anything you don’t understand

Resources

Family Member Exception to the STCA

This is a general guide only and does NOT constitute legal advice. Claimants and anchor relatives will also be interviewed to confirm identity.

WHO CAN BE AN ANCHOR RELATIVE?

WHAT RELATIONSHIP IS NEEDED?

  • Mother
  • Father
  • Legal guardian
  • Grandmother (mother’s mother or father’s mother)
  • Grandfather (mother’s father or father’s father)
  • Aunt (mother’s sister or father’s sister)
  • Uncle (mother’s brother or father’s brother)
  • Niece (child of mother’s or father’s sister or brother)
  • Nephew (child of mother’s or father’s sister or brother)
  • Sister (at least one parent the same)
  • Brother (at least one parent the same)
  • Spouse or common-law partner
  • Child (including adult children)

WHAT STATUS DOES THE ANCHOR RELATIVE NEED TO HAVE?

  • Canadian citizen
  • Permanent Resident of Canada
  • Protected person under Canadian immigration legislation or has made a claim for refugee status in Canada that has been accepted (accepted refugee or accepted PRRA)
  • Has had his or her removal order stayed on humanitarian and compassionate grounds (approved in principle)
  • Holds a valid Canadian work permit (without being out of status)
  • Holds a valid Canadian study permit (without being out of status), or
  • Is over 18 years old and has a claim for refugee protection that has been referred to the refugee board and not withdrawn, abandoned, rejected, or found ineligible

WHAT DOCUMENTS ARE NEEDED?

Documents need to be original if at all possible, completely clear and legible, and if not in French or English must be accompanied by a proper translation. There is no official list of documents and alternatives may be possible, but generally speaking:

TO PROVE RELATIONSHIP

  • Anchor relative is mother/father:
    • Claimant’s birth certificate, which will list their mother/father
  • Anchor relative is grandmother/grandfather:
    • Claimant’s birth certificate, which will list their mother/father (may also list grandparents, at least father’s father)
    • For mother’s mother or father: mother’s birth certificate; for father’s mother or father: father’s birth certificate (which will list the anchor relative as a parent)
  • Anchor relative is aunt/uncle:
    • Claimant’s birth certificate, which will list their mother/father (may also list grandparents, at least father’s father)
    • For mother’s sister or brother: mother’s birth certificate; for father’s sister or brother: father’s birth certificate (which will list the parent they share)
    • Anchor relative’s birth certificate (which will list the parent they share with the claimant’s parent)
  • Anchor relative is niece/nephew:
    • Claimant’s birth certificate, which will list their mother/father
    • Birth certificate of the claimant’s brother/sister who is the mother/father of the anchor relative (this will show the same parents as the claimant’s birth certificate, proving that they are brother/sister)
    • Anchor relative’s birth certificate (which will list the parent which is the claimant’s brother/sister)
  • Anchor relative is sister/brother:
    • Claimant’s birth certificate, which will list their mother/father
    • Birth certificate of the claimant’s brother/sister who is the mother/father of the anchor relative (this will show the same parents as the claimant’s birth certificate, proving that they are brother/sister)
  • Anchor relative is spouse or common-law partner:
    • For spouse: marriage certificate
    • For common-law partner: this will require complicated evidence and should not be attempted without legal counsel
  • Anchor relative is child:
    • Anchor relative’s birth certificate (which will list claimant as a parent)

TO PROVE IDENTITY AND STATUS

  • Government-issued photo ID for claimant
  • Government issued photo ID for anchor relative
  • Proof of status in Canada (may be the same item as photo ID):
    • Citizen: passport, citizenship certificate, in-Canada birth certificate
    • Permanent Resident: PR card, Confirmation/Record of Landing, Confirmation of Permanent Residence, Verification of Status document
    • Protected person/accepted refugee or accepted PRRA: Refugee Travel Document, positive decision on PRRA or refugee claim, Verification of Status document
    • Has had his or her removal order stayed on humanitarian and compassionate grounds (approved in principle): Approval letter
    • Holds a valid Canadian work permit (without being out of status): Work Permit, Verification of Status document
    • Holds a valid Canadian study permit (without being out of status): Study Permit, Verification of Status document
    • Refugee case before the RPD: Refugee Protection Claimant Document
  • If applicable: if anchor relative has changed their name (for e.g. through marriage) they will need to show proof of this (usually a marriage certificate)
  • Proof of current residence in Canada is generally required if the anchor relative is not going to the border interview

Suggestions for Hearings at the IRB

General

  • Don’t rush! Speak as slowly as you need to speak.
  • It’s okay to have to think about an answer first, but if you are going to need a moment – for example, to work out or recall a date – say so. It’s okay to say “I need a moment to work out that date” – otherwise the Member (or your lawyer) may think you didn’t hear or understand the question.
  • Make sure you have a bottle of water or beverage available – you will be talking a lot, and your throat may get dry. It is a good idea to also have a snack ready for during a break.
  • There will be at least one break, but you can always ask for a break if you need to use the washroom or anything else.
  • You can address the Member as “Sir” or “Ma’am”, “Mister Member” or “Madam Member”, or if they give you their last name, “Mister” or “Miz” followed by their last name.
  • If you are giving an estimate or opinion or something someone else told you, TELL US that is what you are doing.
  • It is always okay to say “I don’t know” – HOWEVER, if you are not 100% sure but do think you know what the answer probably is, it is better to say that. For example:
    • “I don’t know how many men were in the room, but it was at least three”
    • “I don’t know exactly what time they phoned me, but it was in the morning before I went to work”
    • Or you can ask what the person asking you the question wants, for example: “They never told me why they were threatening me, so I don’t know for sure, but do you want me to say why I think they were doing it?”
  • DON’T GUESS – don’t give a specific answer if you only have an estimate – if you only know something happened in the middle of May, say “the middle of May”, not “May 15”.
  • Make sure you understand the question before you answer it!
    • It is very hard to ask a question that can only be understood one way – especially through an interpreter – make sure you understand what time (WHEN), what people (WHO), what location (WHERE) is being asked about.
    • Sometimes Members (or your lawyer) will switch to a different area and not tell you. For example, they will be asking you about the time you lived in a particular city, and that will go on for a few minutes. Then they ask “Did you ever have any trouble with the police?”, and since you never had trouble in that city, you say “No”, but they actually meant “Have you ever in your life had any trouble with the police?”
    • You can just say “I don’t understand the question”
    • You can also ask them to be more specific, for example: “Do you mean ever or when I was at school?” or “Do you mean ever or when I worked in that city?” of “When you say trouble with the police, do you mean just the police or with any of the authorities?”
  • Sometimes the Member (or your lawyer) will ask a question that sounds like they misunderstood something. For example, if you only have brothers, and they ask “How old is your oldest sister?” ALWAYS CLARIFY! Maybe they misspoke and meant to ask “How old is your oldest brother?” or maybe they misunderstood and thought you had sisters. Either way, asking for clarification will make sure you are answering the correct question and there is no confusion.
  • If you realize that earlier you made a mistake or forgot to say something, IT’S OKAY TO CORRECT YOURSELF.
  • FOCUS: answer the question that was asked; don’t start talking about something else.
    • Do not memorize your story word-for-word and recite it. This would be obvious, and makes you sound dishonest.
    • Wandering off-topic makes it sound like you are avoiding the question and thus like you are being dishonest.
    • Sometimes you may have to give an explanation first. If you think you have to do that, say you are doing that, for example: “To tell you how I got out of the country, I have to explain something about my father first” – otherwise the Member (or your lawyer) will think you have misunderstood the question.
  • If you are asked to give a “Yes or No” answer and you can, please do so. If you are asked to give a “Yes or No” answer and you can but it doesn’t give the whole story, you can say “Yes, but I have to explain something” or “No, but I have to explain something”. If it just isn’t possible to give a “Yes or No” answer, it is okay to say “I can’t just give a ‘Yes or No’ answer to that question”.
  • Sometimes the Member is having a bad day, or isn’t a very warm person. Don’t worry about this. Some good Members aren’t very friendly, and some bad Members are very friendly. Don’t get defensive, and don’t let their attitude get to you. They won’t be rude or inappropriate (or your lawyer will step in). This is also true of Minister’s Counsel if there is one.
  • The Member’s job is to make sure you are telling the truth. Sometimes this means they will ask questions that imply they don’t believe you or think you are incorrect or lying. Don’t take it personally, and don’t get defensive. Just give the best, most truthful answer you can.
  • The people asking you questions may pause after your answer, to take notes or think of their next question. You don’t have to fill the silence. If your answer is finished, it is finished.
  • It is okay to get emotional or cry while testifying. It is also okay to not get emotional or cry. People react different ways. If you need a moment to compose yourself, that is okay – just ask.

For In-Person Hearings

  • The microphones on the tables ONLY RECORD, so make sure you are speaking loudly enough to be heard by everyone else in the room.
  • However, also make sure you are speaking into the microphone, so your answer is recorded.
  • Try to look at the person who asked you the question when you given your answer; when in doubt, look at the Member.
  • Bring a bottle of water (there are water fountains in the hallway but often no cups). Bring a snack (you cannot eat in the hearing room, but you can eat in the waiting room if you are discreet).

Working with an Interpreter

  • Even if you think you understood a question in English, wait for it to be interpreted to you so that the recording captures each individual speaking.
  • Break up your answers into short pieces so the interpreter has time to interpret them – you don’t have to give short answers, just say a sentence, and pause to allow him or her to interpret it before you continue.
    • If you speak in too-long sentences, sometimes only the beginning and end gets interpreted and the middle gets missed.
  • If you notice the interpreter making a mistake SPEAK UP! The interpreter is there to make sure your story is told correctly. They might make an honest mistake, but if you don’t say anything, no one will know.
  • If there are repeated difficulties with the interpreter, we will get another interpreter.

Common Questions or Types of Questions

  • Are there any documents that you tried to get that you were not able to get?

They are giving you an opportunity to explain why you don’t have documents they expect you to have.

  • How did you get the identity documents you presented:
    • To the US authorities?
    • When you made your original refugee claim?
    • At this hearing?

They are trying to verify whether your documents are genuine, based on your explanation of when and how you got them.

Make sure to explain who exactly obtained or sent the documents, whether they were applied for and obtained legally, illegally, or partially illegally (for example with false information or a bribe), and whether or at what times you had real original versus a scan, photo, or copy.

They may not understand how you could have multiple “originals” of a document, because it isn’t possible with every document in every country.

  • How did you enter [any country] without your passport/without a visa?

If you don’t know at all, you can just describe what happened from your perspective. People expect borders to be perfect, but they are not. If you took a bus to the border, crossed illegally on foot, and then caught a bus on the other side, don’t say that you took the bus from one country to the other – describe what really happened.

  • Who are you afraid of in your country?

It is important that you describe ALL of the people or groups that you fear. Start with those harmed or threatened you in the past, but don’t leave out persons or groups that might harm or threaten you in the future.

  • Why are you afraid of that person/group?

This is a question with multiple possible meanings.

  • Why would that person/group be motivated to cause you threat or harm?
  • What are you afraid that person/group will do to you or cause to have done to you?
  • Why do you believe that person/group would have the ability to cause you harm or threaten you?

You should clarify with the Member which they intend to ask about. Don’t exaggerate. Make sure to explain the full range or possible outcomes – not just the worst-case scenario.

  • What do you think will happen to you if you return to your country?

In order to be found to be a refugee, all that is needed is a real risk of a violation of your rights. In order to be protected under the Convention Against Torture, you need to show that it is more likely than not that you will face torture or death. However, in neither case does it need to be certain that the worst thing that could happen to you would happen to you. Part of the problem is that you don’t know what would happen for certain.

Explain what you think is realistically the most likely thing that would happen. Explain why you think that is the most likely thing to happen. For example, because it has happened to you before, or it has happened to a friend or family member, or you were threatened that it would happen.

Also make sure to explain any other things that you think are quite possible. For example, you might think that it is most likely that you will be arrested on arrival at the airport, detained, and mistreated—but it may also be the case that you would be allowed to go home and arrested a few days or weeks later, or that they would kidnap you instead of arresting you.

  • Why would the people of whom you are afraid still want to harm you? Why did they want to harm you in the first place?
  • Other questions with multiple possible meanings:
    • Why did you leave at that point?

Why didn’t you leave before that?

Why did you feel you should leave at that point?

Sources on human smuggling through South & Central America

Darien Gap

Chen Ying-yu, “‘We’re all fleeing persecution’: Chinese asylum-seekers head to US via Darién Gap”, Radio Free Asia, 26 December 2022, original URL: https://www.rfa.org/english/news/china/asylum-12242022124941.html, archived at: https://web.archive.org/web/20230114220115/https://www.rfa.org/english/news/china/asylum-12242022124941.html

Near the jetty where the travelers will embark, the United Nations’ International Organization for Migration has set up a tent, while the local government has its own tent facing it. A third canopy provides shade to people waiting to board the next vessel to Panama, who hail from Afghanistan, India, Latin America, the Caribbean, and, more recently, from China.

A local government official in Necoclí who declined to be named said the number of Chinese nationals turning up in the small port has risen significantly since September.

“Most of the adults from China are adults aged 20 to 30, about 80 percent are men, but there are also some women,” the official says. “They are in a slightly better situation than some of the immigrants from other countries, as they have a little money.”

“They can afford to eat in restaurants, buy their own food and pay for their own transportation,” he says. “They usually leave in a few days without any help [from the authorities].”

He says that while many don’t have visas, the authorities prefer to turn a blind eye.

“The current attitude of the Colombian government is to respect the freedom of movement of immigrants,” the official says on condition of anonymity. “From a practical point of view, it is really too expensive to send them back.”

According to data from the Colombian Immigration Agency, 1,028 Chinese citizens entered Colombia from Ecuador through unofficial channels between January and November 2022, 485 of whom did so in November alone.

Nearly all of them pass through Necoclí, the jumping-off point for the notorious Darién Gap people-smuggling route through the jungle from Panama to Colombia, in a bid to cross eventually into the United States. 

Summary of Differences Between STCA and Five Eyes/IRPA s. 101(1)(c.1)

Safe Third Country AgreementFive Eyes/IRPA s. 101(1)(c.1)
Mainly determines who can make a claim at an official Port of Entry at the Canada-US land borderMainly determines who has access to the full Refugee Protection Division hearing process, versus a modified PRRA
▶ WHERE: Applies at Ports-of-Entry at the Canada-US land border▶ WHERE: Applies to all people making refugee claims, or who have made refugee claims
▶ WHO: Applies to prohibit entry to anyone making a refugee claim at the border, unless they meet one of the exceptions▶ WHO: Applies to anyone who has ever “made” (initiated) a refugee claim in the US, UK, Australia, or New Zealand
Doesn’t matter if they made an asylum application in the US, only that they are traveling from thereDoesn’t matter if they are traveling from the applicable countries, or how long ago they were there, or what that result was
▶ SOURCES: IRPA, s. 101(1)(e); IRPA Regulations, ss. 159.1, 159.2, 159.3, 159.4, 159.5, 159.6, 159.7; Safe Third Country Agreement ▶ SOURCES: IRPA, s. 101(1)(c.1); Canada, IRCC, “Agreements with other departments and governments”

Legal Aid Ontario Eligibility under the new LASA, 2020 Rules

Last year, Ontario passed the Legal Aid Services Act, 2020 (LASA, 2020). ((S.O. 2020, c. 11, Sched. 15, online: https://www.ontario.ca/laws/statute/20l11.)) In October, Legal Aid Ontario (LAO) circulated the new rules implementing LASA, 2020. ((LAO, Legal Aid Service Rules, online: https://www.legalaid.on.ca/wp-content/uploads/Legal-Aid-Services-Act-2020_Rules-EN.pdf [LASR, 2020].))

In order to receive LAO services, clients must:

  • You must tell LAO if your situation, or that of your spouse or guardian, changes. Clients must abide by the continuing obligation to provide information, either by directly informing LAO of any changes to their financial situation, and/or by providing LAO with permission to directly consult other agencies (such as social services). ((LASR, 2020, ss. 9-11.))
  • You must cooperate with LAO’s re-assessment of your financial eligibility on request. ((LASR, 2020, s. 9(3)(a).))
  • You must have a limited income and limited assets to receive legal aid. For certificate services, the threshold for single persons is $12,330 for single borders, or $18,795 for single persons otherwise; it goes up with larger families to a maximum of $50,803 for a family of five (or more). ((LASR, 2020, TABLE: FINANCIAL ELIGIBILITY.)) A client may only have $1,504 in liquid assets if a single person, or up to $3,007 for a household of 3 or more persons. ((LASR, 2020, TABLE: FINANCIAL ELIGIBILITY.))
  • You may be required to enter into a contribution agreement with LAO. This can happed under various circumstances, including simply that LAO “is satisfied that the individual … is able to contribute to the cost of providing legal aid services to the individual”. ((LASR, 2020, s. 9, especially at s. 9(b).))

Notably, the income threshold for a single person is lower than the Low Income Cut-Off for large cities (which for 2019, was $21,899 for a single person). ((Statistics Canada, Table 11-10-0241-01 Low income cut-offs (LICOs) before and after tax by community size and family size, in current dollars, online: https://doi.org/10.25318/1110024101-eng.)) If you are receiving the maximum benefits under Employment Insurance, ((Currently the maximum is $30,940. Canada, Service Canada, “How much you could receive” in “EI regular benefits: How much you could receive”, 27 September 2021, online: https://www.canada.ca/en/services/benefits/ei/ei-regular-benefit/benefit-amount.html.)) as a single person, this is well about the LAO threshold.

Proxy marriage in a time of COVID-19, Part II

The Wedding by Proxy of Marie de’ Medici to King Henry IV by Peter Paul Rubens (1622–25)

Continued from “Proxy marriage in a time of COVID-19, Part I”

History of the Provision

The exclusion of proxy marriages arises out of a 2015 amendment to the IRPR, such that Reg. 5 excludes proxy marriages from the definition of “spouse”. As noted in the Regulatory Impact Analysis Statement (RIAS), ((Regulatory Impact Analysis Statement, Regulations Amending the Immigration and Refugee Protection Regulations (2015) C Gaz I, Vol. 149, No. 14, 4 April 2015, HTML version online: http://www.gazette.gc.ca/rp-pr/p1/2015/2015-04-04/html/reg1-eng.html; PDF version online: http://www.gazette.gc.ca/rp-pr/p1/2015/2015-04-04/pdf/g1-14914.pdf, pp. 735-747 [RIAS].)) the same amendment raised the minimum age of marriage from 16 to 18, and tied the two amendments together. Both amendments, according to the RIAS, were meant to prevent early and forced marriages. The RIAS includes a callback to a Private Member’s Motion (M-505) from 2014. ((RIASibid., p. 736; Private Member’s Motion M-505, 41st Parl., 2nd Sess., 10 December 2014, online at: https://www.ourcommons.ca/members/en/stella-ambler(58833)/motions/6524308.)) When raising the motion in the House, MP Stella Ambler (Mississauga South, CPC), stated:

…I am honoured to rise in the House today to introduce my motion, which pertains to telephone, fax, Internet or proxy marriages; specifically, as they relate to immigration to Canada.

…My motion is related to forced marriages, in that the sad truth is that these practices can be used to force individuals, usually women and girls, into non-consensual marriages.

…A marriage by proxy is one where one or even both participants are not present at the ceremony and are represented by another person. Sometimes, these marriages are conducted via telephone, the Internet, or even by fax. Some visa offices around the world encounter marriages by proxy on a regular basis, as it is a cultural practice in some parts of the world. Rest assured, such marriages are not legally recognized when performed in Canada.

House of Commons Debates, 41st Parl. 2nd Sess., Vol. 147, No. 130 (23 October 2014), online: https://www.ourcommons.ca/Content/House/412/Debates/130/HAN130-E.PDF, at p. 8747 (Stella Ambler) [Ambler, Debates, 23 October 2014].

The previous applicability of proxy marriages was addressed in the “Family Class” manual posted on the IRCC (then CIC) website in 2015, which itself dated from 2006. ((Citizenship Immigration Canada, Operation Manual 2, archived online: https://web.archive.org/web/20150217210306if_/http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf [Archived Operation Manual 2]. )) The definition of marriage included therein stated: “A marriage must be legal both in the country where the couple got married and under Canadian federal law i.e. the Marriage (Prohibited Degrees Act) with respect to consanguinity and the Criminal Code with respect to polygamy and bigamy.” ((Archived Operation Manual 2ibid. at p. 37.)) Elsewhere it said “A marriage that is legally recognized according to the law of the place where it occurred is usually recognized in Canada. … A marriage, which took place abroad, must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law.” ((Archived Operation Manual 2ibid. at p. 24.))

The same 2006 manual defines proxy marriage as “At a proxy marriage one of the participants is not present and has named a proxy to represent him or her. If the law of the country in which the marriage ceremony was performed permits proxy marriages, they are legal marriages for immigration purposes, provided they are legal under Canadian federal law.” ((Archived Operation Manual 2ibid. at p. 37.))

MP Ambler stated that “… the focus of the motion is the increasing concern that some marriages by telephone, fax, Internet or proxy can make it easier for someone to be forced into a marriage to which they do not consent. Indeed, as I have stated, there have been reports of spousal sponsorship cases that were, in fact, cases of forced marriages facilitated by proxy.” ((Ambler, Debates, 23 October 2014supra, p. 8747.)) The evidence cited was:

  • “there have been reports” ((Ambler, Debates, 23 October 2014supra, p. 8747.)); and
  • “While not all telephone, fax, Internet, or proxy marriages are forced, it is clear from the information received by visa officers in Canada’s regional offices that some most certainly are.” ((Ambler, Debates, 23 October 2014supra, p. 8747.))

The RIAS stated that:

The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage. In recent years, a small number of cases of forced marriage facilitated by proxy have been brought to the attention of Citizenship and Immigration Canada (CIC).

RIAS, p. 737.

The RIAS also stated – misleadingly it should be said – that “In the existing regulatory framework, proxy, telephone, fax, Internet and other similar forms of marriage, including those forms used to facilitate forced marriage, are not explicitly barred, and there are no grounds to refuse them as long as they are legally valid in the country in which they occurred.” ((RIASsupra., p. 737.)) The existing regulatory network absolutely allowed applications to be refused where consent or genuineness was not shown, and this remains the case today. Furthermore, if consent was the issue, then a section ought to have been introduced requiring proof of the free consent of the parties to the marriage, rather that excluding marriages made with full consent but by proxy.

The RIAS goes on to state:

The proposed amendments would bar marriages conducted by proxy, telephone, fax, or Internet and other similar forms to help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada (i.e. through “marriages of convenience,” as described above). They may also help reduce the number of vulnerable individuals who fall victim to forced marriage in order to gain immigration status in Canada.

RIAS, p. 738.

Again, this statement is misleading because there is no evidence that excluding proxy marriages would “help the immigration system make it impossible for forced marriages conducted by these means to be a mechanism to gain immigration status in Canada”. The same type of bare assertion is raised where the RIAS touches on why the existing “bad faith” exclusion is allegedly insufficient. It states ((RIAS, p. 740.)):

  • “CIC officers currently have the authority under the ‘bad faith’ provisions (section 4) of the Regulations to consider an otherwise legally valid marriage as invalid for immigration purposes where there are suspicions that the marriage is not genuine or that it was entered into primarily for the purpose of acquiring any status or privilege under the Act.” – this much is accurate
  • “Consideration was given to strengthening only the administrative guidelines that correspond to the “bad faith” provisions in order to direct officers to increase the scrutiny of proxy marriages.” – there is no indication of what this “consideration” was, or what its outcome was
  • “Explicitly identifying such a marriage as an ‘excluded relationship’ through a regulatory amendment to section 5 of the IRPR, however, would strengthen the tools to deny all such marriages for immigration purposes.” – this sentence as written is illogical, as if effectively reads “Making it illegal would make it illegal” – the equivalence of proxy marriages and bad faith marriages is here assumed without any evidence
  • “The proposed regulatory amendment would also make clearer the policy intent of denying all such marriages for immigration purposes, given their possible connection to early and forced marriage.” – similarly, this sentence illustrates the sudden jump to the conclusion that all proxy marriages are made in bad faith, and tosses out there the accusation, also made without evidence, that proxy marriages are connected to forced and early marriage

Later on in the RIAS, CIC admits that it (a) does not track proxy marriages, and (b) that they comprise a very small proportion of the marriages dealt with in immigration applications – perhaps 0.5%. ((RIAS, p. 742.))

Why are Proxy Marriages Excluded?

Evidence before the Amendment

Evidence at Standing Committee on Citizenship and Immigration Meeting March 25, 2014

Mr. Costas Menegakis (Richmond Hill, CPC) asked a witness:

Proxy marriages are legal right now. It’s true that a couple who are married over the phone or even by fax can be eligible for the spousal sponsorship program. I’m under the impression this could or would lead to more forced marriages.

In any event, do you think this practice needs to be stopped? Should proxy marriages be banned from the spousal sponsorship program?

House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41st Parl., 2nd Sess. (25 March 2014), CIMM No. 17, online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Evidence/EV6484465/CIMMEV17-E.PDF [CIMM 25 March 2014], p. 14.

In response, witness Prof. Audrey Macklin stated: “…It’s not my understanding—but I have not studied it—that this is a particularly serious problem with regard to the incidence of forced marriage, but having said that, I confess that I have not done a close study of it.”

Witness Elizabeth Long indicated “…I don’t know that being married over the phone would be any different from someone standing next to them in the aisle in a church or in a mosque. If there is abuse in a situation, there will be abuse whatever the form of marriage, in my experience. That is just my opinion.”

 Witness Ms. Adeena Niazi (Executive Director, Afghan Women’s Organization) stated:

…in most of the Muslim countries, and it was mentioned that this also happens in Israel, proxy marriages are a culturally and legally acceptable means for a couple to unite. These practices are most common in countries affected by war. These marriages are legal, binding, and it’s with the consent of both parties. We have witnessed many successful proxy-arranged marriages in which the sponsor has provided unconditional support.

CIMM 9 April 2014ibid., p. 12.

Later she added:

Also, I spoke about proxy marriages. Proxy marriages, especially for the refugees who cannot go back to their country or who cannot…this is also something. At the beginning I was also a little worried about that, but now I see many proxy marriages that have been very successful. The sponsor has provided unconditional support for their spouses who are sponsored here. Most of them work because they know each other. They cannot just do it by phone or by…and it doesn’t make a difference if you’re sitting together at the same table or you are doing it by phone.

CIMM 9 April 2014ibid., p. 15.

SALCO et al. Response, October 2014

A joint response from a number of legal clinics and practitioners led by the South Asian Legal Clinic of Ontario issued a written response to the Standing Committee on Citizenship and Immigration, in reply to Motion M-505. ((Letter, South Asian Legal Clinic of Ontario et. al, response to M-505, 3 October 2014, online: http://www.salc.on.ca/ResponsetoM-505.pdf [SALCO Response].)) In that response, SALCO et. al noted:

[SALCO] has collected data and presented a report on forced marriage in the Canadian context. There has been no indication from the data collection / research done by SALCO that forced marriage victims face “proxy marriages”. In fact, in the majority of the cases surveyed forced marriage victims were married in person and not by proxy marriage. A ban of proxy marriages will do little, if nothing, to protect victims of forced marriage. This proposed motion suggests once again that our law makers and government are focusing on limiting spousal sponsorship under the guise of “protection of victims of forced marriage”. Banning proxy marriage has no nexus to protecting victims of forced marriage based on empirical evidence and data collected about the Canadian experience[.]

SALCO Response, p. 2.

The response also notes that the banning of proxy marriages would be in contravention of the UN Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, ((Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, 7 November 1962, 521 UNTS 231 (entered into force 9 December 1964), online: https://www.ohchr.org/EN/ProfessionalInterest/Pages/MinimumAgeForMarriage.aspx [UN Marriage Convention].)) which states:

1. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law.

2. Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has, before a competent authority and in such manner as may be prescribed by law, expressed and not withdrawn consent.

UN Marriage Convention, Article 1.

While the response fails to mention that Canada is not a state party to that convention, it is nevertheless odd that no consideration was given to to this point, nor to any of the other points raised in the response.

Report of the Standing Committee on Citizenship and Immigration, Strengthening the Protection of Women in Our Immigration System, February 2015

The Report references Private Member’s Motion M-505 mentioned above. ((House of Commons, Report of the Standing Committee on Citizenship and Immigration, Strengthening the Protection of Women in Our Immigration System (February 2015) (Chair: David Tilson), online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Reports/RP6837061/cimmrp04/cimmrp04-e.pdf, p. 5.)) The Report notes “The Committee wanted to know whether the type of marriage – proxy, arranged, ‘love’ – made any difference in terms of the sponsored spouse’s vulnerability to abuse. Some witnesses stated that abuse happens in all kinds of marriages.” ((Strengthening the Protection of Women in Our Immigration Systemibid., p. 14.))

Evidence at Standing Committee on Citizenship and Immigration Meeting March 31, 2015

Proxy marriages were discussed briefly – again with reference to forced marriages – in March 2015. ((House of Commons, Standing Committee on Citizenship and Immigration, Evidence, 41st Parl., 2nd Sess. (31 March 2015), CIMM No. 43, online: https://www.ourcommons.ca/Content/Committee/412/CIMM/Evidence/EV7909556/CIMMEV43-E.PDF, p. 13.)) The Department of Justice, in giving evidence, referred to two reports, ((Department of Justice Canada, Naïma Bendriss, Report on the Practice of Forced Marriage in Canada: Interviews with Frontline Workers: Exploratory Research Conducted in Montreal and Toronto in 2008 (November 2008), online: https://canada.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fm-mf/fm_eng.pdf; Department of Justice Canada, Zohra Husaini, Ph.D & Jagjeet Bhardwa for Indo-Canadian Women’s Association (31 May 2010), online: https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/fmwc-mfoc/fmwc-mfoc.pdf.)) neither of which explicitly mention proxy marriages.

UNICEF Response to the RIAS, May 2015

In May 2014, UNICEF responded to the RIAS. ((UNICEF, “Submission by UNICEF Canada to the Director, Social Immigration Policy and Programs, Citizenship and Immigration Canada”, 4 May 2015, online: https://www.unicef.ca/sites/default/files/imce_uploads/unicef_canada_submission_-_proposed_irpa_regs_may_4_2015_final.pdf [UNICEF Response].)) That response noted:

While we appreciate that early and forced marriage is a legitimate and serious consideration
and applaud the Government of Canada’s steps to address this violation of children’s rights in the international community, there is no compelling evidence to suggest that the proposed
amendments will decrease the likelihood of early and forced marriage and we are concerned
that the potential for negative impacts on girls and women may be more significant. The
assumption that early and forced marriages take place for immigration purposes has not been
well-researched in the Canadian context. Likewise, there is no cogent evidence to support the
assumption that changing immigration regulations will have a deterrent effect on the occurrence
of early or forced marriage.

UNICEF Response, pp. 1-2.

While the UNICEF Response focused on the increased legal age of marriage for immigration purposes (it was indeed raised to 18, ((Immigration and Refugee Protection Regulations, SOR/2002-227, s. 5(a), online: http://canlii.ca/t/54bm8#sec5.)) which UNICEF correctly noted is 16, ((Civil Marriage Act, SC 2005, c. 33, s 2.2, online: http://canlii.ca/t/52hdt#sec2.2.)) not 18, in Canada.)

After the Amendment (Post-Hoc “Evidence” and Justifications)

Immigration Department’s Operational Bulletin 613, June 2015

In June 2015, CIC (as it then was) published an OB regarding the amendment. ((Canada, CIC, “Instructions – Excluded relationship – Proxy, telephone, fax, internet or similar marriage forms where one or both parties not physically present”, Operational Bulletin 613, 11 June 2015, online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2015/613-june-11-2015.html; archived: https://web.archive.org/web/20200517100332/https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/bulletins-2015/613-june-11-2015.html.))

Interestingly, OB 613 gives the first plausible reason why a proxy marriage might be more facilitative of a forced marriage than an in-person marriage: “The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage.”

Report of the Standing Committee on Citizenship and Immigration, Family Reunification, March 2017

This Report notes:

In 2015, the Regulations were amended to exclude marriages conducted without the two parties being physically present, as is the case with proxy marriages. The rationale provided by the Department for this change was that the nature of the marriage made it more difficult to determine the validity of the consent of the individual, prompting concerns that this facilitated forced marriages.

House of Commons, Report of the Standing Committee on Citizenship and Immigration, Family Reunification (March 2017) (Chair: Borys Wrzesnewskyj), online: https://www.ourcommons.ca/Content/Committee/421/CIMM/Reports/RP8810563/cimmrp08/cimmrp08-e.pdf, p. 39 [footnote omitted] [Family Reunification].

The Report goes on to note that the CBA argued, in a letter of December 2016, that the exclusion of proxy marriages “speaks to a lack of sensitivity to cultural practices abroad: ‘Outside the immigration sphere, these marriages are typically recognized as valid under the laws of the jurisdiction where it took place and under Canadian law.'” ((Family Reunificationibid., pp. 39-40.)) The CBA argued the provision should be repealed.

Other Evidence?

There does not seem to be evidence – neither that which was put before Parliament nor otherwise – indicating that proxy marriages are more open to abuse or forced marriage.

With certain limits, proxy marriages are considered valid under other countries’ immigration rules. For example, in the UK, a proxy marriage may “be accepted as valid in the UK for immigration purposes”, so long as it was properly performed under the rules of the jurisdiction where it took place and in which proxy marriages are legal, the parties had capacity, and evidence of the legal validity is presented. ((CB (Validity of marriage: proxy marriage) Brazil [2008] UKAIT 00080, online: http://www.bailii.org/uk/cases/UKIAT/2008/00080.html; UK Home Office, Family Policy: Partners, divorce and dissolution, v.1, 29 May 2019, online: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/835362/Partner_divorce_and_dissolution_guidance_v.1.0ext.pdf, at pp. 10-11.)) The Republic of Ireland has taken a similar stance. ((Hamza & anor v Minister for Justice Equality & Law Reform, [2010] IEHC 427, Ireland: High Court, 25 November 2010, online: https://www.refworld.org/cases,IRL_HC,58a6e9155.html; aff’d Hamza & another v Minister for Justice, Equality & Law Reform, [2013] IESC 9, Ireland: Supreme Court, 27 February 2013, online: https://www.refworld.org/cases,IRL_SC,512e0a242.html. ))

The United States allows immigration based on proxy marriages where they have subsequently been consummated. ((Immigration and Nationality Act of 1952, 8 U.S.C. §1101(a)(35).)) This led to a tragic and bizarre case where a foreign woman was affianced to a US soldier, and upon finding that she was pregnant, a proxy marriage (allowable under certain conditions for members of the military) was conducted. The soldier was killed in action, and the fact that the “consummation” occurred before and not after the proxy marriage meant that she could not immigrate to the United States. ((For a legal analysis of this absurdity, see Lucas I. Quass, “Proxy Marriages and the Military Widow Penalty: Excluding Alien-Widows of Fallen Soldiers” (2011) 20:3 Review of Law and Social Justice 501, online: https://gould.usc.edu/students/journals/rlsj/issues/assets/docs/volume20/summer2011/3.Quass.pdf. By the time a special bill was passed allowing for the widow and child to immigrate, it had seized to be practical: Matt Lakin, “Legal barriers gone, but miles still separate fallen Marine’s family”, Knoxville News Sentinel (online), 19 March 2013, online: http://archive.knoxnews.com/news/local/legal-barriers-gone-but-miles-still-separate-fallen-marines-family-ep-358585291-356036411.html.)) However, it must also be considered the the US allows temporary status to fiancés.

General Information on Afghan Refugee Situation

This is very general information, to give you guidance on what questions to ask when you are able to speak to legal counsel. It will be updated, but is presently current to August 19, 2021.

In this information, “you” is the person who wants to come to Canada.

If you are an Afghan citizen in Canada

  • If you are here as a visitor or have not already done so in the past, you may wish to consider making a refugee claim in Canada
  • If you have already made a refugee claim and been refused, your situation may be reconsidered in a humanitarian and compassionate application or pre-removal risk assessment, depending on the timing and your personal circumstances
  • However, if you are here on a study permit or work permit, you may be eligible to apply under one of the economic categories, and should speak to counsel about this

If you are an Afghan citizen in a third country

  • You may be eligible to be resettled in Canada as a refugee or a member of the country of asylum class
  • At this time, the only special program is for Afghan citizens or their family members whose past “employment involved a significant and/or enduring relationship with the Government of Canada”

If you are an Afghan citizen in Afghanistan

  • At this time, the only special program is for Afghan citizens or their family members whose past “employment involved a significant and/or enduring relationship with the Government of Canada”
  • Family sponsorships, applications for temporary resident permits, and applications for temporary residence on humanitarian and compassionate grounds are also possibilities, but this depends on the specific situation

Who Needs a Study Permit?

Disclaimer

Study Permits are governed by the Immigration and Refugee Protection Act, SC 2001, c. 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227.

Foreign Nationals Except Some Minor Children

IRPA s. 30(1) states that a foreign national – that is to say, any person who is not a Canadian citizen or a permanent resident (but may have some other status such as a temporary resident, a protected person, or a person registered under the Indian Act) requires authorization to work or study in Canada (repeated in IRPR s. 212). IRPA s. 30(1.1) states that the requirements for authorization will be set out in the Regulations, and they are largely set out at IRPR ss. 213-222.

However, IRPA s. 30(2) states unequivocally:

Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

Children without any status, children of refugee claimants, children who are refugee claimants, and the children holding many other forms of status do not need a study permit to study in Canada.

The Regulations add some common-sense clarifications, including that if you are coming to Canada in order to study, you generally need a study permit (IRPR s. 9). Persons on study permits benefit from “implied status”, meaning that if they apply to renew/extend their study permit before it expires, they can continue studying until they get a decision (IRPR s. 189).

Other Exemptions

Under IRPR s. 188, you don’t need a study permit if:

  • You’re a diplomat or the family member (e.g. spouse or dependent child) of a diplomat (IRPR s. 188(1)(a));
  • You’re a member of the armed forces of a country designated under the Visiting Forces Act (IRPR s. 188(1)(b));
  • You are “an Indian” (IRPR s. 188(1)(d)); or
  • “[I]f the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada” (IRPR s. 188(1)(c))

Benefits of a Study Permit

There are a handful of benefits to holding a study permit that might make it worthwhile to apply even if it is not necessary. There is an effectively meaningless waiver of the requirement to obtain a visa to re-enter Canada after a visit to the US or St. Pierre and Miquelon (IRPR s. 190(3)(f)). More helpful is the several ways holding a study permit can facilitate working in Canada, for example:

  • If you have a study permit, you can apply for a work permit from within Canada (IRPR s. 199(c)).
  • Although the ability to support oneself without working is generally a prerequisite for granting a study permit (IRPR s. 220), having suddenly run out of or been cut off from funding is grounds for a work permit to be issued (IRPR s. 208(a)).
  • Having a history authorized study in Canada – meaning with a study permit or while exempt under IRPR s. 188 – can garner additional points when applying for some immigration programs (IRPR s. 83(1)(b) and (b.1) with (2)); IRPR s. 105(1)(b) with (3)).
  • If you have a study permit and you are studying full-time at a university or college, you can work on campus without needing a work permit at all (IRPR s. 186(f))

Having recently engaged in unauthorized study in Canada is a reason to refuse an otherwise acceptable work permit application (IRPR s. 200(3)(e)). The work permit cannot be issued if the unauthorized study was within six month (and, in practice, even older unauthorized study may cause an officer to find that you will not respect other conditions and therefore to refuse the application). Therefore if there is any doubt about whether you require a study permit, and you hope to transition to work in Canada, it is far safer to obtain the study permit first.

So if I don’t need a study permit, I can study?

Unfortunately, that’s more complicated, because immigration is run by the Federal Government, and education is run by the provinces/territories. Moreover, there is a difference between being able to study, and being able to study for free, even at a publicly-funded school.

First, you have to consider whether you are a minor under provincial law.

Province/TerritoryAgeSource
British Columbia19Age of Majority Act, RSBC 1996, c. 7, s. 1, https://canlii.ca/t/84gw#sec1
Alberta18Age of Majority Act, RSA 2000, c A-6, s. 1, https://canlii.ca/t/8218#sec1
Saskatchewan18The Age of Majority Act, RSS 1978, c. A-6, s. 2, https://canlii.ca/t/h71m
Manitoba18The Age of Majority Act, CCSM c. A7, s 1, https://canlii.ca/t/8ggl#sec1
Ontario18Age of Majority and Accountability Act, RSO 1990, c. A.7, s. 1, https://canlii.ca/t/7r#sec1
Quebec* 18Youth Protection Act, CQLR c P-34.1, s. 1, https://canlii.ca/t/xj3#sec1
New Brunswick19Age of Majority Act, RSNB 2011, c 103, s. 1, https://canlii.ca/t/8psd#sec1
Nova Scotia19Age of Majority Act, RSNS 1989, c 4, s. 2, https://canlii.ca/t/87mj#sec2
Prince Edward Island18Age of Majority Act, RSPEI 1988, c A-8, s. 1, https://canlii.ca/t/k3tn
Newfoundland & Labrador19Age of Majority Act, SNL 1995, c A-4.2, s. 2, https://canlii.ca/t/jz80
Yukon19Age of Majority Act, RSY 2002, c. 2, s. 1, https://canlii.ca/t/kfw4
Northwest Territories19Age of Majority Act, RSNWT 1988, c. A-2, s. 2, https://canlii.ca/t/51xgs
Nunavut19Child and Family Services Act, SNWT (Nu) 1997, c. 13, https://canlii.ca/t/548ms and Age of Majority Act, RSNWT 1988, c. A-2, s. 2, https://canlii.ca/t/51xgs

Second, you have to consider the requirements for enrolment and for fee exemptions in each province.

In Ontario, the Education Act, RSO 1990, c. E.2 determines who can attend school. It is mandatory for children between the ages of six and eighteen to attend some sort of approved education (s. 21(1)). Exceptions are made for homeschooling, children living in extremely remote locations, children who cannot attend school due to illness “or other unavoidable cause” (s. 21(1)(a)-(c)). Exceptions are also made for those who graduated early, absent temporarily for religious reasons or specialist instruction, or if otherwise provided for under the Education Act (s. 21(1)(d)-(h)). Payment from the province for students attending school is based on school boards and taxation. The Education Act requires schools to charge fees to temporary residents and study permit holders (s. 49(6)). However, a school board is prohibited from charging fees to various categories of children or dependents, including refugee claimants, people who have submitted applications for permanent residence in Canada, and the dependents of work permit holders (s. 49(7)). Furthermore, a school or school board is prohibited from refusing to enroll a child because of their lack of status or their parents’ lack of status (s. 49.1). This is also set out in Policy/Program Memorandum No. 136 from the Ontario Ministry of Education. Potential students who are not exempt from fees can pay very high tuition; for example, the Toronto District School Board charges $16,000 per year. Families facing difficulty enrolling their children in school in Ontario should contact Justice for Children and Youth.

Recent amendments to the Quebec Education Act, CQLR c. I-13.3 also entitle many children without status to free education. Those who do not qualify must pay fees similar to those in Toronto, at least in Montreal where they are about $13,000. The organization Education Across Boarders Collective/Collectif éducation sans frontières works in this area in Quebec.

In Alberta, the Education Act, SA 2012, c. E-0.3 appears to exclude persons without status from guaranteed education. Section 3(1) entitles to education anyone who is between 6 and 19 years old, “a resident of Alberta”, and “who has a parent who is a resident of Canada”. Such attendance is compulsory under s. 7, with some exceptions. Under s. 1(4)(a) and (b), both require that the person be “lawfully entitled to be or to remain in Canada”, and excludes tourists and visitors. Once those who must be enrolled under s. 3 are enrolled (or in other words, if there is room once all legal residents are enrolled), boards may enroll non-residents and may charge them fees (ss. 12 and 13).

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