Annex Regarding the Sharing of Information on Asylum and Refugee Status Claims to the Statement of Mutual Understanding on Information Sharing
The Department of Citizenship and Immigration Canada (CIC)
The Bureau of Citizenship and Immigration Services (BCIS), of the U.S. Department of Homeland Security (DHS)
This Annex to the Statement of Mutual Understanding of Information Sharing (SMU) sets forth the understanding between the Participants that they are to share information in the manner described herein. The provisions of the SMU apply at all times to all exchanges of information among the Participants, except as provided in this or other Annexes. This Annex addresses additional requirements or provisions applicable to refugee status claims, as described in this Annex, to the extent that the provisions in this Annex are different from, or not described in, the SMU. Notwithstanding any language used herein, however, nothing in this Annex is intended to give rise to rights or obligations under international law or the domestic laws of the Participants; the Annex reflects the firm political commitments of the Participants to operate in accordance with the provisions detailed herein.
In accordance with section 3(2) of the Immigration and Refugee Protection Act (IRPA), the objectives for refugees include establishing fair and efficient procedures that will maintain the integrity of the Canadian refugee status determination system, while upholding Canada’s respect for the human rights and fundamental freedoms for all human beings; protecting the health and safety of Canadians and maintaining the security of Canadian society; and promoting international justice and security by denying access to Canada to foreign nationals, including refugee status claimants, who are serious criminals; violators of human and international rights; or, security risks. Under IRPA, the refugee protection definition includes the criteria from the 1951 Convention relating to the Status of Refugees, the Convention against Torture (CAT), and the further criteria of risk to life or risk of cruel and unusual treatment or punishment. In furtherance of these objectives, and as part of the process in order to provide refugee protection to those who need it, as set out in Part 2 of IRPA, CIC records personal data concerning the refugee status claimant, including biographical information, information regarding suspected or actual inadmissibility, suspected or actual ineligibility to have a refugee status claim referred to the Immigration and Refugee Board, the route by which the refugee status claimant came to Canada and other information relevant to the identity of the person or the merits of his or her claim to protection.
In accordance with sections 208 and 241(b)(3) of the Immigration and Nationality Act (INA), and section 2242(b) of the Foreign Affairs Reform and Restructuring Act (FARRA) (implementing Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) and corresponding regulations, the United States has established fair and efficient procedures to provide protection for refugees and others who qualify for protection under those provisions and to maintain the integrity of the asylum and refugee status determination system by, among other things, denying asylum to or terminating the asylee status of individuals who are criminals, human rights abusers, or security risks. In administering such procedures, the United States records personal data concerning the refugee status claimant, including biographical information, information regarding suspected or actual inadmissibility or removability, suspected or actual ineligibility for protection, and other information relevant to the identity of the person and/or the merits of his or her claim.
In addition to the objectives set out in the preamble to the SMU, this Annex sets out specific objectives related to the sharing of information in the asylum context.
Subject to the domestic laws of the United States and Canada, and consistent with their commitments to uphold international and domestic obligations not to return qualified individuals to countries where they would face persecution or torture, the Participants intend to implement this Annex in order to
- Preserve and protect their respective countries’ asylum and refugee status determination systems;
- Enhance their abilities to assist those who qualify for protection from persecution under the 1951 Convention relating to the Status of Refugees (the 1951 Convention), the 1967 Protocol relating to the Status of Refugees (the Protocol), or from torture, within the meaning of Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention Against Torture) and other protection criteria set forth in the Participants’ respective domestic legislation;
- Support efforts to share responsibility between the Participants in providing protection to qualified refugee status claimants, including the orderly handling of refugee status claims and the movement of refugee status claimants within North America;
- Identify and prevent abuse of the Participants’ asylum and refugee status determination systems and citizenship and immigration laws as defined in Article 1 of the SMU; and
- Identify those who are excluded from protection under Article 1E or 1F, or denied protection according to Article 33(2) of the 1951 Convention, as implemented in the Participants’ respective domestic legislation or whose refugee status may be subject to termination, cancellation or revocation.
For purposes of this Annex, the following definitions are applicable:
- “Refugee status determination system” means the sum of laws and administrative and judicial practices employed by each Participant’s national government for the purpose of adjudicating refugee status claims.
- “Refugee status claim” generally means a request from a refugee status claimant to the government of either Participant for protection against persecution consistent with the 1951 Convention and the Protocol, and against torture, consistent with Article 1 of the Convention Against Torture, or other protection grounds in accordance with the respective laws of each Participant. In the United States, the phrase means a claim for asylum or withholding of removal, a claim for protection under Article 3 of the Convention Against Torture, or a credible fear or reasonable fear screening for eligibility for such protection, under the Immigration and Nationality Act or FARRA and implementing regulations. In Canada, the phrase means a claim for protection pursuant to section 99 or section 112 of the Immigration and Refugee Protection Act.
- “Refugee status claimant” means any person who makes a refugee status claim in the territory or at a port of entry of one of the Participants.
This Annex does not apply to refugee status claims made by persons who are citizens of Canada or the United States or who, not having a country of nationality, are habitual residents of Canada or the United States. This Annex applies to sharing, on a systematic or case-by-case basis, of information concerning refugee status claims made in either Participant’s territory. This Annex does not preclude sharing of information on a case-by-case pursuant to the SMU or any other annex to the SMU.
- United States
- Under the Immigration and Nationality Act (INA), section 208, and Title 8 of the Code of Federal Regulations (CFR), part 208, the Bureau of Citizenship and Immigration Services (BCIS) has authority to establish processes for individuals seeking protection from persecution or torture. Accordingly, the collection and maintenance by BCIS of the information specified in this Annex is permissible under the Privacy Act, 5 U.S.C § 552a(e)(1), which allows agencies to collect and maintain information that is relevant and necessary to accomplish “a purpose of the agency required to be accomplished by statute or by Executive Order.”
- The Privacy Act restricts the ability of the BCIS to share information regarding persons who are United States citizens or Lawful Permanent Residents. Where the subject of the information has consented to the disclosure, the Privacy Act does not restrict the ability of the BCIS to disclose the information. Even in the absence of the subject’s consent, however, the BCIS may disclose information relating to a United States citizen or a Lawful Permanent Resident under certain conditions described in the Privacy Act at 5 U.S.C. § 552a(b). Such conditions include where the disclosure of information is pursuant to a routine use consistent with the reasons for collecting the information when the BCIS has published notice of the routine use in the Federal Register.
- Sharing information relating to refugee status claims is governed by regulation at 8 CFR 208.6. The regulation prohibits disclosure to third parties of information regarding individual refugee status claimants without the subject’s written consent, except as provided under specific regulatory exceptions or as authorized by the Secretary of Homeland Security.
Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with provisions of the Privacy Act. Under IRPA and the Regulations, CIC collects personal information on refugee status claimants related to identity; admissibility; eligibility; exclusion; intervention; the merits of the refugee status claim; and, compliance with any lawful order under IRPA. Section 7 of IRPA gives authority for the Minister to enter into international agreements with foreign states for the purpose of the Act. Article 8(2) of the Privacy Act provides that, subject to any Act of Parliament, personal information under the control of a government institution may be disclosed, for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or, under an agreement or arrangement between the Government of Canada or an institution thereof and the government of a foreign state or any institution thereof, for the purpose of administering any law or carrying out a lawful investigation. This Annex to the SMU is consistent with the Article 8(2)(a) of the Privacy Act, and is an arrangement for an administrative purpose as described in Article 8(2)(f) of the Privacy Act.
Data Elements to be shared
There are four broad categories of information that may be shared:
- information relating to the identity of the refugee status claimant;
- information relating to the processing of the refugee status claim;
- information relevant to a decision to deny a refugee status claimant access to, to exclude such a claimant from the protection of, the refugee determination system, or to terminate, cancel or revoke an individual’s existing refugee status in the United States or Canada; and
- information regarding the substance or history of previous refugee status claim(s) that will assist in determining a subsequent refugee status claim.
- Information relating to the identity of the refugee status claimant
Information concerning the identity of a refugee status claimant is essential to the determination of a refugee status claim. In order to establish the identity of a refugee status claimant, the officer relies upon biographic, descriptive or biometrics data. Not all of the identifying data characteristics listed below may be available for each refugee status claimant. The identification information that may be shared under this Annex includes, but is not limited to:
- Name and aliases used;
- Client identification number (for respective Participant’s reference only);
- Gender (both birth and post-operative, if applicable);
- Physical description;
- Biometrics, including fingerprints, photographs and physical descriptions;
- Date of birth (both claimed and actual);
- Country of birth (both claimed and actual);
- Nationality or nationalities (both claimed and actual);
- Information relating to identity documents (e.g. passport number); and
- Other relevant identification data (e.g., FBI number, driver’s license number).
- Information relating to the processing of the refugee status claim
Information regarding the status of a previous or ongoing refugee status claim in the country of one Participant is relevant to the determination of a refugee status claim in the country of the other Participant. This information refers to the processing of the person’s refugee status claim in Canada or the United States, and consists of, but is not limited to:
- Information regarding whether the refugee status claim was denied access to the refugee determination system, has been decided, remains pending, or has been declared abandoned or voluntarily withdrawn;
- If the refugee status claim has been decided, information on whether protection was granted or denied, including the disposition of any appeals; and
- Information regarding the cessation or vacation of a determination on a refugee status claim.
- Information relevant to a decision to deny a refugee status claimant access to, or exclude such a claimant from the protection of, the refugee status determination system or to terminate, cancel or revoke an individual’s existing refugee status in the United States or Canada.
This information is relevant to the decision whether or not to allow the refugee status claimant access to the refugee status determination system. This information may also be relevant to the decision as to whether or not a person ought to be excluded from refugee protection pursuant to Article 1E or 1F or denied protection according to Article 33(2) of the 1951 Convention, as implemented in the refugee status determination systems of the Participants. In Canada, this information may also be relevant to the decision as to whether the Minister of Immigration decides to participate in the refugee status determination process pursuant to Canadian law. The information that may be shared includes, but is not limited to:
- Information related to a determination that a refugee status claimant falls or fell within the provisions of Article 1E or 1F of the 1951 Convention Relating to Status of Refugees, as implemented by the Participant;
- Information related to a determination that a refugee status claimant falls or fell within the provisions of Article 33(2) of the 1951 Convention Relating to Status of Refugees, as implemented by the Participant;
- Information concerning any outstanding criminal warrants or criminal convictions pertaining to a refugee status claimant, or the nature of any criminal offence that either Participant has reasonable grounds to suspect a refugee status claimant has committed;
- Information concerning security allegations pertaining to a refugee status claimant, or the nature of any security risk that either Participant has reasonable grounds to suspect a refugee status claimant might present;
- Information related to outstanding immigration warrants pertaining to a refugee status claimant or the nature of any immigration offence(s) that either Participant has reasonable grounds to suspect a refugee status claimant has committed.
- Information regarding the substance or history of any previous refugee status claim(s) that will assist in determining a subsequent refugee status claim.
Information regarding previous refugee status claims is relevant to the assessment of subsequent claims, including the assessment of credibility. Such information includes, but is not limited to:
- Country of last habitual residence;
- Marital status and family composition;
- Immigration status;
- Date(s) of arrival;
- Places(s) of entry;
- Manner of entry;
- Information concerning routes of travel;
- Occupational information;
- Information submitted in support of a refugee status claim;
- Information related to the substance of the refugee status claim; and
- Records of decisions taken with respect to the refugee status claim, including reasons.
Mechanism for Sharing Data
- Systematic Information Sharing
Systematic information sharing is intended to take place in three stages:
1. Comparison of data;
2. Confirmation of a match; and
3. Sharing of additional information.
Systematic information sharing is to be performed on a periodic basis, as determined by the Participants. Following confirmation of a match and subsequent exchange of information pursuant to Article 6(a)(3), the Participants may take appropriate action pursuant to the Participants’ citizenship and immigration laws as defined in the SMU.
- Comparison of data
1.1 The Participants may compare basic identification information of refugee status claimants in Canada and the United States in order to match the identity of a claimant in the refugee status determination system of one Participant with the same individual in the refugee status determination system of the other Participant. Initial comparison of basic identification information is for the purpose of matching claimants and is to include basic information such as: name, date of birth, client identification (for the Participant’s reference only) and country of birth of refugee status claimants. To increase the reliability of the initial match and minimize sharing of information on mismatched claimants, biometrics technology consisting of fingerprints and photographs may be used when available to make the initial match. Upon receipt of this initial information, the receiving Participant is to check the information against its own database containing personal information of the persons who have sought protection.
1.2 When there is a prima facie match on the basis of name, date of birth and country of birth (or fingerprints when that technology becomes available), the receiving Participant is to notify the providing Participant that there is a prima facie match for the refugee status claimant. In addition, in order to assist the providing Participant in prioritizing requests for further information, the receiving Participant is to include in the notification an indication of the case status as specified in Article 5(b) and an indication as to whether the refugee status claim has raised issues of criminality, security or exclusion as specified in Article 5(c), when it can be ascertained from the electronic information. Similarly, for any potential matches, the providing Participant is to inform the receiving Participant with an indication of the case status as specified in Article 5(b) and an indication as to whether the refugee status claim has raised issues of criminality, security or exclusion as specified in Article 5(c), when it can be ascertained from electronic information.
- Confirmation of a match
Following a prima facie match, the Participants may share additional identification information as described in Article 5(a) for the purpose of confirming the match. This information is intended to enable the Participants to prioritize further requests for information.
- Sharing of additional information
Upon confirmation of the match, other data as specified in paragraphs (b), (c), and (d) of Article 5, including non-computer-based data may be shared for the purposes of assessing admissibility of the refugee status claimant, and determining the eligibility and the merits of the refugee status claim in the participant country where the claim is being adjudicated.
At each step of the process described above, non-matched data is to be immediately destroyed upon determination that it does not relate to a positive match.
- Comparison of data
- Case-by-case sharing of information
In addition to the systematic sharing of information, the Participants may, in accordance with procedures set forth in the SMU, share information described in Article 5 of this Annex concerning refugee status claims on a case-by-case basis pursuant to the request of either Participant.
- Each Participant is to protect from disclosure to any non-participant, to the fullest extent provided under its country’s laws and regulations, any and all information, inquiries and requests for information received from the other Participants under this Annex.
- Protection of a refugee status claimant includes protecting the confidentiality of an individual’s identity and of the information provided in the individual’s refugee status claim, including the fact that an individual has submitted a refugee status claim. Unauthorized release of such information may place the refugee status claimant or a member of the refugee status claimant’s family at risk of serious harm, including persecution and torture. Consequently, each Participant is to treat as confidential and protect from disclosure to any non-participant, to the fullest extent provided under its country’s laws and regulations, any and all information, inquiries, and requests for information received from the other Participant under this Annex. The Participants are to seek to ensure that information is not exchanged or disclosed to a Participant or non-Participant in such a way as to place refugee status claimants or their families at risk in their countries of nationality, or if stateless, countries of last habitual residence.
- The Participants acknowledge that written permission is not required, pursuant to Article 6(c)(i) of the SMU, for the disclosure of information related to the refugee status claim to other agencies to further their adjudication or review of refugee status claims. Thus, a Participant may, for example, release confidential information to the Executive Office for Immigration Review, United States federal courts, and the Immigration and Refugee Board and Federal Court of Canada, in connection with or in furtherance of the adjudication of a refugee status claim.
- Disclosure by the receiving Participant of any information received under this Annex to foreign governments or international organizations requires the written consent of the providing Participant.
Each Participant is to designate a custodian to implement, monitor and ensure compliance to the terms and conditions of this Annex.
Activities under this Annex commence on the date when all Participants have signed. Activities under the Annex cease sixty days after one Participant provides written notice to the others of its intention to no longer participate in the Annex.
In Witness whereof, the Participants have signed this Annex to the Statement of Mutual Understanding:
Department of Citizenship and Immigration
Citizenship and Immigration Canada
For the United States
Department of Homeland Security
Bureau of Citizenship and Immigration Services
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