A bill that would require mandatory detention for some migrants would violate Canada’s binding international legal obligations.

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C-31 Would put Asylum Seekers, Others at Risk and Harm Children
March 16, 2012
Instead of identifying and punishing human smugglers, this bill would punish their victims. Canada should go after people who profit from human smuggling, not people fleeing persecution.
Bill Frelick, Refugee Program Director

(Toronto) – A bill that would require mandatory detention for some migrants would violate Canada’s binding international legal obligations, Human Rights Watch said today.  In a letter to Members of Parliament, Human Rights Watch said that Bill C-31, “Protecting Canada’s Immigration System Act”, would violate human rights law by allowing for a year of detention without review for certain groups of people, including 16- and 17-year-old children.

“Instead of identifying and punishing human smugglers, this bill would punish their victims,” said Bill Frelick, Refugee Program director at Human Rights Watch. “Canada should go after people who profit from human smuggling, not people fleeing persecution.”

Bill C-31 would require one-year, mandatory detention for people in certain categories who arrive irregularly. It would also prevent those people, including some recognized as refugees, from achieving permanent resident status for five years. Both provisions would contravene Canada’s obligations under Article 31 of the Refugee Convention, which prohibits imposing penalties on refugees on account of their illegal entry or presence.  The five-year ban on applying for permanent resident status would also result in significant delays to family reunification, Human Rights Watch said. 

The mandatory, unreviewable detention provisions of C-31, which also apply to 16- and 17-year old children, violate the Convention on the Rights of the Child, which defines children as people under age 18 and prohibits their arbitrary detention.

“Subjecting 16- and 17-year-old children to mandatory, unreviewable detention backtracks on Canada’s commitments to children,” Frelick said. “Even though the government is now proposing to eliminate mandatory detention for children under 16, if their parents are detained, the children will either be detained with their parents or separated from them for a year. Either way, the situation would have damaging effects on a child.”

Bill C-31 would also give the citizenship, immigration, and multiculturalism minister exclusive authority to designate certain countries as “safe,” meaning they are presumed to be free from persecution and not to produce refugees. Refugee claimants from the Designated Countries of Origin list would have expedited hearings, would not have access to the new Refugee Appeal Division, and their applications for leave before the Federal Court would not automatically suspend their removal. In practice, this means that by the time the court might reverse a denial of asylum, the refugee would already have been subjected to persecution back home.

In introducing Bill C-31, the citizenship, immigration, and multiculturalism minister specifically cited refugee claimants from the European Union as people who should presumptively be regarded as coming from safe countries. But Human Rights Watch has documented racist and xenophobic violence directed particularly against Roma and migrants – and inadequate police protection – in a number of EU member states, including Italy, Greece, and Hungary. 

“We believe it is impossible to make a blanket determination that any country is safe for everyone and would never produce a refugee,” Frelick said. “Where there are laws authorizing ‘safe country’ lists, we don’t think the decision to identify those countries, which could have terrible consequences if they turn out to be wrong, should be left in one person’s hands.”