IRCC Minister Transition Binder 2021: Canada’s Asylum System

Introduction

Canada’s asylum system reflects our domestic legal framework and international obligations and humanitarian traditions:

• Once in Canada, individuals have a right to seek asylum and may not be returned to a country of persecution (concept of “non-refoulement”).

These commitments are grounded in international conventions and domestic law:

• Convention Relating to the Status of Refugees and its Protocol (i.e. Refugee Convention)
• Convention Against Torture
• International human rights conventions
• Canadian Charter of Rights and Freedoms
• Immigration and Refugee Protection Act

Balancing protection and system integrity is key

• Canada must balance its domestic and international obligations with measures to safeguard the integrity and efficiency of the asylum system.

Foundation of refugee status determination

• Well-founded fear of persecution based on:
  • Race
  • Religion
  • Nationality
  • Political opinion
  • Membership in a particular social group
• Risk to life or risk of cruel and unusual treatment or punishment

Who seeks asylum in Canada?

Global instability and resulting flows of temporary migrants to Canada contribute to more people needing protection and more asylum claims.

• Canada is geographically isolated from major flows of migrants.

But, foreign nationals can come to Canada temporarily in many ways including:

• Visitors (with or without a visa)
• Temporary foreign workers
• International students
• Undocumented migrants

Canada’s Asylum System is a Shared Responsibility

Asylum System

Immigration, Refugees and Citizenship Canada (IRCC)

• Overall mandate for the asylum system; responsible for policy direction, guiding implementation, monitoring, reporting, ministerial interventions, and delivering some parts of the program (e.g. intake of inland claims, pre-removal risk assessments).

Canada Border Services Agency (CBSA)

• Public Safety portfolio responsible for enforcement policies and leading various security and enforcement activities (e.g. intake of port of entry claims, security screening, representing the Minister at hearings, arrest, detention, and removal of failed claimants).

Immigration and Refugee Board (IRB)

• Independent administrative tribunal responsible for refugee claim determination and appeals.

Federal Court

• Responsible for judicial review of decisions made by the Immigration and Refugee Board and IRCC.

The Federal Government issues work permits and provides coverage under the Interim Federal Health Program.

Provinces and territories are responsible for providing social assistance, education, emergency housing, and legal aid while a decision on a claim is pending.

Municipalities may also provide supports, such as temporary shelter.

Asylum Overview

• People make asylum claims at a port of entry or inland in Canada.
• Eligibility is determined by the Canada Border Services Agency or IRCC based on:
  • Criminality & Security Concerns
  • Entering from the U.S. (Safe Third Country Agreement)
  • Previous Protection Claims in Canada
  • Protection Claim in Another Country
  • Received Protection from Another Country
• Eligible claims are referred for a hearing to the Immigration and Refugee Board of Canada, an independent administrative tribunal.
• Those whose cases are approved become protected persons and may apply for permanent resident status and eventually citizenship.
• Those whose cases are refused are required to leave Canada once they exhaust recourse avenues available to them (e.g. Refugee Appeal Division, Federal Court).
• Failed claimants have 30 days to voluntarily depart or are removed by the Canada Border Services Agency as soon as possible.

Current State of Play

Border closures due to COVID-19 have significantly reduced asylum claim volumes, but they are expected to return to pre-pandemic levels once borders reopen. Pre-COVID, the Government response to increasing asylum claim volumes and irregular migration sought to advance three strategic objectives:

Increase capacity to handle more cases

• Budget 2019 enabled the asylum system to ramp up to 50,000 asylum decisions and 13,500 appeals by fiscal year 2020-2021. This temporary increase in capacity was extended to the end of fiscal year 2022-2023 in the Economic and Fiscal Snapshot 2020.

Improve system-wide management and efficiencies

• Existing governance and oversight across the system were improved and a new Deputy-level Asylum System Management Board was created.
• Strategic case management task forces were created by the IRB.
• The Integrated Claim Analysis Centre was piloted, to improve collaboration between organizations and test new approaches to processing claims more efficiently.

Managing and discouraging irregular migration

• Budget 2019 introduced a Border Enforcement Strategy to better detect and discourage misuse of visa systems and to manage arrivals at the border. Targeted legislative changes were also introduced, including ineligibility to the Immigration and Refugee Board for those who have made asylum claims in other countries.

The Government has also provided compensation for costs incurred by provinces, including through the temporary Interim Housing Assistance Program (IHAP), which ended in March 2021. Since 2018-2019, the Government has provided $534.5M for interim housing pressures through IHAP. Over the same period, federal funding transferred to the provinces for legal aid has also increased, from an annual total of $11.5M to $48.6M for 2020-2021.

Issues for Consideration

As COVID restrictions are lifted and borders re-open to more travellers:

• Asylum seekers likely to resume entry between ports of entry, avoiding the application of the Canada-U.S. Safe Third Country Agreement (STCA)
  • The STCA requires refugee claimants to seek protection in whichever of the two countries they enter first, unless they meet an exception. It only applies at land border ports of entry.
  • To protect public health, Canada and the U.S. have agreed to temporarily direct back to the U.S. asylum seekers attempting to enter the country between ports of entry. Some previously returned fully vaccinated claimants are now being allowed back to Canada.
• The overall number of asylum claims is expected to return to pre-pandemic levels
  • Between January and July 2021, 8,270 refugee claims were received by CBSA and IRCC along the Canada-U.S. land border and airports as well as inland across Canada, which includes those who arrived between ports and were directed back to the U.S.
  • Pre-COVID volumes were much higher at over 60,000 in 2019. As a result of global instability, asylum volumes are expected to rise once border restrictions are lifted and remain high for the foreseeable future.
• Expectations from provinces for additional federal support
  • High asylum volumes will continue to place increased pressure on provinces and municipalities in providing social services and legal aid to asylum claimants.
  • Some provinces continue to position asylum pressures as a federal responsibility and are seeking compensation for costs incurred (e.g. housing, legal aid, social services).

Key Takeaways

• Higher asylum claim volumes are becoming Canada’s new normal
  • The Government must continue to innovate within its policies and programs, while increasing system capacity to handle more cases.
  • Collaboration with provincial and territorial governments on housing, legal aid, and services for asylum claimants will remain essential.
• Key issues for discussion
  • Re-baselining system capacity in line with projected annual volumes. Asylum claim intake is projected to return to pre-COVID volumes (60k+ in 2019) following full border re-opening.
  • Enhancing system-wide efficiency by advancing inter-organizational collaboration and improving the quality and timeliness of decision-making.
  • Canada-U.S. Safe Third Country Agreement

Annex: Key Asylum Intake and System Performance Highlights

Asylum Intake & Funding (2018 – June 2021)

• In 2017 there was 51,000 Intake and 26,000 Funded Capacity
• In 2018 there was 55,000 Intake and 33,000 Funded Capacity
• In 2019 there was 64,000 Intake and 40,700 Funded Capacity
• In 2020 there was 24,000 Intake and 50,000 Funded Capacity
• Up to June 2021 there was 7,000 Intake and 50,000 Funded Capacity

Highlights

• Prior to March 2020, asylum intake had surpassed 60K claims annually and was forecasted to continue rising.
• Regular asylum claims were trending upwards and represented 74% of asylum claims in 2019, the largest proportion since the surge of irregular migration in 2017.
• Starting in March 2020, COVID-19 travel restrictions and border closures significantly decreased asylum claim volumes, with irregular migration virtually ceased due to the direct back regime.

Performance Highlights

• Asylum system delivery partners (IRCC, CBSA and IRB) met their processing targets for fiscal year 2019/20 as per Budget 2019 commitments.
• Achieving funded capacity targets across the asylum system is important in reducing inventories / backlogs that result in longer processing times and higher costs in federal and provincial services to claimants.