Transcript Law as a vehicle of integration? The “inclusionary” and “exclusionary” dimension of law in the field of migration DELPHINE NAKACHE Research Associate, Canada Research Chair.

Law as a vehicle of integration?
The “inclusionary” and
“exclusionary” dimension of
law in the field of migration
DELPHINE NAKACHE
Research Associate, Canada Research Chair in International Migration Law
Doctoral Candidate, Institute of Comparative Law, McGill University.
&
FRANÇOIS CRÉPEAU
Professor of International Law
Canada Research Chair in International Migration Law
Scientific Director, Centre for International Studies (CERIUM)
University of Montreal
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Inclusive dimension of Law

Canadian Charter of Rights and Freedoms (1982): all
rights equally apply to all human beings under the
purview of the Charter.

Important judicial pronouncements on the domestic
application of international human rights law standards
(“best interest” of the child)
Foreigners, like citizens, are able to take active steps to
bring a Charter issue to the Court and to seek a remedy
under a Charter section
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Exclusionary dimension of Law

Canadian immigration law has significantly reduced the
right to a remedy available to non-citizens

A more restrictive outlook has characterized cases relating
to national security or State sovereignty concerns
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PART I
THE CONSTITUTIONAL PROTECTION
OF THE FUNDAMENTAL RIGHTS OF
NON-CITIZENS: LAW AS A VEHICLE OF
INTEGRATION
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The Constitutional Protection of
Fundamental Rights For All
1) Legal rights
2) Equality rights
3) Fundamental freedoms
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1) Legal Rights - Section 7:
fundamental justice
Singh v. Canada (1985, SC):
The assessment of a risk to the security of the person means an
assessment of the threat to any of the three rights guaranteed to a
refugee – i.e. the right to status determination, to appeal a removal or
deportation order and to protection against refoulement
The procedure used in Canada to decide a refugee claim (i.e. a
written record of the examination before an Immigration Officer)
does not comply with the principles of fundamental justice
because it does not provide an adequate opportunity to claimants
to state their case and to respond to contrary evidence (the right
to an oral hearing).
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2) Equality Rights - Section 15

“equal protection and equal benefit of the law without discrimination
(…) based on race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability”.

Andrews v. Law Society of British Columbia (1989, SC)
– the Supreme Court stated that section 15 prohibits discrimination on the
basis on the analogous ground of citizenship.
– substantive equality analysis (rather than formal equality approach).

Law v. Canada (1999,SC): the guidelines of Andrews are made more
stringent, adding especially a requirement that the discrimination be a
violation of human dignity.
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3) Fundamental Freedoms –
section 2: Freedom of
Association
Al Yamani v. Canada (Federal Court, 1996):
Part of section 19(1)g) of the former Immigration Act of 1976[1] –
proscribing the admission to Canada of members of an organization
likely to engage in violent acts that will endanger the safety of people
in Canada – is unconstitutional on the ground that, by rendering
inadmissible those who were merely members of organizations likely
to engage in acts of violence, it violates the applicant’s freedom of
association
[1] “Member of an organization likely to engage in violent acts.” This
offence is now found under s. 34(1) IRPA.
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Using international human rights
law in interpreting domestic
standards
Dualist theory :
 The national and international legal orders are two
distinct spheres of law

“Statutory incorporation” is mandatory for an
international treaty to acquire the force of law in
the country.
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Significant Case Law

Pushpanatan (1998, SC): the “purpose” and “context” of the 1951 UN
Refugee Convention are applicable in determining the meaning of
Article 1F(c) in domestic law (exclusion clause)

Baker (1999, SC) & Malekzai (2005, FC): the immigration official
exercising discretion in deportation cases is bound to consider the
principle of “the best interests of the child” stated in the 1989 UN
Convention on the Rights of the Child

Suresh (2002, SC): the principle of the absolute prohibition of torture
and of non-refoulement must be given consideration in expulsion cases
“even where national security interests are at stake
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PART II
THE REDUCTION OF THE RIGHT TO A
REMEDY UNDER CANADIAN IMMIGRATION
LAW : LAW AS A MEANS OF EXCLUSION
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Since Singh, a more restrictive
outlook has characterized cases
relating to national security or
State sovereignty concerns




Nguyen v. Canada (FC, 1993)
McAllister v. Canada (FC, 1996)
Chiarelli v. Canada (SC, 1992) & Chan v. Canada (FC,
1996)
Dehghani v. Canada (SC, 1993)
The principles of fundamental justice can vary according
to the context in which they are invoked
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Replacement of Appeals by
Judicial Review in Canadian
Immigration Law

Judicial review does not review the
merits of the case.

It is particularly difficult to get a
decision overturned when it hinges
on the credibility of the claimant’s
testimony, since the Court will
usually say that the decision-maker
who heard the claimant is best
placed to judge whether he were
credible.

A decision can be wrong and, if it
does not contain the kind of mistake
subject to review by the Federal
Court, it is final
 Permanent and Temporary
Residents
No appeal is available to a
sponsor where a security
certificate has been signed or
where the minister is of the
opinion that the person is a
danger to the public and
inadmissible under specified
paragraphs of IRPA.

The Refugee Appeal Division:
a broken promise
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Legal Aid Remains Inadequate

Provinces are exclusively responsible for developing and managing
legal aid policies, without insuring some equalization.

Dehghani v. Canada (SC, 1993): the principles of fundamental justice
do not require the appellant being provided with counsel at the preinquiry or pre-hearing stage of the refugee claim determination process
Contravenes to Singh & the indications formulated in the federal costsharing arrangements covering refugee claimants
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Security Certificates & the Right
to Justice

Terrorism as a Ground for
Detention and Removal
– There are no provisions for
release comparable to
section 515 of the Criminal
Code, which allows for the
release of even the most
dangerous individuals on
surety bail or cash deposit:
Jaballah example is
instructive (FC, 2004): he
was denied interim release
notwithstanding the fact
that fourteen individuals
were prepared to act as
sureties.

The challenge to the
Constitutionality
– Ahani vs. Canada (1995,
F.C.) & Charkaoui (Re)
(2003, F.C): the imperatives
of immigration policy
(i.e.the right of State to
safeguard protected
information for reasons of
national security) must
govern the context
– In both cases, emphasis on
the fact that non-citizens do
not have an unqualified
right to enter or remain in 15
the country.
CONCLUSION:
CLARIFYING THE RIGHT TO
EQUALITY AND THE NONDISCRIMINATION PROVISIONS
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Elements of solution

1. There is no possible differentiation between citizens and
non-citizens regarding basic protections for physical
security and fair trial.

2. A differentiation between citizens and non-citizens is
legal if a State can make out a “reasonable and objective
case” that differing treatment of applicants of a particular
national origin for a limited period of time is required for
its security.

Otherwise, the differentiation constitutes discrimination
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and is illegal