NOTE TO USERS
This reproduction is the best copy available.
UMI
A DIFFERENT KIND OF HOPE: PERSONS LIVING WITHOUT STATUS, CANADIAN IMMIGRATION LAW AND THE PROSPECT OF REGULARIZATION
ANASTASIA TATARYN
A THESIS SUBMITTED TO THE FACULTY OF GRADUATE STUDIES IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER'S IN LAWS
GRADUATE PROGRAM IN LAW YORK UNIVERSITY, TORONTO, ONTARIO
SEPTEMBER 2009 Library and Archives Bibliotheque et 1*1 Canada Archives Canada Published Heritage Direction du Branch Patrimoine de I'edition
395 Wellington Street 395, rue Wellington OttawaONK1A0N4 Ottawa ON K1A 0N4 Canada Canada
Your file Votre reference ISBN: 978-0-494-53835-7 Our file Notre reference ISBN: 978-0-494-53835-7
NOTICE: AVIS:
The author has granted a non L'auteur a accorde une licence non exclusive exclusive license allowing Library and permettant a la Bibliotheque et Archives Archives Canada to reproduce, Canada de reproduire, publier, archiver, publish, archive, preserve, conserve, sauvegarder, conserver, transmettre au public communicate to the public by par telecommunication ou par I'lnternet, prefer, telecommunication or on the Internet, distribuer et vendre des theses partout dans le loan, distribute and sell theses monde, a des fins commerciales ou autres, sur worldwide, for commercial or non support microforme, papier, electronique et/ou commercial purposes, in microform, autres formats. paper, electronic and/or any other formats.
The author retains copyright L'auteur conserve la propriete du droit d'auteur ownership and moral rights in this et des droits moraux qui protege cette these. Ni thesis. Neither the thesis nor la these ni des extraits substantiels de celle-ci substantial extracts from it may be ne doivent etre imprimes ou autrement printed or otherwise reproduced reproduits sans son autorisation. without the author's permission.
In compliance with the Canadian Conformement a la loi canadienne sur la Privacy Act some supporting forms protection de la vie privee, quelques may have been removed from this formulaires secondaires ont ete enleves de thesis. cette these.
While these forms may be included Bien que ces formulaires aient inclus dans in the document page count, their la pagination, il n'y aura aucun contenu removal does not represent any loss manquant. of content from the thesis.
1*1 Canada A Different Kind of Hope: Persons Living Without Status, Canadian Immigration Law and the Prospect of Regularization By Anastasia Tataryn a thesis submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of
MASTER OF LAWS
©2009
Permission has been granted to: a) YORK UNIVERSITY LIBRARIES to lend or sell copies of this thesis in paper, microform or electronic formats, and b) LIBRARY AND ARCHIVES CANADA to reproduce, lend, distribute, or sell copies of this thesis anywhere in the world in microform, paper or electronic formats and to authorize or procure the reproduction, loan, distribution or sale of copies of this thesis anywhere in the world in microform, paper or electronic formats.
The author reserves other publication rights, and neither the thesis nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission. Abstract
The criminalization of migration has increased dramatically in the twenty-first century. In Canada, migrants deemed "illegal" are those found not to fit into existing categories of the Immigration and Refugee Protection Act.1 This thesis examines persons without legal immigration status in relation to Canadian immigration law and policy, and conditions of migration that result in persons staying in Canada regardless of legal status. To address persons without legal status, the government of Canada has demonstrated three policy options: removal, ignoring and regularization. Regularization programs remain in demand by immigration advocacy groups. This thesis considers whether regularization programs are sufficient. This analysis is carried out with attention to immigration law since 1960, current policies, and select qualitative interviews with persons without legal status. Subsequently, new approaches to immigration law and policy will be considered, as well as Canada's national ethos as a nation receptive to immigrants and refugees.
Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]; Catherine Dauvergne, Making People Illegal (New York: Cambridge University Press, 2008).
IV To William. (Finally)
v Acknowledgments
This work would not have come together without the help and participation of "Gabriella", "Ruth", "Alejandro" and "Petros". Thank you for spending time with me and generously sharing your experiences. Thank you as well to the women at the Rights of Non-Status Women's Network, Diana Grimaldos at Working Women's Alliance, Loly Rico and FCJ Refugee Centre, Navjeetat Sidhu at the Toronto Social Planning Council, Lynn Griffiths at the KW Reception Centre, Janet McLaughlin, and all those who have taken time to speak to me about their experiences.
Special thanks to my supervisor, Sean Rehaag, and to my supervisory committee for their work, patience and support. Thank you to Sasha Baglay and Sharry Aiken for helping me initially focus this research.
This thesis would never have been possible without the unconditional love and support of my family. Thank you.
VI Table of Contents i. PREFACE p.l i.i. Chapter Outline p.4
1. CHAPTER 1: PERSONS WITHOUT LEGAL STATUS 1.1 Introduction p. 6 1.2 Introduction to Persons without Status in Canada p.7 1.3 Defining the Scope p.10 1.3.1 Legal Immigration Status p. 11 1.3.2 Persons without Legal Status p.13 1.3.3 Human Rights p.16 1.4 Three Policy Options p. 18 1.4.1 Removal p. 19 1.4.2 Ignoring p.21 1.4.3 Regularization p.23 1.4.3.1 Regularization as the "best option"? p.27 1.4.3.2 Regularization, Law and Discretion p.29 1.4.3.3 Regularization and Access p.30 1.5 Conclusion p.32
2. CHAPTER II: REGULARIZATION 2.1. Introduction p.33 2.2. History of Regularization Programs in Canada p.34 2.2.1. Chinese Adjustment Program p.35 2.2.2. 1962-1967 Immigration Regulations p.36 2.2.3. Immigration Appeal Board Act, 1966-1967 p.37 2.2.4. Adjustment of Status Program, 1973 p.39 2.2.5. Immigration Act, 1976 p.41 2.2.6. Minister's Review Committee, 1983 p.42 2.2.7. Singh v. Canada, 1985 p.44
vn 2.2.8. Bill C-84, 1987 and Bill C-86, 1992 p.45 2.2.9. Deferred Removal Orders Class, 1994-1998 p.46 2.3. Contemporary Regularization Programs 2.3.1. IRPA, 2001 p.49 2.3.2. Refugee Claims p.49 2.3.3. Humanitarian & Compassionate Claims p.51 2.3.4. Pre-Removal Risk Assessment p.54 2.3.5. Temporary Worker Programs and the Canadian Experience Class p.55 2.4. Recent Proposals for Regularization p.57 2.4.1. Non-Governmental Organizations' Proposals p.59 2.4.2. Government Response: Committee Report, 2009 p.62 2.5. Conclusion p. 67
3. CHAPTER III: STORIES FROM THE IN/OUTSIDE p.70 3.1. Introduction p.71 3.2. Methodological Considerations p.72 3.2.2. Applied to this Study p.74 3.2.3. Limitations and Challenges of this Study p.76 3.2.3.1 Studying Vulnerable Participants p.77 3.2.3.2 Critiques of the Methodology p.78 3.2.3.3 Responses to Critiques p.80 3.3. Narratives of Four Persons Without Status p.81 3.4.1. Gabriella p.82 3.4.2. Ruth p.85 3.4.3. Alejandro p.87 3.4.4. Petros p.91 3.4. Analysis of the Narratives p.96 3.4.1. General Reflections p.98 3.4.2. Lessons for Immigration Policy p.99 3.4.2.1. Refugee Claims p.101
vin 3.4.2.2. Humanitarian and Compassionate Claims p.103 3.4.2.3. Access to Employment and Labour Security p.104 3.4.2.4. Regularization and Opportunities for Gaining Status p. 105 3.5. Conclusion p.106
4. CHAPTER IV: ALTERNATIVES TO REGULARIZATION 4.1. Introduction p. 109 4.2. Alternatives to Regularization p. 111 4.2.1. Temporary Foreign Worker Programs p. 112 4.2.2. Access to Informal Citizenship p.l 19 4.2.2.1. Firewalls p. 120 4.2.2.2. Don't Ask Don't Tell p. 122 4.2.3 A Paradigm Shift: The Emancipatory Potential of Law? p.125 4.3. Perspectives on the Alternatives p. 126 4.3.1. Government p.128 4.3.2. Interview Participants p. 130 4.4. Conclusion p. 133
APPENDIX A: Consent Form p. 139
BIBLIOGRAPHY p. 144 i. Legislation p. 141 ii. Cases p. 141 iii. Government Documents and Publications p. 143 iv. Scholarly Monographs and Articles p. 146 v. Newspaper and Media Sources p. 154 vi. Web Resources p. 157
IX PREFACE
"The "illegal" migrant, then, exists in democracy's shadow, the suppressed construction of our peculiar legal institutions."1
Immigration is a critical factor in nation-building policies. State borders determine who is legally admitted into the country and under what conditions, thus distinguishing citizens from foreigners.2 As the numbers of people migrating continue to increase, and economic disparities as well as transnational inter-dependencies continue to impel persons to migrate from less prosperous to more prosperous nations, Canada will be faced with more and more migrants that do not fit into the existing immigration and refugee system. If they remain in Canada, they often do so without legal immigration status.3
Nandita Sharma suggests the distinction between "Canadian" and
Other/Foreigner/ Non-citizen is arguably a definitive aspect of Canadian identity - the identity lies in its opposite. Similarly, the "legal" is bolstered by the existence of the
"illegal".4 Several scholars of migration have discussed the potential for "open borders" however there is concern that the "privilege" of Canadian identity would be lost if everyone were to be granted Canadian citizenship, or if Canada's borders were open to
1 Daniel Ibsen Morales, "In Democracy's Shadow, Fences, Raids, and the Production of Migrant Illegality" (January, 2009) 5:1 Stanford Journal of Civil Rights and Civil Liberties 101. 2 Nandita Sharma, Home Economics: Nationalism and the Making of "Migrant Workers " in Canada (Toronto: University of Toronto Press, 2006); Catherine Dauvergne, Making People Illegal (New York: Cambridge University Press, 2008). 3 Empirical data of persons in Canada without legal status is difficult to come by, therefore any quantitative analysis of this issue in Canada is based on broad estimates from the Canadian government as well as indicators from community groups that work with non-status populations and labour sectors that depend on undocumented labourers. Sharma, supra note 2.
1 everyone who wished to live here. Open borders suggest a departure from constitutive elements of democratic, sovereign nation-states, namely self-determination "derived from the claims of their citizens."6 The complex relationship of the need within the nation-state
structure for immigration regulation and borders, the needs of migrants wishing to come to Canada, and the criminalization of migration that transgresses immigration law results
in the denial of basic rights and freedoms of persons in Canada without legal status.
This thesis does not aim to make a normative claim for either open borders or restrictive regulation, but rather addresses the real challenge migration in the twenty-first
century presents Canada's existing immigration law. This tension embodied by persons
living without legal status exposes the need for immigration policy to address the
demands of migration, particularly if Canada continues to pride itself on an identity built
on immigration and "progressive" refugee policies.
In order to deal with a population of persons without status, regularization has in
the past appeared to offer the best government solution for persons without legal status
according to advocacy groups and non-government organizations. Regularization programs, also known as legalization or amnesty programs, provoke a deeper analysis because this is the one policy option that historically has satisfied, if only temporarily,
disparate sides of the "non-status migrants" debate. According to Joseph Carens,
discussions of migration frequently are at an impasse due to "radically different starting
5 See Audrey Macklin, "Who is the Citizen's Other? Considering the Heft of Citizenship" (2007) 8 Theoretical Inquiries in Law 476; Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (New Jersey: Princeton University Press, 2006); Joseph Carens, "Aliens and Citizens: the Case for Open Borders" (1987) 49 Review of Politics 251. 6 Matthew J. Gibney, The Ethics and Politics of Asylum (Cambridge: Cambridge University Press, 2004) at 26. See also Michael Walzer, Spheres of Justice (Boston: Basic Books, 1983).
2 points" that fail to seek understanding beyond their frame of reference. Regularization as a policy option represents that at times, NGOs and government have reached a common ground to approach the issue of persons without legal status, if somewhat reluctantly.
While there is no consensus position between government and NGOs, calls for regularization have united NGOs and have garnered support from sympathetic Members of Parliament.8
This thesis explores whether regularization programs do in fact have the potential to answer the needs of persons without status. Alternatives that look to innovative new conceptualizations of migration law will also be considered. As mentioned, this topic is fundamentally linked to a ubiquitous question in studies of immigration: where is the line to be drawn when accepting and excluding migrants into a nation-state territory? Due to the limitations of this thesis, I do not suggest an answer or theorize on resolving this political, moral, ethical question. Rather, I address immigration law, the ways in which persons end up without legal status, policy options used to remedy the reality of persons living without legal status, and consider broader questions of the law's relationship to migration and legal status.
Although I do not believe that the "sides" are in reality such clear dichotomies, it can be simplified as on the one hand, government and policy that sees non-status migrants as transgressors of the law and therefore if living "against" the law are subject to the law (ie. removal). On the other hand are advocacy groups and those concerned with the well-being of the migrants. One is an issue of the law and immigration enforcement, the other an issue of humanity, rights and equality. See Joseph Carens, "The Rights of Irregular Migrants" (2008) 22:2 Ethics & International Affairs 163. 8 Canadian Council for Refugees, Resolution #10 from Resolutions May 2009 (May 2009), online: CCR
3 i.i Chapter Outline
The thesis is organized into four chapters:
Chapter one involves a discussion of illegality within Canada's Immigration and
Refugee Protection Act (IRPA), and three policy options: removal, ignoring and regularization. The most emphasis is placed on regularization programs, and why they have been a favoured proposal for refugee/ immigrant rights groups. Also, attention will be given to why regularization programs are currently loosing favour in academic
analyses.
Chapter two is a historical overview of persons without legal status and
Canadian immigration law, specifically focused on programs to regularize status. This
section analyses developments in immigration policy and law since the 1960s. Using
government policy documents, publications by non-governmental groups such as OCASI
and labour groups such as the Canadian Labour Congress, the context of regularization
programs, their successes, shortcomings and failures are discussed. This leads to a
discussion of present day immigration policy, and the relationship between the
Immigration and Refugee Protection Act (IRPA) and persons without legal status both in
the IRPA itself, in jurisprudence, and government policy.9
In Chapter three, the tenor of the writing changes to explore an ethnographic-
inspired approach to studying persons without legal status in Canada. To contextualize
the population of persons being discussed, four interviews have been conducted with
persons who currently live, or have lived in Canada without legal status. In these
anonymous qualitative interviews participants were asked questions about their past, how
they came to lack legal status in Canada, questions about employment, access to services
9 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA].
4 and what their primary concern was in relation to their lack of documentation/ lack of legal status.
Using an approach derivative of "enriched ethnohistory", these interviews are included to narrate experience and to illustrate the various ways one can become "illegal" in Canada - to enrich and humanize the discussion of IRPA and immigration law and policy.10 It proved very difficult to connect with people willing to be interviewed for this research project. Due to these limitations, as well as the brief time allocated to this research thesis, I was limited to a very small number of participants. These interviews do not claim to adequately represent or demonstrate the experience of persons living in
Canada without legal status. Nevertheless, I believe that they are useful in contextualizing the experiences of persons living without legal status in Canada. It is my hope that future studies could encompass a larger breadth of participants, including perspectives not only from migrants of various ages and countries of origin, but also from persons who work in the immigration/ refugee sector.
The final Chapter four involves a discussion of how persons without legal status can be addressed if the generally favoured policy option, regularization, is deemed insufficient. Possible frameworks of approaching the current global reality of migration and state immigration laws will be discussed, from policies such as temporary foreign worker programs and Don't Ask Don't Tell, to suggestions of a paradigm shift in conceptualizing migration and domestic law.
Clifford Geertz, Interpretation of Cultures: Selected Essays (New York: Basic Books, 1993).
5 CHAPTER 1: PERSONS WITHOUT LEGAL STATUS
1.1 Introduction
In the twenty-first century, the idea of preserving a nation - its identity and security - by labelling non-citizens within the national territory as illegitimate and outside of the law is increasingly problematized by socio-legal scholars.1 This problematization exposes the complexities of the twenty-first century nation-state: in spite of global networks and communication, the primacy of the nation-state and the concurrent issues of restricted citizenship and national belonging are not dissipating.
Nation-states are evolving and changing in ways that challenge previous ideas of the separation between the national and the global, while for the most part maintaining traditional definitions of official citizenship and strictly regulating migration across territorial boundaries.2 Nation-states, particularly industrialized G8 nations, continue to seek to "monopolize the authority to restrict movement,"3 and in doing so, sanction certain kinds of migration while criminalizing others.
Catherine Dauvergne, Making People Illegal (New York: Cambridge University Press, 2008) [Making]; Aristide Zolberg, A Nation by Design (Boston: Harvard University Press, 2006). Zolberg demonstrates that while immigration that is "illegal" is not a new phenomenon, it increasingly became a policy issue in the United States as the twentieth century progressed. Peter Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism (Surrey, UK: Ashgate, Aldershot, 2008) [Resistance]. The Westphalian, sovereign nation-state that dominates international structure and politics in the twentieth century relies on the fundamental entitlement of a state to determine conditions of residence on its territory, meaning who is allowed to reside and who is entitled citizenship rights. The Westphalian model has been criticized by post-colonial and "third world" scholars such as Partha Chatterjee and Appadurai, yet the framework persists. Partha Chatterjee, "Beyond Nation? Or Within" (1998) 56 Social Texts 57; Arjun Appadurai, "Patriotism and its Futures" in Modernity at Large: Cultural Dimensions of Globalization (Minneapolis: University of Minnesota Press, 1996). See also Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004) and John Torpey "Coming and Going: On the State Monopolization of the Legitimate 'Means of Movement " (1998) 16:3 Sociological Theory 240. 3 Ibid., at 240. Part of the "modern state system" is to control legitimate means of movement.
6 According to John Torpey, "the idea of belonging that is at the root of the concept of citizenship is threatened when people cross borders, leaving spaces where they
"belong" and entering those where they do not."4 This is not a new phenomenon.
However the criminalization of migration, particularly migration that is undertaken by persons from lower socio-economic backgrounds, is increasingly evident. Concurrently, the accessibility of travel, as well as transnational economic, familial and cultural networks both "legal" and "underground" that are able to communicate rapidly, contribute to a growth in the number of persons hoping to migrate. The result of these competing trends is an increase in "irregular migration."5
This chapter will examine the phenomenon of irregular migration, by outlining the scope and terms used in this thesis, and will discuss three government policy responses to irregular migration within the context of Canada.
1.2. Introduction to Persons without Status in Canada
Canada enjoys a celebrated national identity as a nation of immigration, with a popular reputation since the 1960s of being open to immigrants and refugees, with a commitment to respecting human rights in its treatment of non-citizens since the 1980s.
Unfortunately, this pervasive national mythology has obscured the ways Canada
Torpey, supra note 2 at 245. See Dilek Cinar, August Gachter & Harald Waldrauch, eds., Irregular Migration: Dynamics, Impact, Policy Options (Vienna: European Centre for Social Welfare Policy and Research, 2000). Irregular migration is a term that I will not be using in my paper. I will be using "persons without legal status". In using the term "irregular migration", Cinar, Gachter and Waldrauch seek to encompass the process within which people that are in various types of precarious situations, including legal entry but "illegal" working conditions. Catherine Dauvergne, Humanitarianism, Identity and Nation (Vancouver: UBC Press, 2005) {Identity]. See also, Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 17 [Singh]; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] and Charkaoui v. Canada (Citizenship and Immigration) 2007 SCC 9, [2007] 1 S.C.R. 350 [Charkaoui].
1 continues to promote and exacerbate colonial inequalities, economic and resource exploitation of less-industrialized nations, and promotes an image of itself as a peaceful, prosperous country that is founded more on a national imaginary than real foreign and domestic policy.7 Moreover, the lived experience not only of persons who migrate to
Canada but persons who are marginalized within Canada regardless of holding citizenship including First Nations people, contrast the image that is reflected throughout the world and perpetuated by privileged Canadians.
De-mythologizing Canada's national reality has preoccupied many Canadian scholars since the 1990s and their expository work on this subject is vitally important.9
However in seeking to understand and explore the future potential of reforming Canadian immigration law and policy, this thesis will focus not on critiquing Canada's imagined national identity, but rather the potential of "harnessing" this identity to emancipatory
Sunera Thobani, Exalted Subjects: Studies in the Making of Race and Nation in Canada (Toronto: University of Toronto Press, 2007); Jeannette Armstrong and Roxanna NG, "Deconstructing Race, Deconstructing Racism" in Jo-Ann Lee and John Lutz, eds., Situating "Race" and Racisms in Space, Time and Theory (Montreal-Kingston: McGill-Queens University Press, 2005); Anna Pratt, Securing Our Borders: Detention and Deportation in Canada (Vancouver: University of British Colombia Press, 2005). Pratt explores the "technologies of power" that support immigration law, security and border control. Pratt contends that since the 1960s discourses of humanitarianism and multiculturalism have obscured realities of continuing exclusion and policing immigration. 8 For a discussion of differential citizenships (people marginalized even as Canadians with full citizenship rights) see Audrey Macklin, "Who is the Citizen's Other? Considering the Heft of Citizenship" (2007) 8 Theoretical Inquiries in Law 476 [Heft]. What I refer to as "privileged Canadians" that perpetuate this image are represented in Canadian publicity and national celebrations, for example "Love Letters to Canada" CBC News (July 1, 2009) online: CBC News < http://www.cbc.ca/photogallery/canada/2366/>. 9 See supra note 8. Also Himanni Bannerji, The Dark Side of the Nation. (Toronto: Canadian Scholars' Press, 2000); Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (Montreal: McGill-Queen's University Press, 2002); Andrew Cohen, While Canada Slept (Toronto: McClelland & Stewart, 2004); Daniel Francis, National Dreams: Myth, Memory, and Canadian History (Vancouver: Arsenal Pulp Press, 1997); Angus MacLaren, Our Own Master Race: Eugenics in Canada, 1885-1945 (Oxford: Oxford University Press, 1998); Erin Manning, Ephemeral Territories: Representing, Home, and Identity in Canada (Minneapolis: University of Minnesota Press, 2003); Sherene Razack, Race, Space and the Law: Unmapping White Settler Society (Toronto: Between the Lines, 2002); Nandita Sharma, Home Economics: Nationalism and the Making of "Migrant Workers" in Canada (Toronto: University of Toronto Press, 2006).
8 ends. Peter Fitzpatrick suggests that whether a myth is real or not is irrelevant, the imagining has power.11 In the Canadian case, it may carry transformative power.
Nevetheless, in order for this potential to be realized, it is necessary for this myth to be popularly mobilized. Scholars have conceptualized this through democratic voter participation, or increased accountability of the immigration system to the rule of law and judicial decision-making.12 Either way it would involve a paradigm shift; a great "leap of faith" away from the current operating model.
As is, Canadians and migrants both place demands on the immigration system that emphasize the need for change in immigration and refugee law. Some demand more restrictive immigration, while others argue for more open, lenient policies. In the twenty- first century, these tensions have been exacerbated by fears of "security threats",
"bogus" and "opportunistic" refugee claims, increasing global economic pressures, increased opportunities for migration, combined with the difficulties of immigrating to
Canada through the point system and long waiting lists for processing both permanent residency and refugee claims.14 On the one hand, the government addresses these tensions by amending immigration law to provide government actors with discretionary powers to expedite the immigration process for desirable migrants. On the other hand, these tensions have resulted in the Canadian Border Services Agency (CBSA) and
I borrow the concept "harnessing" for emancipatory ends from Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation, 2" ed. (London: Butterworths LexisNexis, 2002) at 446-494. Fitzpatrick, Resistance, supra note 2. Dauvergne, Making, supra note 1; see also Jeremy Webber, "National Sovereignty, Migration, and the Tenuous Hold of International Legality" in Oliver Schmidtke & Saime Ozcuramez, eds., Of States, Rights and Social Closure: Governing Migration and Citizenship (New York: Palgrave Macmillian, 2007) at 61. 13 Dauvergne, Making, supra note 1 at 190. 14 Audrey Macklin, "Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement" (2005) 36 Columbia Human Rights Law Review 365 at 426. [Disappearing] See also Canada, Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers: Report of the Standing Committee on Citizenship and Immigration (Ottawa: House of Commons Canada, 2009) [David Tilson, Chair] [Report].
9 Canadian Immigration officials approaching immigration as a matter of enforcement and policing, implementing measures to prevent certain migrants - especially potential asylum seekers - from arriving in Canada in the first place.15
Increased discretionary powers of immigration officials, increased emphasis on policing unwanted migrants, and the consolidation of restrictions in immigration legislation have proven devastating, not only for individual migrants, but also for the country as a whole. In particular, Canada's mythologized national identity as a country that is generous towards migrants and is committed to human rights embodied in the
Charter of Rights and Freedom, is threatened by current immigration policies and practices that ignore the plight of individuals, families, and children living and working in Canada without basic security and without access to legal status.16
1.3 Defining the Scope
The terms used to refer to persons in Canada without legal immigration status are contentious and often inconsistent. The populations addressed by these labels are fluid and non-homogenous. There are many factors that shape this imposed, or chosen, label of being without legal status. Studies in the European Union conducted by Bridget
Anderson and Martin Ruhns emphasize the difficulty with which one may characterize a population of persons without status as homogenous and static. The period of time that
Pratt, supra note 7; Macklin, Disappearing, supra note 14. Recent visa impositions and the strengthening of Safe-Third country agreements through an end to moratorium on removals have demonstrated Canadian Immigration aims to stop migrants from entering Canada and filing refugee claims. Singh, supra note 6, ruled that non-citizens are entitled to protection under section 7 of the Canadian Charter of Rights and Freedoms ("Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.") However, in practice, persons without status are outside of the law. Currently they can rarely access services - legal, police protection, healthcare etc., without the fear, or the consequence, of being deported. While Singh grants them protection under the Charter, in practice removal from Canada trumps legal action to gain the entitlement under section 7.
10 people are without legal status is mutable and Anderson and Ruhns identify varying degrees of "illegality", including situations of being in semi-compliance with the law.17 It is difficult to determine who it is that actually fits the definition of being without legal status, whose presence in Canada is a complete transgression of domestic immigration law. This complicates the search for a solution or relevant policy option to address persons without legal status. For the purpose of this discussion, the definition of being without legal immigration status will be outlined by looking at the Immigration and
Refugee Protection Act of 2001, and with reference to how other socio-legal scholars have approached this definition.18
1.3.1 Legal Immigration Status
In Canadian law, the official ways that both permanent residents and temporary residents may lose legal immigration status are highlighted in sections 46 and 47 of the
Immigration and Refugee Protection Act, IRPA. Under IRPA persons without status are individuals who are neither Canadian citizens nor permanent residents, and who are residing in Canada without a valid permit or visa.
There are various ways in which an im/migrant may end up in Canada without legal status. They do not necessarily have to be issued a removal order to be considered
"without legal status". Legal status can be lost if one experiences a breakdown in
sponsorship, a failed refugee claim, failed Humanitarian and Compassionate claim, failed
Pre-Removal Risk Assessment (PRRA), or if one fails to report for removal or show up
for the final hearing where a removal order is issued. Also, if one enters Canada on a
17 Bridget Anderson & Martin Ruhns, "Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy" (2009) [unpublished, working paper at University of Oxford]. 18 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA].
11 temporary work permit but experiences a breakdown of an employment contract, persons may leave the "legal" job to find work "illegally" through unofficial, undocumented means, in contradiction of IRPA.19 If the work permit is still valid, but they are working for a different employer, this is a situation Anderson and Ruhns have referred to as
"semi-compliance". If the work permit expires, then work and residence is in full contradiction to the law. Semi-compliance can also apply to persons living in "legal limbo" with a stay on removal, but a failed or deferred permanent residency application.
One is also without legal status when overstaying a visitor permit. Status is lost by failing to renew a temporary resident authorization before the permit expires or during the 90-day grace period.20 Such circumstances of failing to renew within the required time may be intentional, but also may be a result of a lack of understanding of the immigration system, and therefore unintentional.
Persons may be smuggled into Canada or trafficked through illegal networks, therefore entering and remaining in Canada without legal status, in contradiction of sections 6 to 9 of the Immigration and Refugee Protection Regulations, which prohibit entering permanently, temporarily, working and/ or studying in Canada without a visa or permit, or under a valid exception to the visa/ permit requirements.21
The period of time during which persons are without status can be definite or indefinite depending on whether there are opportunities for a successful refugee decision
^Immigration and Refugee Protection Regulations, S.O.P./2002-227 [Regs] s. 183 (b) and 179 (b). 20 IRPA, supra note 18, s. 20 (b), 25 (2), and s. 181; 90-day grace period is outlined in Regs, supra note 19, s.182. 21 Regs, supra note 19, s. 6-9.
12 to be made, Humanitarian and Compassionate (H & C) claim, judicial review, successful
77 sponsorship, or successful Pre-Removal Risk Assessment (PRRA).
Under the IRPA, anyone who is in Canada without the right to remain, and has passed through all available options to secure a legal status, is removable under section 48 (2).
With a removal order, one may be arrested at any point and detained until removal if they fail to leave on their own. Although other sections of IRPA allow for removal to be stayed or deferred, such as the PRRA, people who are living without status live in fear of being arrested and removed. And there is no automatic stay on removal while an H & C claim or judicial review is being processed. This fear of removal is a significant factor contributing to the vulnerability felt by persons without legal status.
1.3.2 Persons without Legal Status
Scholars Kitty Calavita, Nicholas DeGenova and Catherine Dauvergne argue that persons are denied legal status as a consequence of national sovereignty that empowers states to determine who is permitted and who is excluded from its territory. It is the law itself that "makes people illegal" through the "legal construction of illegality."24
Dauvergne contends that, "migration laws and their enforcement are increasingly understood as the last bastion of sovereignty."25 The regulation of migration contributes to the constitution of the state, because a state is constructed by what it accepts and rules
IRPA, supra note 18 at s. 95-111 (Refugee Division); s. 25 (H & C); s. 72-75 (judicial review); s.13 (sponsorship); s. 112-116 (PRRA). 23 Dauvergne, Making, supra note 1; Nicholas DeGenova, "Migrant 'Illegality' and Deportability in Everyday Life" (2002) 31 Annual Review of Anthropology 422; Kitty Calavita, "Immigration, Law, and Marginalization in a Global Economy: Notes from Spain" (1998) 32:3 Law Soc. Review 529. Dauvergne, Making, supra note 1; DeGenova, drawing on Michael Foucault, ibid. 25 Dauvergne, Making, supra note 1 at 184.
13 as much as what it does not. This is complicated, however, by the goals of many citizens living within a democratic nation whose desire to maintain autonomy and essentially, exclusivity, as citizens support restrictive immigration policies by democratically electing these policy-makers.
The limits and borders of the nation-state can be discussed on many levels such as national belonging, citizenship, cultural "group" rights versus individual rights or rights to mobility. However this thesis is limited to a discussion of those persons who are deemed without legal status to remain in Canada, whom popular discourse refers to as
"illegal" migrants.27
The term "illegal" indicates exclusion from law, but from within a nation's borders. It highlights the power of the state to determine who is accepted into the national body and who is excluded and criminalized.28 Linguistically, the "illegal" stands in opposition to the "legal" citizen and as a theoretical subject, the "illegal" migrant has been understood to represent the antithesis to the "legal" citizen; the excluded subject that is necessarily excluded in order for the nation to be defined through its negation, through
Peter Fitzpatrick, "Finding Normativity: Immigration Policy and Normative Formation" (2009) [unpublished, at Birkbeck School of Law London, UK] [Normative]: "The constitution, the hidden constitution, of the polity was found to be dependently formed in its relations to what it would putatively rule, and that constitution rendered the policy normative, ' in the first place.'" Drawing on Jacques Derrida, "Force of Law: The 'Mystical Foundation of Authority'" in Drucilla Cornell, Michael Rosenfeld & David Gray Carlson, eds., Deconstruction and the Possibility of Justice (London: Taylor & Francis, Inc., 1992. 27 National belonging: Sharma, supra note 9; Razack, supra note 9. Citizenship: Macklin, Heft, supra note 8; Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton, NJ: Princeton University Press, 2006); Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (Cambridge University Press, 2004); Saskia Sassen, Territory, Authority and Rights: From Medieval to Global Assemblages (New Jersey: Princeton University Press, 2006) [Rights]; T.A. Aleinikoff & Douglas Klusmeyer, eds., Citizenship Policies For An Age of Migration (Washington: Carnegie Endowment for International Peace, 2002). Rights: Joseph Carens, "Aliens and Citizens: the Case for Open Borders" (1987) 49 Review of Politics 251 [Open] Michael Walzer, Spheres of Justice (Boston: Basic Books, 1983); David Weissbrodt, The Human Rights of Non-Citizens (Oxford: Oxford University Press, 2008). Dauvergne, Making, supra note 1; Sharma, supra note 9.
14 not being the other. It should be noted that persons without legal immigration status are not, in principle, barred from all legal entitlement, and this is recognized in Canadian jurisprudence on the Charter of Rights and Freedoms. Nonetheless, Dauvergne contends that in practice persons lacking legal immigration status cannot access these rights out of fear that in doing so they attract the attention of immigration authorities and would then be removed. As a result, according to Dauvergne, the state's sovereign "right" to exclude does in fact create a de facto "illegal" population, even if these persons are entitled to certain legal rights.30
For the purpose of this work, attention is given to people who stay in Canada without legal status, due to a system that does not recognize their legitimate status and demand for permanent residency. However it is important to recognize that persons without status may also be, for example, an Australian mid-20s bartender or travellers
T 1 from Germany that overstay their permit to fit in a trip to the Rockies.
Problematically, applying the label of "illegal" to persons without legal status discursively criminalizes persons who otherwise live lawful, often peaceful lives.
Moreover, the label may imply that they are 100% illegal, yet they may be residing or working in transgression of Canadian law. 'Illegal' is a blanket label that erases all other terms of identification while itself evading precise definition.32 Arguably, using this term exposes the reality of living without legal status - even though persons may legally be
Dauvergne, Making, supra note 1 at 17; Fitzpatrick, Resistance, supra note 2. Saskia Sassen, Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996). Saskia Sassen questions whether such a direct binary actually exists. Her evaluation of citizenship in a "globalized world" suggests informal citizenship plays an important role in the nation/ polity, and is more fluid than a binary relationship between formal citizens and "illegal" other suggests. 30 Dauvergne, supra note 1 at 17-21; Singh, supra note 6. 31 Dauvergne, supra note 1 at 16. 32 Ibid., at 1-28.
15 entitled to certain rights and services, meaning that their existence is not "illegal", they exist outside of the law (vulnerably) due to fear of being discovered and removed.
In Making People Illegal, Catherine Dauvergne uses the term "illegal" to refer to the population that is living outside the law, under the legal radar, or on the periphery of the law. She also purposefully uses the term to refer to the publicly sensationalized criminalization of migration, and the way that migrant experience and individuals are homogenized.33
Although mindful of the advantages of using the term "illegal migrants", this thesis instead adopts the term "persons without legal status" to refer to the population of
Canadian residents that live without a legal immigration permit or status. This language is chosen due to a concern about the multitude of ways in which the term "illegal" can be misused. Although I agree with Dauvergne's reasoning that it is important to recognize the reality of being placed external of the law together with the connotation and hyperbole attached to this label, I do not wish to be mistaken as perpetuating the sensationalized criminalization and mis-representation of persons without legal status.
1.3.3 Human Rights
The reality of persons living in vulnerable conditions, afraid of accessing health and security services, raises moral concerns, and common in popular discourse, concerns relating to human rights. Scholars have turned to Hannah Arendt's concept of the "right to have rights" when discussing non-status persons, refugees, and especially conditions of
Ibid., at 4, 16-17.
16 statelessness. Notwithstanding lacking the legal right to remain, it has been argued that persons without legal status are entitled to rights as human beings, as citizens of another country and/or as persons although not permitted to be in a country, subject to the country's laws.35 This paradoxical relationship within the law between the domestic immigration law and international human rights suggests a fissure where the law itself can be greater than the nation-state; where if even if domestic laws deem someone removable, the courts can nonetheless recognize these persons as entitled to equal rights before the law.36
Saskia Sassen and Boavenrura de Sousa Santos have argued that international human rights discourse challenges the tenacious grip of state-centred rights.37 However, the power of the international human rights regime to supersede state sovereignty is limited. International conventions affirm the primacy of the sovereign state, especially
TO giving power to the sovereignty of Western industrialized nations.
Christina Boswell discusses the paradox "between guaranteeing access to rights while denying a right to be present to access such rights", meaning that the rights may be available in the moment, but without the right to be present to claim the rights, the rights are irrelevant.39 Dauvergne suggests that "rights arguments" do not adequately extend to persons without legal status and therefore cannot be used as an effective tool to argue for Macklin, Heft, supra note 8; Peter Fitzpatrick and Patricia Tuitt, eds., Critical Beings: Law, Nation and the Global Subject (Vermont: Ashgate Aldershot, 2004); Hannah Arendt, The Origins of Totalitarianism, Revd ed. (New York: Schocken, 2004). 35 Joseph Carens, "The Rights of Irregular Migrants" (2008) 22:2 Ethics and International Affairs 163 [Carens, Irregular]; Macklin, Heft, supra note 8. Even a stateless person, lacking entitlement to a country of origin, is entitled to basic human rights. Singh and Baker, supra note 6. Sassen, Rights, supra note 27; de Sousa Santos, supra note 10. 38 Fitzpatrick, Resistance, supra note 2; Dauvergne, Making, supra note 1 at 29-49. State sovereignty is hierarchical - industrialized, wealthier nations enjoy privileged sovereignty and it is acceptable to trump others' sovereignty. 39 Christina Boswell, "The Elusive Rights of An Invisible Population" (2008) 22:2 Ethics & International Affairs 185.
17 improving the conditions of persons without legal status. Once the argument turns to rights, the conversation is one concerning refugees and refugee claimants, who do have rights under domestic and international law.40 Persons without legal status, however, occupy a more contentious position. For this reason, this thesis will not focus on the issue of rights even though it is recognized that this is a necessary investigation to be explored in a separate project.
Rather than debate the moral considerations of migration regulation, Canadian government policy addressing persons without legal status and the calls for action coming from concerned advocacy groups will be explored. This, together with the subsequent historical and "ethnographic" evaluation, will lay the foundation for considering potential future policy and/or perspectives regarding persons without legal status.
1.4 Three Policy Options
In the past decade there has been an increase in migration that does not fit into existing categories of immigrant and refugee. Worldwide, states grapple with how to address migrants living and working without legal status, and Canada is not exempt from these challenges. Canada has in the past implemented various policies to address persons without legal status. Three policy options are identifiable in Canadian government practice: (1) officially, the IRPA maintains a policy of removal; (2) de facto, the government seems to prefer ignoring this population; and, (3) in the past, Canada has implemented regularization programs, a policy option that continues to be demanded by immigration advocacy groups (NGOs) throughout Canada.
40 Refugees are recognized as Convention Refugees under the Convention Relating to the Status of Refugees, adopted My 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954).
18 1.4.1 Removal
In Canada, many people are vulnerable to removal, most commonly due to expired permits (travel or work). However, these removals orders are inconsistently enforced especially when persons are in hiding. ' To manage strict enforcement would involve detailed tracking and surveillance systems that have generally not been used by immigration officials against migrants admitted into the country with work or visitor permits. Problematically, because of the relative ease of slipping under the legal radar while maintaining employment, the workplace is an important site for immigration enforcement activities, as it is well known that persons without legal status are often employed. Recently, large immigration arrests at least in the Greater Toronto Area have been carried out without notice, seemingly at random, in work-sites and warehouses.
These recent incidents have provoked dismay at the arbitrary nature of these arrests and subsequent removals.42 Media coverage of removals also reveals a racialization of persons without status that is not necessarily reflective of the population that is in Canada but considerably influences attitudes towards migrants.
Catherine Dauvergne argues that immigration law exposes the limits of liberalism's claim to universality by restricting citizenship and membership. Also, neoliberal economic priorities are evident when transgressors of immigration laws are targeted rather than the employers who exploit those with precarious immigration
Rob Gillies, "Thousands ordered deported from Canada are unaccounted for" Associated Press (7 May 2008) online: AP News Network
19 status. Linda Bosniak furthers this stating, "liberal democracy's allegedly soft interior cannot be entirely insulated from its exclusionary edges; rather through alienage that exclusion routinely penetrates the interior as well."44
Persons living without legal status challenge the prerogative of states to exclude
"unwanted immigrants from access to their territory."45 It is only through enforced removal that the state can enact this "prerogative" against those already in the territory but not desired. Ultimately, removal of persons without legal status consolidates liberal democratic values as exclusive rights for those privileged as members permitted to stay.
Antje Ellermann explores the puzzling relationship between liberal democracies and removal practices. She offers conclusions that removal overtly challenges many of the basic tenants of liberal democracies, such as freedom of movement, liberty and equality, but also the goals and practices of neo-liberal economies. Economically, cheap and exploitable labour is favourable. Thus, liberal democracies hesitate to enact hard-line removal policies.46
Consequently, when removals are carried out this act suggests a demonstration of state power to scare potential transgressors of immigration law by performing acts of sovereign control and expulsion of those that have transgressed the law. In other words, the goal of the state is not to expel all persons in Canada without legal status, but merely to dissuade others from coming. If the actual goal were to remove all persons without
Catherine Dauvergne, "Amorality and Humanitarianism in Immigration Law" (1999) 37 Osgoode Hall L.J. 597. In terms of employer sanctions, or lack thereof, see Abella in Cinar et al, supra note 5; Bimal Ghosh, ed., Managing Migration: Time for a New International Regime? (New York: Oxford University Press, 2000). Peter Fitzpatrick describes how liberal values that claim universality rely on an external antithesis in order to be conceptualized, through definition de-legitimize the claim to universality. Fitzpatrick, Resistance, supra note 2 at xxi. Bosniak, supra note 9 at 133. 45 Boswell, supra note 39. Pratt, supra note 7; Antje Ellerman, States Against Migrants: Deportation in Germany and the United States (New York: Cambridge University Press, 2009).
20 status, it is presumable that more capital would be invested into status-checks and employment regulations. However, as discussed earlier in regards to citizens within a democratic nation, there is also a desire from within the nation to regulate who is worthy of citizenship and residence and who is not.
It should also be noted that there are many checks in place before a removal is finally conducted, such as the Pre-Removal Risk Assessment (PRRA), which will be discussed in greater detail in chapter two. In accordance with Ellermann's assessment of liberal democracy's hesitation to enforce removals Canadian immigration law, while sanctioning removal under section 48 (2), does not make removal a simple process.
People arrested are held in detention if it is suspected that they will not appear for removal while the PRRA is conducted and final arrangements with the country of origin are made, such as ensuring the person has a valid travel document. Detention raises concerns on both sides of the debate - both those concerned with the right that the state has to detain these people and the conditions of detention centres, and those concerned with the costs associated with holding people in detention. 7
1.4.2 Ignoring
In part due to the difficulty of carrying out removals based on provisions such as
PRRA, the government's de facto approach to persons without legal status often appear to be to ignore the problem. Canadian immigration policy is riddled with ambiguity.
There is much beneath and in-between the letters of immigration law and official legislation. Workers without legal status are a vital part of a neo-liberal economy, providing cheaper labour and working in jobs that citizens who enjoy freedom of
47 Pratt, supra note 7.
21 employment do not wish to do. The neo-liberal economic system benefits from a non status workforce, complicating the readiness to enact the law through removal.
Critically, the "West" has "partially created what it seeks to contain," 49 meaning the imposition of multinational corporations and economic and political globalization worldwide has caused an increase in global migration and labour migration. Industrial nations are now preoccupied with how to temper undesired migration while
simultaneously creating both the demand of migration (sustaining situations of poverty,
economic and political unrest that migrants flee), and the demand for migrants by readily employing them based on their general willingness to work for less money and under
substandard labour conditions.
In Canada, particularly in the 1990s, the government demonstrated a reluctance to publicly identify persons without legal immigration status as an issue of concern. Rather,
especially in comparison to the United States and European Union, the government maintained the "appearance of control" over the issue and the relatively small number of persons without legal status in Canada allowed it to be unnoticed as a policy concern.
The government often turns a blind eye to the issues raised by persons without legal
status, failing to address their vulnerability as well as failing to enforce their removal.
Thus, ignoring has been a de facto policy of the government.
The hesitation with which the government approaches blanket removal arrests or
enforcement indicates that the issue is complex. As mentioned earlier, provisions in IRPA
allow for removals to be stayed or deferred, and advocacy groups vocally oppose removal
48 Cinar et al., supra note 5; Basok, supra note 9; Sharma, supra note 9. 49 Christian Joppke, "Why Liberal States Accept Unwanted Immigration" (1998) 50:2 World Politics 266. 50 Norman Buchignani and Doreen Indra, "Vanishing Acts: Illegal Immigration in Canada as a Sometime Social Issue" in David W. Haines, Karen Reseonblum, eds., Illegal Immigration in America: A Reference Handbook (California: Greenwood Press, 1999) at 415.
22 arrests, particularly when removal is to a situation where there is a possibility or claim of persecution. Ignoring persons who are without legal status does expose the limits of the state because legal status is not offered to them, but subtly continues to sanction the participation of 'outsiders' in the nation-state. This policy also challenges the "letter of the law" and the stark dichotomy of "legal" versus "illegal".51
The most recent imposition of visas for top refugee-claimant countries (Mexico and Czech Republic) suggest Canada's policy of "ignoring" may be shifting, especially given media focus on immigration and refugee issues.52 Yet these new policies do not address the removal of persons currently living in Canada without status and instead make it more difficult for persons from certain countries and economic backgrounds to be in Canada at all.53 As a policy option, it suggests restricting the migrants seeking entry at the border rather than intervening within the territory.
1.4.3 Regularization
Regularization, on the other hand, as demanded by immigration advocacy groups, draws attention to the realities of persons in Canada without legal status. This is an issue that affects the social and political body of the nation-state. The existence of a large
51 See Fitzpatrick, Normativity, supra note 26 at 3. Peter Fitzpatrick discusses how the practice of policy and law challenges written law. Peter O'Neil, "Canada to require visas from Mexico, Czech Republic" Canwest News Europe Correspondent (13 July 2009), online: National Post
23 population that is legally unaccounted for creates insecurity, both for the nation-state and the migrant. It does so for the nation-state because a population that is under the radar of the legal system, social security system and health system can contribute to a less healthy and "safe" society, as crimes and illnesses go unreported. The migrants experience insecurity because they often live in fear of their status being exposed and therefore do not speak out against any injustice or lack of access to health services.
The Rights of Non-Status Women Network as well as the No One Is Illegal
Shelter, Sanctuary, Status Campaign, raise awareness about women without status, who may be subject to abuse and violence from partners, agents, and/or employers. But due to their "illegal" status do not report their abusers. The experience of fear, vulnerability and exploitation is not, however, restricted to women. Persons without legal status often are too afraid to access the limited services available to them, for example do not take their children to school even though children are legally entitled to education regardless of status.54
The Federal Court case, Mauricette v. Canada, highlights the fear of exposure that persons without status live with.55 The claimant lived in fear of removal, but feared her abusive husband finding her, even in Canada. There have been many cases submitted to the Federal Court for judicial review where women have sought a stay of removal on the basis that upon return to their home country they would be at great risk of abuse from husbands and former partners. This fear extends to claimants failing to attend a hearing,
Access to Services Without Fear Immigration Campaign, "Toronto Community Services Resource Guide" (Toronto: Community Social Planning Council of Toronto (CSPC-T) and Davenport Perth Neighbourhood Centre, 2007). 5 Mauricette v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 F.C. 420.
24 out of fear that exposing the truth and reporting criminal (abusive) behaviour would place them and their children at a greater risk in Canada.56
For these reasons, many of Canada's immigrant and refugee advocacy groups
(NGOs) have urged the Canadian government to implement regularization programs instead of removal or failing to address the issue. This political pressure from advocacy groups has at times been successful to pressure the government to implement regularization programs, as will be explored in chapter two. Regularization programs involve persons applying to be granted either a temporary resident permit, or more favourably to advocacy groups, access to permanent residency. These programs contain eligibility criteria, which at the very least involve security checks and more commonly, medical checks, proof of employment, and/or proof of community involvement.
Regularization programs are implemented with hesitation due to the fact that migration that transgresses the law is a tangible sign of a dysfunctional immigration system, and an "affront to sovereignty".57 According to Miller, "the problem with irregular migrants is not merely that they are an anomaly, but that their presence threatens to undermine immigration policy as a whole."5 Further, as discussed previously, a nation's sovereignty is undermined and through this the will of the citizens, if decision makers are believed to be a reflection of the democractic population.59 There is also a fear that regularization programs will encourage further unauthorized migration, especially if
Nyachieo v. Canada (Citizenship and Immigration), 2007 F.C. 948; Ferguson v. Canada (Minister of Citizenship and Immigration), 2002 F.C.T. 1212; Nicholas Keung, "Family 'in exile within exile'" Toronto Star (1 October 2008) A.20. 57 Catherine Dauvergne, "Sovereignty, Migration and the Rule of Law in Global Times" (2004) 67:4 Modern Law Review 588. 58 David Miller, "Irregular Migrants: An Alternative Perspective" (2008) 22:8 Ethics & International Affairs 197. 59 Arash Abizadeh, "Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders" (2008) 36:1 Political Theory 37.
25 such programs are implemented periodically.60 Regularization is sometimes seen as an act of benevolence from the government, an amnesty. Although Canada prides itself for its humanitarian ideals, Dauvergne contends that "illegals" are seen as "transgressors of
'our' laws, and thus less worthy of our compassion." ' Therefore even the national ethos of a benevolent Canada reaches a limit when faced with calls for regularization.
Nevertheless, there is again a widespread call for a regularization program in
Canada.62 Not surprisingly, the government has resisted such calls. In a recent parliamentary report on non-status migrants the Standing Committee on Citizenship and
Immigration stated that,
Despite the regrettable conditions in which many non-status workers and
their families live, there is no consensus on establishing an amnesty
program to regularize their statuses. Non-status people have not respected
Canada's immigration rules, and therefore many are of the view that
Canada should not reward such people by giving them permanent resident
status, especially when hundreds of thousands of people are patiently
waiting years to legally call Canada home.63
This statement is preceded by similar comments in committee meetings, for example in
May 2007 MP Dave Batters stated that,
60 W.G. Robinson, Illegal Immigrants in Canada: A Report to the Honourable Lloyd Axworthy, Minister of Employment and Immigration. (Ottawa: Minister of Supply and Services Canada, 1983). 61 61 Dauvergne, Identity, supra note 6 at 221. 62 Report, supra note 14. 63 Ibid.
26 The government has already been very clear in stating that any
regularization initiative for foreign nationals who have illegally remained
in Canada is unfair to the hundreds of thousands of people who have
applied for immigration to Canada through legal channels ... we owe it to
those people who have gone through the proper channels ... to maintain
the fairness and the integrity of the system."64
What the government fails to address in such statements is that most often the persons who are in need of a regularization program are those who are not able to access legal
channels because of a point system that favours "high-skilled" immigrants even though
labour sectors employ those with "low skills".65
1.4.3.1 Regularization as the "best option"?
Recently, scholars have questioned whether regularization is the best policy
option to pursue, or whether attention should instead be given to restructuring
immigration in reaction to changing demands and motives. Regularizing status raises
issues of discretion and complicates the government's and the judicial system's relationship with its own immigration law and policy. Amnesty can be (mis)understood
Canada, House of Commons, Parliamentary Standing Committee on Immigration, Evidence Contents, 39th Pari. 1st sess., No. 59 (17 May 2007). Unfortunately, the government fails to recognize that there are very limited legal channels that "people who have illegally remained in Canada" can access. Often they have gone through "the proper channels", but been denied refugee status, H & C, sponsorship or cannot "patiently wait for processing" because of severe risks or persecution. See also Macklin, Disappearing, supra note 14. 65 Luin Goldring, Carolina Berinstein & Judith K. Bemhard, "Institutionalizing Precarious Migratory Status in Canada" (2009) 13:3 Citizenship Studies 239. See also Lesley Ciarula Taylor "Immigration system hurts more than helps, study finds. Many newcomers stuck in jobs that are 'dirty, dangerous and difficult'" Toronto Star (June 18, 2009), online: Toronto Star
27 as being synonymous with opening the borders and conceding to "illegal" activity, which devalues regulatory laws.
Ironically, past regularization programs that accepted restricted numbers of applicants served to exacerbate the vulnerability of persons living without status. People who applied for regularization but did not meet the requirements of the program were detained or removed.66 Regularization programs can thus serve dual and contradictory purposes, on the one hand facilitating the shift from lacking status to legal status, while on the other hand bringing out into the open an otherwise undocumented and invisible population in order for the state to enforce removal.
Regularization is a short-term solution. The recurring need for regularization programs indicates that they fail to significantly affect or help Canada's overall immigration system. Frequent demands for regularization point to larger insufficiencies within the law itself, and ultimately a disjuncture between the law and reality. Fitzpatrick, building on Derrida, examines the law as constantly being defined by what is beyond it.
While the need for regularization challenges the law, the enactment of regularization does not push the law to redefine itself because it occurs as an exception to the law. Scholars, such as Catherine Dauvergne, suggest that regularization as exception to the law is not the answer but instead the law itself should be re-evaluated: "The true remedy for illegality is an erasure of the law that creates it."67
Erika Khandor et al., "The Regularization of Non-Status Immigrations in Canada: 1960-2004. Past Policies, Current Perspectives, Active Campaigns" Ontario Council of Agencies Serving Immigrant Publication (2004), online: OCASI Status Campaign Documents
28 1.4.3.2 Regularization, Law and Discretion
Regularization is an example of an administrative discretionary decision-making initiative in immigration law. Exercising discretion is necessary in immigration/ refugee law, especially considering the diversity of claims and situations of people seeking entry to Canada. However, discretionary powers also raise concerns of accountability. Anna
Pratt, in her discussion of detention and immigration enforcement, argues that immigration enforcement officers have more power than police officers - they lack accountability to Canadian law because they deal with a population that are not Canadian citizens. Immigration officers can detain an individual without proof based on suspicion, for example, that the individual may not attend a hearing. Immigration detention is permissible as a result of the legal distinction between punative and preventative detention.68
According to Pratt, discretion is about power. It can be used well, or abused. This power is assumed through discretionary privilege, heightened by legislation like Bill C-
50, which grants broad discretionary powers to the Minister of Citizenship and
Immigration.69 Pratt suggests that discretion and the law have been falsely positioned in an oppositional binary. It is interesting how the law versus discretion debate has played out in the field of immigration, where the precariousness of this dichotomy is exposed starkly through the discretionary powers of immigration officers, and arguably the lack of transparency within the immigration/ refugee tribunal, as opposed to the accountability of the judicial system. The judicial system only plays a role in immigration cases brought
See Pratt, supra note 7 at 58. 69 Canada Bill C-50, House of Budget Implementation Act, 2008, 2nd Sess., 39th Pari., 2008, Part 6 Immigration and Refugee Protection Act 116-117 (as passed by the House of Commons 9 June 2008).
29 before judicial review, and even in these cases, the judges exercise "residual jurisdiction" rarely intervening on the substance of decisions, only on process.70
The relationship between regularization and the rule of law initially seems incompatible, or problematic at the least. According to Manolo Abella, nation-states in
Europe regularize in order to "reinforce the legal order, to prevent exploitation of alien workers, and to avoid creating a dual labour market." And yet the very act of legally recognizing an illegal population transgresses common sense understanding of rules and law. On the other hand, the existence of a large undocumented population weakens the ability of states to impose the rule of law, and so conceivably an irregular program to regularize can be understood as an effort to preserve the power of the rule of law over a population.
1.4.3.3 Regularization and Access
In spite of being demanded by NGOs, there is a growing consensus among scholars that regularization programs are firstly insufficient to address the issue of persons in Canada without legal status, and secondly exclusive programs that fail to assist many people living in vulnerable situations without legal status.72 According to Abella and Garson in their respective papers, regularization programs need to be organized and
structured in a way that encourage persons to declare themselves without fear of being
™ Ibid, at 61. 71 Abella, in Cinar at al. supra note 5 at 206. 72 Jean McDonald, "Regularization and Immigrations' Rights" (2005) 50 New Socialist Magazine online: New Socialist
30 removed if denied status under regularization. In the past regularization programs have excluded the most vulnerable: non-employed persons with care-giving responsibilities
(commonly single mothers), youth, persons with medical needs, disability, or otherwise unable to work.74 This is perhaps because when considering government priorities, it is difficult to apply arguments in favour of regularization to non-working populations, the sick, the elderly, single mothers, or persons with disabilities. Currently the most persuasive argument (at least with government actors) in favour of regularization is economic.75 Arguing in favour of granting status to people working, contributing to the
Canadian economy is convincing to policy makers and government officials.76 Without this argument, it is difficult to believe the government would consider regularization as an option at all.
Currently, lobby groups are advocating that regularization criteria be sufficiently flexible to allow people to come forward for registration and regularization purposes, but avoid removal if they are ineligible. One mechanism being proposed, for example, is to allow a third party to submit the regularization application.77 Without this security, it is argued that the regularization program would be unsuccessful because many people would not volunteer to be considered.
In Cinar et al., supra note 5. 74 Regularization programs referred to include: 1960-1972 Chinese Adjustment Program, 1973 "Adjustment of Status Program." 1981 Special Regularization Program for Haitians Residing in Quebec, 1994 - 1998 Deferred Removal Orders Class, 2002 the Special Regularization Procedure for Algerians Residing in Quebec. 2003 Undocumented Construction workers status program (unimplemented), 2007 moratorium on deportations of undocumented construction workers during parliamentary committee review of undocumented workers in Canada (unimplemented). Discussed in greater detail in Chapter Two. Zena Bou-Zeid, Unwelcome but Tolerated: Irregular Migrants in Canada (D.C.L. Thesis, York University, 2007) [unpublished]. 76 Report, supra note 14. OCASI Status Campaign. Media Release, "Community Groups Launch Proposal of Regularization for Non-Status Immigrants" (17 October 2005), online: OCASI
31 1.5 Conclusion
Of the three policy options - deportation, ignoring, regularization - regularization has been considered by NGOs and some members of the Canadian
government as offering the best approach.78 Regularization in the past answered the needs of Canada's economy that employs persons without status and would suffer in the
case of widespread removals. Also regularization has satisfied ideas of Canada's national
identity as benevolent to persons in need, ideas that are weakened when persons living
and working in a nation-state are picked up and removed, often with little notice and
potentially sent to situations of insecurity and risk.
There are vast moral and ethical arguments to be discussed on this issue, as well
as notions of justice and law as applied to migration policy.79 For the purpose of this
limited analysis I do not delve into these questions. Rather, I take as my point of
departure that regularization programs, notwithstanding their challenges, are the
frequently identified as the most "desirable" of the three policy options discussed above.
From this perspective, the subsequent chapter will explore the history of regularization in
Canada leading up to the current situation where immigration advocacy groups and
labour unions are calling for regularization programs.
78 See CCR, OCASI and Government MPs, supra note 54. 79 Carens, Rights, supra note 35; Carens: "concerned with what legal rights irregular migrants ought to have, as a matter of democratic morality, not with what legal rights they do have as a matter of fact or ought to have as a matter of constitutional interpretation in a particular state or under international law." Fitzpatrick & Tuitt, supra note 34; Fitzpatrick, Resistance, supra note 2.
32 CHAPTER II: REGULARIZATION
This chapter is a historical overview of programs to regularize status for persons without legal status. This section looks at developments in Canadian immigration policy and law throughout the latter part of the twentieth century and into the present day: 1962-2009.
Using government policy documents, publications by non-governmental organizations
(NGOs) and labour groups such as the Canadian Labour Congress, I will discuss the context of regularization programs, their successes, shortcomings and failures. This will lead to a discussion of present day immigration policy, and the relationship between the
Immigration and Refugee Protection Act (IRPA)1 and persons without legal status.
2.1 Introduction
The contentious issue of regularizing the status of persons residing in Canada without legal immigration status has been debated in Canadian immigration policy since the 1960s. Currently estimates of people living in Canada without legal status are up to
600,000, but exact numbers are impossible to determine.2 These persons live in situations of acute vulnerability, without access to social services, state protection, and labour standards. Nevertheless, they work, attend community events, live side by side with citizens, and their children are entitled to public education.
Immigration policy and jurisprudence has attempted to address questions of discretionary power, justification for removal or stay of removal, as well as definitions of
1 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. " Canada, Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non- Status Workers: Report of the Standing Committee on Citizenship and Immigration (Ottawa: House of Commons Canada, 2009) (David Tilson, Chair) [henceforth referred to as Report].
33 eligibility for the "Humanitarian and Compassionate" class. Through an overview of the history of regularization programs in Canada this chapter will discuss the current situation for persons without status in Canada, and suggest that continued calls for regularization point to larger shortcomings and failures of immigration law and policy.
2.2 History of Regularization Programs in Canada
Illegal migration is not a new phenomenon. In 1983 the Intergovernmental
Committee for Migration (ICM) determined that illegal migration is connected to the
"complexity of existing laws and regulations" and the difficulty of migrating legally.3
Ultimately, it is the exclusion of some types of migration, sanctioned by law, that make migration //legal. In spite of work since the 1980s to alleviate "illegal" migration, existing laws and regulations continue to complicate the migration process; a process which due to mobility and rapid communication has become more accessible while state policies and access to legal means of staying in a country have not. Historically, many regularization programs (or "status-granting" programs) have been implemented due to pressures either from within government (a private members bill) or public attention to certain populations of persons without legal status.
3 Illegal migration is not a new issue. At a 1983 ICM seminar in Geneva, "Undocumented Migrants or Migrants in Irregular Situations," named as causes of irregular migration' "the complexity of existing laws and regulations, as well as the difficulties of obtaining the necessary documentation for legal immigration." Included also absence of laws; quotas and restrictions; ignorance of existing laws and regulations, (quoted in Freda Hawkins, Critical Years in Immigration: Canada and Australia Compared (Montreal, Kingston: McGill-Queens University Press, 1991) at 197.
34 2.1.1 Chinese Adjustment of Status Program
According to a 2004 report, "The Regularization of Non-Status Immigrants in
Canada 1960-2004," compiled by Canadian researchers and community groups, regularization of status was first introduced in Canada with the 1962-1972 Chinese
Adjustment of Status Program.4 The Chinese Adjustment Program regularized about
12,000 people, based on the ability to prove good "character" as Asian immigrants living in Canada. The proposal for regularization was a Private Member's Bill brought to
Parliament by the first Chinese Member of Parliament, Douglas Jung, in 1962. According to a report from May 29th, 1960, the Department of Immigration discovered forged immigration papers by migrants arriving from China, who allegedly were forced to work in "substandard conditions" in British Colombia, and threatened with extortion if they complained. There were (unsubstantiated) allegations of 13,000 illegal Chinese in Canada who entered the country by buying birth certificates of Chinese-Canadian children. The people accused of carrying false identification were referred to as "paper sons." The
RCMP carried out a Canada-wide undercover crackdown where 400-500 people were investigated.5 The RCMP focused on Chinatowns and according to the media report, the
Chinese association claimed that the RCMP sensationalized and targeted Chinese in
Canada in attempts to "reform" the community based on racist ideas of Asian racial inferiority.6
4 Erika Khandor et al. "The Regularization of Non-Status Immigrations in Canada: 1960-2004. Past Policies, Current Perspectives, Active Campaigns" Ontario Council of Agencies Serving Immigrant Publication (2004), online: OCASI Status Campaign Documents
35 The racial overtones of this program cannot be ignored. While the 1962-1972
Chinese Adjustment Program did address a marginalized population, its connection to
RCMP efforts to "clean up" and "reform" Chinatowns, and crackdown on a suspected trafficking ring based out of Hong Kong makes one suspicious of whether the program was motivated by the belief that persons without status should be given rights, or documented for the purpose of enabling surveillance and monitoring.
2.2.2.1962-1967 Immigration Regulations
Throughout the 1960s, the Canadian Immigration Act of 1952 underwent significant amendments. In 1962, the Immigration Regulations eliminated racial discrimination as criteria for acceptance, on the one hand broadening accessibility of the immigration system, on the other hand introducing subtle forms of exclusion and racial discrimination such as the program mentioned above. In 1967, the new Immigration
Regulations introduced the point system as well as different categories of immigration: independent immigrants, sponsored dependants, and nominated family members.
In 1966, the "White Paper on Immigration" was published by the Department of
Manpower and Immigration. The White Paper suggested Canada accept its share of refugees based on the United Nations High Commission for Refugees (UNHCR) and pay more attention in official policy to refugees as compared to economic immigrants.8 This was unprecedented and marked an enhanced global, international awareness, and
Kay Anderson, "The Idea of a Chinatown: The Power of Place and Institutional Practice in the Making of a Racial Category" 77:4 Annals of the Association of American Geographers 580. Sedef Arat-Koc, "Neo-liberalism, state restructuring and immigration: Changes in Canadian policies in the 1990s" (1999) 34:2 Journal of Canadian Studies at 31. Hawkins, supra note 3at 45. 8 Gerald Dirks, Canada's Refugee Policy: Indifference or Opportunism (Montreal: McGill-Queen's University Press, 1977) at 229.
36 attention to refugees and "humanitarianism". According to Ninette Kelly and Michael
Trebilcock, for the first time ethnic, religious, and community organizations had a tangible impact on policy and law-making, marking this as a pivotal time of change for immigration policy: "Immigration policy [by 1970s] had become markedly more liberal - politically, economically and legally - than in any previous period of its history."9
Concurrently, immigration policy became more "proceduralized and judicialized",
conceivably in an effort to control the influx of diverse populations (non-Europeans), which was a new phenomenon for Canada.10
2.2.3. Immigration Appeal Board Act, 1966-1967
Importantly, as part of the amendments to the Immigration Act 1952, in 1966-67 the Immigration Act was amended to allow visitors the right to apply for landed
immigrant status from within Canada via the Immigration Appeal Board Act. Section 34
of the Appeal Board Act allowed anyone who was ordered deported to have the right of
appeal to the Board, regardless of their status.11 As a result of this policy, about 13,000 people had their status regularized.12
In Pringle et al. v. Fraser it was stated that:
9 Ninette Kelly and Micheal Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998) at 19. 10 Ibid., at 350. " Immigration Appeal Board Act S.C. 1966-1967, C. 90. Dirks, supra note at 233. 12 Khandor et. al., supra note 4 at 22. Hawkins, supra note 3 at 148. The Immigration Appeal Board was initially formed in 1954, while the Immigration Appeal Board Act came into force in 1967.
37 The Immigration Appeal Board Act established a completely new scheme
of review of deportation orders. The Board [...] is given the powers of a
superior court in respect of the attendance and examination of witnesses,
production of documents, enforcement of its orders and ancillary matters
necessary or proper for the due exercise of its jurisdiction.
Prior to the enactment of the Immigration Appeal Board Act and the
establishment of the Immigration Appeal Board thereunder, with the
powers conferred upon it by that Act, deportation orders could only be
challenged through the appeal procedure prescribed by s. 31 of the
Immigration Act, R.S.C. 1952, c. 325. Under this procedure, it was for the
responsible Minister to direct an Immigration Appeal Board to consider an
appeal, and it was open to the Minister to review the decision of such a
Board. This section was repealed when the Immigration Appeal Board Act
was passed.
[...]
The Immigration Appeal Board Act brought into the law a wider avenue
for initial appeal from deportation orders than had previously existed.13
However, between 1970 and 1973, due to the influx of draft dodgers from the
United States, Asian refugees fleeing the policies of Idi Amin in Uganda, and a
significant increase in migrants coming to Canada as "visitors" intending to stay permanently based on the new section 34 regulation, the backlogs in the immigration
Pringle et al. v. Fraser, [1972] S.C.R. 821 [Pringle].
38 system became prohibitive.14 Section 34 was revoked in 1972. However visitors that were in Canada for more than three months were allowed to register and acquire work visas, if employed, until 1973. In 1973, the Immigration Appeal Board permanently prohibited appeals from persons without legal immigration status. Henceforth, appeals were only allowed from permanent residents or persons with valid legal status or a substantial refugee claim.15 This was formalized in the 1976 Immigration Act and the new
Immigration Appeal Board Act was outlined in the 1978 Regulations.1
2.2.4. Adjustment of Status Program, 1973
Due to the changes in the Immigration Act and the backlog in appeals from the period between 1970 and 1973, Trudeau's government introduced an "amnesty for illegal migrants" through a 60-day "Adjustment of Status Program." In order to be eligible, persons needed to apply within a 60-day period, between August 15 and October 15,
1973 and needed to demonstrate economic stability, family relationships, and
"humanitarian" reasons for staying in the country. The "adjustment of status program" was in effect from August to October and regularized approximately 80,000 people.17
According to Zena Bou-Zeid and the 1980 US publication, Amnesty: Conferring
Legal Status on Illegal Immigrants, the 1973 Adjustment of Status Program had two programs, Project 80 and Project 97. Project 80 was for those that were in Canada as a result of section 34 and were "known" by the Canadian government. Project 97 was a regularization program for those in Canada illegally and facing a removal order. This
14 Hawkins, supra note 3 at 34. 15 Ibid, at 47. 16 Immigration Regulations 1978, S.O.R./ 78-172. 17 Joseph Jones, Happenstance and Misquotation: Canadian Immigration Policy 1966-1974, the Arrival of US Vietnam War Resisters, and the Views of Pierre Trudeau (Vancouver: Quarter Sheaf, 2008).
39 Project granted legal status to most everyone who applied, provided they passed criminal
and security checks.18
Trudeau was criticized for implementing an "amnesty" program, however the
program was framed in a way that focused on giving legal status and citizenship to a
white, English-speaking, politically active, non-threatening population who desired to
live in Canada. Contemporary news media and NGO sources claim that the adjustment of
status program was mainly intended for the Draft Dodgers coming from the US. Indeed
Trudeau appeared in the media emphasizing that these persons demonstrated, good, non-
disruptive citizenship, conceivably managed to calm fears that this program was opening
the borders to "foreigners".19
Yet Joseph Jones points out that legal resident status was granted to an estimated
16,000 "draft-age U.S. male immigrants to Canada from 1966-1972", which means that
there were many other, non-American immigrants who were granted legal status as a part
of this program. Supporting Jones' claim, the Regularization Report 1960-2004, states
that about "39,000 people from over 150 countries" were regularized. Freda Hawkins,
citing Canadian Statistics, shows 28.4% of the 39,000 people were from the USA, 22%
from Hong Kong, 5% from Jamaica and so on, indicating that even if the intent for the
policy targeted American migrants, the result was regularization for diverse migrants.
Zena Bou-Zeid, Unwelcome but Tolerated: Irregular Migrants in Canada (D.C.L. Thesis, York University, 2007) [unpublished] at 206, 212; D.S. North, Amnesty: Conferring Legal Status on Illegal Immigrants (Washington, D.C: New TransCentury Foundation, Centre for Labour and Migration Studies, 1980). 19 CBC Archives, "Trudeau opens Canada's doors to draft dodgers" (25 March 1969), CBC Archives, "Living in fear: draft dodgers in hiding" (7 May 1969), online: CBC Archives
40 In 1972 the Minister of the Department of Labour, Manpower and Immigration,
Robert Andras, as quoted in Hawkins, implied that draft-dodgers were not the government's sole reason for implementing this program. Andras stated that persons without legal status in Canada might be the "unfortunate victims of unscrupulous, self- styled immigration counsellors ..." and whether knowingly or unknowingly ended up in
Canada without status, set down roots, families and work.2 Therefore, since the permanent amendment to the Appeal Act no longer allowed non-status persons to appeal removal orders, a 60-day grace period was justified for those that fell victim to the change in policy. In Andras speeches, the program was not described as an "amnesty" program, but rather a fair move in reaction to revoking the clause in the Appeal Boards
Act that allowed anyone with a removal order to appeal the decision, regardless of status. Interestingly, there was no direct action to prevent migrants from being the victims of "unscrupulous, self-styled immigration counsellors," which continued to be a problem in the 1990s, and into the present day.23
2.2.5. Immigration Act, 1976
In 1976, a new Immigration Act was drafted to mark a direct shift from the much- amended Immigration Act of 1952 and reflect the significant changes experienced in the
21 Ibid., supra note 3 at 47. 22 Ibid, at 44. Pollard v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No 812. Claimant entered Canada on a visitor visa, expecting to immigrate based on the guarantee from a fraudulent "pastor". Was left in Canada with an expired visitor visa. Pre-IRPA, Immigration Act 1976, s. 9(1) stated that foreign nationals needed to apply for residency from abroad, therefore internal applicants were considered "queue jumpers." The ruling on this case argues that standards need to be set for Humanitarian and Compassionate applications, because the court found that "there is no basis in terms of judicial review for quashing the Immigration Officer's decision" for removal, but the applicants were "respectable immigrants".
41 1960s and 1970s. Many of the new objectives were drafted in the "Green Paper" of 1974, known formally as The Canadian Immigration and Population Study.
The Immigration Act 1976 objectives included "family reunion, non discrimination, concern for refugees, promotion of Canada's demographic, economic,
social and cultural goals."24 It included "10 principles of immigration policy" that had previously never been articulated within the Immigration Act, as well as established three
classes of immigration (family class, refugee, and point system) and replaced the
"prohibited classes" with broader inadmissibility clauses. In 1978, the Immigration
Appeal Board Act merged with the Immigration Act of 1976. Under the 1978
Regulations, the Right of Appeal was given to those with denied refugee claims, as per
section 45 (5) of the Immigration Act 1976, and Canadian citizens whose sponsorship
had been denied. The Immigration Act also introduced adjudicators to handle
immigration inquires and Ministerial discretion was limited, even though Minister's
permits remained. Lastly, the Act mandated "moderate penalties against employers who
knowingly employ persons who are neither Canadian citizens, nor permanent
residents."25
2.2.6. Minister's Review Committee, 1983
In the 1980s, the Department of Citizenship and Immigration, which then was
called the Department of Manpower and Immigration, tackled the issue of persons
without legal status. This was the first time that this appeared as a major immigration
24 Immigration Act 1976, S.C. 1976-77, c.52 Objectives 3 (c). "3 Hawkins, supra note 3 at 74-76. However, the penalties did not prove significant enough to deter employers from hiring undocumented non-status workers who will work at considerably lower wages than legal citizens.
42 policy issue. Two reports, commissioned by the Minister Lloyd Axworthy and written by
W.G. Robinson, were conducted on "illegal migrants in Canada" in 1983. The reports highlighted the existence of large populations living in Canada without legal status and addressed issues of border control, and exploitation of the immigration system by these migrants.26
Although Robinson contends that Parliament was reluctant to address the issues raised by the report, in 1983-1985 the Minister's Review Committee was established following the presentation of Robinson's report.27 The Minister's Review Committee was a small program to grant permanent residency to "long-term illegal residents."
Ultimately, the program did not attract many applicants, apparently, "by August 1984,
976 people had become permanent residents under this program, but it is not known exactly how many were regularized in total."29 Interestingly, Robinson's 1983 reports reflected significant hesitation to implement large-scale regularization programs, although no alternative policy was suggested. Regularization was presented as a necessary but flawed option, arguably contributing to the small scale and minor impact of the Minister's Review Committee, especially as compared to the success of the 1973 program. By the 1980s, fears of encouraging extra-legal migration through regularization programs overwhelmed the option to conduct a broad program.
In 1981, a specialized and specific regularization program was implemented, the
1981 Special Regularization Program for Haitians Residing in Quebec. According to the
26 W.G. Robinson, Illegal Immigrants in Canada: A Report to the Honourable Lloyd Axworthy, Minister of Employment and Immigration (Ottawa: Minister of Supply and Services Canada, 1983) [Axworthy]; W.G. Robinson, "Illegal Immigrants in Canada: Recent Developments" (1984) 18:3 International Migration Review 474 [Recent] 27 Robinson, Recent, supra note 26; Hawkins, supra note 3. 28 Khandor et al., supra note 4 at 25.
43 Regularization Report more than 4,000 people regularized as a result, but applications were only accepted from persons from Haiti living in Quebec that were in good health, possessed a working ability of the French language, job skills, and were employed. In
2002 the Special Regularization Procedure for Algerians Residing in Quebec intended for failed refugee claimants from Algeria, was a similar, exclusive regularization program that merits mention but does not address a broader Canadian population of persons without legal status, which is the focus of this project.30
2.2.7. Singh v. Canada, 1985
In spite of regularization losing popularity in the 1980s, perhaps the most significant judicial ruling in the latter part of the twentieth century was Singh v. Canada in 1985.31 In Singh v. Canada, the Supreme Court found that section seven of the Charter of Rights and Freedoms applied to non-citizens, meaning that Canada was obligated under its own Charter to provide an oral hearing for those with refugee claims. This heralded unprecedented administrative demands, but also significantly increased the opportunity for refugee claimants in Canada. As a result of this ruling, the Immigration and Refugee Board was created in 1986 as an independent administrative body intended to deal with Immigration cases, similar to the Immigration Appeal Board.32
After Singh v. Canada and resulting structural changes in immigration and refugee proceedings, there was a backlog in cases in 1986. As a result, a partial amnesty was implemented for those refugee claimants that arrived pre-1986 and passed medical and security checks. This was enacted through Bill C-55 and 85% of 28,000 applicants
30 Ibid., at 24, 27-28. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 [Singh]. 32 Kelly and Trebilcock, supra note 9 at 386.
44 were approved. According to Zena Bou-Zeid, this program was an "expedited administrative review program" not an amnesty program because it dealt with systemic backlogs and not regularization. However, unforeseen to legislators, the administrative review program resulted in even larger system backlogs because migrants saw the program as an amnesty program, and arrived in Canada with the hope that a similar program would happen again.3 This is precisely what Robinson feared would happen with frequent amnesty or regularization programs: a de-legitimization of such programs because of their counter-productive results.
2.2.8. Bill C-84,1987 and Bill C-86,1992
As a result of the recognition of legal entitlements in Canada regardless of status in Singh v. Canada, in the late 1980s amendments to immigration policy became more restrictive. Bill C-84 in 1987, the "Refugee Deterrents and Detention Act", was passed in response to a boat of Sikh people that arrived in Canada to claim refugee status. Bill C-84 increased government powers to detain, conduct forcible searches, and permit airlines to seize passports of potential refugees to pre-empt inland asylum/ refugee claims to be made.36 In 1992, Bill C-86 mandated increased attention to monitoring "founded refugee claims" versus "unfounded claims".37 Bill C-86 outlined stricter inadmissibility criteria
(criminal and medical), barred entry to individuals with links to criminal and terrorist
33 Bou-Zeid, supra note 13 at 145. 34 Ibid., at 145. Robinson, Recent, supra note 26. 36 Manuel Garcia y Griego, "Canada: Flexibility and Control in Immigration and Refugee Policy" in Wayne A. Cornelius, Philip L. Martin & James Frank Hollifield, eds., Controlling immigration: A Global Perspective (California: University of California, San Diego, 1994) at 128; Kelly and Trebilcock, supra note 9 at 386. j7 "Minister of Immigration on Bill C-86" (Extract from an address by the Hon. Bernard Valcourt) (1992) 12:2 Refuge 4.
45 organizations, gave greater discretionary powers to medical officers, further expanded search-and-seizure provisions, and limited the refugee determination process by restricting access to judicial review only to the Federal Court - Trial Division.38 Under
Bill C-86 provisions, the Immigration minister was also mandated to submit an annual immigration plan to Parliament. Immigration intake changed from being a year-to-year decision to calculated projections for future intake. Regulation became more of a concern to monitor access to citizenship, labour distribution and residency.39
2.2.9. Deferred Removal Orders Class, 1994-1998
Perhaps surprisingly in light of the restrictions imposed in immigration and refugee system, in 1994 - 1998 the government implemented the Deferred Removal
Orders Class (DROC). This was a nation-wide program that sought to "regularize the status of certain failed refugee claimants who have been in "limbo" for several years awaiting removal due to the Department's unwillingness or inability to remove them and whose situation shows no immediate prospect of resolution."40 Three thousand people were regularized, however eligibility criteria excluded people with criminal records, those considered a security risk, those on welfare, or with medical conditions. The
Regulatory Impact Analysis for the Deferred Removal Orders Class, which was quoted in detail in Kwawukumey v. The Queen, specifically outlined that in order to be eligible for the Deferred Removal Orders Class, "persons must have claimed to be a Convention refugee on or after January 1, 1989 and be the subject of a removal order or a conditional
38 Howard Adelman, "Processing Bill C-86" Editorial (1992) 12:2 Refuge 1; quotation from Kelly and Trebilcock, supra note 9 at 386. 39 Kelly & Trebilcock, supra note 9 at 386-391. 40 Regulatory Impact Analysis Statement, Deferred Removal Order Class, C. Gaz. 1994. II 128: 23.
46 departure notice, departure notice, or conditional removal order as these terms were defined in the Immigration Act before February 1, 1993."41 The program cost five hundred dollars per adult, which realistically would have been prohibitive for some otherwise eligible persons. The approval rate of applications was less than five percent.
Regularization programs that accepted a restricted number and type of applicants exacerbated the vulnerability of persons living without status. Jean McDonald argues that many people who applied for regularization of status but were denied were then detained and removed.42 The 1994-1998 program is an example of regularization program serving a dual and contradictory purpose, on the one hand facilitating residents without legal status to gain legal status, while on the other hand organizing an otherwise undocumented and invisible population in order for the state to enforce the removal of undesirable residents. This was evident in the earliest regularization program targeting Asian/
Chinese migrants to Canada.
Throughout the 1990s, according to Yasmeen Abu-Laban, immigration policy became more politicized.43 This is evident in the variety of voices of NGOs, 'ethnic' organizations/ lobby groups, labour groups, business interests, and security concerns that all contributed to critique and re-formulation of immigration policy. In 1997, the
Immigration Legislative Review Advisory Group released a report, Not Just Numbers: A
Canadian Framework for Future Immigration that paved the way for a new immigration act.44 In terms of persons without legal status,
41 Kwawukumey v. The Queen, [2001] 24 T.C.C. 42 Jean McDonald, "Regularization and Immigrations' Rights" (2005) 50:2 New Socialist Magazine online: New Socialist
47 "The general approach of Not Just Numbers [...] was to
concentrate on creating the legislative tools and procedures to
enable the detention and removal of those who challenge the
system. The Report identified two major problems with the current
system: the lack of an "enforcement continuum" and the lack of
incentives to comply with the requirements of the Act." 45
Interestingly, Not Just Numbers proposed a provisional status to be introduced, to apply to persons that otherwise had no status, and reviewed the need for pre-removal risk assessments and emphasized the importance of humanitarian and compassionate reviews prior to removal.46 However overall, Not Just Numbers supported a focus on economic factors determining eligibility for immigration, and priorities given to attracting skilled workers and business migrants.
integration into Canadian economy and shifting the onus of sponsorship and settlement onto families and individuals who are immigrating. The report reviewed immigration policy and produced detailed recommendations to create a new immigration act. 45 Canada, House of Commons, Standing Committee on Citizenship and Immigration, "A. Assessment of the Problems by Not Just Numbers" on Not just Numbers: A Canadian Framework for Future Immigration, CITI (36-1) (June 1998) at para a. 46 Ibid.: "Obtaining and retaining this status would be conditional on the completion of, or compliance with, whatever immigration application, process or requirement was necessary under the Immigration Act or the Regulations. It would be available to people in specified situations who were not a public danger, who were likely to appear for immigration proceedings when required, who were cooperating with the authorities, and who were complying with specified mandatory and any discretionary conditions of the status."
48 2.3 Contemporary Regularization in Canada
2.3.1. IRPA, 2001
The new Immigration and Refugee Protection Act was implemented in 2002. As mentioned in the previous chapter, under IRPA, once a person has an expired work permit, expired visitor visa, or failed refugee claim, the alternatives for applying for status are few, if exiting the country is not a viable option.47 Many persons who are already in Canada, for one reason or another do not fit in the IRPA qualifications to receive a work permit and are left without legal status, provided they are not business visitors and therefore not exempt from requiring a work permit.
2.3.2. Refugee Claims
Many people who find themselves in Canada without status turn to Canada's refugee system in an attempt to legalize their status. If admissible to Canada, migrants are permitted to submit an inland refugee claim and are allowed a refugee hearing at the
Immigration and Refugee Board (IRB).
The refugee determination process is based on the 1951 Refugee Convention and has become a significant feature of Canada's immigration program; in fact the Canadian refugee program goes beyond the 1951 International Convention.49 The refugee definition has been the topic of substantial debate and contention.50 Particularly in recent
47 Catherine Dauvergne, "Evaluating Canada's New Immigration and Refugee Protection Act in its Global Context" (2003) 41 Alberta Law Review 725 [Evaluating]. 8 Members of the Business class are exempt from requiring a work permit: IRPA, supra note Is. 186 (2); Immigration and Refugee Protection Regulations, S.O.R./2002-227 s. 186-187. 49 James Hathaway, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005). 50 Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 [Ward].
49 years as numbers of refugee claimants have been significantly increasing and the refugee system has not grown sufficiently to accommodate demand. l For example, the IRB is predicting a twenty-five percent increase in refugee claims from 40,000 claims in 2008-
09 to 50,000 claims in 2009-10.52
Recently there has been a surge in refugee claimants from Mexico, some who have been found to "fit" as traditional refugees, but others, fleeing corruption and poverty, are not encompassed in the traditional convention refugee definitions and immigration classes.53 The government, rather than address the worsening situation in
Mexico through foreign policy initiatives for example, places the blame on the migrants who are labelled opportunist claimants. Many of these claims are not based on false claims of persecution.54 But there is no alternate immigration process for persons who do not fit the refugee definition who are fleeing persecution, poverty and/or are motivated to migrate by a belief that their livelihood or security is threatened. In fortunate situations, these people may be guided to make their refugee case in a way that does fit the requirements of the refugee definition. But in many cases, people lack the knowledge and/or resources to know what aspects of their experiences to highlight and which ones to downplay in order to file a successful refugee claim. Further, there are many who do create stories in a desperate effort to stay in the country.
51 Peter Showier, "Invalid Claims About Refugees", Op-Ed, Ottawa Citizen (17 July 2009), online: Ottawa Citizens
50 Problematically, the Refugee Appeal Division (RAD) has been mandated in
IRPA, but not yet implemented. The RAD would provide an appeal process for failed refugee claimants and greater accountability within the IRB.55 Currently there are two avenues for unsuccessful candidates to challenge decisions - through judicial review and
"international remedies." The RAD would allow for a more accessible review process.
The inability of the refugee system to include refugee claimants that fail to meet the specific refugee definitions means a considerable migrant population is left needing humanitarian consideration. Further, factors such as stricter inadmissibility standards and the reality of large numbers "low-skilled" economic migrants seeking residence, creates a disjuncture between the reality of people attempting to become permanent residents in
Canada, and those that are acceptable under the IRPA.
2.3.3 Humanitarian & Compassionate Class
The Humanitarian and Compassionate class (H & C), section 25 of IRPA, is a two-step process to access permanent residency for those who have been unsuccessful in all other categories. According to Citizenship and Immigration Canada, "Humanitarian and Compassionate Applications are usually for people living in Canada without legal status but who have nevertheless established themselves in Canada"57 Also considered are those who can show that they would be subjected to "hardship" if returned to their
55 RAD before Parliament in April 2009 in Bill C-291, however the Bill was tabled and not passed. Dauvergne, Evaluating, supra note 47; Canadian Council for Refugees, "Refugee Appeal Division" (2009), online: CCR
51 country of origin. According to the Citizenship and Immigration Canada manual, in H &
C cases, "applicants bear the onus of satisfying the decision-maker that their personal circumstances are such that the hardship of having to obtain an immigrant visa from outside Canada in the normal manner would be, (i) 'unusual and undeserved' or
'disproportionate.'"58
Sean Stynes suggests the H & C class is a micro-level, individual regularization program. H & C is an opportunity for an exception to the law, and as such has no case law, is not adjudicated through the judicial system. Aside from Baker v. Canada, there has been relatively little appellate level substantive interpretation of H & C. ° Further, there is no consistent reasoning determining who is eligible and why; the process is intentionally discretionary not judiciary.61 The Citizenship and Immigration Manual outlines the need for fairness, impartiality and written reasons to be given in H & C decisions, however ultimately the assessment is left to the discretion of the immigration officer. Interestingly, there is a measure of secrecy surrounding H & C claims - the only way to access statistical information of approval rates under section 25 is through individual access to information requests.62
Citizenship and Immigration Canada, Manual IP-5, "Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds" (12 May 2008) at 5.1 pag. 10. 59 Sean Patrick Cleary Stynes, Legal Ethics and Illegal Migrants: The Bounds of Ethical Conduct for Lawyers Helping 'Illegals' Become 'Legal' (LL.M, Thesis, University British Colombia, 2007) [unpublished]. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] considered the best interest of the child and ruled that children would suffer emotional hardships if separated from their mother, but the H & C claim was rejected. Prior to Baker, adjudicators did not need to provide reasons for rejection. Following Baker there is a duty to provide reasons, albeit written documentation was deemed sufficient not an oral hearing/ interview {Baker at para 43). 61 Vidal v. Canada (Minister of Employment and Immigration) (1991) 41 F.T.R. 118 Strayer, J: H&C guidelines are not exhaustive and definitive. Immigration Officers are to use their best judgement - "general policy" or "rough rules of thumb". 62 Stynes, supra note 58.
52 The average processing time for H & C applications is two years, however during the time the application is being processed there is no stay on removal. Also because it is a two-step process, the first step being an exemption from requiring a visa or permit to apply for permanent residency status and the second step applying for permanent residency, one can be denied permanent residency after a successful H & C waiver.
Through H & C therefore a person can be allowed to physically remain in Canada, but without permanent status.
The H & C application is subject to a $550 processing fee, which is waived for protected persons but can be a major hurdle for persons in Canada without legal status and without regular employment. If an H& C claim is refused, then the applicant can appeal the decision through judicial review in the Federal Court within 15 days.64
However this is a lengthy and costly process as well.
H &C claims can be processed from abroad, or continued from abroad following a removal.65 In 2008, Bill C-50 amended this legislation to read that if applicant is in
Canada at the time of their H & C application, then the Minister must at least consider the application. If abroad, for example already removed, then the Minister may or may not consider the application.66
Regs, supra note 48, s. 68, 69. If exemption is granted under s. 66 Regs (exemptions/row paragraphs 72 (1) (a) (c) and(d) granted under s. 25 (1) of IRPA, supra note 1, for prescribed classes), then that person will be granted permanent residency only if shows that they are in Canada for the purposes of establishing permanent residency and that no one in family is inadmissible. They require medical certification that certifies admissibility (unless this is waived); and must hold a passport or other identifying documentation. 64 IRPA, supra note 1 at s. 72 (2) (b). 65IP-5 Manual, supra note 57: "5.11. H&C assessments that cannot be completed prior to removal". 66 Canada Bill C-50, House of Budget Implementation Act, 2008, 2nd Sess., 39th Pari, 2008, Part 6 immigration and Refugee Protection Act 116-117 (as passed by the House of Commons 9 June 2008). IRPA, supra note 1, s. (25)(1) (Humanitarian and compassionate considerations) is replaced by the following: s. (25) (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister's own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or
53 H & C does offer the possibility for persons without legal status to gain legal status, however this opportunity is within a process that lacks accountability and consistency. Evidence gathered by researchers suggests acceptance rates under H & C are low. In spite of H & C acting as a regularization program, NGOs and government nevertheless recognize a need for a further regularization program. The Canadian Council for Refugees is sceptical that the H & C class is a viable option for gaining legal residency status, especially since H & C has had to make up for significant gaps in immigration policies.68 In general, H & C is recognized as being insufficient to address the needs of persons in Canada without legal status.
2.3.4. Pre-Removal Risk Assessment (PRRA)
Another check in IRPA that persons without status can access prior to being removed is the Pre-Removal Risk Assessment (PRRA). Officially, the PRRA is not concerned with granting status, but rather acts as the final check to ensure that removal does not violate Canadian obligations to international law or domestic law (non- re foulement), and that the individual will not be at "risk of persecution, risk of torture, and/or risk to life [...] if removed from Canada."
obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. 67 Stynes, supra note 58. 68 "Issues for H & C Roundtable, 27-28 March 2006" Canadian Council for Refugees (March 2006), online: CCR
54 PRRA is considered a regulatory stay on removal in Section 53 (d) of IRPA. The acceptance rate of PRRA is very low, with a three percent success rate.70 The PRRA looks for omissions in the refugee decision, and considers any new evidence about the case or from the country where removal is pending. The PRRA also mandates the claimant possess documents required for travel back to their "country of origin", which in some cases warrants a stay on removal if the individual arrived in Canada with false documents.71 A successful PRRA does not, however, automatically grant permanent status.
2.3.5 Temporary Worker Programs and the Canadian Experience Class
Instead of implementing regularization programs, or facilitating access to legal status for those already in Canada without legal status, in the past few decades Canada has been promoting temporary foreign worker programs (TFWP) and economic "skilled" migration.72 The government, Liberal and Conservative, have been widely criticized for accepting temporary, expendable labour, rather than citizens, failing to address calls to allow TFW to access permanent residency. For example, allegedly in 2006 the government deported four hundred Portuguese construction workers who did not have legal status, but then received them back into Canada under temporary work permits.7
Ibid., at 331. Baglay and Jones cite Revich v. Canada (Minister of Citizenship and Immigration) 2005 FC 852 (2005) at para. 24. 71 Jones and Baglay, supra note 55 at 324. Nandita Sharma, Home Economics: Nationalism and the Making of "Migrant Workers " in Canada (Toronto: University of Toronto Press, 2006); Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (Montreal: McGill-Queen's University Press, 2002); Dauvergne, Evaluating, supra note 47; Citizenship and Immigration Canada, News Release, "Canada to accept up to 265,000 new "immigrants" in 2007" (31 October 2007); Nicholas Keung, 'No sign' Canada is keeping track of illegal migrants; Expert accuses Ottawa of expanding temporary foreign worker program without enough controls," Toronto Star (8 May 2008) A.22. 73 Jay Somerset, "Worth Waiting For?" MacLeans (6 August 2007). See also Basok. supra note 71.
55 This kind of circular, or repetitive temporary migration is gaining popularity in Canada and throughout Europe. According to the Director of the Labourer's International Union of North America, C. Manella, stated in a news article that the Canadian government bases their actions on "what is politically expedient, not by what is good policy."74
Recent amendments to immigration policy through Bill C-50 and the Canadian
Experience Class, indicate preference to offering citizenship to Canadian-educated, "high skilled" individuals rather than those that are already working and living in the country, or who have been omitted by the system.75 Many persons living in Canada without status are not eligible for TWFP because they are already in Canada without status, and they are not eligible for the Canadian Experience Class either because of a pending removal order, or further because they are ineligible as National Occupational Classification (NOC) class C or D: "low-skilled."76
TFWP are rarely a satisfactory substitution for permanent migration. While some migrants seek temporary work arrangements, others are evidently seeking to build a life for themselves and their families in Canada. The current Minister of Citizenship and
Immigration Canada believes TFWP are a method of decreasing the number of persons in
Sharda Vaidyanath, "No Amnesty for Undocumented Workers" Epoch Times Parliament Hill Reporter. (17 November 2006), online: Epoch Times
56 Canada without status, and many employers support TFWP - due to their temporary, and precarious, status, foreign workers are less likely to make demands than Canadian workers and are not employed long enough to take advantage of substantial holiday pay or benefits.77 Essentially, TFW are believed to legally meet the labour demands that otherwise would be filled by persons without legal status, thus decrease the incentive to employ people without status and consequently reduce the actual population of persons in
Canada without status. In practice, TFWP are regulated, or rather un-regulated, to legally
•jo permit the use of an expendable, exploitable, "captive" labour force. Rather than improve the vulnerability of persons without status by setting labour regulations, TFWP sanction employing persons who are in vulnerable situations. This is troubling to migrants and citizens alike who are concerned with securing full-time employment if increasingly work that is temporary and precarious is offered, and full-time salaried work is scarce. The popularity of TFWP encourages a shift in the Canadian economy from valuing committed, dedicated workers, to valuing and seeking temporary, cheap, expendable labour.
2.4. Recent Proposals for Regularization
Currently, the issue of persons in Canada without legal status remains in spite of the IRPA, TFWP and the Canadian Experience class. These programs lack attention to the reasons and motivations that cause people to migrate to Canada. The government, by refusing proposals for regularization has indicated that assisting, or valuing, persons without legal status is not an issue of concern. However in doing so, the government has
77 Campbell Clark, "Skilled immigrants being squeezed out as temporary workers flock to Canada" Globe and Mail (22 July 2009), online: Globe and Mail
57 failed to recognize that limiting and restricting immigration and refugee processes ultimately encourage persons to migrate, or stay, external of legal process. The more domestic laws restrict, the more people are alienated from the law.79 NGOs are united in their call for a regularization program because of the unanswered need for recognition of people who live and work in Canada but are forced to the margins of society. Or effectively, are barred from participating in society.
Dauvergne argues regularization itself, particularly as it has existed in the past, is not enough. Rather the relationship between the law and the state is what must change. In all analyses, scholars recognize that there is more to the story than regularization, and it is time to look beyond existing frameworks and policy options to address persons without legal status. Garson suggests that not only do persons currently without legal status need to be granted status the entire "undeclared economy" must be addressed. Additionally, the reasons why people are migrating in the context of international political issues and
o i
Canadian foreign policy and trade need to be addressed.
Generally, immigration and refugee lobby groups agree that regularization does not address the totality of the concern of persons without legal status. The umbrella
Nicholas DeGenova, "Migrant 'Illegality' and Deportability in Everyday Life" (2002) 31 Annual Review of Anthropology 422. 80 Jean-Pierre Garson, "Amnesty Programmes: Recent Lessons" in Dilek Cinar, August Gachter & Harald Waldrauch, eds., Irregular Migration: Dynamics, Impact, Policy Options (Vienna: European Centre for Social Welfare Policy and Research, 2000) at 223. Manolo I. Abella, "Migration and Employment of Undocumented Workers: Do sanctions and amnesties work?" in Cinar, Dilek, August Gachter, Harald Waldrauch, eds. Irregular Migration: Dynamics, Impact, Policy Options (Vienna: European Centre for Social Welfare Policy and Research, 2000), similarly makes this suggestion. The undeclared economy is arguably a larger issue in the United States and European Union, however Canada's agricultural, construction, and hospitality industries increasingly rely if not on undocumented labour, then on foreign labour. Temporary foreign labour lacks consistent regulation and does bring prices and wages down, encouraging the use of undocumented labour (exploit-able labour). See Basok, supra note 71. Olivia Chow, NDP Supplementary Report Canada, Report, supra note 2. 81 This reflects the discussion in Chapter One, of how Canada is complicit in creating the situation where persons are migrating for economic reasons, fleeing poverty and lack of opportunity in their country of origin.
58 organization of the Canadian Council of Refugees (CCR) and Ontario Council of
Agencies Serving Immigrants (OCASI) Status Campaign have consistently advocated for regularization programs to be implemented, but with broad conditions of eligibility.82
Canadian labour unions have called for the regularization of status for undocumented workers within certain labour sectors, such as the Greater Toronto Area (GTA) Home
Builders' Association (GTHBA) and the Construction Recruitment for External Workers
Services (CREWS) who submitted a government proposal for regularization in 2003.83
However, labour interests in regularization programs have understandably been concerned with those working in Canada without legal documentation, in specific labour sectors. These regularization proposals have been criticized by groups such as OCASI and the CCR for targeting able-bodied, working males, and excluding those unable to work full-time jobs in Canada due to health, family obligations and/or gender.
2.4.1. Non-Governmental Organizations' Proposals
In 2003 the Auditor-General Report stated that over the past six years Canada had
"lost track" of 36,000 people with deportation orders, and these numbers were increasing with case-backlogs. In response, as mentioned above, the GTA Home Builders'
Association (GTHBA) and CREWS submitted government proposals for "registration" of undocumented workers. Citizenship and Immigration Minister Denis Coderre, in 2003, announced a program to grant status to construction workers without legal status - not
OCASI Status Campaign "Proposal for the Regularization of Individuals and Families Without Status" (June 2006) online: OCASI
59 blanket amnesty, but nevertheless this was the first national regularization initiative since the Deferred Removal Orders Class in 1998. This partial amnesty program intended to give temporary work permits to persons without status who could then apply for permanent residency after two years. However the conditions within the proposal were that the migrant would remain with the original employer throughout the two-year trial period. This contract would have been similar to the current Live-In Caregiver program where temporary workers can apply for permanent residency, but are tied to specific requirements.85 Ultimately it was not implemented.
Other regularization proposals have been presented to Parliament since the enactment of IRPA, but all have failed to result in an actual policy. The Vancouver
Association of Chinese Canadians' unsuccessfully submitted "Ideas for a Regularization
Program" for persons living in Canada without legal status for at least three years to become eligible for permanent residency, plus a stay on removals. In 2006, the OCASI
Status Campaign issued the most comprehensive regularization proposal to date, outlining seven mechanisms for regularization. These included a call to implement the
Refugee Appeal Division87, to provide permanent residency opportunities for TFWP, to
To be able to apply for Permanent status as Live-In Caregiver class, the Regs, supra note 48, s. 110 andl 13 (1) (d) "they entered Canada as a live-in caregiver and, for a cumulative period of at least two years within the three years immediately following their entry." Problematically, these requirements can place migrant workers in positions where they are vulnerable to exploitation. They are in Canada under conditions of indentured labour, bound to an employer contract if they want to succeed in getting permanent status after the specified two years of work. Various cases exist where members of the Live-in Caregiver class have been unable to successfully receive permanent resident status because of factors beyond their control that broke down the initial employment contract or because of being found inadmissible for permanent residency. See Laluna v. Canada (Minister of Citizenship and Immigration ), [2000] 3 F.C. D-21 and Japson v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 520. In this case it was the claimant's son who was found to be "medically inadmissible" due to a disability and therefore the claimant's case for permanent residency was been refused by the immigration officer. 86 Khandor et.al., supra note 4 at 32. 87 IRPA, supra note 1 section 151 ("The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division") and s. 171: ("In the case of a proceeding of the Refugee Appeal Division, (a) the Minister may,
60 relax the H & C application process, inland family sponsorship and to introduce an adjustment of status program that would consider applications for legalization of status
oo for people who have lived in Canada for a significant amount of time, similar to 1972.
Other status-granting campaigns include the ongoing CCR campaign, "Lives on
Hold" that calls on the government to grant legal status for persons living in limbo due to a moratorium on deportations to their respective country of origin, such as Zimbabwe,
Afghanistan, Burundi, Iraq and Haiti.89 However, July 22, 2009 the Canadian government passed new regulations ending the moratoria on Burundi, Liberia and Rwanda and strengthening the Safe-Third country agreement with the United States concerning claimants from Haiti, Afghanistan, Iraq, and the Democratic Republic of the Congo.
There is growing attention to people in "security limbo" whose permanent status is deferred due to suspected inadmissibility, but who also have a moratorium on deportations back to their country of origin.91 The NGO, Justicia for Migrant Workers, continuously campaign for permanent residency to be made accessible to low-skilled after giving notice within the period that is required by the rules, intervene in the appeal, including for the purpose of filing submissions; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a trial court.") 88 OCASI, supra note 31. 89 "Lives on Hold" Canadian Council for Refugees (2006), online: CCR
61 temporary foreign workers who are working consistently, in situations where they are
"permanent temporary workers" working in agriculture through government-sponsored programs such as the Seasonal Agricultural Worker Program (SAWP).
Since 2008, the Canadian Labour Congress (CLC) and the United Food and
Commercial Workers Union (UFCW) agree that eligibility criteria for a regularization program needs to be broad, and that exclusion based on medical conditions or past criminal records from other countries discriminates against individuals who may be working effectively, consistently, and on a full-time basis in Canada.93 Progress has been made in the legislation of the Live-in Caregiver program, where policy-makers conceded to the "Juana Tejada Law" which exempts live-in caregivers from the second medical exam when they apply for permanent residency.94 Elsewhere medical inadmissibility continues to be a prohibitive feature of Canadian immigration policy and access to permanent residency.
2.2.1 Government Response: Standing Committee Report, 2009
In 2006 there was a motion in Parliament for a moratorium on removal of persons without status that was approved in Committee in 2006, but refused in House of
Justiciafor Migrant Workers (2003-2009) online: Justicia 4 Migrant Workers
62 Commons. In October 2006, the Minister of Citizenship and Immigration (Monte
Solberg) and the Minister of Public Safety (Stockwell Day) submitted a letter to the Chair of the Standing Committee on Immigration addressing the motion for moratoriums. In this letter Solberg and Day emphasized that, "The Government of Canada does not support the call for a moratorium on the deportation of undocumented workers and their families on the grounds that Canada's immigration system must maintain the principles of fairness and respect for the rule of law as enshrined in the IRPA" (emphasis in text).96
The Ministers proceeded to mention the avenues available for entry into Canada: TFWP and the provincial nominee program. However, in doing this they failed to address the central issue of the call for moratoriums, namely the concerns and fate of persons already in Canada without legal status who lack avenues of legal entry because they are neither refugees nor "skilled" workers. The media reported in 2006 that Immigration Minister
Monte Solberg stated that the Harper government did not recognize persons of status as an issue of concern.97
In spite of this stated disinterest, in 2007-2008 the House of Commons Standing
Committee on Citizenship and Immigration held cross-country consultations with non status migrant workers as one of the issues to be researched.98 During the consultations
House of Commons, Standing Committee on Citizenship and Immigration, "Immediate Moratorium on Deportations of all Undocumented Workers" Report to Parliament CIM 39-1 (21 June 2006). House of Commons, Government Response, "Immediate moratorium on deportations of all undocumented workers" Signed Monte Solberg, Minister of Citizenship and Immigration, and Stockwell Day, Minister of Public Safety (Presented to the House on October 6, 2006), online: House of Commons Publications
63 they heard from organizations across Canada such as OCASI Status Coalition, the
Canadian Labour Congress, Alberta/ Manitoba/ Newfoundland Labrador Federation of
Labour, Canadian Auto Workers Union, UFCW, Justicia for Migrant Workers, the Fraser
Institute, Mennonite Centre for Newcomers, Catholic Social Services, No One is Illegal,
Amnesty International, International Association of Immigration Practitioners, Canada
Border Services Agency, Department of Citizenship and Immigration, Department of
Human Resources and Social Development, and many individual lawyers, front-line
settlement workers, academics and researchers. The Committee published their report in
May 2009.
Among the issues raise in the presentations and submitted briefs, were concerns
that the workers that Canada employs are not permitted to enter legally (they are not
skilled workers);99 that persons who are in Canada without legal status do not do so with
the intention of "ripping off the system", but are forced into a non-status "situation"
because of a lack of legal avenues that they are eligible for; and that there are not enough
Canadians willing to do the work that foreign labourers do. The report repeated the
phrase, "if a person is good enough to work here, he or she is good enough to stay
here."1 The report focused most heavily on TFWP, with a much smaller section
concerning "Non-Status Workers". Nevertheless, it was reiterated many times that
persons without legal status in Canada are the most vulnerable population because they
where we stopped: Vancouver, Edmonton, Moosejaw, Winnipeg, Kitchener-Waterloo, Scarborough, Toronto, Dorval, Quebec City, Fredericton, Halifax and St. John's." The report focused on undocumented migrant workers which affirms that discussions of regularization focus on those who are already working in Canada, not those who for reasons of disability, care-giving or other factors are unable to work. 99 Ibid., Canadian Auto Workers Union, at 48.
64 live in fear of being reported to Immigration officials and therefore do not access any services or protection available to them as workers and residents.
Regularization as a solution was addressed in the report, and certainly in the witness' statements and briefs. However, the report stated that "there is no consensus on establishing an amnesty program", the main fear being that such a regularization program would reward transgressors of the law and attract more people to come to Canada to stay without legal status.102 The Report of the Standing Committee concluded the chapter on migrants without legal status with the following statement:
Perhaps the one thing we can all agree on with respect to the non
status migration problem is that it is complex and multifaceted with no
single clear solution. Tough enforcement can be brutal; sweeping
regularization can open the flood-gates; and almost any approach to
deal with the problem seems unfair to someone [...] Accordingly, the
Committee does not propose to solve the problem of non-status
migrants in Canada.103
The report did emphasize the economic and labour contribution made by many persons without legal status. But instead of regularization, the committee proposed an expansion of legal ways to enter into Canada, such as allowing TFW to apply for
101 Ibid., STATUS Campaign, written brief, June 2006, Mennonite New Life Centre of Toronto, written brief, March 28, 2008, and Canadian Auto Workers Union (supra note 98) at page 48, footnote 126. 102 Ibid., at 48. 103 The Committee's recommendations to Parliament do not suggest a dependence on hard law and increasing enforcement of removals stating that, "tough enforcement can be brutal." Interestingly, no reference was made to the deportation arrests made by CBSA in agricultural warehouses in April and May of 2009 See No One Is Illegal "Two Raids: Dozens of food packagers arrested for working in Southern Ontario" (28 May 2009), online: No One Is Illegal < http://toronto.nooneisillegal.org/node/308>
65 permanent status, joining the provincial nominee program with permanent status to ensure regional distribution of permanent residents, re-examining the points system to make entering into Canada legally more accessible, efficient and representative of economic needs.104 This is a progressive step in assisting people who are looking for work in Canada, and TFWP are viewed as the best avenue to promote legal migration.
But in the New Democratic Party's (NDP) Supplementary Opinion, Olivia Chow highlighted that if someone has lost legal status, they do not have access to temporary work visas or programs. Therefore none of the recommendations serve to help the population of people already in Canada without legal status.105
The Committee's report also contained a Supplementary Opinion of the
Conservative Members of the Committee. This "opinion" significantly weakened the salience of the report, as it contradicted the most progressive and significant aspects raised by the witnesses and addressed in the Recommendations. The opinion stated that,
"It is our view that there is a place for a temporary program in our immigration system to address our temporary labour needs, and therefore we oppose any move to ... make it a permanent program in all but name."10 The conservative members opposed the recommendations allowing TFW to bring their families, and for their family members to also work in Canada (recommendation 8), and most significantly, opposed allowing TFW to access permanent residency (recommendations 3 and 6).
Report, supra note 2 at 52. 105 Ibid., at 80: Recommendations by Olivia Chow: "As for those undocumented workers already living and working long term in Canada, they should be given a chance to apply for permanent resident status from within Canada. The Government should also allow provinces to nominate the applicants they need regardless of their current status. Currently Provincial Nominee Programs (PNP) are unable to nominate refugee claimants or those without status for permanent residence because the CIC visa offices refuse to give the visas while the applicants are in Canada. CIC should work with the PNP programs so that the provinces can nominate the applicants they need regardless of their current status." 106 Ibid, at 75.
66 While the tangible impact of the report is difficult to assess, the report clearly places emphasis on reforming TFWP. There is significant work that still needs to be done to assess the relationship between temporary worker programs and persons without legal status. However, evidence suggests that TFWP do not represent a solution for persons without status, instead these programs encourage a population that stays in a country permanently, but under the legal radar.107 Notwithstanding the problematic features of
TFWP, the conclusive Report of the Standing Committee on Citizenship and Immigration suggests that discussions of regularization are no longer salient.
2.5 Conclusion
From the 1960s to the present day, Canadian immigration policy has evolved through periods of increased attention to refugees and asylum seekers in the 1970s, to restrictive policies following Singh v. Canada in the 1980s, and political/ economic concerns in the 1990s, and into the 21st century. The newest Minister of Citizenship and
Immigration, Jason Kenney (appointed in 2008), has taken a very vocal stance condemning what he believes are "opportunistic" "bogus" refugees that "abuse"
Canada's immigration system. His particularly aggressive stance against asylum seekers has heralded a new era of discourse in popular Canadian immigration politics.108
Luin Goldring, Carolina Berinstein & Judith K. Bemhard, "Institutionalizing precarious migratory status in Canada" (2009) 13:3 Citizenship Studies 239; Cinar et al., supra note 79. Referring to "failed refugee claimants" or persons without status as opportunists and "queue jumpers" is currently prevalent in the discourse of the Minister of Citizenship and Immigration Honourable Jason Kennedy. At the 2008 Annual Consultation for the Canadian Council Refugees, November 2008, Jason Kenney, spoke about economic migrants that "abuse the refugee system". Mainly in reference to the high numbers of Mexicans applying for refugee status in Canada, Kenney made it clear that he felt these people did not deserve the Canadian government's "humanitarian" policies. See also Michelle Collins, "Two-Tier Refugee System Blasted" The Embassy Magazine (15 April 2009), online: Embassy Mag
67 Dauvergne contends the criminalization of migrants is unprecedented in the twenty-first century, and Kenney's dramatic actions to restrict access to Canada's immigration and refugee system indicate Canada is following an international trend where states are restricting access to legal status and citizenship within their borders in the face of intensified global movement.10
Further, Canada is distancing itself from its (imagined) identity, epitomized tangibly in the 1970s with Trudeau's adjustment of status program. This program is revered internationally as being one of the few widely successful regularization programs, and it compliments Canada's mythology of appearing as a sympathetic nation, welcoming to refugees and immigrant alike.110 Now Canadian immigration and refugee policy, particularly the recent imposition of visa requirements on Mexico and the Czech
Republic, and the end of granting moratoria to persons from Rwanda, Burundi, Liberia, have starkly exposed the restrictive and "un-Canadian" aspects of Canadian immigration.
The actions of the current Minister of Citizenship and Immigration and his Ministry, challenge the vestiges of Canadian immigration as a benevolent, "better than others" system. It will be interesting to see whether Canadians will accept this departure from their imagined ideals, or maintain a faith in Canadian immigration as being exceptional and resist current changes."' If the current policies continue to restrict and prohibit legal entry, many migrants will turn to alternative, more dangerous and 'illegal' forms of entry
Ditchburn, "Canada ignoring refugees from Mexican violence: advocates" Canadian Press (27 March 2009), online: Toronto Star < www.thestar.com/News/Canada/article/609637>. Most recently, see Canadian Council for Refugees, "The challenge of fair and effective refugee determination" (July 2009), online: CCR
68 forcing Canada to address a much larger and growing population of persons without legal status.112
This brief overview of regularization programs and changes in Canadian immigration and refugee law since the 1960s demonstrates that albeit problematically,
Canada has addressed persons without status in the past by implementing programs that granted status. Currently, the government, especially under the current Minister of
Citizenship and Immigration, is reluctant to consider such a policy option and conceivably there would also be resistance to regularization from citizens. Instead, preferred policies are TFWP, and limiting and restricting opportunities for potential immigrants and refugee claimants.
In the next chapter, regularization will be considered in light of the actual experiences of migrants who are in Canada without legal status. The following chapter offers a limited, but enriching look at the perspective and experiences of the people who constitute the population being discussed in this thesis.
112 Editorial, "Canada's Homegrown Refugee Problem" Embassy Magazine (22 July 2009), online: Embassy Mag
69 CHAPTER III: STORIES FROM THE IN/OUTSIDE
"Soy una raya en el mar, Fantasma en la ciudad, Mi vida va prohibida Dice la autoridad" (Manu Chao)
The preceding chapters briefly outlined the framework used to discuss persons in
Canada without legal status. Three policy options to deal with a population without status were discussed followed by a chronological overview of previous regularization programs in Canada. This led into an examination of the present day Immigration and
Refugee Protection Act (IRPA), provisions that affect persons without legal status and current calls for a regularization program. Throughout this analysis, the reasons why people end up without status were explained in referenced to the IRPA. This technical orientation fails to answer on a more intrinsic level why people end up in situations without legal status, often for many years.
Clearly, regularization programs are desired by persons without status, otherwise there would not be a demand. However, chapter two demonstrated that regularization programs in the past have not always attracted as many applicants as there are believed to be people without status in Canada. Rather than speculate the reasons why people end up without status or assume that regularization programs are desirable for persons without legal status, the following chapter considers a few narratives of persons in Canada without legal status.
These narratives expose experiences of being marginalized by the Canadian immigration system and highlight not only the ways in which people end up without legal status, but emphasize the case-by-case reality of migration experience. While each narrative is unique, these personal accounts collectively demonstrate that an alternative
70 avenue to access legal status in Canada beyond the existing immigration and refugee system would significantly ease the vulnerability of persons in Canada without legal status. Additionally, the perceived crisis within the refugee process currently the focus of the Minister of Citizenship and Immigration, would be significantly relieved if migrants without legal residency were not left to use the refugee system due to a lack of other viable options for accessing legal status.
3.1. Introduction
Individuals who are "persons without legal immigration status" are not a homogenous, or static population. As noted earlier, Anderson and Ruhns explore the various situations of legal status, or lack thereof. The experiences within these categories and labels are diverse. In assessing potential policy options to alleviate conditions of being without legal status in Canada it is critical to consider why people are without status and how they ended up so. Further, when alternative programs are suggested such as TFWP it is necessary to assess whether these alternatives practically provide a substitute.1 Drawing on ethnographic research methodologies, I believe that in addition to drawing out the motives and reasons for migrating to Canada and remaining without legal status, as researchers we can learn from the perspectives of the migrants themselves.
For a discussion of TFWP as a solution to irregular migration see Dilek Cinar, August Gachter & Harald Waldrauch, eds., Irregular Migration: Dynamics, Impact, Policy Options (Vienna: European Centre for Social Welfare Policy and Research, 2000); Bridget Anderson & Martin Ruhns, "Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy" (2009) [unpublished, working paper at University of Oxford]; Bimal Ghosh, ed., Managing Migration: Time for a New International Regime? (New York: Oxford University Press, 2000); Canada, Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers: Report of the Standing Committee on Citizenship and Immigration (Ottawa: House of Commons Canada, 2009) [David Tilson, Chair] [Report]. In a subsequent study (PhD thesis) I plan to investigate whether TFWP are a viable option to address illegal/irregular migration.
71 Critical to ethnographic inquiry is the belief that, "ethnography has the potential for helping to overcome division of society into those who know and those who are known."2 Although my use of an ethnographic research method is very limited, it is my hope that by including these few narratives the project resists being an isolated, top-down analysis. In order to overcome separating "those who are known" from myself, the researcher, I seek to humanize rather than de-humanize the experiences of persons without status by including stories and perspectives of those who experienced the issue being discussed.
3.2 Methodological Considerations
Ethnographic research involves lengthy studies with detailed interviews, observation and data collection that can span many years. I do not claim to be conducting proper ethnographic research, but rather draw on this methodological approach to enhance my work. Ethnography has various branches, including ethno-history and ethno- legal analysis. An ethno-legal approach often involves work based on comparative legal structures or comparative perceptions of law and justice. This is not the case for this project, which is why I am not limiting or naming this work as "ethno-legal" research.3
The branch of "enriched ethnohistory" involves using oral interviews enriched by existing literature and statistical data to discuss a certain topic. The ethnographic aspect involves presenting a topic through what Clifford Geertz refers to as texture and "thick
2 Dell Hymes, Ethnography, Linguistics, Narrative Inequality: Toward an Understanding of Voice (Taylor and Francis: London, 1996) at 14. 3 Ethno-legal analysis has been used for "the elaboration of dialogues between apparently incompatible cosmological and ideological discourses on justice and on the social order" Karine Bates, "Acquiring a Rational Legal Identity: Hindu Women's Access to State Legal Bureaucracy in India" (Paper presented at the annual meeting of the Law and Society Association, Montreal, Quebec, 27 May 2008), online: All Academic Research
72 description."4 Geertz explores ethnographic work as thick description in order to encompass the experience of data collection to the extent that data is "really our own constructions of other people's constructions of what they and their compatriots are up to." In doing ethno-historical research, the researcher is sifting through a "multiplicity of complex conceptual structures" to try and ascertain, interpret, events or experiences on a certain topic or historical event.6 This is done not through large quantitative projects, rather the "aim is to draw large conclusions from small, but very densely textured facts."
A second aspect of ethnography that I borrow is the consciousness of the position of an "outsider", rather than an "insider", researcher.8 There inevitably exists a distinction between the subject being studied and the person conducting the research. In order to approach this gap, Kiran Narayan suggests paying attention to the "quality of relationship with the people we seek to represent in our texts: are they viewed as mere fodder for professionally self-serving statements about a generalized Other, or are they accepted as subjects with voices, views and dilemmas."9
Contemporary ethno-legal/ ethnographic/ ethno-historical research has transcended traditional ethnographic studies that often exacerbated the gap between the researcher and the researched by not acknowledging this distinction.10 Contemporary methodology requires an awareness of the researcher's ideological context and vantage point, done by shifting the lens of analysis away from the primary focus on the "other,"
4 Clifford Geertz, Interpretation of Cultures: Selected Essays (New York: Basic Books, 1993) at 7. Description that is mindful of the deep complexities of production, perception and interpretation. i Ibid,, at 9. 6 Ibid., at 10. 7 Ibid., at 28. 8 Kiran Narayan, "How Native Is A 'Native' Anthropologist?" (1993) 95:3 American Anthropologist 671. 9 Ibid., at 672. See also Sherene Razack, Looking White People in The Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998) at 158. 10 Ibid. See also Linda Tuhiwai Smith, Decolonizing Methodologies Research and Indigenous Peoples (London: Zed Books, 1999).
73 towards the researcher, or at least somewhere in between. Scholars must acknowledge the relevance of multiple frameworks and ensure that their ethnographic analysis does not favour one framework over another. Not only are these "frameworks" false absolutes, they stifle the potential for creative ideas and understanding to emerge in the research process. In the case of persons without legal status, this could mean being aware of pre conceived ideas that expect or assume for example, that status is the primary goal of persons without status, when work or money could be more important than securing a legal status. It is only by recognizing the intertextuality of experience and expression that one can begin to engage with other cultures and people of different backgrounds to make meaningful "contact".11
Clifford Geertz and many scholars of ethnographic inquiry focus their work on cultural studies and analysis of indigenous people by mostly non-indigenous researchers.
However, the application of the ethnographic or enriched ethnohistorical method to research concerning persons in Canada without legal status is nevertheless relevant.
Especially considering it is a population that is marginalized, essentialized and rarely given a voice in Canada.
3.2.2. Applied to this Study
Methods borrowed from ethnography and enriched ethnohistory are applicable to the study of regularization and persons without status in Canada. It is a study of a population that is often not given a voice, but at the same time does not speak with one
By "contact" I refer to John Lutz's discussion of contact as a series of "encounter moments", or the site, the zone at which the "stories begin". See John Sutton Lutz, ed., Myth and Memory: Stories of Indigenous- European Contact (Vancouver: UBC Press, 2007) at 13-14.
74 cohesive "voice".12 A single descriptive experience of persons without legal status in
Canada does not exist. In fact, even more than migrants who follow legal processes, every single individual follow her/his own journey.
The four interviews conducted were with individuals from the GTA and Guelph,
Ontario. They were two men and two women, from South Asia, the Caribbean, Central
America and East Africa. Although the motivation to be, and stay, in Canada are similar amongst all four individuals, the unique personalities of each person affected their experience and trajectory in Canada. Ethnographic analysis allows the researcher to include such qualitative observations that transcend legal procedure or data on filing applications to access legal status. The personal choices of these four individuals demonstrate a commitment to work, a commitment to live lawful lives, and a commitment to survive in Canada without being removed. Their involvement with community groups and resource organizations varied, as did the choice to pursue certain avenues in attempts to 'legalize' their status or not. While these interviews do not claim to be representative of a broader population of persons without legal status, it nonetheless suggests the caution necessary to survive in Canada without legal status.
Research seeking a remedy to the issue of persons without legal status is challenged when considering the "thick description" of migrant experiences. Proposed alternatives to address persons without status, if not applicable to real lived experiences are irrelevant. It is further interesting to borrow from ethno-history the view of the interview process as a contact encounter. Such a framework recognizes the difference in experience and background between the researcher and those that form the subject of the
12 Gayatri Spivak, The Postcolonial Critique: Interviews, Strategies, Dialogues Sarah Harasym ed., (New York London: Routledge, 1990) at 60.
75 research. Attention to difference is not meant to create a division, but the awareness sheds light on power inequalities and informs the way a narrative is both told and interpreted.13
In terms of conducting interviews with persons without legal status, the dynamic of a Canadian researcher in law speaking to a person who is considered "//legal" could result in the interviewed person portraying their story in a way that emphasizes their worthiness of staying in Canada. This "worthiness" is not necessarily untrue, but the fact that they are speaking with someone who "knows" the law would inform the way the narrative is told. Also, there is a certain desire to be "good" when telling someone about being in a country without status. Emphasis is placed on all the contribution, or good things that the person has done, or the ways in which they are not "in the way", or a burden on the system. On the other hand, in researching regularization programs the researcher must not presume to know the motivation to be in Canada, nor search for deviations where they may not exist.
3.2.3. Limitations and Challenges of this Study
After months of attempting to find individuals interested in being interviewed for this work, it became evident that not only are people reluctant to speak about their status, but people are entrenched in fear, lack a knowledge of the immigration and legal system, and experience personal conflict surrounding the reasons for leaving their country of origin and remaining in Canada. It was extremely difficult to enlist participants for this research, particularly considering I am an "outsider" to immigration and refugee settlement organizations and communities. Persons in vulnerable positions fear being exposed to police and immigration officers and therefore are understandably hesitant to
13 See note 11.
76 trust people they do not know, particularly people who are interested in their immigration/ legal status. The study was also limited because after I exhausted personal contacts, I was hesitant to be assertive in seeking out participants unknown to me, given the sensitivity of the topic. Therefore I relied on connections within immigration/ refugee settlement and advocacy organizations.141 was further hindered by the limited amount of time I had for the entirety of this research project.
I was not able to offer any monetary compensation for participants, nor was I a
lawyer who could potentially help in the pursuit of legal status. Therefore, I was at the mercy of participants' trust and generosity. Thus, contrary to what I had initially
expected, I broadened my criteria for participants to those who had gained legal status but
lived for an extended period of time without legal status - people who were currently in a
less vulnerable position.
3.2.3.1. Studying Vulnerable Populations
Studying vulnerable populations requires the researcher to give considerable
attention to the research method and process used.15 As per the requirements of the
University ethics review process, care was given to outline the methods used to ensure
participant anonymity and protection. I ensured participants that there were no
foreseeable risks or discomfort from participation in the research. All the research and
information compiled in my work was kept confidential and anonymous. Throughout, I
remained the only person with access to the information compiled during the interviews
14 Understandably, these people are incredibly busy and overwhelmed and therefore delegating participants for a research project gets a fairly low priority. 15 See discussion, Razack, supra note 9 at 36 (Chapter Two, "The Gaze from the Other Side: Storytelling for Social Change") and 158 (Conclusion "To Essentialize or Not to Essentialize: Is This the Question?").
77 and while confidentiality is not absolute, the identity of the participants never was, or will be, aligned to and/or disclosed together with the notes that I have from the conversations.
Pseudonyms are used throughout. I also emphasized to the participants that I am a graduate student, not a lawyer, and my work is entirely independent, not moderated by any law-enforcers or government agencies/ personnel.
3.2.3.2. Critiques of the Methodology
As a Canadian graduate student and the holder of a Canadian passport, I personally exist outside of the experience of persons without legal status. My exposure to working in immigration settlement on immigration and refugee issues is limited and especially in Toronto, I lack experience working with a particular immigration and refugee settlement organization or group. I do not claim to have experience with the immigration system aside from policy analysis and conversations with persons that have dealt with the system themselves. On the one hand, this distance suggests increased objectivity, as well as a readiness to listen and learn with limited pre-conceptions. On the other hand, building a comfortable relationship with some of the interview participants aside from the actual interview conversation was difficult, as was follow-up work considering the high level of anonymity that was assured to the participants. This subsequent lack of a deeper relationship with the interview participants hindered the quality of the ethnographic methodology, especially since this research was conducted with the hope that the process would be mutually beneficial to both the researcher and the participant. For three of the four participants, it was clear they appreciated speaking to me about their experiences and were pleased that I was interested. However in one case,
78 although permission was granted and we spoke, I felt the process would have benefited from more time and more meetings to establish a level of comfort and rapport. Yet one cannot expect that speaking about experiences would be worthwhile for everyone, especially when there are more pressing survival concerns.
Another concern with any oral interview or ethnographic work is trust and validity. As the listener, there is no way to guarantee the narrator is telling the "truth". By this I do not suggest that participants intentionally misguide, but rather in reflecting on past experiences for persons without a full knowledge of the immigration and legal system the chances of misrepresenting events or omitting details are great. As a researcher using an ethnographic approach, my concern is not the facts and/or "setting the facts straight". According to Geertz, "coherence cannot be the major test of validity for a cultural description,"16 and in this case coherence cannot be the major test for validity of a migrant experience. The inconsistencies in the narratives indicate as much as the coherent facts - for example, when one does not know the difference between a refugee claim and H & C claim it does not mean the interview is inadequate, rather it demonstrates the difficulty of being a person without a grasp of the Canadian system, not knowing which avenues to pursue to gain legal status and how they differ from each other. The details that are explored in the narratives indicate what is important to the speaker. For example, the reasons why a refugee case was refused may not be important, but how to continue working without a work permit is more of a concern.
Using only four stories from four interviewed participants also raises concerns about the scope of this methodology. I share these concerns and believe that subsequent studies would require more interviews to reflect more variety of experiences. However,
16 Geertz, supra note 4 at 17.
79 these interviews are not meant to represent or encompass the experience of persons in
Canada without legal status. There is no claim to comprehensiveness or to constitute a sample population. Rather an ethnographic methodology is used to facilitate an appreciation of the experiences of a few individuals as deepening the analysis of regularization and persons without legal status. Had I more time to find participants, I would have likely found participants with contradictory views - perhaps persons who did not wish to work in Canada or persistently sought only the type of employment they believed they are qualified for, or others who did not fear removal if removed, they just knew they would return to Canada as soon as possible.
I hesitate to draw conclusions from the interviews in recognition of these possible contradictions and the reality of different perspectives. Instead of conclusions therefore, I strive for "thick description" that enriches the study and humanizes a few lives that have been affected by Canadian immigration policy and status issues.
3.2.3.3. Responses to Critiques
Notwithstanding significant limitations due to the small number of interviews conducted, the interviews are nevertheless an important contribution to this work.
Throughout the research process, while searching for volunteers to be interviewed, I met various advocacy workers and persons in situations of precarious, temporary, or no legal status. I attended various events, planning meetings, and information sessions with the
Rights for Non-Status Women Network, OCASI, No One is Illegal (Shelter, Sanctuary,
Status Campaign), Justicia for Migrant Workers, Working Women Alliance, the K-W
Reception Centre (Kitchener, ON) and the FCJ House in Toronto. I travelled to the
80 Niagara Region and met with migrant workers, all women (mothers) from Mexico, and informally spoke with neighbours and Toronto residents who have come from all over
Latin America, Portugal, and Germany about migrating, accessing legal status, and what it means to be in Canada without legal status.
These informal, "undocumented" conversations and events challenged me to deeply consider the variety of experiences of migration and attempts to legalize status and/or secure permanent residency. Unfortunately, these conversations were not recorded and highlighted my daily life rather than culminated in a consistent research report.
However, for each of the four narratives included in this chapter, there are hundreds of other individuals that although each with stories and perspectives, nevertheless share the experience of migrating to Canada with the determination to stay no matter what the cost.17 Many of the people I encountered, in spite of experiencing intense isolation, maintain a determination to work and maintain employment in order to build their life in
Canada - often not thinking solely of themselves, but for their children, family or future family.
3.3. Narratives of Four Persons Without Status
The four narratives included in this chapter are from four individuals from four different continents. They each have followed different trajectories, lifestyles and employment. The following four stories do not claim to speak for more than the individual narrator. However through the stories, through analysing their thick description and considering not only the experience but also the articulation of the
Also, importantly, for each of the persons in Canada without legal status, there are hundreds, thousands of others abroad that would risk their lives for the opportunity to be in Canada, quite possibly regardless of legal status.
81 experience, the discussion of regularization and persons without status in Canada is enhanced, illuminated and contextualized.
Of the individuals I interviewed, two are currently without legal status and one has recently attained a stay on removal from Canada, and the other recently gained permanent resident status. The stories of Gabriella, Ruth, Alejandro and Petros (all pseudonyms) will be outlined briefly to demonstrate the particularity of each case. While for the most part I have framed the narrative, I tried to stay try to their narrative style, highlighting the aspects they raised most in the interviews and represent their manner of speaking through quotations.18
3.3.1. Gabriella
Gabriella came to Canada in 2001 from the Philippines. Leaving her two children, husband and family, Gabriella was driven by the knowledge that in Canada she could make enough money to pay off her debts and fund her daughters' education. The alternative was to continue running from her debtors, whom she could not pay off after her business was destroyed. In the Philippines, she recalls it was a daily struggle to find money to feed her family. To stay meant to give up all hope that her daughters would have a better future. Gabriella found work as a seamstress in a factory in the Philippines, but made barely enough to feed her family, not to mention paying the debts from the fallen business.
In the interviews, I encouraged the individual to tell me about their experience of coming to Canada, being in a situation were they lack(ed) legal status, and their experience of trying to access permanent legal status in the country. I asked guiding questions such as: Where are they from (country of citizenship)? How did they become without status in Canada? Are they employed? Do they have access to housing, social services, guaranteed wages? What is their primary concern in relation to their lack of documentation/ legal status? Would they consider/ desire participating/ applying for a program that would regularize their status? Why or why not, and under what conditions? See Appendix A: University Research Ethics Review Consent Form.
82 Gabriella had heard that the easiest way to come to Canada was as a visitor, and so received a visitor visa for three months upon arriving at the Canadian boarder. A cousin in Mississauga had arranged for her accommodation for a month, and she immediately found work and enrolled in courses to be a Personal Support Worker (PSW).
Gabriella's energy and eagerness to work and be active was evident in her narrative, as well as in our interview. Gabriella worked hard and consistently for years.
She worked as a live-in care-giver, a nanny, a PSW, and cleaned houses, all the while taking English classes, engaging with her community, making friends, and sending all her money back to her family. Laughing, she recounted a story where she was cleaning a woman's house, and the woman asked her if she gardened. Gabriella, who had never gardened before in her life, in her limited English, nodded her head yes, "because I knew that I could do whatever work I needed, and was ready to learn!" Yet in spite of her willingness to learn and take work opportunities, as soon as people asked for a Social
Insurance Number (SIN) or a bank account, she would not return there to work.
When her visitor permit expired, Gabriella filed a refugee claim. However, just before her refugee hearing, Gabriella was diagnosed with tuberculosis (TB) and quarantined in hospital. While she was in isolation, she missed her refugee hearing and received a removal order.19
Gabriella had never heard of temporary foreign worker programs. She said that had she had known how she could have come to Canada to make money legally, she would have. But she did not have the skills or language ability to come as a "skilled
19 The details of what ensued following the missed refugee hearing were unclear, whether Gabriella actually received a removal order or lacked the resources to find out her options and status. Although she did have friends, mostly her employers, visit her in hospital, she said that it was only recently that she connected with a refugee centre that told her about the possibility of filing an H & C claim. Previously she had no knowledge of the system.
83 worker", and did not have a job arranged through a TFWP. But she was willing to work as much as needed and "I always ate my food on the subway, between jobs or between work and school. I would work from morning until night and then hurry to English classes, and then go to work again at midnight."
As a result of her work in Canada, Gabriella's daughter recently finished nursing school, however the second daughter resents Gabriella leaving her family. When I asked
Gabrielle if her sacrifice of leaving the Philippines and her family was worth it, she replied that it was worth it for the future it gave to her children. But she admits that it is so painful to watch families together in Canada because she misses her family more than anything else. Gabriella does not feel connected to the Filipino community. In fact, she went to a few hometown association meetings, but felt uncomfortable because the organizers persistently asked about her legal status in Canada.
For Gabriella, having legal status means being able to live without fear, work without fear, and bring her daughters to Canada so that they have a better future. It means reconnecting with her youngest child, who was three years old when she left and now barely speaks to her on the phone. She would continue working for her clients, with whom she has developed lasting friendships and relationships, but would have the
freedom to go to work without fear, and live with security. She asserted that she would
gladly pay taxes, if only she were recognized by the government; she is "working hard
and willing to work hard - the jobs exist, so why cannot we be legal?"
Gabriella is now filing her Humanitarian and Compassionate application and is
currently receiving emergency Ontario health coverage because of her recovering TB.
Although she knows that in the Philippines she "would be dead by now" she still cannot
84 wait to begin work again. She does not want to receive any money from the government.
She does not want to be unemployed, and in fact since coming out of the hospital has begin to do some cleaning work again - "I have never said no to an opportunity or a job. I cannot sit still". Being on Ontario health coverage, with an H & C claim in process gives her strength and hope that she will not be removed from Canada. She said that the community at the refugee support centre has eased her fear by giving her a sense of what her rights are, regardless of immigration status.
In terms of the quality of life in Canada, amidst tears Gabriella reflects, "Life back home is simple. Here it is work, work, work." She sees life in Canada as incredibly complicated, busy and stressful. But Gabriella feels she cannot give up, cannot fail her family or herself by returning to the Philippines without securing legal status in Canada.
In the meantime she will continue working, meeting new people, and sharing her experiences in the hopes that it will bring her closer to her goal.
A regularization program would be helpful to Gabriella, but only if status was guaranteed. Not if there was a risk that she would be removed because of an application for regularization. Gabriella would do whatever was needed to prove her willingness to work hard, to take English classes and demonstrate her commitment to Canada and her community. But ultimately, she is determined to stay.
3.3.2. Ruth
Ruth left her home country of St. Vincent to come to Canada in 1981. Ruth
explained how she left her family to come and earn money in order to pay for her mother's cancer medication and treatment. She worked as a baby-sitter, a caregiver and a
20 Interview of "Gabriella" by Anastasia Tataryn (11 June 2009) Toronto, ON.
85 cleaner in a factory, in "whatever job I could get, oh yes!" When her mother died, Ruth said, "What am I supposed to do? Go back to St. Vincent to the streets? To be killed? Or stay in Canada?" In Canada, Ruth has the possibility to work, she rents a room, has friends and community through her Church, "when I need something, they help. When my friends see I have nothing, they help me." Whereas she believes that were she returned to St. Vincent she would get off the plane and "people would think I was rich.
That's what they think about people who have been here, that they have so much money!
They would rob me and kill me. Right there when I get off the plane!"
For Ruth, Canada is her only home. She feels no connection to St. Vincent and has no one there to return to. Even though she has no legal rights, no legal status in
Canada, it is her home: "I go to work, and I go to my home, and I go to my Church. If I had papers, I would do the same. I just would not be scared." Ruth is emphatic that she will not go on social assistance or apply for any help, but rather will, "live off the sweat of my brow to put bread in my mouth."
In contrast to Gabriella and general ideas about people who lack legal status, for
Ruth gaining legal status in Canada is a secondary struggle. Work is most important. In fact Ruth came to a refugee support centre not for help to legalize her status, but to find work, hopeful that a job will come up that she will be able to keep instead of being forced to leave jobs due to her lack of status being revealed. Reluctant to speak very much about the details of her life, both the past in St. Vincent and presently in Canada, Ruth was insistent that she is not about to give up hope, "Oh yes, we must have hope. You must always have hope. Without it, you have nothing."
86 She is willing to file an H & C application, but admitted to having absolutely no
idea of how the Canadian immigration system works. While a regularization program would be helpful, her tight financial situation and concerns with daily survival would
likely prohibit her from applying for a regularization program that had a significant fee
attached to the application, or that exposed her to immigration officers before guaranteeing a regularization of status. Ruth would benefit from a program that allowed
for a third-party to submit her application on her behalf, and one with broad admissibility
criteria. While she emphasized that she lives a peaceful life and has many friends at
Church, therefore would not be inadmissible for criminality or security concerns, her
inability to secure consistent employment and limited education constitutes what the
Canadian government deems "low-skilled". Also, if a regularization program demanded proof of consistent employment, Ruth would be ineligible even though she has lived in
Canada for more than twenty years.
3.3.3. Alejandro
In the summer of 2000, Alejandro left Mexico for Canada. At 25 years old,
Alejandro was eager to start a new life, work hard, and make something of himself with the help of his uncle who had promised to facilitate his sponsorship to Canada. Alejandro
admitted he knew nothing about immigration, did not know of refugee claims,
sponsorship, and he says that like many others from his country, believed that "illegality"
and deportation was only something that happened in the United States. Alejandro
received a visitor visa for three weeks upon his arrival. However, he intended to stay permanently. He recalled wishing to finish high school, learn English, attend university
21 Interview of "Ruth" by Anastasia Tataryn (11 June 2009) Toronto, ON.
87 and avoid the cycle of poverty, illness, abuse and lack of opportunity that he believed defined his future in Mexico. He had heard that it was possible in Canada to work part- time and study, which was not an option for him in Mexico, and this was his goal.
His first day in Canada, Alejandro was already working for his uncle's construction company, learning dry wall by day, taking care of his cousins by night, working as a bee-keeper on weekends with his uncle, and sleeping in the family's hallway. When the second week passed, sponsorship plans had still not been arranged, and Alejandro had yet to receive any payment or advice from his uncle. Alejandro ended up staying with his uncle for a total of six months, yet his uncle neglected to pay the full wages due to Alejandro and did not help him with sponsorship or immigration.
Recovering from a recurrence of an illness and increasingly communicating with other persons without legal status in the construction industry, Alejandro left his uncle's company and home. Through advice from a Central American co-worker, Alejandro arranged to work with a construction company and began to make enough money to fund his own apartment and save money in the hopes of buying a house.
After work, Alejandro spent his time off at the public library, teaching himself
English and how to read while "the rest of the guys went to the strip club." In 2001,
Alejandro signed up with the GTA Drywalling Union 675, a union that was very active in trying to regularize status for construction workers because they needed them as legal labourers. However the regularization program never happened. In 2002 he applied for refugee status through the recommendation of a co-worker who had received legal status as a refugee. Alejandro was prompted to engage with this process after he suffered recurring illnesses but without the possibility of seeing a doctor or going to a clinic. The
88 wait for his refugee hearing took two years, but during this time Alejandro received a work permit, a Social Insurance Number (SIN) and an Ontario Health card. His refugee claim was denied in 2004. Co-workers and friends suggested he apply for H & C, but the criteria did not fit his background, particularly he admits the variety of references needed from community groups and churches, so he did not apply. He had heard about regularization programs happening again, and so he kept working and waiting.
According to Alejandro, the biggest challenge to living without legal status was the isolation and being made to feel "like dirt. Like garbage." After his refugee claim failed, he was depressed. He did not want to lie in order to file a refugee claim but he pursued the case in the hopes of a positive outcome. He came to Canada with "intentions of working really hard, not hurting anyone, and then you are treated as if you are nothing.
As if you are disgusting." Friendships and relationships fell apart when people found out about his lack of status. As years past, Alejandro recalled being increasingly isolated and as friends and co-workers were removed around him, the sense of vulnerability was excruciating. He was scared every time he saw a police car, he thought of running away, and explained that he never wanted to make eye contact with anyone in the street. Even though he saved up enough money, he could not buy a house without a permanent resident SIN. Instead, he sent his savings to his parents.
Throughout, the thought of returning to Mexico was worse then his life in
Canada, "it would mean that I had failed, and what was my life going to be there? I had no opportunity, no future. In Canada I still had potential and hope. If not for myself, then for my future family." He never imagined that he would be working construction ten
89 years after arriving in Canada. Although his dreams of going to university were sidelined, the determination to stay in Canada "no matter what" persisted.
Interestingly, Alejandro believes that Canada should not have open borders because he asserts that their needs to be a barrier, a line of understanding that there are certain things within a country that need to be respected - "the culture, the land, rules, not causing harm to anyone or any community." He has seen people who take advantage of the system to "feed their own greed." But people who are looking for refuge, for a better future, and who are willing to work hard for it, are "causalities of the system". Alejandro believes that people who are willing to sacrifice in order to stay in Canada should be able to stay in Canada legally - the sacrifice being working hard and working in whatever jobs they can find employment in.
Throughout his experience of being without legal status, and even now that he did receive status through sponsorship, he feels that "no matter how hard you work to build something, to be kind, to be respectful, people still think you are taking advantage." The label "illegal" has such a stigma, Alejandro believes he experienced being "illegal": "a humiliating, degrading label that implies that one has no right, no land, no culture, and no education." With this label, according to Alejandro, a person is vulnerable because there is no recourse, no claim to the law or the state. Alejandro admitted that had he known more about Canada's immigration system he would have done things differently, but his desire and determination to stay in Canada permanently would not have been remedied through a TFWP. His skill and education level made him ineligible for "skilled worker" immigration or now, the Canadian Experience Class. He suggests that if he could have had a probationary work permit, he would have worked as hard as he could to prove that
90 he "deserved" to stay in Canada permanently. He even stated that he would not object to be monitored, so long as at the end of the probation period he would be a permanent resident.22
3.3.4. Petros
Petros left his home in Asmara, Eritrea in June of 2002. He set foot in Canada in
2004. This long journey involved escaping Eritrea to Sudan, to Libya, to Italy, to England and finally filing a refugee claim at Pearson Airport in Toronto. Petros left his home and his family with false documentation arranged by his cousin. He was fleeing mandatory military service, and leaving Eritrea meant freedom and the possibility of a better future.
Little did he know that his journey to permanent status would take over five years, and that he would end up in Canada.
According to Petros, "I never intended that Canada would be my destination. Not only that but since I started my journey from Eritrea, I never had a specific plan of where to go, what to do. It depends what situation I was in. Because I did not have valid documents with me. So how could I plan for a specific destination? I was travelling without any program." But he was guided by a goal to "reach a peaceful environment no matter which country."
Eritrea prohibits its citizens from exiting the country without a valid travel/ exit permit. Such a valid permit is difficult to acquire and as such, Eritrea is rife with military checkpoints that monitor the movement of its citizens. Nevertheless, many, especially military-aged men and women, flee Eritrea. Crossing checkpoint after checkpoint, Petros was sure that his false identity would be discovered - the armed military guards did
22 Interview of "Alejandro" by Anastasia Tataryn (4 May 2009; 12 June 2009; 22 July 2009) Toronto, ON.
91 everything possible to siphon out those with false documentation by interrogating travellers. Petros recalled this, with "no words to explain how terrifying this was."
Petros attributed much of his success throughout his journey to connections with other Eritreans and the information and advice he received before leaving his home. He left fully prepared with contact numbers and information, but nevertheless at various points he felt that he would either die by the bullets of the border guards, or by the people who he had no choice but to trust would deliver him.
Petros was driven across the heavily armed and patrolled Sudanese-Eritrean border and dropped off at a truck stop. After two days he was hid in a truck and driven the 600km, two and a half days, to Khartoum, the capital city of Sudan. With no work in
Sudan, the Eritrean community relies on family connections to acquire money to pay for rent, forced to lie whenever possible to enable family from abroad to sponsor people to leave Africa. Petros explains that these refugees have no money, no legal documents, and so rely on being creative. Ideally, Petros says he would never have lied so much, but it was integral to survival.
After a year and half in Sudan, where life for non-Arab foreigners was dangerous and difficult, Petros arranged to be taken to Libya. He travelled for fourteen days in a 4
X 4 shared with twelve people (8 inside, 4 on the roof) through the heart of the Sahara desert. Petros recalled that for two weeks they saw no living thing: "no people, no birds, no airplanes - nothing." Then, Petros spent six months in Libya, waiting until the waves
Apparently in Sudan, foreigners were targeted by corrupt police officers, often robbed of all their possessions. Petros did work for a friend, but not for money, only to "pass the time" and through this work made valuable connections that helped him in "other ways."
92 on the Mediterranean Sea were calm enough to risk a boat journey to Italy. He is so thankful, so relieved, when he survived the horrific boat journey, "Thank God we did not die in the sea, but things were different, difficult in Italy."
Rather than be a safe haven, Petros had heard that in Italy they took your fingerprints and you were not allowed to go anywhere else in the European Union. Petros believed that since he did not die in the sea, he had to continue running in the search of somewhere were he could have decent work and set up a life for himself. So he and a few others avoided the Italian police and bought false passports in Italy to get to the United
Kingdom. According to Petros, "everywhere you go there are Eritreans, and they help you and they tell you where to go." He had heard "that the UK was much better than other EU countries. So, I decided to go to UK. If Ukraine was better than UK, I might go to Kiev."
When Petros arrived in England he destroyed his false Italian passport in the washroom and claimed refugee status. He claimed that he had arrived from Sudan and did not mention being in Italy. His refugee claim was denied based on failure to credibly prove his identity. At this point, Petros felt that he could either stay without status in
England, scraping by with work in the underground economy, or he could go to Canada where he had heard one can file a refugee claim and receive a work permit. He arranged
Other friends around him grew restless. One friend in particular attempted a crossing after 4 months, his boat capsized, many died, but he survived and came back to stay with Petros. This same friend tried again a month later, this time after only a few hours on the ocean the boat once again capsized, but this time he did not survive. The journey to Italy from Tripoli, Libya was supposed to take 30 hours. After 50 hours the 200 people on the tiny boats were starving, ready to die. But someone in the boats had an international cellphone and called a cousin in Italy, who called the Italian Red Cross. Within three to four hours, the refugees burnt their clothes to wave down the helicopters. They received water and made signs of peace, holding up children and a pregnant woman to demonstrate, because no one spoke Italian, that they were refugees. This voyage was publicized by media in Italy, which in 2003/2004 to the present constantly receives boatloads of refugees from Libya, near death, arriving in Italian waters. William Horsley, "Analysis: Migrant boats test EU" BBC News (27 August 2004), online: BBC Europe
93 for a (false) British passport and scraped together enough money to fund the trip to
Canada.
Petros says when he arrived in Canada he felt he could not lie anymore. He destroyed his British passport in the airplane, but when he realized that in Toronto he could not disguise which airplane he had arrived on, he told the immigration officer the truth about his journey. Petros was handcuffed, taken to a detention centre over night, and then taken to file a refugee claim the next morning. At this point, it seems Petros was resigned to any fate. He recalled meeting other people in the detention centre who had been there for six months, one man even a year. The night he spent in detention Petros considered he might be stuck there for an endless amount of time.
But instead, Petros ended up in Guelph and, through connections, found a place to live and a job at a factory. He never would have imagined to be working in a factory, but at least it provided him with the stability to begin a life. In 2005 his refugee claim was denied. Petros believes the claim was probably denied because he was advised by his lawyer to bring his papers from his British refugee hearing, and his lawyer had told him to change his story from what he initially told the Immigration Officer at the airport. The
IRB ruled that his case lacked credibility.25
At this point, Petros felt he had nothing to do but continue living and working, and attempted to get status in Canada through any means available. He had no passport, no proof of citizenship, and believed going to the Eritrean consulate was out of the question because he believed they would enforce his removal back to Eritrea, where he would be punished for fleeing the country and military service. Petros applied for
25 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], s. 106 (claimant without identification; s. 107 (2) no credible basis for refugee claim).
94 Humanitarian & Compassionate (H & C), but was unable to complete the application sufficiently because of the expensive legal fees and he did not trust the legal advice he received, after his failed refugee claim. His H & C was sent back, and denied, a month after it was submitted. Petros admits this was likely because it was incomplete.
In 2008 with his wife who is a Canadian citizen, and after the birth of their daughter, Petros began the process of spousal sponsorship, and at the same time submitted a PRRA. With the help of friends and at this point being more familiar with the
Canadian immigration process, Petros felt more confident with his application. In his
PRRA, he explained his story in its entirety, as well as emphasized his employment in
Canada (his willingness to work well and diligently in the factory), his consistent residence with the same landlord, and his family (wife, second baby on the way and a young daughter) in Canada. Further, he emphasized that he did not have a passport or proof of citizenship in Eritrea. Petros's life was/is completely dedicated to Canada.
Petros's PRRA was accepted just a day before our interview. Ultimately, Petros agrees he would have stayed in Canada with his wife and two children, no matter what.
Aside from his work, he attended courses to complete his high school education, and is well known and respected in his community. Petros was confident that either his PRRA or his sponsorship would be successful. He reflected that, "I think I would stay in Canada even without status unless they ask me to leave like deport me either to UK or Eritrea.
Other than that there is nothing you can do as far as I know. May be I can stay in Canada just to work by renewing my work permit ever year." He would be willing to do what he needed to be in Canada legally.
95 Although his status became more precarious following his failed refugee claim, unlike the other individuals interviewed, Petros constantly remained "in the system" - as
a refugee claimant, H & C claimant, applicant for family class sponsorship, and then with the PRRA. Petros maintains that he was sure he would receive the PRRA or sponsorship because immigration officers would see how consistently he was trying, and fighting for
legal status. His faith in the humanity of the immigration system is unique, and contrasts
Alejandro's experience of isolation and alienation. While personality, cultural background and character undeniably contribute to personal experiences, Petros's solid
and lasting connection to Eritreans globally as well as his living in Guelph rather than
staying in the GTA played a significant role in how his experience did not isolate and place him in extremely vulnerable situations like Alejandro and Ruth. While arguably he
had the strongest refugee claim in terms of a risk of persecution and torture enforced by
the state if removed to Eritrea, it seems he felt the safest as a person without legal status
in Canada. Perhaps because he knew that removal to Eritrea was unlikely - he believe he
would sooner be removed to the UK.26
Petros had the additional experience of being a refugee in five different countries
and connected with people in similar migrant situations in each place. While unfamiliar
with Canada, he was nevertheless exposed to immigration processes more than Gabriella,
Ruth or Alejandro.
3.4. Analysis of the Narratives
26 Interview of "Petros" by Anastasia Tataryn (5 June 2009; 20 July 2009; 24 July 2009) Kitchener- Waterloo, ON.
96 The narratives reflect a continuum of legal and precarious status. Gabriella lived and worked without legal status as soon as her visitor permit expired, but then filed a refugee claim. Her failure to show up to her refugee hearing rendered her claim to be declared abandoned, but at that time she was in hospital and covered by Ontario emergency health protection. At the time of our interview, she was working on an H & C claim, and so while her removal order is not stayed, she is hopeful her status will be legalized through H & C.
Ruth, on the other hand, lost her legal status as soon as her visitor permit expired and since has not, to my knowledge, sought any method to legalize her status. As she reiterated in the interview, her sole concern is to have work, to maintain employment so that she can eat and pay rent. Otherwise, she is not concerned with official policy or citizenship. She would not mind being a legal citizen, but this is secondary.
Alejandro was without legal status from the time his visitor permit expired to claiming refugee status. Once he submitted a refugee claim, he received a health card and work permit, only to lose these once his refugee claim was denied the following year. He was then again without legal status, although interestingly never received a removal
order. His sponsorship claim was successful in 2007.
Petros, as mentioned above, constantly remained with pending claims. He received status as a refugee claimant when he arrived in Canada and went from refugee
claimant, to H & C claimant, to applicant for family class sponsorship and PRRA
claimant. However, because removal is not stayed during H & C or sponsorship, he could
have been detained at various points throughout the process. Yet not readily removed,
because he did not possess a passport.
97 These comparisons reflect Anderson and Ruhns observations of the varying degrees of legal status and lacking legal status. Although researchers view the data and recognize the levels of vulnerability or security/ precariousness, for the persons experiencing the immigration and refugee system there is little comfort in varying degrees of status, save being a refugee claimant. The fear of removal is consistent and overwhelmed the experiences of Gabriella, Ruth and Alejandro throughout the years they sought legal status and avoided removal. For Petros, fear of removal was a concern, but because he lacked a passport, he knew that the removal process would be complicated.
For Petros his primary concern in Canada was the inaccessibility of services that came as a result of lacking legal status. He wanted to finish high school, but could not enrol in classes without status. He feared losing his job and not being able to live confidently with his family more so than being picked up by immigration officers.
3.4.1. General Reflections
When conducting these interviews and listening to the stories I was struck by the dis-juncture between the determination and hope that illuminated the storytellers and the claims made in popular discourse and government that these persons are opportunistic
"queue-jumpers."27 While I was waiting for an interview, I was sitting in the waiting room of a refugee settlement house. The fear, apprehension, boredom was palpable. It was cramped, tight, and suffocating. And yet, perhaps surprisingly, the people waiting demonstrated such respect towards each other, and to me, the only visibly non-Latino person in the tiny waiting area. The experience of standing there, waiting, made me think
27 Nicholas Kohler, "A Crackdown on Queue-Jumpers" MacLeans (28 July 2009), online: MacLeans
98 of the still, suspended air, the silent and stolen glances at each other were just like the
lives themselves suspended, caught it mid-air, frozen from excruciating waiting room to
waiting room. For these individuals, conceivably everything rested in staying, but the
tools to know what to say, what to do, and where to go escaped them. They were not jumping any queues, in fact, I believe that some are not aware that queues exist, and even
then, they are prohibited from accessing those categories.
When standing there in the waiting room, I considered that deserving or not
deserving has little to do with this migration process - it is more a matter of being caught
and removed: the ultimate failure. It is difficult, near impossible, to determine where
removal was a death sentence or what the real reasons for running are. Fear of death may
become as powerful as the fear of facing an expectant family "back home" as a failure.
Many reflect desperation to secure a better future, and who is to say if this is based on a
need or a dream of opportunity, wealth, and success? What seems to be more critical is to
recognize that they are determined to stay, and will do whatever it takes to ensure they
stay.28
3.4.2. Lessons for Immigration Policy
A nation-state will always be faced with some people that stay without legal
status. The issue at hand is to avoid preventing access to legal status for persons who
otherwise abide by the country's laws, desire to live peaceful, legal lives, live and work
within a nation-state, but are not recognized as refugees or legal immigrants. This chapter
28 Further, if there is nothing for someone in their country of origin - no family, no future, no survival, no security, certain death - who is to say that one is more deserving that the other? Or that their survival does not depends upon staying in Canada, even if the documentation and proof does not exist? See Joseph Carens, "The Rights of Irregular Migrants" (2008) 22:2 Ethics and International Affairs 163; Joseph Carens, "Aliens and Citizens: the Case for Open Borders" (1987) 49 Review of Politics 251.
99 points to the need to eliminate substantial gaps in the immigration system in order to facilitate opportunity for legalizing work and residence in Canada for a broader number of claimants. Creating an avenue that is not the refugee determination process for persons with expired visitor visas, or pre-emptively before they obtain a temporary visitor visa allowing them to apply for legal status in Canada would be ideal. Although the narratives above are not representative of persons without legal status, the four individuals all share a willingness to work and would have benefited from a work permit that allowed them to access permanent status after a request number of years living and working in Canada.
Another factor that is consistent in each of the four narratives is that the individuals did not have any knowledge of what the immigration and refugee system was like in Canada. They arrived to work or claim status through word-of-mouth, not knowing what immigration categories they were (in)eligible for or what the situation for persons without legal status in Canada was like. Petros suggested in our conversation that it was important for the process of acquiring legal status in Canada to be difficult, because if not, then everyone would come to Canada, and he feels this would be a problem. He admits this experience taught him that Canada is not as friendly, or easy, for migrants as many people claim. He encourages people to work within the system and understand what is necessary in order to achieve permanent status in the country.
Gabriella on the other hand believes that once someone is working in Canada, they should be allowed to stay legally because if you live and work somewhere, there is no way that you should be kept external of the law. Like Alejandro, she suggests Canada could implement temporary, probationary status' that become permanent status after a
100 requisite number of years. This way people are not handed legal status, but at least given the opportunity to earn it.
3.4.2.1. Refugee Claims
As mentioned, the refugee process and IRB is currently operating with significant backlogs. Unprecedented numbers of claimants, heightened security concerns and prevailing suspicion of fraudulent documentation (i.e. "bogus refugees") as well as the lack of an appeal process, suggests the refugee determination process is insufficient to deal with current migration demands. According to the website of the Immigration
Refugee Board, "The significant decrease in decision-makers and unexpected influx of claims in 2007-2008 resulted in a pending inventory of approximately 42,300 claims; an amount that will increase in the next fiscal year [...] it is projected that the pending inventory could exceed 60,000 claims by the end of 2008-2009."30 While the IRB website prides itself in more claims being finalized due to expedited "enhancements" in decision-making, meaning one adjudicator per case and fast-track options, the quality of the hearings and ensuring due process is not commented on.
Migrants/ asylum seekers are criminalized for turning to the refugee system when it is ultimately the immigration process that fails to provide an avenue for processing alternate claims.31 In each of the four narratives, it is difficult to determine whether they have a substantial refugee claim or not. While Gabriella did argue that she was fleeing
29 Immigration and Refugee Board, 2009-10 Report on Plans and Priorities (26 March 2009), online: IRB
101 her debtors and Ruth believed she would be killed were she to return to St. Vincent due to poverty and violence, Alejandro admitted outright that he did not have a substantial refugee case. All three of them admitted their primary goal for coming and remaining in
Canada was to find employment and opportunity in Canada. Alejandro and Gabriella
admitted not being able to return to their country of origin for personal reasons - not being able to, or not wanting to, face their families as a failure. Petros on the other hand
did flee his country, but arguably could have stayed in Sudan, or Libya, or Italy if it was
merely Eritrea that he was fleeing. The line between fleeing persecution or a state, and migrating for a better life is obscured once refugee claims are made inland and are not processed through UNHCR refugee camps, where the definition of international
convention refugee is arguably clearer in that the people who are in the camps generally
fit the Convention refugee definition more readily than those who file in-land claims.
Inland refugee claims have been permitted in Canada since the mid-1980s,
significantly following Singh v. Canada and the restructuring/ founding of the IRB.
However currently, this inland determination process is insufficient in processing and
considering the range of claims based on poverty, lack of opportunity and persecution
that is not based on the clear failure of a state to protect, but rather connected to more
fundamental global inequities and disparities.
The Canadian policy of granting a work permit and SIN to refugee claimants is
positive, however it does encourage persons who are in Canada without status but
without a refugee claim as per the refugee definition - who are not fleeing persecution
that their country of origin cannot offer protection against - to apply for refugee status if
32 Convention Refugees under the Convention Relating to the Status of Refugees, adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 137 (entered into force Apr. 22, 1954). only for the temporary relief that being a "refugee claimant" offers them (as happened in
Alejandro's case). It is likely that the number of persons claiming refugee status will grow and continue to overwhelm the in-land refugee claims process, not because people are falsely seeking refuge in Canada, but because the refugee definition and refugee system is not built to serve their needs, as was demonstrated in Gabriella and Alejandro's narratives.
The refugee determination process could be reformulated to enable claims to be processed more quickly, if more funding and informed adjudicators with relevant qualifications were placed into the IRB. The capacity of the IRB needs to reflect demand.
Also, if claims were processed in less than a year, this could decrease the incentives for filing claims that are known to be insufficient because the processing time of a refugee claim would be brief and therefore it would not be worth submitting a claim for the sake
of the work permit and temporary status as a refugee claimant. However, the process must ensure that claimants do have adequate time to secure legal assistance and gather material to support their case. It would be best for the refugee process to enable all claims
to be adjudicated when they are refugee claims, but simultaneously have other avenues of
entry and adjudication for those wishing to work and secure permanent status.
3.4.2.2. Humanitarian and Compassionate Claims
H & C does offer hope for persons without legal status, however as mentioned in
the previous chapter, H & C is insufficient as an alternative to regularization. Both
Alejandro and Petros considered H & C, Alejandro choosing not to submit the claim
3j Personal conversation with settlement worker, government-assisted refugees. (5 June 2009), Kitchener, Ontario. See also Lee Carter, "Canada's Refugee System in Flux" BBC News (July 21, 2003), online: BBC America
103 because he did not have the evidence of community engagement, and Petros submitting a claim, but knowing that he was not able to make a convincing case without a better understanding of the application. Gabriella hopes her claim will be successful, she does currently have community support and medical reasons to require humanitarian consideration. However because the H & C determination process lacks consistency, her medical needs could be alternatively be interpreted as a drain on the system.34
H & C could be considered in Ruth's case, however submitting the application requires time, assistance and money, and it seemed that her priority was to secure employment, not work on a detailed claim especially considering the low approval rates.
3.4.2.3. Access to Employment and Labour Security
For all four individuals, employment was a top priority. If work was secured and they did not have to worry about being removed due to a lack of status, the vulnerability that clouds each day of living without legal status would be somewhat alleviated.
For Gabriella and Ruth, employment was a top priority, whereas for Alejandro and Petros it was less significant in their narrative. Interestingly this reflects a gendered difference. For both of the women, their work was much more precarious and difficult to come by then for the men interviewed. Aside from Ruth's work cleaning in a factory, the women relied on private homes and private employers, whereas both men worked in industries that are more public, even if unregulated. Additionally, both women were at some point motivated to be in Canada with the primary purpose of sending money to
34 See cases where H & C was refused based on medical inadmissibility. Lau v. Canada (Minister of Citizenship and Immigration), [1998] 146 F.T.R. 116 at para. 10: "The jurisprudence has clearly established that a finding of medical inadmissibility cannot be premised solely on the medical condition under review; rather, the individual applicant's personal circumstances must be carefully reviewed." Brandford v. Canada (Citizenship and Immigration), 2007 FC 1113. their family back home. Ruth was initially working to pay for her mother's cancer treatment and medication, while Gabriella worked to send her daughters to school.
Although both Petros and Alejandro sent money to their families, they both lacked this as a primary motivation for being and working in Canada. Mindful that this is merely a small sampling of persons without legal status, it nevertheless points to an issue that is discussed by scholars and NGO workers.35
3.4.2.4. Regularization and Opportunities for Gaining Status
Undoubtedly, all four interviewed participants would benefit/ have benefited from a regularization program. However, as mentioned, it would necessarily have had to be a regularization program with broad eligibility criteria - if not, Gabriella could be found inadmissible for medical reasons, and Ruth inadmissible because she was not consistently employed. Alejandro and Petros both worked continuously, especially Alejandro working in a labour sector targeted by past regularization proposals: construction. Depending on the type of regularization program, however, Alejandro's lack of community involvement and lack of family or obligation in Canada could have hindered his application.
The gendered aspects of persons without legal status and concerns about the prevalence of exploitation and abuse both in employment and private homes is a broader topic that unfortunately I will not explore in greater detail within this thesis. I do want to note, however, that although both men and women are in vulnerable situations and often are victims of abusive situations - work and relationships - disproportionately more women are in this category. I would argue this is connected to the fact that regularization programs and status campaigns have often failed to identify the different experiences of men and women without legal status and have instead supported a male-dominated program of legalization and "persons without legal status" being stereotypically male, construction workers, working in "public". See Evangelia Tastsoglou and Alexandra Dobrowolsky, eds., Women, Migration, and Citizenship: Making Local, National, and Transnational Connections (Aldershot, England: Ashgate Publishing, 2006). This book is also noteworthy because it does justice to women in migration by not discussing them solely as helpless victims or persons victimized by their gender. For information about the Rights of Non-Status Women's Network, Toronto, online: Settlement Org
105 Interestingly, this very limited study reflects concerns raised by the NGO, the
Rights of Non-Status Women's Network, that regularization programs as implemented in the past, are gendered. The labour sectors that have implemented programs, or have submitted proposals, overwhelmingly employ men, the most common example being construction. Women are more frequently employed in precarious, short-term labour, arranged through informal networks and work in private homes, rather than relatively stable contract work. This very real difference in employment opportunities raises concerns that situations of private informal employment are significantly less regulated, even then informal employment in the construction industry or factory labour. Women are therefore more vulnerable to abuse and exploitation, even though men without legal status are subjected to exploitative situations as well.36
3.5. Conclusion
The narratives included in this chapter offer a glimpse into the lives of four people struggling to survive and build a life in Canada, who are not considered refugees, but easily vilified as transgressors of immigration law. Undoubtedly there are others whose lives and motives are not as disciplined and committed to working hard in spite of the personal sacrifice. But for each of the sensationalized stories of "illegal" people taking advantage of the system, there are thousands of individuals working silently, for long hours in jobs that many Canadians take for granted but would never engage in themselves
- caregiving, construction, factory labour, maintenance.37 Some of these migrants fear
36 Audrey Macklin, "Who is the Citizen's Other? Considering the Heft of Citizenship" (2007) 8 Theoretical Inquiries in Law 476; Luin Goldring, Carolina Berinstein & Judith K. Bernhard, "Institutionalizing Precarious Migratory Status in Canada" (2009) 13:3 Citizenship Studies 239. 37 Ibid., Goldring at al.
106 persecution from their state, some fear returning to their country of origin for personal reasons, yet they share a fierce hope that life will be better in Canada, and live with dedication and commitment to "making it" in this country.
Gabriella, Ruth, Alejandro and Petros agree that they are not interested in a
"hand-out". They do not expect to be granted anything without earning it. Evident in all the interviews was a shared desire for the opportunity to be recognized, for example a trial period of residency and permission to work after which time they could access permanent residency status. Under the current system, once status is lost the system is inaccessible. This is the most devastating and alienating feature of the law - the making of'illegality' that exiles people to the periphery of the Canadian legal system and society.
The methodological approach of ethnohistory and enriched ethnohistory allows this larger study of Canadian immigration policy and persons without legal status to be contextualized by these life-story narratives. This project suffers from a very limited number of interview participants, raising concerns that the experiences discussed are not sufficient to represent experiences of persons living in Canada without status. However, these stories are not intended to be representative of other peoples' experiences, only to offer a glimpse at the various ways and reasons people end up in Canada without legal status as well as the perspective of persons working to secure legal status in Canada.
Subsequent studies would benefit from a greater number of participants. But these four stories, from four different countries and four different continents, two men, two women, between the ages of 30 and 60 enhance the discussion of regularization programs and persons without legal status in Canada.
107 With these personal experiences in mind, and individual perspectives on the issue of regularizing status and increasing opportunities for being in Canada with status, the next chapter will consider again whether regularization programs are a desirable option or whether it is necessary to seriously consider other alternatives for addressing a population of persons without legal status, and if so, whether these alternatives are viable.
108 CHAPTER IV: ALTERNATIVES TO REGULARIZATION
4.1. Introduction
Thus far, this analysis has explored the issues of persons without legal status in
Canada in regards to how persons end up in this situation, and policy options to address the problem. Regularization has been considered by advocacy groups to be the best policy option of the three government policies - remove, ignore, regularize. Yet regularization carries an uncomfortable relationship with immigration law, and depending on the program, has at times been restrictive as much as it has provided opportunities for persons seeking legal status.
As the previous chapter demonstrated, persons without legal status live in situations that are inconsistent and varied. There is no one experience that can represent this population. However, the interviews suggest that people who have been living in
Canada for extended periods of time are not waiting for a "hand-out" from the government. Living without status forces individuals to be independent, creative and resourceful. If a regularization program were offered, evidently it would be positive for people who are struggling due to their lack of legal status. However, based on the interviews, a regularization program would only be widely successful if it allowed broad eligibility criteria and did not further discriminate on grounds of health, socio-economic background or country of origin, and skill-level or employment status. Further, it is necessary for applicants of regularization programs to not feel threatened by the application process - otherwise the fear of being identified in the system, as well as a lack of knowledge of the immigration system would deter people from participating.
Ideally, individuals need to be educated about the conditions of the program and
109 institutional effort should be placed in decreasing fears of removal when people apply for regularization. There has only been one such successful program with an extensive educational campaign in 1973.
As was discussed in chapter two, the Canadian government is reluctant to consider a regularization program in the twenty-first century, admitting that the problem of persons without status is too complex to be addressed. The government is apprehensive, particularly since the 1980s when it was publicly acknowledged that regularization encouraged an increase in immigration that transgressed domestic laws.2
Also, the lack of substantial citizenship movements calling for regularization also suggests that the government, without considerable pressure from Canadian citizens, can potentially continue to ignore the issue.
Regularization is meant to be a short-term solution. Frequent calls for regularization indicate deeper insufficiencies within the immigration and refugee system.
Rather than focus attention on regularization, as in the past, it is time to look beyond to new alternatives that address underlying failures of Canada's immigration and refugee protection process, in addition to tangibly affecting the conditions of persons living without status.
This chapter will assess suggested alternatives to regularization to address the situation of persons without legal status and the problems within the immigration and refugee system. These alternatives include Temporary Foreign Worker Programs,
1 Canada, Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non- Status Workers: Report of the Standing Committee on Citizenship and Immigration (Ottawa: House of Commons Canada, 2009) [David Tilson, Chair] [Report] at 48-49. 2 W.G. Robinson, Illegal Immigrants in Canada: A Report to the Honourable Lloyd Axworthy, Minister of Employment and Immigration (Ottawa: Minister of Supply and Services Canada, 1983); W.G. Robinson, "Illegal Immigrants in Canada: Recent Developments" (1984) 18: 3 International Migration Review 474.
110 implementing a firewall between legal enforcement and immigration, a "Don't ask, Don't tell" policy, and a potential to imagine the law as existing beyond the domestic interests of the nation-state.
4.2. Alternatives to Regularization
Since the turn of the twenty-first century there has been a surge of scholarship addressing global migration and its interaction, or tension, with state sovereignty.
Scholars such as Saskia Sassen, Joseph Carens, Seyla Benhabib and Linda Bosniak have explored the changing notions of citizenship and access to rights in the globalized world, while others discuss more specific transitions in membership, residency and rights in relation to the law in the twenty-first century. These scholars, notably Catherine
Dauvergne, Peter Fitzpatrick, and Boavenrura de Sousa Santos, call for new and dynamic ways of conceptualizing migrant rights, domestic and international legal systems particularly on the issue of persons without legal status. These scholars suggest a paradigmatic shift in conceptualizing law and migration to address the problematic of relying on regularization to address the issue of persons without legal status. There is hope that a paradigm shift with a focus on the potential of the law could be more
sustainable and substantial than a short-lived regularization program or economic
solutions, such as TFWP. However there are many potential complications and questions
as to effective structure and implementation that remain unanswerable within this
speculative overview.
Ill 4.2.1. Temporary Foreign Worker Programs (TFWP)
Policy work in the European Union and Government of Canada suggest temporary foreign worker programs (TFWP) provide an opportunity for immigrant- receiving nations to address the demands of migrants seeking entry into the nation and labour markets for the purposes of economic gain. In opposition, lobby groups argue
TFWP are favoured over permanent settlement because they conveniently provide accessible, "captive" labour without obligating the state to grant citizenship. Although
TFWP are contentious, according to Citizenship and Immigration Canada (CIC) in early
2009 permanent residency applications from "skilled" worker applicants were backlogged at approximately 925,000 pending applications, while Canadian labour markets are pressed to find workers for menial labour.5 In response, the government has expedited the availability of TFW for Canadian employers and significantly increased the scope of these programs, arguing without empirical evidence that Canada's economy is dependent on these workers.6
Michael Jandl, ed., Innovative Concepts for Alternative Migration Policies (Amsterdam: Amsterdam University Press, 2007); Report, supra note 1. Nandita Sharma, Home Economics: Nationalism and the Making of "Migrant Workers " in Canada (Toronto: University of Toronto Press, 2006). 5 Citizenship and Immigration Canada, "Statistical information: Applications processed at Canadian visa offices: Skilled workers—Federal" (30 June 30 2009), online: Citizenship and Immigration Canada
112 Since the 1970s, Canadian immigration and foreign migration policies have increasingly promoted the recruitment of foreign temporary labour to sustain industry and the economy rather than immigration and Canadian citizenship.7 Statistics Canada population estimates indicate that in 2007, "net international migration was due to an increase in the number of non-permanent residents. [...] the number of non-permanent
o residents grew by 32,400." Thus Canadian labour markets are shifting from seeking permanent workers to depending on precarious, temporary employment contracts.
In relation to persons without legal status, TFWP address the economic reasons that Canadian employers, and the government, have in the past tolerated persons without legal status: if migrants were willing to work, then some Canadian employers preferred employing people who will work for less money and potentially substandard working conditions. TFWP therefore are believed to be able to fill the labour demand for
'accessible', 'expendable' labour.9 However problematically when presented as an alternative to regularization, TFWP do not encompass persons already in Canada without legal status, nor people who are migrating for the purpose of building a life for themselves permanently in Canada. TFWP target individuals guaranteed to return to their
Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (Montreal: McGill- Queen's University Press, 2002); Sharma, supra note 4; Luin Goldring, Carolina Berinstein & Judith K. Bernhard, "Institutionalizing precarious migratory status in Canada" (2009) 13:3 Citizenship Studies 239 [Goldring]. However, in the mid-1980s especially in the wake of the collapsed Soviet Union, Canada did accept increased numbers of permanent residents/ citizens: "Between 1991 and 2000 alone, 2.2 million immigrants were admitted to Canada, the highest number for any decade in the past century." Statistics Canada, "Canada's Ethnocultural Portrait: The Changing Mosaic" (2001), online: Stats Canada
113 country of origin after a certain number of months. Foreign contracts are renewed only if the employee lives and works in compliance with the program.
Government officials argue that TFWP satisfy both the "sending" countries that desire remittance dollars, and the "receiving" countries by providing labour. Interestingly especially given the current economic recession there is no evidence that this labour could not be filled by a Canadian domestic labour force. However, the economies of
"receiving" countries have become dependent on a cheap foreign labour supply that conveniently disappears once it is no longer required.11 As mentioned in chapter two,
TFWP allow for consistent labour without the obligation of paying back pensions or social services. Also, the work arrangement is arranged through the individual employers, allowing the government to often turn a blind eye to abuses within the system. Keeping
Canadian employers satisfied is valued over the integrity of immigration programs and labour standards.12
Although TFWP are often seen as economically favourable to the host country, they do not necessarily create a mutually beneficial international arrangement, particularly not between the employer and the employee. TFWP create multi-faceted problems, firstly for the migrant workers themselves who are often in precarious situations, and secondly through the impact that TFWP have on persons working without
10 Basok, supra note 7. 1' Verda Cook, "Workers of Colour within the Global Economy," CLC Research Paper on Migrant Workers, December 2004. For most recent, intriguing work on this question of whether there is a "need" for migrant labour, see Bridget Anderson & Martin Ruhns, "Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy" (2009) [unpublished, working paper at University of Oxford]. 12 Cook, supra note 11. The Live-In Caregiver TFWP however has received a lot of attention, both in popular media and government. Unlike other TFWP, LIC are regulated, have a hotline to report abuse, and have access to permanent residency. This program has been in Canada since the 1970s and women have been subjected to abuse and therefore after intense lobbying, progress for women in this TFWP has been made.
114 legal status.13 TFWP turn attention away from people without status, suggesting that persons without status would be better off with temporary status, while failing to consider why persons would not enter through TFWP. These reasons may vary, but fundamentally
TFWP are not necessarily an attractive alternative for persons seeking a life in Canada.
Citizenship and Immigration Canada maintains that TFWP are a remedy to deter both "illegal" migration, and the backlog of immigration applications.14 Ironically considering the positive publicity surrounding TFWP, Canada has not signed the
International Convention Protecting the Rights of All Migrant Workers and Member of their Families, a convention to protect migrant workers against abuse and exploitation.
This reluctance to be regulated and bound to an international convention suggests Canada is more concerned with having this temporary labour force than protecting the rights of the migrant workers.
In a World Bank Policy Research Working Paper from 2006, Mohammad Amin and Aaditya Mattoo challenge the assertion by industrialized nations in the European
Union (EU) and Canada that TFWP decrease "illegal" migration or the number of persons living without legal status. Amin and Mattoo argue that "Guest Worker" (GW) /
TFWP fail to provide a sufficient means to reduce or address this irregular migration.
Rather these programs tend to increase the total migration to a particular country, both
13 Catherine Dauvergne, Making People Illegal (New York: Cambridge University Press, 2008) [Making]. 14 Citizenship and Immigration Canada, "Annual Report to Parliament on Immigration, 2005" (Minister of Public Works and Government Services Canada, 2005); also Campbell Clark, "Skilled immigrants being squeezed out as temporary workers flock to Canada" Globe and Mail (22 July 2009), Al. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, G.A. Res. 45/158, Annex, U.N. Doc. A/45/49.
115 legal and "illegal", and create "pressure on host countries to implement tough laws against illegal immigration even when the host finds such laws per se undesirable."16
Canadian researchers agree that TFWP have counter-productive effects. There are strict entry requirements as a TFW, but the exit controls are much less restrictive. It is unknown how many workers stay on in Canada without a valid work permit, for example leaving their contract employer and finding work "under the table", in the "shadow economy".17 Empirical studies to do not exist, nor do Canadian border services commit the resources necessary to monitor exit. Research by groups such as CERIS (Centre of
Excellence for Research on Immigration and Settlement - Ontario Metropolis Centre) and the Community Social Planning Council of Toronto have suggested that with increased TFW Programs, the numbers of persons residing in Canada without legal status will likely grow.18 This is understandable if the primary goal of entering Canada is permanent residency - aside from the Live-In Caregiver program temporary workers are denied access to permanent status.19
16 Mohammad Amin and Aaditya Mattoo, "Can Guest Worker Schemes Reduce Illegal Migration?" (2006) World Bank Policy Research Working Paper 3828. 17 Laura Zandfrini and Kluth, Policies on Irregular Migrants: Volume One. (Council of Europe Publishing, 2008) at 15. Nicholas Keung, 'No sign' Canada is keeping track of illegal migrants; Expert accuses Ottawa of expanding temporary foreign worker program without enough controls," Toronto Star (8 May 2008) A.22. Goldring, supra note 7; Access to Services Without Fear Immigration Campaign, "Toronto Community Services Resource Guide" (2007) Community Social Planning Council of Toronto and Davenport Perth Neighbourhood Centre, online: Toronto Social Planning Council
116 Additionally, Canada's TFWP do not allow for family reunification, and temporary migrants often live and work in situations similar to indentured labour. Fear of removal and job/ wage loss should the employer contract be severed is common, much like living in Canada without status. Also, permanent "temporary" labourers, with no entitlement to stay in Canada or access citizenship or social services, contribute to a fragmented and precarious political and social life in Canada.20 Further, since Canadian employers are drawn to cheaper sources of labour, Canada's labour standards are weakened and we see a trend towards temporary, precarious employment for migrants and citizens alike.
With policy emphasis on migrant labour that is temporary, persons without legal status already in the country are further marginalized. With policy focused on legal TFW, avenues available for persons without status to claim rights and assistance are few. In
Canada, recent arrests in workplaces and factories involved Canadian Border Services
Agency (CBSA) officers separating people with permanent status from those with temporary contracts, from those whose contracts have expired or are no longer "legal".
Such action emphasizes a hierarchy of worthiness and entitlement with persons without legal status at the very bottom. Regardless of the fact that these workers are labouring in industries that Canadian citizens do not elect to work in, and are often working in labour conditions that are dangerous and underpaid, CBSA has recently taken a hard-line against children in Mexico. Interestingly, their employer only hired women who are mothers of young children in Mexico so that they had greater incentive to work diligently and return to Mexico seasonally (Niagara Region, Ontario. May 2009). 20 Sharma, supra note 4; Basok supra note 7. See also, Cook, supra note 11. Having said this, there are TFWP that are desired by migrants and do offer good working conditions and fair pay. I do not mean to generalize the experience as always being exploitative and victimizing the migrants, rather I believe that the structure of TFWP is problematic regardless of whether the migrants support the opportunity. To build a national economy on temporary migrant labour is problematic, both in terms of building foreign economies reliant on remittances and a domestic economy built on precarious and short-term labourers that are alienated from society and citizenship.
117 persons without legal status working in workplaces that rely of temporary foreign labour.
This is perhaps due to concerns that persons without status "take jobs away" from TFW.
However, being employed is not the fault of the person without status, rather it is the employer that seeks out the lowest and most vulnerable labour. Research focused on
TFWP in the EU suggests that in order to address persons without status, attention needs to be given to regulating labour and decreasing incentives to employ vulnerable workers.21
On an international level, according to Amin and Mattoo, there is movement to making TFW treaties into bilateral agreements, with the goal of discouraging irregular migration and encouraging inter-state cooperation. This is similar to the Seasonal
Agricultural Worker Program between Canada and Mexico. Amin and Mattoo suggest that international cooperation is needed to address migration that is in contradiction of the domestic immigration laws of a nation-state. However, such international cooperation has so far failed to materialize in a way that does not further restrict and exclude. The
Convention relating to the Rights of Migrant Workers and Members of their Family could potentially be a positive international convention, however it has yet to be signed by any industrialized, "immigrant-receiving" nations. Additionally, Catherine Dauvergne explains that the Convention affirms state sovereignty and the right of the state to determine entitlement within the nation-state. International cooperation is tempered by the primacy of sovereign state goals, domestic immigration enforcement, and the lack of salient international regulatory bodies that focus on migration. This will be discussed more in a following section.
Jandl, supra note 3. 22 See Dauvergne, Making, supra note 13 at 26-27; Convention, supra note 15.
118 4.2.2. Access to Informal Citizenship
The ubiquitous power of state sovereignty found to stifle freedom of movement has been scrutinized in socio-legal analysis. Rather than continue to search for solutions within 'traditional' paradigms of the nation-state, scholars have been searching for innovative approaches to re-conceptualize migration issues. Given that widespread regularization is unlikely and TFWP are not a viable substitute to regularization, an alternative worth considering is to focus on access to informal citizenship for migrants.
Saskia Sassen argues that global cities are opening up new opportunities for alternative forms of citizenship beyond the state that challenge strict concepts of citizenship and belonging. Sassen contends that previously suppressed populations, such as persons without status, may invoke change in a way that allows them to articulate their entitlement to rights through the international human rights regime, external of domestic law and the state. Sassen recognizes regularization programs in the past have been incapable of encompassing all persons without status. Sassen suggests because of these limitations, regularization programs alone are not a viable option for the future. Instead her vision for persons without legal status is dependant on international human rights and the transnational lobbying of persons who share a global, informal citizenship not defined by the nation-state.23 Boaventura de Sousa Santos shares a faith in the international
J Saskia Sassen, Territory, Authority and Rights: From Medieval to Global Assemblages (New Jersey: Princeton University Press, 2006); Dauvergne, Making, supra note 13, raises issue with this faith in international human rights as will be discussed in section 4.3.2.1 raise issue with Sassen's faith in transnational lobbying of informal citizens globally, because 1 think these "global citizen" concepts are profoundly unequal - the term "global citizen" is often used to refer to a jet-setter, international consultant, for example with an EU passport, who was born in Nepal and lives in Peru. Not the stateless, unemployed Palestinian asylum seeker in the United Kingdom, or the impoverished family in Sudan fleeing violence in Somalia that are informal citizens due to their lack of status and state.
119 human rights regime to facilitate the "emancipatory potential of the law" finding liberating spaces using legal discourse, and within the law that had previously been oppressive.
Lobbying for recognition beyond traditional forms of citizenship suggests the possibility of existing within a nation-state without legal immigration status, but with legal rights as a resident physically present in a place. This suggests not immunity from immigration regulations, but nevertheless legally-recognized access to certain basic services.
4.2.2.1. Firewall
Informal citizenship can refer to the condition of living as if one were a citizen, in terms of rights and security within a city or jurisdiction, but without formal citizenship status in the nation-state and voting rights. In a recent article, Joseph Carens explores the ways in which persons without legal status in a nation-state are in fact entitled to legal rights - not citizenship rights, but basic legal "human" rights.25 Carens asserts that persons without status are treated equally in criminal trials, and have access to life-saving medical treatment. Carens suggests that in recognizing these fundamental rights, a
"firewall" should be maintained between immigration enforcement and legal rights.
The Canadian Charter of Rights and Freedoms, and international covenants that
Canada has recognized in its domestic law, hold that certain legal rights are not to be
Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation, 2" ed. (London: Butterworths LexisNexis, 2002). 25 Joseph Carens, "The Rights of Irregular Migrants" (2008) 22:2 Ethics and International Affairs 163 at 5 [Irregular].
120 withheld from persons because of status or lack thereof. Conversely, the "prerogative"
of a nation-state to determine its citizenship and maintain an exclusionary border, often
from the desire of the citizenship to be contained, means that immigration officials will
not readily recognize these rights. In fact, many may hesitate to acknowledge the
relevance of rights for persons without legal immigration status, in spite of Supreme
Court rulings. Additionally, migrants in Canada lack the awareness of their potential
basic entitlements and are often too afraid to assert the rights that they inherently possess
as persons.
Instead of a firewall between immigration and legal rights, what currently exists is
a melding of immigration enforcement and legal enforcement - the fusion of the rule of
law and priorities of a sovereign state.27 Policing in migrant worker warehouses and the joint efforts of police and immigration officers to track and arrest persons without status
demonstrate the synthesis of law enforcement and immigration policy that results in
transgression of IRPA being akin to a criminal act, except in many cases with removal as
the consequence rather than a legal trial.
Similar to Carens' suggested firewall, Canadian advocacy groups call for a Don't
Ask Don't Tell (DADT) policy to be implemented in cities and social and security
service providers. DADT campaigns call cities and service providers to allow persons
without status to function in society, essentially supporting a de facto policy of ignoring
by not asking about someone's status and consequently not reporting to immigration
enforcement officers. While Carens' suggested firewall would more formally separate
26 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
27 Carens, Irregular, supra note 25 at 8; "right to have rights": Hannah Arendt, The Origins of Totalitarianism, Revd ed., (New York: Schocken, 2004). immigration issues from other legal processes and security, DADT is a real, tangible solution to mitigate day-to-day vulnerability and alienation.
4.2.2.2. Don't Ask Don't Tell
As discussed in chapter one and two, removals are not the prevailing hard-line policy guiding action on immigration issues. In spite of the relative lack of implementation of section 48(2) removal orders, the fear of arrest and deportation is the primary fear for many persons living without legal status, as expressed particularly in the narratives of Gabriella and Alejandro.
Section 48 of IRPA refers to the enforceability of a removal order, which "must be enforced as soon as is reasonably practicable."1 Once removed a foreign national cannot return to Canada (section 51), unless the removal order is "set aside injudicial review" (section 52 (2)). Further, an Immigration Officer can arrest without a warrant someone who is "inadmissible, a danger to the public or unlikely to appear for examination, hearing or removal."28 A person living without status may or may not have a removal order, but the fact that they are living without status, under the legal radar, would reasonably mean that they are unlikely to appear for examination or removal, and therefore, under IRPA, are justifiably arrested without a warrant. Immigration Officers,
currently with assistance from police, educators, social service providers and so on, can
also arrest without a warrant persons the Immigration Officer has "reasonable grounds to believe is inadmissible and a danger to the public or is unlikely to appear for
examination" or if the Officer is "not satisfied" with the identity of the foreign national.
28 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] s. 55 (1). 29 Ibid, s. 55(2) (a) and (b). The arrests can take place in order to take an individual to a proceeding where a removal order will be issued.
In light of this legislation, No One is Illegal, The Rights of Non-Status Women
Network, the Toronto District School Board, and other settlement and refugee centres are campaigning in the Greater Toronto Area (and other groups in Vancouver, Montreal and
Calgary) for a "Don't Ask Don't Tell" (DADT) policy to be adopted by police and law enforcers, schools and health centres. A DADT policy would ensure access to services and police security regardless of legal status, without fear of removal.30 This would act as an informal "firewall". Some workplaces have DADT policies, but the lack of institutional consistency and persistent fear that people have of being removed at any moment currently prevents the policy from operating to its full potential.
A DADT policy suggests Sassen's vision of global cities/ urban centres as being sites of informal citizenship where populations of unauthorized persons can gain political organizational "power".32 In Canada this lobby is not nearly as significant as in the
United States, where the population of persons without legal status is estimated as being above twelve million. Ideally, DADT would provide the necessary relief to people living in vulnerable situations. Although DADT fails to address the underlying reasons why people are in Canada illegally, and does not remedy any of the laws that result in persons living without legal status, it could be implemented together with restructuring immigration and refugee law to increase opportunity for permanent status. Carens'
30 "Toronto School Board pushes 'Don't Ask, Don't Tell' Policy on Immigration Status" CBC News (3 May 2007), online: CBC
123 concept of a firewall formalizes DADT, suggesting that the Canadian legal system (and he refers to criminal law) and social services such as health care be independent of immigration enforcement concerns.
Both DADT and the firewall are desired by many immigration advocacy groups, however it is interesting to consider whether this is a formal sanctioning of the previously discussed government policy option of "ignoring". While DADT and the firewall do involve ignoring immigration status, they suggest a deeper recognition of the legitimacy of personhood and entitlement to fundamental rights through access to social and security services. This goes beyond the government policy of ignoring both the existence and the claims made by persons without legal status. DADT and the firewall approach suggest appreciating the sovereign right to control citizenship and borders as separate and independent from commitments made to ensure that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice"34, for example.
Taking this a step further, Catherine Dauvergne suggests that what is necessary for the future of migration law and persons without legal immigration status is a separation of the law - the basic rule of law and legal process - from national sovereign interests. Dauvergne particularly seeks a distance between the law, and sovereign interests as embodied in domestic immigration laws that reflect not rule of law legal processes, but the priorities and concerns of the government and political interests. Such
a concept is worthwhile for its imaginative potential, however is problematic in its failure j4 Section 7, Canadian Charter of Rights and Freedoms, part I Constitution Act 1982 c.l 1; proclaimed in force April 17, 1982. Amended by the Constitution Amendment Proclamation, 1983, SI/84-102, effective June 21, 1984. Amended by the Constitution Amendment, 1993 [New Brunswick], SI/93-54, Can. Gaz. Part II, April 7, 1993, effective March 12, 1993. 35 Dauvergne, Making, supra note 13 at 175 - 190.
124 to suggest tangible implementation and address the complicated reality of sovereignty as the reflection of the democratic will of a polity.
4.2.3. A Paradigm Shift: The Emancipatory Potential of Law?
The separation of the law from political priorities, the possibility of migration law being "un-hinged - in Santos' terms - from the nation-state"36, suggests a paradigm shift.
By "unhinging" the law from the state, Dauvergne suggests that an accessible legal process can erase, or at the very least decrease, the construction of "il-legality" in migration. If persons without status had access to a judicial process, then immigration laws would not define their entitlement. Persons would lack legal immigration status, but this would not define their existence. Rather they would still be legal individuals.
While Sassen's model of global informal citizenship is appealing, Dauvergne argues that citizenship paradigms and rights arguments are no longer relevant points of contention on the issue of persons without legal status. Citizenship does not address the totality of the issues of twenty-first century migration, and informal citizenship and
DADT can be seen as further ignoring the problem by failing to structurally implement a disconnect between legal rights and immigration enforcement. Informal citizenship can be symbolically powerful yet is legally unsubstantial.
Instead of informal citizenship Dauvergne suggests challenging the "innovative potential of migration laws."38 As discussed in chapter one, migration law has limited use for rights discourse because rights entail a power that the state is not willing to share.
Even within international human rights, the primacy of the state is affirmed. According to
36 Ibid., at 175. 37 Ibid., at 42-43. 38 Ibid, at 43.
125 Dauvergne, human rights claims are not substantive injudicial decisions. Whereas claims based on the "rale of law" garner much more attention. "Rule of law" arguments that address entitlement to legal process and equality before the law, according to Dauvergne, could potentially shift migration discourse to address the "illegality" and the
"illegalization" of migration.39
Such a shift would involve considerable sacrifices to be made in sovereign and government powers. In terms of the judicial system, although it is true that cases such as
Singh, Baker, Charkaoui have indicated that the legal system could become 'unhinged' from nation-state priorities only a small minority of cases have access to the costly judicial system. Most decisions are made on the border by CBSA or Immigration officers, or within the administrative tribunal of the IRB. Further, immigration policy is developed by democratically elected officials that are understood as representing the majority will of Canadian citizens.
4.3. Perspectives on the Alternatives
The Parliamentary Standing Committee on Citizenship and Immigration claim,
"the one thing we can all agree on with respect to the non-status migration problem is that it is complex and multifaceted with no single clear solution."40 There is no consensus on
"establishing an amnesty program to regularize their statuses." ' However, scholarly and policy work indicates that solutions exist. What does not exist is the desire to first of all,
Ibid., at 178. Dauvergne argues and demonstrates that human rights claims are not as substantive as "rule of law" arguments in judicial decisions. Therefore if "rule of law" arguments guiding refugee and immigration decisions, than these could potentially shift migration discourse in a way that addresses the "illegality" and the "illegalization" of migration. 0 Report, supra note 1 at 49. 41 Ibid., at 48. address persons without status as an issue of importance, and secondly to address the larger systemic problems that are exposed. These include the lack of opportunity to receive permanent residency status, the neo-liberal economic framework that favours vulnerable labour and a decentralization/ de-regularization of labour, the reluctance of the
Canadian government to recognize basic entitlements to services regardless of sovereign domestic laws and the prerogative to determine membership, and relentless turmoil and poverty in the majority of the world that impels people to migrate in the hope of a better life.
Various aspects of the Canadian immigration and refugee system expose a system in crisis. These include backlogs in immigration and refugee applicants, the lack of implemented appeal process in the Refugee Division, and persons left to use the refugee process but who do not fit the definitions used to determine refugees. The current action by the Minister of Citizenship and Immigration to target Mexico and the Czech Republic by suggesting these states are responsible for producing "bogus" refugees that
overburden the IRB and the ensuing controversy, undeniably indicates change is necessary.
However, change not necessarily in terms of amending laws or imposing new
ones. The paradigm shift suggested by Dauvergne would open a space for the law in
immigration determination and focus efforts to separate the judiciary from national state priorities. Still, as mentioned, to bring this concept into fruition is a considerable
challenge. In the meantime, the other alternative of creating a firewall between
immigration enforcement and legal rights could be initiated, but only with widespread
cooperation.
127 4.3.1. Government
The Department of Citizenship and Immigration and the Parliamentary Standing
Committee on Citizenship and Immigration favour TFWP as a policy to respond to concerns about persons without legal status. However, TFWP do not address persons without legal status, and in fact are suspected to exacerbate the number of persons living precariously.
In terms of the alternatives, there is reluctance in Canadian institutions and government to adopt DADT policies. Perhaps this is because the smaller and unique cases of persons without status in Canada permit ignoring the problem, while DADT raises the issue to the fore and can be interpreted as sanctioning transgression of the law and feared to encourage increased extra-legal migration and residence. This echoes the hesitation to carry out a regularization program: that it would raise attention to the lack of government action on this issue and hinder the government's popular image - either based on humanitarian or security concerns - as well as devalue immigration law. DADT can be seen as putting people (police, services workers, educators) in contradiction to the law and can create situations where these employees hesitate to cooperate with DADT for fear of being held accountable by the government for aiding what is deemed "illegal" activity. Immigration advocacy groups argue a DADT policies need to be consistently and widely accepted in order to be successful and in order for persons without status to trust the system and therefore is unsuccessful so long as the government fails to address the issue all together, and/or prefers to target persons without legal status as criminals.
42 Aiding non-status migrants became an issue in the United States Supreme Court in 1985-86. See Susan Bibler Coutin, "Smugglers or Samaritans in Tuscon, Arizon: Producing and Contesting Legal Truth" (1995) 22:3 American Ethnologist 549.
128 The concept of a paradigmatic shift pushes beyond the current framework of policy options considered within the government, in the Department of Citizenship and
Immigration and the Parliamentary Standing Committee. Although Dauvergne's proposal is at this point a theoretical shift, tangibly the idea of giving more credence to the law as
separate from national political priorities is imaginable because it relies on existent tools.
Significantly, Canada does have progressive jurisprudence on immigration issues and rights for non-citizens, for example Singh v. Canada, and a precedent of the Supreme
Court of Canada ruling in opposition to IRPA.43
However, it is well known that the government and political branch is not always
aligned or sympathetic to the power and presence of the legal judicial branch. In chapter two it was discussed that following Singh v. Canada the more restrictive immigration
Bills, C-84 and 86, underscored some of the progress made in Singh. Jeremy Webber notes an international trend in industrialized nations dealing with undesired immigration, wherein the discretionary power over immigration is placed in the discretionary power of the executive or the government of the day in the name of democracy, rather than the law.
This allows the executive to rule on exception, and pass legislature that otherwise would
contradict legal process and democratic decision-making.44
Further, in spite of progressive jurisprudence, there is doubt whether Immigration
Officers and CBS A adjust their interaction with migrants at the actual border. Particularly
given the current situation where the Minister of Citizenship and Immigration himself
Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Issuing of security certificates was found to be in contradiction to section 7 of the Charter of Rights of Freedoms, guarantee of life, liberty and security of the person). 44 Jeremy Webber, "National Sovereignty, Migration, and the Tenuous Hold of International Legality" in Oliver Schmidtke & Saime Ozcurumez, eds., Of States, Rights and Social Closure: Governing Migration and Citizenship (New York: Palgrave Macmillian, 2007) at 61.
129 belittles legal processes and the credibility of the Immigration and Refugee Board, adopting a rustic, "cowboy" approach to the issue. When the Minister himself throws around phrases such as "bogus refugees" without grace or respect to facts or procedure, conceivably Immigration Officers act with less recourse.45
Pratt suggests that immigration has dramatically shifted from admitting people to the country, to goals of policing and keeping people out. As mentioned, government amendments and policy are focused on preventing migrants, potential asylum seekers/ refugee claimants, from accessing Canada at all.46 For DADT or a Firewall to be successful, it should be empowered by legal force that rules a separation of immigration law and fundamental rights in Canada, and this again, would involve a significant paradigm shift.
4.3.2. Interview Participants
When potential migrants hear of the opportunity to work and live in Canada, or to have children in Canada and therefore gain Canadian citizenship for their children, this news travels without precise knowledge of how the system functions and what is required to gain legal status.47 One of the negative aspects of Canada's international image of being welcoming to migrants is that many are shocked to find themselves without legal
status, without rights, and without permanent status. Alejandro came to Canada with the
idea that "illegality" was only an issue in the United States and was at a loss to figure out
45 Michelle Collins, "Two-Tier Refugee System Blasted" The Embassy Magazine (15 April 2009), online: Embassy Mag
130 how to acquire legal status. Petros similarly believed that Canada would be even better than the United Kingdom, but was shocked that this apparently kind and generous country would lock him in detention overnight, and then after filing his refugee claim, told him to leave without any guidance of where he should go. He had no money, no sense of geography, and no sense of where to turn.
In my discussions with Gabriella, Ruth, Alejandro and Petros I tried to get a sense of their views on programs to assist them with to access status. First of all, it became apparent that these individuals generally lacked knowledge of the system and have become disillusioned by immigration lawyers and people apparently working to help them and their situation. Their lives, to a great extent, depend on word of mouth, community and friendships that they know they can trust. While all four supported the idea of a regularization program, or a DADTY firewall solution, they all had very practical responses to these solutions - their safety must be guaranteed first and foremost.
For Gabriella, the opportunity to receive status through the Ff & C and the fact that she had found a refugee resource centre where she felt comfortable, significantly relieved her fears of being removed. Previously, she was terrified of being "within the system" in terms of a status claim and could not wait to get out of the hospital for fear that she would be removed after she was out of isolation. A D ADT policy would enable Gabriella to live daily without fear, however, she would only trust services that she was familiar with or referred to through people she trusted. This was also the case for Ruth, Alejandro and
Petros. DADT would only be helpful if they were guaranteed that it would protect them.
Otherwise, they had each individually adopted methods of survival, of knowing who to trust, what to say to people who asked for proof of their status and generally, to avoid this
131 question altogether.
A firewall with a separation of legal and immigration enforcement seemed a good option to the individuals interviewed, especially if rights were recognized this would relieve the de-humanized situation where people without status are looked upon as
'illegal' and denied recognition of their existence. However, Alejandro and Petros admitted that a formalized firewall would encourage people to be without status - and it would create a "second class" of residents. Interestingly, they both expressed hesitation to condone this, a program that would encourage others to live without status. I pursued this, asking them why having others living without status would be bad. Petros said because life was not as easy in Canada as people think. On the one hand, migrants would be disappointed, and on the other hand a greater population of migrants angers many
Canadians, making life for migrants already in Canada more difficult.
When I asked Alejandro to explain further how a firewall would potentially harm
Canada if it would attract more people to come without status, he admitted he did not know what was wrong with this; he had just assumed that it was not a good thing. After a minute, he replied that with the firewall protecting persons from alienation and
vulnerability the "problem" of more migrants entering Canada would not be a real problem. Through our conversation Alejandro mapped out the following: If persons
without status are not vulnerable, meaning they are not at risk because they can access
police services and education, and if they are not on welfare because they are ineligible because they do not have legal immigration status, if they have a work permit and work
in regulated labour conditions, and do they wish to stay even if they can be removed if
they come in contact with immigration officers, then according to him, there is no
132 problem.
If the system were to allow a firewall to exist, and if the legal system were separated from the nation-state and separated from priorities based on sovereignty, then persons without status would not be handed citizenship, but their vulnerability and de humanizing living conditions would be greatly reduced. This was satisfactory to at least one individual with experience of living in Canada for many years without status, but unfortunately I did not have the opportunity to discuss this proposal with the other three participants.
Both Gabriella and Alejandro suggested that migrants should be allowed access to legal status through alternative avenues of permanent residency - through a probationary residence program that after 3 years of living and working, for example, one can receive status. This came up in conversation without any prompting from the researcher. In addition to such a proposal, I would add that such a program must also consider cases of un-employment in extenuating circumstances. The four interviewed participants were able-bodied people, who aside from Gabriella's illness, worked constantly and sought out employment wherever possible.
4.4. Conclusion
Regularization programs are not on the government's agenda, nor have they been successful in alleviating substantial numbers of persons without status in Canada.
Refugee law and immigration policies, currently guided by an administrative law tribunal and enforcement forces guided by political concerns and priorities of the Canadian government are insufficient to address the state of migration in the twenty-first century.
133 Canada requires innovative alternatives such as a guaranteed firewall between legal rights and immigration enforcement, and perhaps considering further a separation of the law from the priorities of the nation-state. These concepts are persuasive as a way of bringing about change to the current impasse between state sovereignty, global migration, and reluctance to accept past policy methods of addressing a population without legal status.
In order for a solution such as a firewall to be successfully implemented it would have to be carried out together with increased opportunities within the immigration system to access permanent status. This would not mean that everyone would be guaranteed legal status, but the increased availability of applications for permanent status, and opportunities for arbitration through legal process would be beneficial and contribute to Dauvergne's call for an unhinging of the rule of law.
Generally, people have faith in the letter of the law. This is particularly true in the
"West", and even in situations where the practices and people appear to be in contradiction to the law. Remarkably, the individuals interviewed who were/ are technically "illegal" do not believe that behaviour in contradiction to "Canadian culture" and rules should be acceptable. All four participants lived very legal, lawful lives and believed in regulation and the vital importance of legal systems. They were all hesitant to consider regularization if framed as a "hand-out", and two of the four raised concerns that
DADT or a firewall would encourage people to migrate in order to live without legal status.
Ruth, Petros and Alejandro all mentioned with distain knowing people who came to
Canada to "take advantage of the system" and live on welfare or constantly complain about working conditions in Canada. Ruth was fiercely proud of her working to survive,
134 and Petros actually said, "Canada needs to have immigration laws and border control.
Otherwise everyone would come and expect life to be easy." As discussed in the previous section, Alejandro refined his similar view when considering the firewall alternative and why potentially larger numbers of persons without status would be problematic.
In his pivotal work, Towards a New Legal Common Sense, Boaventura De Sousa
Santos noted, "Often law is present under the guise of illegal practices through which an alternative legality is fought for."48 Persons without status, through occupying a position currently external of the law, challenge immigration law by their continued existence.
Persisting in the quiet struggle for recognition, as well as the increasing numbers of people who fall within the gaps of the immigration system and are left to remain in
Canada only as persons without legal status, will continue to challenge the law to eventually adapt. However, this is a slow and tedious process that many are cynical about.
Audrey Macklin argues the "rule of law ideology is sufficiently entrenched in
Canada" and Canadians generally value a commitment to legal process, the Charter of
Rights and Freedoms and international legal obligations.49 Turning to legal process to
facilitate a shift in migration law could perhaps be imaginable given the context of
Canadian national identity and coveted values, even if often referred to as mere mythology. Peter Fitzpatrick suggests that whether a myth is real or not is irrelevant, the
De Sousa Santos, supra note 24 at 495. Macklin, Disappearing, supra note 46.
135 imagining has power. And in this case in Canada, it prospectively carries transformative power. However in order to realize this potential, the popular belief needs to be mobilized
- either through democratic responsibilities of voting and citizen participation, or increased accountability to the rule of law and judicial decision-making.51
A considerable factor that must also be recognized is that state sovereignty is a much larger issue when viewed beyond a legal lens. The political aspect of sovereignty, namely that the state is legitimated through the democratic will of its citizens,
complicates the call for moving away from a legal system that is bound in the nation-
state. If the law is not bound in the nation-state domestic laws and decisions, then where does it gain its legitimacy? Dauvergne's concept of "unhinging" needs to be considered with care if one considers nation-state priorities to be reflective of the democratic will of the citizens. While there are many Canadian citizens who call for humanitarian policies
and consideration to be given to persons living in vulnerable situations, there are also many who wish Canadian borders to restrict and exclude. Democracy is a prized feature
of Canadian society. Abizadeh argues, "democracy requires a bounded polity whose
members exercise self-determination, including control of their own boundaries."
Therefore, in imagining a reconceptualization of the law, there needs to be accountability.
This could perhaps be accountability to an international rights-based regime, not
based on granting independent powers to Canadian judges and lawyers. The
emancipatory potential of law, as interpreted in this limited discussion, lies in imagining
Peter Fitzpatrick, Law as Resistance: Modernism, Imperialism, Legalism (Vermont: Ashgate Aldershot, 2008) at 42: "The nation is not imagined as imagined. It is grounded in the ostensible quiddity of its territory." 51 Dauvergne, Making, supra note 13 at 190; Webber, supra note 44 at 61. 52 Arash Abizadeh, "Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders" (2008) 36:1 Political Theory 37.
136 an international legal system where claims can be made and adjudicated regardless of citizenship status. These claims could be rights-based, and could rely on international covenants - such as the International Covenant on Civil and Political Rights (CCPR) and the Covenant on Economic Social and Cultural Rights (CESCR), however would need to amend the ability for domestic laws to intervene in these claims. Evidently, this suggests a paradigm shift as it involves a turn to internationalism that can be seen to weaken the democratic will of a nation-state. Yet, unprecedented change in the twenty-first century due to the pressure of migration and shifting global systems and demands suggest the democratic, self-contained sovereign nation maybe at a point of transition. Ultimately, however, these imagined paradigm shifts are meant to provoke rather than offer final solutions. The purpose of this final chapter is to dwell in the speculative, not to make normative claims or provide solutions.
De Sousa Santos argues that law itself does not liberate or limit, rather the movements and organization that resort to and use the law determine its limitation or liberation. Democratic structure depends on the nation-state, while the law has traditionally been intended to maintain autonomy from the "government of the day".
Dauvergne's idea is conceptually persuasive as a way of bringing about change to the current impasse between state immigration laws, global migration, and reluctance to accept past policy methods of addressing a population without status. The remaining challenge is to garner support and find movement from within the current political arena.
It is also necessary to acknowledge that the challenges currently facing immigration and potential resolutions to improve immigration law and policy (including applying
Dauvergne's theoretical paradigm) present a minute case study in the face of global
137 economic disparities, exploitation, political corruption and violence. This also includes the entrenched mythologies of the superiority of attaining Western lifestyles - all factors that impel people to migrate, no matter what the cost.
This research briefly touches on those aspects of Canadian national life that avow
establishment of a fair and equitable society yet reproduce inequality, and a population that exists outside of the law, without recognition and voice. The reality of transnational,
global, and increasingly economically motivated migration, and the ambiguities created by Canadian immigration law, contribute to migrants slipping through the cracks of the immigration system. Although it is near impossible to determine who is worthy and who
is unworthy of life in Canada, Canada has a commitment to the United Nations
Declaration of Human Rights, the International Covenant on Civil and Political Rights,
and its own Charter of Rights and Freedoms.53 This commitment at the very least begs policy makers consider all those who live and work within its territory.
Moral arguments for migration: Catherine Dauvergne, Humanitarianism, Identity and Nation (Vancouver: UBC Press, 2005); Donald Galloway "Liberalism, Globalism, and Immigration" (1993) 18 Queen's L.J. 266; Michael Walzer, Spheres of Justice (Boston: Basic Books, 1983). Progressive jurisprudence, see Baker and Singh, supra note 26. The myth of Canadian identity as connected to being welcoming and tolerant of difference and newcomers is alive and well. See CBC news in "Love Letters to Canada" CBC News (July 1, 2009) online: CBC News
Date: March 2009
Study Name: "Legalizing the Illegal: Regularization, Persons without Status, and Canadian Immigration Law." (Master's Thesis - working title)
Researcher: Anastasia Tataryn, LL.M student, Osgoode Hall Law School York University.
Purpose of the Research: My research and thesis looks at immigration law and migration that is categorized as "legal" versus what is "illegal". I am looking at the ways in which people become "illegal", or without legal status in Canada. Currently in Canada, once you have lost your status, it is difficult to become "legal" again. I am analyzing programs in the past that the government has implemented that "regularized" status for people in Canada without status, ie. you could apply to the government to get a temporary work permit, or permanent residency status if you were in Canada "illegally". I hope to demonstrate that the government needs to address Canada's "non-status" population, and re-evaluate access to permanent residency status.
What you will be asked to do in the research: I would like to interview you about your experience living in Canada without status. I am asking for your voluntary participation in my research in order for me to illustrate the experiences of persons living without legal status in Canada. I am interested in your personal perspective and story. I ask for one or two interviews, approximately two to four hours of your time.
Risks and Discomforts: I do not foresee any risks or discomfort from your participation in the research because I will keep all the research and information compiled in my work confidential and anonymous. I will be the only person with access to the information compiled during the interview. While confidentiality is not absolute, your identity will not be aligned to and/or disclosed together with the notes that I will have from our conversations. You will be identified by pseudonyms throughout my notes and my final thesis paper. I am a graduate student; I am not a lawyer. My work is entirely independent. I am supervised by a professor at York University, but my topic, my research, and my writing is not moderated by any law- enforcers or government agencies or personnel.
Benefits of the Research and Benefits to You: The goal of my research is to offer an analysis of the situation of persons living in Canada without legal status, and discuss what can be done presently to help people who are already in Canada without status to get status, or at the very least to access basic services and rights. The benefit to you is to participate in a research project that aims to raise issues being faced by persons without legal status in Canada and offer recommendations for the future.
Voluntary Participation: Your participation in the study is completely voluntary and you may choose to stop participating at any time. Your participation in the interviews and the length of time you choose to spend is entirely up to you. Please feel free not to answer any questions you do not wish to answer and end the interview at any time you wish. No explanation is necessary. You may withdraw from participating in the interview at any time. Your decision to stop participating, or to refuse to answer particular questions, will not affect your relationship with the researcher, or York University, or any other group associated with this project. In the event you withdraw from the study, all associated data collected will be immediately destroyed wherever possible.
Confidentiality: All information you supply during the research will be held in confidence and your name will not appear in any report or publication of the research. Confidentiality will be provided to the fullest extent possible by law. Upon writing my thesis paper, all my notes from our conversations will be destroyed. This will be done by October 2009. In the final thesis paper, all participants will be referred to by pseudonyms and no information will be provided about where and how we met. 1 will not carry any of your personal information or contact information.
Questions About the Research? If you have questions about the research in general or about your role in the study, please feel free to contact Anastasia Tataryn either by telephone at 647-618-1475 or by e-mail [email protected], or the Graduate Program in Law at 416-736-5046 or via email: gradlawfaiosgoodc.yorku.ca. This research has been reviewed and approved by the Human Participants Review Sub-Committee, York University's Ethics Review Board and conforms to the standards of the Canadian Tri-Council Research Ethics guidelines. If you have any questions about this process, or about your rights as a participant in the study, please contact the Sr. Manager & Policy Advisor for the Office of Research Ethics, 309 York Lanes, York University (416-736-5914 or e-mail ore((yyorku.ea).
Legal Rights and Signatures:
I , consent to participate in Master's thesis research: "Legalizing the Illegal: Regularization. Persons without Status, and Canadian Immigration Law." conducted by Anastasia Tataryn.
I have understood the nature of this project and wish to participate. I am not waiving any of my legal rights by signing this form. My signature below indicates my consent.
Signature Date Participant
Signature Date Principal Investigator
140 BIBLIOGRAPHY
LEGISLATION
Canadian Charter of Rights and Freedoms, part I Constitution Act 1982 c.l 1.
Convention Relating to the Status of Refugees 1951, 189 U.N.T.S. 150.
Immigration Act, S.C. 1976-77, c. 52.
Immigration Appeal Board Act, S.C. 1966-1967, C. 90.
Immigration Regulations 1978, S.O.R./ 78-172.
Immigration and Refugee Protection Act, S.C. 2001, c. 27.
Immigration and Refugee Protection Regulations, S.O.R./2002-227.
Immigration and Refugee Protection Act, Regulations Amending the Immigration and Refugee Protection Regulations (Canadian Experience Class), P.C. 2008 1596 September 4, 2008, S.O.R./2008-254.
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Dec. 18, 1990, G.A. Res. 45/158, Annex, U.N. Doc. A/45/49.
CASES
Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
Brandford v. Canada (Citizenship and Immigration), 2007 FC 1113. Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689.
Charkaoui v. Canada (Citizenship and Immigration) 2007 SCC 9, [2007] 1 S.C.R. 350.
Ferguson v. Canada (Minister of Citizenship and Immigration), 2002 F.C.T. 1212.
Japson v. Canada (Minister of Citizenship and Immigration), [2004] F.C. 520.
Kwawukumey v. The Queen, [2001] 24 T.C.C.
Laluna v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. D-21.
Lauv. Canada (Minister of Citizenship and Immigration), [1998] 146 F.T.R. 116.
Mauricette v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 F.C. 420.
Munozv. Canada (Minister of Citizenship and Immigration), (1995), [1996] 1 F.C. null
Nyachieo v. Canada (Citizenship and Immigration), 2007 F.C. 948.
Pollard v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No 812.
Pringle et al v. Eraser, [1972] S.C.R. 821.
Revich v. Canada (Minister of Citizenship and Immigration) 2005 FC 852.
Rios v. Canada (Minister of Citizenship and Immigration), United Nations Human Rights, Communication No. 273/2005, Decisions of the Committee Against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in United Nations Committee against Torture, (Canada. 17/12/2004), online: UNHCR
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177.
Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] S.CJ. No. 3 [2002] 1 S.C.R. 3.
Vidal v. Canada (Minister of Employment and Immigration) (1991) 41 F.T.R. 118.
GOVERNMENT DOCUMENTS AND PUBLICATIONS
Canada, Standing Committee on Citizenship and Immigration, Temporary Foreign Workers and Non-Status Workers: Report of the Standing Committee on Citizenship and Immigration (Ottawa: House of Commons Canada, 2009).
Canada Bill C-50, House of Budget Implementation Act, 2008, 2nd Sess., 39th Pari., 2008, Part 6 Immigration and Refugee Protection Act 116-117 (as passed by the House of Commons 9 June 2008).
Canada, House of Commons, Parliamentary Standing Committee on Immigration, Evidence Contents, 39th Pari. 1st sess., No. 59 (17 May 2007).
Canada, House of Commons, Standing Committee on Citizenship and Immigration, "Immediate Moratorium on Deportations of all Undocumented Workers" Report to Parliament CIM 39-1 (21 June 2006).
Canada, House of Commons, Government Response, "Immediate moratorium on deportations of all undocumented workers" Signed Monte Solberg, Minister of Citizenship and Immigration, and Stockwell Day, Minister of Public Safety (Presented to the House on October 6, 2006), online: House of Commons Publications
Canada, House of Commons, Standing Committee on Citizenship and Immigration, "A. Assessment of the Problems by Not Just Numbers" on Not just Numbers: A Canadian Framework for Future Immigration, CITI (36-1) (June 1998).
Canada, House of Commons, Immigration Legislative Review Advisory Group, Not Just Numbers: A Canadian Framework for Future Immigration (Ottawa: Department of Citizenship and Immigration, 1997).
Citizenship and Immigration Canada, "Statistical information: Applications processed at Canadian visa offices: Skilled workers—Federal" (30 June 30 2009), online: Citizenship and Immigration Canada
Citizenship and Immigration Canada, Annual Report to Parliament on Immigration 2008. (Ottawa, ON: Minister of Public Works and Government Services Canada, 2008).
Citizenship and Immigration Canada, Manual IP-5, "Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds" (12 May 2008).
Citizenship and Immigration Canada, News Release, "Canada to accept up to 265,000 new "immigrants" in 2007" (31 October 2007).
Citizenship and Immigration, "Guide 5291 - Humanitarian and Compassionate Considerations" (22 December 2006), online: Citizenship Immigration Canada
144 Citizenship and Immigration Canada, "Annual Report to Parliament on Immigration, 2005" (Minister of Public Works and Government Services Canada, 2005).
Elgersma, Sandra, "Temporary Foreign Workers" Political and Social Affairs Division (Ottawa: Library of Parliament 2007).
Human Resources and Skills Development Canada, Temporary Foreign Worker Program: Expedited Labour Market Opinion (20 March 2009), online: HRSDC
Immigration and Refugee Board, 2009-10 Report on Plans and Priorities (26 March 2009), online: IRB
Statistics (IRB), Claims Pending (April 2009), online: IRB
"Minister of Immigration on Bill C-86" (Extract from an address by the Hon. Bernard Valcourt) (1992) 12:2 Refuge 4.
Regulatory Impact Analysis Statement, Deferred Removal Order Class, C. Gaz. 1994. II 128:23.
Statistics Canada, "Canada's Ethnocultural Portrait: The Changing Mosaic" (2001), online: Stats Canada
SCHOLARLY MONOGRAPHS AND ARTICLES Abizadeh, Arash, "Democratic Theory and Border Coercion: No Right to Unilaterally Control Your Own Borders" (2008) 36:1 Political Theory 37.
Adelman, Howard, "Processing Bill C-86" Editorial (1992) 12:2 Refuge 1.
Aleinikoff, T.A. and Douglas Klusmeyer, eds., Citizenship Policies For An Age of Migration (Washington: Carnegie Endowment for International Peace, 2002).
Amin, Mohammad and Aaditya Mattoo, "Can Guest Worker Schemes Reduce Illegal Migration?" (2006) World Bank Policy Research Working Paper 3828.
Anderson, Bridget and Martin Ruhns, "Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy" (2009) [unpublished, working paper at University of Oxford, Oxford U.K].
Anderson, Kay, "The Idea of a Chinatown: The Power of Place and Institutional Practice in the Making of a Racial Category" 77:4 Annals of the Association of American Geographers 580.
Appadurai, Arjun, "Patriotism and its Futures" in Modernity at Large: Cultural Dimensions of Globalization (Minneapolis: University of Minnesota Press, 1996).
Arat-Koc, Sedef, "Neo-liberalism, state restructuring and immigration: Changes in Canadian policies in the 1990s" (1999) 34:2 Journal of Canadian Studies 31.
Arendt, Hannah, The Origins of Totalitarianism, Rev'd ed. (New York: Schocken, 2004).
Armstrong, Jeannette and Roxanna NG, "Deconstructing Race, Deconstructing Racism" in Jo-Ann Lee and John Lutz, eds., Situating "Race" and Racisms in Space, Time and Theory (Montreal-Kingston: McGill-Queens University Press, 2005).
146 Bannerji, Himanni, The Dark Side of the Nation (Toronto: Canadian Scholars' Press, 2000).
Basok, Tanya, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (Montreal: McGill-Queen's University Press, 2002).
Bates, Karine, "Acquiring a Rational Legal Identity: Hindu Women's Access to State Legal Bureaucracy in India" (Paper presented at the annual meeting of the Law and Society Association, Montreal, Quebec, 27 May 2008), online: All Academic Research
Benhabib, Seyla, The Rights of Others: Aliens, Residents, and Citizens (Cambridge: Cambridge University Press, 2004).
Bosniak, Linda, The Citizen and the Alien: Dilemmas of Contemporary Membership (New Jersey: Princeton University Press, 2006).
Boswell, Christina, "The Elusive Rights of An Invisible Population" (2008) 22:2 Ethics & International Affairs 185.
Bou-Zeid, Zena, Unwelcome but Tolerated: Irregular Migrants in Canada (D.C.L. Thesis, York University, 2007) [unpublished].
Buchignani, Norman and Doreen Indra, "Vanishing Acts: Illegal Immigration in Canada as a Sometime Social Issue" in David W. Haines, Karen Reseonblum, eds., Illegal Immigration in America: A Reference Handbook (California: Greenwood Press, 1999).
Calavita, Kitty, "Immigration, Law, and Marginalization in a Global Economy: Notes from Spain" (1998) 32:3 Law Soc. Review 529.
147 Carens, Joseph, "Aliens and Citizens: the Case for Open Borders" (1987) 49 Review of Politics 251.
"The Rights of Irregular Migrants" (2008) 22:2 Ethics & International Affairs 163.
Carasco, Emily et el., eds., Immigration and Refugee Law (Toronto: Emond Montgomery Publications, 2007).
Chatterjee, Partha, "Beyond Nation? Or Within" (1998) 56 Social Texts 57.
Cinar, Dilek, August Gachter, Harald Waldrauch, eds. Irregular Migration: Dynamics, Impact, Policy Options (Vienna: European Centre for Social Welfare Policy and Research, 2000).
Cohen, Andrew, While Canada Slept (Toronto: McClelland & Stewart, 2004).
Coutin, Susan Bibler, "Smugglers or Samaritans in Tuscon, Arizon: Producing and Contesting Legal Truth" (1995) 22:3 American Ethnologist 549.
Dauvergne, Catherine, Making People Illegal (New York: Cambridge University Press, 2008).
Humanitarianism, Identity and Nation (Vancouver: UBC Press, 2005).
"Sovereignty, Migration and the Rule of Law in Global Times" (2004) 67:4 Modern Law Review 588.
"Evaluating Canada's New Immigration and Refugee Protection Act in its Global Context." (2003) 41 Alberta Law Review 725.
148 "Amorality and Humanitarianism in Immigration Law" (1999) 73 Osgoode Hall Law Journal 597.
DeGenova, Nicholas, "Migrant 'Illegality' and Deportability in Everyday Life" (2002) 31 Annual Review of Anthropology 422.
Derrida, Jacques, "Force of Law," tr., Mary Quaintance, in Deconstruction and the Possibility of Justice eds., Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson (New York: Routledge, 1992).
Dirks, Gerald, Canada's Refugee Policy: Indifference or Opportunism (Montreal: McGill-Queen's University Press, 1977).
Dobrowolsky, Alexandra, "(In) Security and Citizenship: Security, Im/migration and Shrinking Citizenship Regimes" (2007) 8:2 Theoretical Inquiries in Law 629.
Ellerman. Antje, States Against Migrants: Deportation in Germany and the United States (New York: Cambridge University Press, 2009).
Fitzpatrick, Peter, Law as Resistance: Modernism, Imperialism, Legalism (Vermont: Ashgate Aldershot, 2008).
"Finding Normativity: Immigration Policy and Normative Formation" forthcoming (unpublished), 2009.
Fitzpatrick, Peter & Patricia Tuitt, eds., Critical Beings: Law, Nation and the Global Subject (Vermont: Ashgate Aldershot, 2004).
Francis, Daniel, National Dreams: Myth, Memory, and Canadian History (Vancouver: Arsenal Pulp Press, 1997).
149 Galloway, Donald, "Liberalism, Globalism, and Immigration" (1993) 18 Queen's L.J. 266.
Garcia y Griego, Manuel, "Canada: Flexibility and Control in Immigration and Refugee Policy" in Wayne A. Cornelius, Philip L. Martin & James Frank Hollifield, eds., Controlling immigration: A Global Perspective (California: University of California, San Diego, 1994).
Geertz, Clifford, Interpretation of Cultures: Selected Essays (New York: Basic Books, 1993).
Ghosh, Bimal ed., Managing Migration: Time for a New International Regime? (New York: Oxford University Press, 2000).
Gibney, Matthew J., The Ethics and Politics of Asylum (Cambridge: Cambridge University Press, 2004).
Goldring, Luin, Carolina Berinstein and Judith K. Bernhard, "Institutionalizing Precarious Migratory Status in Canada" (2009) 13:3 Citizenship Studies 239.
Griswold, Daniel, "Willing Workers: Fixing the Problem of Illegal Mexican Migration to the United States" Centre for Trade Policy Studies (15 October 2002).
Hathaway, James, The Rights of Refugees Under International Law (Cambridge: Cambridge University Press, 2005).
Hawkins, Freda, Critical Years in Immigration: Canada and Australia Compared (Montreal, Kingston: McGill-Queens University Press, 1991).
Hymes, Dell, Ethnography, Linguistics, Narrative Inequality: Toward an Understanding of Voice (Taylor and Francis: London, 1996).
150 Jandl, Michael, ed., Innovative Concepts for Alternative Migration Policies (Amsterdam: Amsterdam University Press, 2007).
Jones, Joseph, Happenstance and Misquotation: Canadian Immigration Policy 1966- 1974, the Arrival of US Vietnam War Resisters, and the Views of Pierre Trudeau (Vancouver: Quarter Sheaf, 2008).
Jones, Martin and Sasha Baglay, Refugee Law (Toronto: Irwin Law, 2007).
Joppke, Christian, "Why Liberal States Accept Unwanted Immigration" (1998) 50:2 World Politics 266.
Kelly, Ninette and Micheal Trebilcock, The Making of the Mosaic: A History of Canadian Immigration Policy (Toronto: University of Toronto Press, 1998).
Li, Peter S., The Chinese in Canada (Toronto: Oxford University Press, 1988).
Macklin, Audrey, "Who is the Citizen's Other? Considering the Heft of Citizenship" (2007) 8 Theoretical Inquiries in Law 476.
"Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement" (2005) 36 Columbia Human Rights Law Review 365.
MacLaren, Angus, Our Own Master Race: Eugenics in Canada, 1885-1945 (Oxford: Oxford University Press, 1998).
Manning, Erin, Ephemeral Territories: Representing, Home, and Identity in Canada (Minneapolis: University of Minnesota Press, 2003).
151 Miller, David, "Irregular Migrants: An Alternative Perspective" (2008) 22:8 Ethics & International Affairs 197.
Morales, Daniel Ibsen, "In Democracy's Shadow, Fences, Raids, and the Production of Migrant Illegality" (January, 2009) 5:1 Stanford Journal of Civil Rights and Civil Liberties 101.
Narayan, Kiran, "How Native Is A 'Native' Anthropologist?" (1993) 95:3 American Anthropologist 671.
North, D.S., Amnesty: Conferring Legal Status on Illegal Immigrants (Washington, D.C: New TransCentury Foundation, Centre for Labour and Migration Studies, 1980).
Pratt, Anna, Securing Our Borders: Detention and Deportation in Canada (Vancouver: University of British Colombia Press, 2005).
Razack, Sherene, Race, Space and the Law: Unmapping White Settler Society (Toronto: Between the Lines, 2002).
Looking White People in The Eye: Gender, Race, and Culture in Courtrooms and Classrooms (Toronto: University of Toronto Press, 1998).
Robinson, W.G., "Illegal Immigrants in Canada: Recent Developments" (1984) 18: 3 International Migration Review 474.
Illegal Immigrants in Canada: A Report to the Honourable Lloyd Axworthy, Minister of Employment and Immigration (Ottawa: Minister of Supply and Services Canada, 1983).
Sharma, Nandita, Home Economics: Nationalism and the Making of 'Migrant Workers " in Canada (Toronto: University of Toronto Press, 2006).
152 Sassen, Saskia, Territory, Authority and Rights: From Medieval to Global Assemblages (New Jersey: Princeton University Press, 2006).
Losing Control? Sovereignty in an Age of Globalization (New York: Columbia University Press, 1996). de Sousa Santos, Boaventura, Toward a New Legal Common Sense: Law, Globalization and Emancipation, 2d ed. (London: Butterworths LexisNexis, 2002).
Spivak, Gayatri, The Postcolonial Critique: Interviews, Strategies, Dialogues Sarah Harasym ed., (New York London: Routledge, 1990).
Stynes, Sean Patrick Cleary, Legal Ethics and Illegal Migrants: The Bounds of Ethical Conduct for Lawyers Helping 'Illegals' Become 'Legal' (LL.M, Thesis, University British Colombia, 2007) [unpublished].
Sutton Lutz, John, ed., Myth and Memory: Stories of Indigenous-European Contact (Vancouver: UBC Press, 2007).
Tastsoglou, Evangelia and Alexandra Dobrowolsky, eds., Women, Migration, and Citizenship: Making Local, National, and Transnational Connections (Aldershot, England: Ashgate Publishing, 2006).
Thobani, Sunera, Exalted Subjects: Studies in the Making of Race and Nation in Canada (Toronto: University of Toronto Press, 2007).
Torpey, John, "Coming and Going: On the State Monopolization of the Legitimate 'Means of Movement " (1998) 16:3 Sociological Theory 240.
153 Tuhiwai Smith, Linda, Decolonizing Methodologies Research and Indigenous Peoples (London: Zed Books, 1999).
Walzer, Michael, Spheres of Justice (Boston: Basic Books, 1983).
Webber, Jeremy, "National Sovereignty, Migration, and the Tenuous Hold of International Legality" in Of States, Rights and Social Closure: Governing Migration and Citizenship Oliver Schmidtke & Saime Ozcurumez (eds)., (New York: Palgrave Macmillian, 2007).
Weissbrodt, David, The Human Rights of Non-Citizens (Oxford: Oxford University Press, 2008).
Zolberg, Aristide, A Nation by Design (Boston: Harvard University Press, 2006).
NEWSPAPER AND MEDIA SOURCES
Access to Services Without Fear Immigration Campaign, "Toronto Community Services Resource Guide" (May 2007) Community Social Planning Council of Toronto (CSPC-T) and Davenport Perth Neighbourhood Centre.
Bustos, Alejandro. "Unseen, unheard and afraid. Have politicians turned a blind eye to illegal workers? Some fields, like construction, now dependent on them" Toronto Star (15 August 2005), online: Toronto Star
Carter, Lee, "Canada's Refugee System in Flux" BBC News (July 21, 2003), online: BBC America
CBC.ca, "Love Letters to Canada" CBC News (1 July 2009), online: CBC News
154 CBC Immigration Archives, "Kin for Hire" (29 May 1960), online: CBC Archives
CBC Immigration Archives, "Living in fear: draft dodgers in hiding" (7 May 1969), online: CBC Archives
Clark, Campbell, "Skilled immigrants being squeezed out as temporary workers flock to Canada" Globe and Mail (22 July 2009), online: Globe and Mail
Collins, Michelle, "Two-Tier Refugee System Blasted" The Embassy Magazine (15 April 2009), online: Embassy Mag
Cook, Verda, "Workers of Colour within the Global Economy," (December 2004) Canadian Labour Congress: Research Paper on Migrant Workers.
Ditchburn, Jennifer, "Canada ignoring refugees from Mexican violence: advocates" Canadian Press (27 March 2009), online: Toronto Star
Editorial, "Canada's Homegrown Refugee Problem" Embassy Magazine (22 July 2009), online: Embassy Mag
Flecker, Karl, Canadian Labour Congress, "Immigration changes contradict Conservatives' ethnic outreach" The Harper Index (7 April 2008), online:
Gillies, Rob, "Thousands ordered deported from Canada are unaccounted for" Associated Press (7 May 2008), online: AP News Network
155 Gorrie, Peter, "Tories begin deporting illegal workers (Canada vs. illegal aliens)" Toronto Star (21 March 2006), online: Toronto Star
Horsley, William, "Analysis: Migrant boats test EU" BBC News (27 August 2004), online: BBC Europe
Khandor, Erika, Jean McDonald, Peter Nyers, and Cynthia Wright, "The Regularization of Non-Status Immigrations in Canada: 1960-2004. Past Policies, Current Perspectives, Active Campaigns" Ontario Council of Agencies Serving Immigrant Publication (2004), online: OCASI Status Campaign Documents
Keung, Nicholas, 'No sign' Canada is keeping track of illegal migrants; Expert accuses Ottawa of expanding temporary foreign worker program without enough controls," Toronto Star (8 May 2008) A.22.
"Family 'in exile within exile'" Toronto Star (1 October 2008) A.20.
Kohler, Nicholas, "A Crackdown on Queue-Jumpers" MacLeans (28 July 2009), online: MacLeans
Martin, Don, "Kenney relishes the political fray" CanWest News Service (30 March 2009), online: Edmonton Journal
McDonald, Jean, "Regularization and Immigrations' Rights" (2005) 50:2 New Socialist Magazine, online: New Socialist
O'Neil, Peter, "Canada to require visas from Mexico, Czech Republic" Canwest News Europe Correspondent (13 July 2009), online: National Post
156 Showier, Peter, "Invalid Claims About Refugees", Op-Ed, Ottawa Citizen (17 July 2009), online: Ottawa Citizens
Somerset, Jay, "Worth Waiting For?" MacLeans (6 August 2007), online: MacLeans
Taylor, Lesley Ciarula, "Immigration system hurts more than helps, study finds. Many newcomers stuck in jobs that are ' dirty, dangerous and difficult'" Toronto Star (June 18, 2009), online: Toronto Star
Vaidyanath, Sharda, "No Amnesty for Undocumented Workers" Epoch Times Parliament Hill Reporter. (17 November 2006), online: Epoch Times
Valiante, Giuseppe, "No measures to counter Mexican gang activity: RCMP" National Post (3 July 2009), online: National Post
Zandfrini, Laura and Kluth, Policies on Irregular Migrants: Volume One (Strasbourg: Council of Europe Publishing, 2008).
WEBSITES
Canadian Council for Refugees, Resolution #10 from Resolutions May 2009 (May 2009), online: CCR
"Refugee Appeal Division" (2009), online: CCR
157 "Bill C-50 - Proposed amendments to IRPA" Canadian Council for Refugees (April 2008), online: CCR
"Lives on Hold" Canadian Council for Refugees (2006), online: CCR
Chow, Olivia, "Amnesty" (2009), online: Olivia Chow, MP
Justicia for Migrant Workers "Protests respond to Ontario immigration raids" (8 April 2009), online: Justicia 4 Migrant Workers
Karygiannis, Jim, "Undocumented Workers: Time to Fix the System" (7 June 2007), online: Jim Karygiannis, MP
No One Is Illegal "Two Raids: Dozens of food packagers arrested for working in Southern Ontario" (28 May 2009), online: No One Is Illegal
OCASI Status Campaign, "Proposal for the Regularization of Individuals and Families Without Status" (June 2006), online: OCASI
OCASI Status Campaign. Media Release, "Community Groups Launch Proposal of Regularization for Non-Status Immigrants" (17 October 2005), online: OCASI
Reuters, "Illegal Immigration in the United States" Thomson Reuters, 2009, online: Reuters
Telegdi, Andrew, "Citizenship and Immigration" (2008), online: Andrew Telegdi, MP
Volpe, Joe, "Joe in the House of Commons" (2006), online: Joe Volpe, MP
INTERVIEWS
Interview of "Gabriella" by Anastasia Tataryn (11 June 2009) Toronto, ON.
Interview of "Ruth" by Anastasia Tataryn (11 June 2009) Toronto, ON.
Interview of "Alejandro" by Anastasia Tataryn (4 May 2009; 12 June 2009; 22 July 2009) Toronto, ON.
Interview of "Petros" by Anastasia Tataryn (5 June 2009; 20 July 2009; 24 July 2009) Kitchener- Waterloo, ON.