Operational Bulletin 217 - June 25, 2010
This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.
Refugee Claim Ineligibility under Paragraph 101(1)(d) of the Immigration and Refugee Protection Act
Assessing eligibility of refugee claims further to paragraph 101(1)(d) of the Immigration and Refugee Protection Act (IRPA) [ Note 1 ].
A recent Federal Court of Appeal decision [Wangden v. MCI and MPSEP (2009 FCA 344, A-607-08, Evans, Sharlow, and Ryer JJ.A., November 23, 2009)] has caused uncertainty in the assessment of eligibility of refugee claims made by persons benefitting from Withholding of Removal in the United States. This Operational Bulletin aims to provide clarification.
Assessing eligibility further to A101(1)(d)
Note: Land Port of Entry Cases
While all ineligibility grounds should be considered, officers at land ports of entry should first determine whether a refugee claim is ineligible under the Safe Third Country Agreement [A101(1)(e)]. Where a claim is ineligible under A101(1)(e) and another ground:
- All grounds should be recorded in FOSS;
- Where a particular FOSS screen allows for entry of only one ground, the Safe Third ground should be chosen; and
- The removal order comes into force pursuant to A49(2)(a).
Where a refugee claimant is a person who has been recognized as a Convention Refugee (CR) by a country to which they can be returned, their claim is ineligible for referral to the Refugee Protection Division of the Immigration and Refugee Board of Canada. This is because such a person already benefits from refugee protection in another country, and as such does not require Canada’s protection. A101(1)(d) does not apply to a person who has become a citizen of the country that recognized the person as a CR.
The language of A101(1)(d) indicates a two-part test. In determining possible ineligibility under 101(1)(d), officers must consider:
- Whether the claimant has been recognized as a CR by a country other than Canada; and
- Whether the claimant can be sent or returned to that country.
If either of the two criteria is not met, the claim is not ineligible under A101(1)(d).
- Recognized as a CR
The officer must be satisfied that the person has been recognized as a refugee under the 1951 Convention or the 1967 Protocol. The country in question must be a signatory to the Convention.
Confirmation of recognition as a CR may come from the person’s own statements, or from identity/travel or other documents indicating that decision in the issuing country.
Note: Recognition as a CR in another country does not necessarily mean the granting of asylum and other benefits such as permanent residence in that country. A 2009 decision of the Federal Court of Appeal [Wangden v. MCI and MPSEP (2009 FCA 344, A-607-08, Evans, Sharlow, and Ryer JJ.A., November 23, 2009)] held that a person benefitting from Withholding of Removal in the United States is considered to have been recognized as a CR for the purposes of paragraph 101(1)(d). Nevertheless, see item # 2, below, for important considerations.
Note: Some countries grant protection from refoulement or deportation on grounds that are not related to the requirements of the refugee Convention. An example of this would be protection pursuant to Article 3 of the Convention against Torture, which is not within the scope of this criterion.
- Can be Sent or Returned to that Country
“Can be sent or returned to that country” refers to whether or not the person will be admitted by the country in question. At this time, Citizenship and Immigration Canada is facing challenges to eligibility determinations made on the basis of paragraph 101(1)(d) (i.e.: that the person cannot be sent or returned to the U.S.) both in relation to persons who have had Withholding of Removal and full Convention refugees/asylee status. U.S. re-admission policies with regard to both such persons are being confirmed. Initial feedback from front-line U.S. offices appears to indicate that re-admission is decided on a case-by-case basis and is not an automatic right. Retention of status outside of the United States, particularly for persons without proper travel authorization, and particularly for persons who benefited from Withholding of Removal, is at this time uncertain.
Until November of 2009, the Reciprocal Arrangement provided a mechanism whereby officers could ascertain their ability to send or return persons to the U.S. While the underlying legal status of these persons may not have changed, the termination of this agreement makes it difficult for officers to determine whether or not paragraph 101(1)(d) applies, in the face of apparent discretionary re-admission.
Wherever possible, officers should confirm with officials of the country in question that the person will be readmitted.
A person whose claim is determined ineligible further to 101(1)(d), who alleges risk of persecution in the country which recognized them as a CR may be entitled to a risk assessment under 115(1) of IRPA. For details on A115(1), refer to PP 3.
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