CARL: Briefing Note on Cessation

CARL: Briefing Note on Cessation Background Under the 1951 UN Refugee Convention, there are certain circumstances where a Convention Refugee may cease...
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CARL: Briefing Note on Cessation Background Under the 1951 UN Refugee Convention, there are certain circumstances where a Convention Refugee may cease to be recognized as a Convention Refugee. The process by which a refugee loses refugee status is referred to as “cessation”. In line with the Refugee Convention, s. 108 of the Immigration and Refugee Protection Act (IRPA) sets out the various circumstances by which a refugee or protected person can cease to be a refugee or protected person. Without being exhaustive, typical circumstances include where the person voluntarily re-establishes themselves in their previous country of nationality, becomes a national of another country where they do not fear persecution, or “re-avails themselves of the protection of their former country”, which could include applying for a passport or temporarily returning to the home country. Cessation has been far more important in countries where refugees normally received temporary protection only and the host country was eager to remove refugees who no longer feared persecution. In Canada, a protected person normally received permanent residence and their right to remain in Canada then rested on their permanent residence status even if they subsequently ceased to be a refugee. Cessation did not terminate a protected person’s permanent residence status. This was a policy decision. Canada chose to promote integration and settlement by offering permanent residence to protected persons. The policy was both practical and compassionate. Once a protected person became a permanent resident of Canada, they were allowed to get on with their lives in Canada without fear of being returned to their country of nationality. They could go to school, buy a house, begin a career, or invest in a business. They still had to meet all the other requirements of permanent residence to keep it – such as not committing serious crimes and maintaining minimum residency requirements - but they could now confidently call Canada home. The only exception to this policy occurred where the protected person was a danger to the public. Then Canada could invoke danger opinion proceedings to cancel protected person status in order to remove the person from Canada, after also removing their permanent residence due to criminality.

Change to the Law The law on cessation changed dramatically with the passage of the Protecting Canada’s Immigration System Act (“PCISA”) in 2012. Now, a finding of cessation removes both protected person status and permanent residence status in one fell swoop. See s.40.1 (2) and s.46(1)(c.1) of IRPA. The law is unfair and founded on a false premise; it assumes that any form of cessation-type activity is evidence of a fraudulent claim. Many forms of refugee conduct do not necessarily mean that the refugee is no longer at risk of persecution. Refugees often return temporarily to their former country, at great risk, for compelling reasons related to family illness, death, and family members at risk. For refugees who fear a non-state persecutor, it could be reasonably safe Briefing Note-Cessation April 19th, 2016

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CARL: Briefing Note on Cessation to return temporarily to certain parts of the country. Similarly, such refugees could apply for a passport since the state is not the persecutor. It is not evidence that they are safe in the home country. In other instances, the refugee may no longer be at risk due to a change of country conditions long after the person was accepted as a refugee. A temporary return to the home country is not evidence that the original claim was fraudulent. There is no reasonable basis for removing the person’s permanent residence status. To do so directly contradicts Canada’s core policy intention to allow refugees to integrate into Canadian society as soon as possible. The new law is fundamentally unfair in three other ways. 1) The Cessation decision is made by a member of the Immigration and Refugee Board.

The person loses both protected person status and permanent residence with no right of appeal. Their only recourse is a leave application for judicial review. There is no statutory stay, and they are therefore immediately removable from Canada. 2) The loss of permanent residence is based solely on cessation factors. The length of

time living in Canada, having a Canadian family, the best interests of a child, having a materially and socially successful life in Canada are all irrelevant to the cessation decision. A person could have lived ten years in Canada, have a spouse and children who are Canadian citizens, and be a model resident. All of those facts are deemed to be irrelevant to the loss of permanent residence. 3) The application of the law is retroactive. The law came into force in December, 2012

but any prior conduct can result in loss of protected status. If a protected person returned to their country in 2002 for example, for whatever reason, they are still vulnerable to a cessation proceeding although there were no legal consequences in returning to their county at the time. Where there is a legitimate concern that a particular claim was fraudulent, the law already contains a remedy. It was and still is possible for a protected person to face loss of their status through vacation under s.109 of IRPA if the decision to confer status was obtained as a result of directly or indirectly misrepresenting or withholding material facts. Vacation of protected person status leads to an automatic loss of permanent resident status as well. This was not changed under the new provisions, and vacation continues to be the appropriate mechanism to deal with system integrity issues.

Details of Cessation Prosecutions 

From 2007 to 2011, there were a total of 106 cessation applications by the Minister. In Operational Bulletin PRG-2013-59, dated September 19, 2013, the Minister of Public Safety

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CARL: Briefing Note on Cessation set a target of 875 applications per year, and cessation prosecutions increased exponentially as a result. This has been done at great cost to the taxpayer, serving little or no purpose, and brutally disrupting the lives and futures of well-established residents of Canada who were, and often still are, genuine refugees. 

Cessation applications are primarily being brought against Permanent Residents who, it is alleged, have “re-availed” themselves of the protection of their country by traveling back to their countries – often many years after their claims for protection have been decided.



In many cases they traveled before the law changed, at a time when there was no restriction to returning to their country. In other words – they could not have known they were putting their permanent resident status at risk.



Cessation applications are being brought against permanent residents who came to Canada as government sponsored refugees.



These permanent residents are, in most cases, fully integrated into Canada, many have Canadian born children and have very strong settlement factors. The Minister has been taking a very strong position in the Courts that humanitarian factors not only need not be considered, but cannot be considered by officers in deciding whether to strip a refugee of their permanent residence through cessation. This issue is currently being litigated by the Minister before the Federal Court of Appeal.



Cessation applications are often triggered when a person applies for citizenship - citizenship proceedings are arbitrarily suspended allowing cessation proceedings to be commenced.



Many protected persons are being warned not to apply for citizenship, permanent resident cards or travel documents for fear of triggering a cessation prosecution based on past travels. This has created a great deal of fear and uncertainty in refugee communities.

Examples of Cessation Prosecutions 

Mr. Khoshaba is a Christian Kurdish citizen of Iraq and was a refugee sponsored by the Roman Catholic Archdiocese in 2010. In February 2013, Mr. Khoshaba’s father fell and broke his back, leg and arm. Mr. Khoshaba travelled to Zakho, Iraq (part of the Kurdishcontrolled territory) to visit his father. Because of this trip, and trip to the US on his Iraq passport, CBSA has filed a cessation application on behalf of the Minister, taking the position that current risk of persecution cannot be considered. If the cessation is successful, Mr. Khoshaba will lose his refugee protection, he will be stripped of permanent residency and will be rendered inadmissible to Canada. However, there is currently a moratorium on removals to Iraq as the Minister has determined that the conditions pose a generalized risk to the entire civilian population. Although Mr. Khoshaba could likely apply for permanent residency from within Canada at some point in the future on humanitarian or other grounds, in the interim he would be an admissible foreign national unable to work without authorization or to travel.

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CARL: Briefing Note on Cessation 

Mr. Bermudez came to Canada from Colombia as a refugee in 2008 when he was still a teenager. He briefly returned in 2009 and 2010 despite the risk at the time because he was in love with a girl in Colombia who he wanted to marry. Since then, he has married a Canadian citizen and has three Canadian children for whom he is the primary breadwinner. He is facing a cessation application, and if the Minister is successful, he will immediately lose his permanent residence and become an inadmissible foreign national, with no authorization to work in Canada. Even assuming he was not removed, it would be many months before he would be able to regularize his status and be allowed to work again to support his family. The Minister is currently pursuing this case before the Federal Court of Appeal at significant cost and stress to the Bermudez family.



Ms. Esfand is a permanent resident who came to Canada with her husband and their daughter as government sponsored refugees from Iran in 2006. In 2007, their second daughter was born in Canada. They are now a well-established self-supporting family of four who have called Canada home for nearly ten years. Her husband and her two daughters are Canadian citizens yet her citizenship application is on hold while she now defends herself in a third court proceeding in which her removal from Canada is sought. Ms. Esfand never claimed a risk of persecution in Iran – it was her husband who was at risk, but the government’s refugee resettlement process included her and her first daughter as refugees to keep them together with their husband/father. Because she was given derivative refugee status as the spouse of a refugee, a visit to Iran to see her family triggered cessation proceedings and her potential removal from Canada. This undercuts the core values of settlement and integration.

Recommendations 

Fraud can continue to be addressed through vacation applications under s. 109 of IRPA.



Ss 40.1(2) and 46(1)(c.1) should be repealed so that permanent residence is not stripped upon cessation (s. 108).



Permanent residents who lost their status through cessation after December 15, 2012 should be permitted to re-acquire their status with minimal qualifying criteria.



Persons who are found to have ceased to be refugees should be entitled to a PRRA prior to removal. Currently, there is a one year bar on such applications following a cessation decision (per section 112(b.1) of IRPA); this change was also part of the PCISA.

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CARL: Briefing Note on Cessation Prior to a legislative change: 

Cessation applications should not be brought against permanent residents, and all pending cessation applications against permanent residents should be withdrawn.



The Minister should exercise greater discretion to consider a full humanitarian and compassionate review prior to bringing cessation applications. The Minister should consider whether a person traveled before the law changed, the person’s ties to Canada, the impact removal would have on person and family, the person’s reasons for travel, ongoing risk in country of nationality, etc. Cessation should only be brought in rare circumstances reflecting real concerns regarding the integrity of the refugee protection system.



Cessation applications should not be brought against Government Assisted Refugees who have integrated into Canada - Canada has invested in these persons, it makes little policy sense to remove them from Canada.



Cessation applications should not be brought against family members of overseas protected persons who themselves did not have an independent claim for protection.



Citizenship applications should not prompt cessation proceedings - if the person meets the criteria of the Citizenship Act, at the time of application, proceedings should not be suspended to permit cessation proceedings. Cessation proceedings should be suspended until citizenship applications have been determined.

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