Law as a vehicle of integration? The

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Law as a vehicle of integration?The
inclusionary and exclusionary dimension of
law in the field of migration
  DELPHINE NAKACHE Research
Associate, Canada Research Chair in International
Migration Law Doctoral Candidate, Institute of
Comparative Law, McGill University. FRANÇOIS
CRÉPEAU Professor of International Law Canada
Research Chair in International Migration
Law Scientific Director, Centre for International
Studies (CERIUM) University of Montreal

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Inclusive dimension of Law

• Canadian Charter of Rights and Freedoms (1982)
  all rights equally apply to all human beings
  under the purview of the Charter.
• Important judicial pronouncements on the domestic
  application of international human rights law
  standards (best interest of the child)
• Foreigners, like citizens, are able to take
  active steps to bring a Charter issue to the
  Court and to seek a remedy under a Charter section

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Exclusionary dimension of Law

• Canadian immigration law has significantly
  reduced the right to a remedy available to
  non-citizens
• A more restrictive outlook has characterized
  cases relating to national security or State
  sovereignty concerns

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PART ITHE CONSTITUTIONAL PROTECTION OF THE
FUNDAMENTAL RIGHTS OF NON-CITIZENS LAW AS A
VEHICLE OF INTEGRATION
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The Constitutional Protection of Fundamental
Rights For All

• 1) Legal rights
• 2) Equality rights
• 3) Fundamental freedoms

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1) Legal Rights - Section 7 fundamental justice

• Singh v. Canada (1985, SC)
• The assessment of a risk to the security of the
  person means an assessment of the threat to any
  of the three rights guaranteed to a refugee
  i.e. the right to status determination, to appeal
  a removal or deportation order and to protection
  against refoulement
• The procedure used in Canada to decide a
  refugee claim (i.e. a written record of the
  examination before an Immigration Officer) does
  not comply with the principles of fundamental
  justice because it does not provide an adequate
  opportunity to claimants to state their case and
  to respond to contrary evidence (the right to
  an oral hearing).

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2) Equality Rights - Section 15

• equal protection and equal benefit of the law
  without discrimination () based on race,
  national or ethnic origin, colour, religion, sex,
  age or mental or physical disability.
• Andrews v. Law Society of British Columbia (1989,
  SC)
• the Supreme Court stated that section 15
  prohibits discrimination on the basis on the
  analogous ground of citizenship.
• substantive equality analysis (rather than formal
  equality approach).
• Law v. Canada (1999,SC) the guidelines of
  Andrews are made more stringent, adding
  especially a requirement that the discrimination
  be a violation of human dignity.

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3) Fundamental Freedoms section 2 Freedom of
Association

• Al Yamani v. Canada (Federal Court, 1996)
• Part of section 19(1)g) of the former
  Immigration Act of 19761 proscribing the
  admission to Canada of members of an organization
  likely to engage in violent acts that will
  endanger the safety of people in Canada is
  unconstitutional on the ground that, by rendering
  inadmissible those who were merely members of
  organizations likely to engage in acts of
  violence, it violates the applicants freedom of
  association
• 1 Member of an organization likely to engage
  in violent acts. This offence is now found under
  s. 34(1) IRPA.

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Using international human rights law in
interpreting domestic standards

• Dualist theory
• The national and international legal orders are
  two distinct spheres of law
• Statutory incorporation is mandatory for an
  international treaty to acquire the force of law
  in the country.

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Significant Case Law

• Pushpanatan (1998, SC) the purpose and
  context of the 1951 UN Refugee Convention are
  applicable in determining the meaning of Article
  1F(c) in domestic law (exclusion clause)
• Baker (1999, SC) Malekzai (2005, FC) the
  immigration official exercising discretion in
  deportation cases is bound to consider the
  principle of the best interests of the child
  stated in the 1989 UN Convention on the Rights of
  the Child
• Suresh (2002, SC) the principle of the absolute
  prohibition of torture and of non-refoulement
  must be given consideration in expulsion cases
  even where national security interests are at
  stake

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PART II THE REDUCTION OF THE RIGHT TO A
REMEDY UNDER CANADIAN IMMIGRATION LAW LAW AS A
MEANS OF EXCLUSION
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Since Singh, a more restrictive outlook has
characterized cases relating to national security
or State sovereignty concerns

• Nguyen v. Canada (FC, 1993)
• McAllister v. Canada (FC, 1996)
• Chiarelli v. Canada (SC, 1992) Chan v. Canada
  (FC, 1996)
• Dehghani v. Canada (SC, 1993)
• The principles of fundamental justice can vary
  according to the context in which they are
  invoked

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Replacement of Appeals by Judicial Review in
Canadian Immigration Law

• Judicial review does not review the merits of
  the case.
• It is particularly difficult to get a decision
  overturned when it hinges on the credibility of
  the claimants testimony, since the Court will
  usually say that the decision-maker who heard the
  claimant is best placed to judge whether he were
  credible.
• A decision can be wrong and, if it does not
  contain the kind of mistake subject to review by
  the Federal Court, it is final

• Permanent and Temporary Residents
• No appeal is available to a sponsor where a
  security certificate has been signed or where the
  minister is of the opinion that the person is a
  danger to the public and inadmissible under
  specified paragraphs of IRPA.
• The Refugee Appeal Division a broken promise

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Legal Aid Remains Inadequate

• Provinces are exclusively responsible for
  developing and managing legal aid policies,
  without insuring some equalization.
• Dehghani v. Canada (SC, 1993) the principles of
  fundamental justice do not require the appellant
  being provided with counsel at the pre-inquiry or
  pre-hearing stage of the refugee claim
  determination process
• Contravenes to Singh the indications formulated
  in the federal cost-sharing arrangements covering
  refugee claimants

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Security Certificates the Right to Justice

• Terrorism as a Ground for Detention and Removal
• There are no provisions for release comparable to
  section 515 of the Criminal Code, which allows
  for the release of even the most dangerous
  individuals on surety bail or cash deposit
  Jaballah example is instructive (FC, 2004) he
  was denied interim release notwithstanding the
  fact that fourteen individuals were prepared to
  act as sureties.
• Deportees might face torture or inhuman treatment
  in their destination country (Suresh, 2002)

• The challenge to the Constitutionality
• Ahani vs. Canada (1995, F.C.) Charkaoui (Re)
  (2003, F.C) the imperatives of immigration
  policy (i.e.the right of State to safeguard
  protected information for reasons of national
  security) must govern the context
• In both cases, emphasis on the fact that
  non-citizens do not have an unqualified right to
  enter or remain in the country.

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CONCLUSION CLARIFYING THE RIGHT TO
EQUALITY AND THE NON-DISCRIMINATION PROVISIONS
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Elements of solution

• 1. There is no possible differentiation between
  citizens and non-citizens regarding basic
  protections for physical security and fair trial.
• 2. A differentiation between citizens and
  non-citizens is legal if a State can make out a
  reasonable and objective case that differing
  treatment of applicants of a particular national
  origin for a limited period of time is required
  for its security.
• Otherwise, the differentiation constitutes
  discrimination and is illegal