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Refugees Are People Too

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If Bill C-31, "Protecting Canada's Immigration System Act," passes in parliament, Canada will lose its reputation for fairness and human rights and, more importantly, hundreds if not thousands of people's lives will be adversely affected.

Other Huffington Post contributions noted that the bill's earlier incarnation, C-4, was dangerously misguided in its attempts to stop human smuggling. The revised bill is in fact more draconian, dropping many of the protections guaranteed in the first one. The bill's mandatory immigration detention provision, among others, will harm innocent people, cost a lot of money and wont deter human smuggling or refugee claimants -- the bill's ultimate goal.

What is immigration detention? It is the temporary incarceration of non-citizens, in this case refugee claimants or other migrants who arrive through 'irregular' means, as part of processing their claims. International law generally permits immigration detention pending admissions or deportations, and considers it to be administrative, non-punitive and ancillary to immigration control. Detention is commonplace in countries like Australia, the U.S., and the U.K. In Canada, it is a measure of last resort used only when claimants present a flight risk or the identity of a person cannot be verified.

Bill C-31 would automatically detain all irregular arrivals -- a designation made at the discretion of the Minister -- for up to one year and without judicial review. To his credit, Canada's Citizenship and Immigration Minister, Jason Kenney, has recently changed his stance on detention without review. After mandatory detention, however, genuine refugees would still be ineligible for permanent residence for five years.

There are two major consequences of this proposal: first, refugees would be ineligible to sponsor any immediate family members, ensuring a probable separation of seven to eight years from one's spouse and/or children; second, these refugees would be second-class people in Canada. Their presence would be lawful but temporary, excluding them from official language training or other settlement services to facilitate their integration into Canadian society. Furthermore, experience shows that they would be discriminated against in the labour market -- their uncertain immigration status makes them less appealing to employers looking for a long term commitment.

When Citizenship, Immigration and Multiculturalism Minister Jason Kenney introduced Bill C-31 on February 16 2012, he argued that it is intended to "include further reforms to the asylum system to make it faster and fairer, measures to address human smuggling, and the authority to make it mandatory to provide biometric data with a temporary resident Visa application."

We disagree. The minister's goals of making the system "fairer and faster" are, in fact, at odds with one another: 15 days is not enough time for refugees to seek legal counsel, explain their fear or experience of persecution, and convert this testimony into a document suitable for a refugee hearing. Ultimately, a rushed system would deny many claimants access to legal representation.

The bill would also make permanent residence for all refugees who came to Canada in this category conditional: the minister would be able to return non-citizens who came to Canada as 'refugees' to their countries of origin should the situation in their country of origin become 'safe.' The idea that one person can decide when a country becomes safe and for whom, gives unprecedented power to a minister whose office has no expertise in determining country conditions for various groups of refugee claimants. At the same time, the bar for obtaining citizenship has gone up, with greater official language requirements.

Bill C-31's immigration detention measures will be expensive. The Auditor General has noted that the costs of implementing Bill C-31's detention proposals will run at least $70,000 per detainee. For a government that aims to cut costs, this is a step in the opposite direction. For-profit detention and incarceration in the US, UK, and Australia is big business, but the government pays the bills.

The projected monetary cost does not take into account the emotional and social costs to the detainees, their families, and the wider communities. Moreover, many scientific studies have concluded that immigration detention is harmful to the mental and physical health of detainees, and that every day in detention leads to further deterioration.

Bill C-31's immigration detention measures will harm refugee claimants, including children. One positive difference between Bill C-4 and C-31 is the removal of children from automatic detention. But, where would the children of new arrivals go when their parents are detained for one year? Either they would become wards of the state or they would stay with their parents in detention. In some countries, children have been subjected to bone and teeth density scanning in order to test whether their bodies conform to their declared ages.

More importantly, Bill C-31's immigration detention measures will not deter asylum seekers from coming to Canada. Similar measures have not been effective in either Australia or the U.K., the two countries that the Harper government has looked to as models for the Canadian system. The Office of the United Nations High Commissioner for Refugees notes that "no empirical evidence is available to give credence to the assumption that the threat of being detained deters irregular migration, or more specifically, discourages persons from seeking asylum."

On May 9 2012, after facing tremendous pressure from critics, including the United Nations, regarding the one-year detention period's breaching the Canadian Charter of Rights and Freedoms and other human rights instruments, the federal government announced amendments to the detention review schedule. Minister Kenney reasoned that irregular arrivals should receive an automatic review of their detention within 14 days and subsequent reviews after every 180 days. The minister maintains that a detainee who proves to be a "genuine refugee" qualifies for early release. In addition, the Minister of Public Safety is being given discretion to intervene "on his own initiative and at any time, to release a detained individual when grounds for detention no longer exist."

Nevertheless, 14 days is a long time to be jailed without seeing a judge. Whether 14 days of detention satisfies the habeas corpus principle that detainees should be brought before a court of law to determine if they are serving lawful sentences remains an open question. Moreover, studies show that detention of a vulnerable person for even one or two days can scar him or her for life.

The second round of detention review would occur six months later, which is exceptionally long when the criteria for release from detention are not yet clear. As Peter Showler, Director of the Refugee Forum in Ottawa, notes, many refugees will not be able to obtain substantive proof of their plights within two weeks and the six month wait for the next hearing is too long. Showler argues that it is "reasonable to delay two weeks for the first review if it is a large group for logistical reasons but the second review should be within another 30 days."

Ultimately, the minister's changes only serve to deflect attention from the grievous nature of Bill C-31 without resolving or addressing its rights breaches.

The stated purpose of Bill C-31's detention proposal is to deter human smuggling, but the smugglers' 'cargo,' not the snakeheads, will bear the brunt of detention, family separation and social exclusion. Despite the minister's recent amendments, the bill remains a costly and ill-considered deviation from Canada's commitment to fairness in its refugee and immigration adjudication processes.