The situation is so dire for vulnerable Afghan nationals hoping to resettle to Canada as refugees that the government should use every legal mechanism at its disposal to help save their lives. That, in a nutshell, is the message sent to Minister of Immigration, Refugees and Citizenship Sean Fraser by the Immigration Law Section of the Canadian Bar Association.
In September 2021 the Section launched the CBA Afghanistan pro bono initiative whereby participating lawyers provide certain services, including legal advice, to those who seek to benefit from the promise made by the Canadian government to resettle as many as 40,000 Afghan refugees here.
“The experience of CBA pro bono lawyers reveals that the existing relief measures for Afghans are insufficient, too restrictive, encumbered by extensive delays, and fraught by lack of clarity and relevant information needed by applicants,” the Section writes in its letter to Immigration Minister Fraser. Lawyers receive many queries and desperate calls for help but unfortunately in too many cases the rules of the program themselves make it impossible for them to assist Afghans who are often target for revenge by the Taliban.
The Section proposes several changes to improve Canada’s response to the humanitarian crisis in Afghanistan. In addition to improving processing times and communications methods with those seeking to relocate to Canada, the federal government should waive the regulatory requirement that Afghans seek resettlement through private refugee sponsorships. It should also extend eligibility for sponsorship under the Family Class to Afghans who are extended family members of Canadian citizens and permanent residents.
Waive requirement for formal refugee recognition
Private sponsorship of refugees can be undertaken through three categories: Sponsorship Agreement Holders (SAHs), Community Sponsors and Groups of Five, the CBA letter explains. Only the first category is exempt from the regulatory requirement that obliges the applicant to have a formal refugee status from the United Nations High Commissioner for Refugees, or UNHCR, or from a foreign state.
According to CBA members who are involved with the Afghanistan pro bono initiative, the majority of Afghans who have fled to neighbouring countries – primarily Pakistan and India – are enduring significant obstacles including multi-year wait times, effectively making it impossible for most of them to receive formal refugee status.
The letter to Minister Fraser quotes news reports from Afghans who say they are being bounced between UNCHR and the Canadian Embassy in the third country to which they managed to flee and face the daunting task of dismantling bureaucratic brick walls with precious few resources at their disposal.
“While SAHs are not subject to the sponsorship requirement of formal refugee recognition for displaced individuals, they are limited in their capacity to support refugees in Canada for at least 12 months,” the Section writes. As well, Immigration, Refugees and Citizenship Canada, or IRCC, imposes caps on the number of new sponsorship applications SAHs can submit each year.
The solution to get as many of the vulnerable Afghans relocated to Canada goes through more Groups of Five and Community Sponsors, which can be formed quickly. But for this to work, the requirement to obtain official refugee status needs to be waived.
The Section therefore recommends that IRCC “recognize displaced Afghans as prima facie refugees and waive the requirement of formal refugee status in the context of private sponsorship by Community Sponsors and Groups of Five.” The legal mechanism to do so exists in s. 25.2 of the Immigration and Refugee Protection Act, and it was used as recently as 2015 and 2016 to allow Syrian and Iraqi refugees to relocate to Canada more easily.
“As of November 2021, only 400 Afghans with confirmed refugee status from the UNHCR or a foreign state have been brought to Canada through the current humanitarian program,” the CBA letter says. “Canada is unlikely to fulfill its commitment to resettle 40,000 at-risk Afghans by 2023 unless it implements dedicated policy under s.25. 2 of the IPRA and caps are waived for individual and group sponsors.”