DRAFT STATEMENT TO THE UN COMMITTEE ON ECONOMIC
SOCIAL AND CULTURAL RIGHTS.
Delivered by Chantal Tie
November 16, 1998
The Canadian Council for Refugees, The Canadian Council for Churches and the Inter-Church Committee for Refugees would like to thank you for this opportunity to provide assistance to your Committee. Refugees and migrants have not received systematic attention in your Committee's deliberations. I am here today because Covenant rights for refugees and migrants must be addressed by this Committee, because the violations are of such importance to so many human beings.
The Canadian scheme for according Convention Refugees their rights is to offer them the opportunity to apply for permanent residence. In recent years there have been increasing numbers of Convention refugees who cannot obtain permanent resident status. These people, together with others at different stages in the immigration and refugee process, are denied the enjoyment of key Covenant rights, because in Canada, access to these rights is dependant upon an immigration status.
Our concerns are detailed in the brief submitted July 1998. This statement illustrates how Canada discriminates on the basis of immigration status in the provision of health care, education, the right to work, and family reunification. These violations occur despite the clear wording of Article 2(2) of the Covenant, where states commit to:
"guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex..... or other status.
The issue of family reunification is of particular concern. At Tab 6, the first case study is of Convention refugees in Canada who cannot be granted permanent residence because they lack identity documents. To obtain permanent residence, Convention refugees must produce identity documents, a requirement which is impossible to fulfil for many refugees, particularly those from Afghanistan and Somalia. The case study uses the situation of the Somali Convention refugee, to illustrate the violation of economic and social rights for all those with Convention refugee status who cannot obtain permanent resident status.
The actual number of people affected is unknown, however it is estimated that there are approximately eight thousand adults who have Convention refugee status from Somali, who cannot get permanent resident status. When we include their spouses and dependant children who are with them in Canada, we estimate that at least twenty thousand people are affected, probably more. The government admits that approximately 80% of these people are women and children. None of these people can be here today to tell you their story, because Canada does not issue travel documents to Convention refugees as a matter of right.
In 1993 Canada changed the law to require Convention refugees to have a:
"valid and subsisting passport or travel document or a satisfactory identity document"
to be eligible for permanent resident status. This requirement was introduced despite Article 27 of the 1951 Convention Relating to the Status of Refugees, which requires states to issue papers to any refugee in their territory who does not possess a valid travel document. At the time the law was changed, Somali refugee claimants were the largest single group of refugees being accepted by the Immigration and Refugee Board in Canada, and continued to be for some time after the change.
The effect on the Somali community in Canada was dramatic. The processing for permanent residence of a significant proportion of Somali Convention refugees was halted, because the government determined that no Somali documents were satisfactory. Family reunification became almost impossible because Canada does not allow family reunification for Convention refugees. We now have Somali Convention refugees who arrived in 1992 or earlier, who have been separated from their spouses and children for almost seven years. Tragically, in many cases the separation will be permanent, because spouses and dependants have died abroad.
Violations of family unity rooted in social condition.
We are also concerned with the violations of Covenant rights which stem directly from the government introduction of cost recovery in almost every aspect of immigration, particularly family reunification. Fees are payable for most immigration department services, except removal procedures. We have included at Tab 6, No.8, a case example of how cost recovery has resulted in the denial of family reunification for Mr. Kamba, a Convention refugee from Kenya, who is disabled and unable to afford the processing fees or the right of landing fees from his disability pension, which is well below the poverty line.
Many others are denied family reunification because of immigration fees. In particular disabled adults and single mothers with dependant children are unable to pay the fees because of the documented rates of poverty these groups experience, a situation on which the Committee appears to be well briefed. In addition to the fees payable directly to the Canadian government, there is an alarming movement towards requiring DNA testing to prove paternity and maternity where documents do not exist. These fees start at almost $1,000.00 Canadian, and increase depending upon the number of children to be tested.
The report of the 49th session of the Executive Committee of the High Commissioner's Program, October 12th, 1998, addressed the issue of Family Unity on page 9. Articles 16(3) of the Universal Declaration of Human Rights and 23(1) of the International Covenant on Civil and Political Rights are cited. States are exhorted to implement measure to facilitate family reunification of refugees without undue delay, particularly when the head of the family has been admitted as a refugee.
The Concluding observations of the Committee on the Rights of the Child, June of 1995, following consideration of Canada's report, suggest that Canada take any feasible measures to facilitate and speed up the reunification of families in cases where one or more members of the family have been considered eligible for refugee status.
Yet thirteen days ago, on November 3rd, in arguments made before the Supreme Court of Canada in the immigration case of Mavis Baker, the government argued:
"As the Convention on the Rights of the Child is not embodied by statute into Canadian law, it is not part of domestic law and cannot give rise to legal rights and obligations.
Respondent's Factum, Mavis Baker vs The Minister of Citizenship and Immigration. Supreme Court of Canada Court No. 25823. page 18, paragraph 56.
We believe that the denial of family reunification to Convention refugees as of right, and to those who are the most economically disadvantaged, violates Article 10 and 2(1) of the Covenant on Economic, Social and Cultural rights, in addition to violating other Conventions.
Right to Work
The case of the estimated twenty thousand Somali refugees illustrates a full spectrum of Covenant violations, including discrimination in the right to work under Article 6. Convention refugees cannot compete for jobs because of the work permit requirements, the Canada First employment policy and social security numbers issued to Convention refugees which identify them as persons with temporary status. The evidence in support is found at Tab 6, page 8, where a recent study done in Ottawa among Somali Convention refugees documents the employment difficulties, and contains documents on the Canada First policy of the Canadian government in their own hiring. Further, those in refugee-like situations, on Minister's permits, have to pay fees to Citizenship and Immigration for work permits, in order to work.
Youth, such as Mohammed Aden, whose case study is found at Tab 6, No. 5, who has been in Canada for almost nine years, have no access to higher education, despite a clearly demonstrated capacity and merit. Mr. Aden's case is representative of the barriers for all those in Canada with status other than Canadian citizen or permanent resident.
To illustrate other situations which give rise to the same violations we have included the case study of "Samir" and his sister. Samir and his sister are dependants of Convention refugees from Iran. In their case, despite being in Canada for almost eleven years, they are not landed because of an assault conviction against their father. Samir and his sister have their lives "on hold", because they cannot attend university. The Committee appears to be well aware of the dramatic rise in tuition fees, and the staggering student debt faced by graduates. We wish the Committee to understand that Convention refugees and others with no status face additional barriers to post-secondary education, which arise directly from their status.
Barriers also exist on the basis of status for children seeking to attend school. We have included the case of Mrs. Mosavi and her children found at Tab 6, No. 6. Mrs. Mosavi is a refused refugee claimant who is in hiding in Canada, under circumstances where The Inter-American Commission on Human Rights has requested a stay of her deportation, and a review of her refugee case. Her three children continue to be denied junior-high school education because of their mother's lack of status.
In addition to the severe cutbacks in health care for Canadians and permanent residents, there has been a dramatic denial of access to health care services on the basis of formal immigration status. In the past few years all provinces have withdrawn from the provision of health care for refugee claimants. The federal government filled the gap with the Interim Federal Health Program, which is significantly inferior, and not always fully recognized.
We have provided you with cases from British Columbia and Ontario to illustrate the problems. For example, since 1994 new regulations in Ontario have denied access to health care services on the basis of status. We have included at Tab 6, No.9 a comprehensive explanation of how the regulatory changes disqualify on the basis of immigration status and apply a three month waiting period after qualification. This three month waiting period has a discriminatory impact on pregnant women, infants, and people with disabilities who need immediate or frequent medical care.
Nine people, including three children, representing a cross section of the population, have challenged the Ontario Health Insurance Plan regulations in an action commenced in the Ontario Courts in Irshad et. al v. Ontario (Attorney General). These people were all denied medical care on the basis of their status, or their parent's status in Canada.
At Tab 6, No. 3 you will find the case of Canadian born babies being denied medical coverage during the three month waiting period. Similarly at Tab 6, No. 4, a Canadian born child is denied medical coverage entirely, and has filed a complaint with the British Columbia Human Rights Commission. All of these children are Canadian citizens, who have been denied medical coverage on the basis of the status of their parents.
It is our contention that the patchwork eligibility for health care coverage, which imposes lengthy waiting periods and disqualifies applicants on the basis of their status, or the status of their parents, violates Article 12(1)(d) of the Covenant by failing to "assure to all medical service and medical attention in the event of sickness." as well as Article 2(2).
While the array of Covenant violations we have highlighted in our brief and case studies is somewhat confusing, the common thread is that they all arise because immigration status is used in Canada to determine access to key social and economic rights.
We acknowledge that there is no mechanism for this Committee to make findings of Covenant violations, or to make direct pronouncements in that regard. However we urge the Committee to use those measures which are available to address the self-evident violations of Covenant economic and social rights for Convention refugees and others without status in Canada.
We are asking this Committee to clarify the extent to which Covenant rights can be limited by immigration status, and to urge the Committee to join us, and other United Nations bodies, to challenge Canada to take immediate steps to ensure that everyone, including Convention refugees and other non-citizens in status determination or deportation procedures, enjoy Covenant rights, without discrimination of any kind, particularly on the basis of status.
In particular, we ask this Committee to join the UNHCR and the Committee on the Rights of the Child in urging Canada to let spouses and children overseas join Convention refugees in Canada, as a matter of right.
Further, in view of the position taken by the government in the Mavis Baker case before the Supreme Court, that an international treaty gives rise to no legal rights or obligations in Canadian law, we ask this Committee to urge Canada to take the necessary steps to incorporate Covenant economic and social rights into domestic law, and to provide the legal remedies required to ensure that Covenant rights are respected.