Unwanted but Unremovable: Canada’s Treatment of “Criminal” Migrants Who Cannot be Removed

Jennifer Bond

(2017) 36:1 Refugee Survey Quarterly 168-186.

Abstract:

This article reports on Canada’s treatment of migrants who are deemed “undesirable” for reasons of actual or alleged criminality, but who cannot be removed from Canadian territory. It identifies five potential outcomes for these individuals: eligible for permanent residence; granted temporary stay of removal until impediment removed; granted temporary status while still under active removal order; placed in legal limbo; or subjected to suspect deportation. The specific rights and restrictions that flow from each of these outcomes vary significantly, but the result in a given case does not appear to reflect deliberate policy choices that consider and treat criminal-unremovable persons as a class. This arbitrariness is exacerbated by the fact that the majority of impediments to removal are not the specific subject of any decision-making process in Canada: a series of sequential tables are used to demonstrate that most impediments to removal are relevant only in highly discretionary contexts where they may be deemed insignificant or given minimal weight. The overall conclusion is that although individuals in this situation face significant hardship, Canada does not have a coherent or deliberate policy regarding their interim or long-term treatment.

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About the Author:

Jennifer Bond’s primary research projects explore, respectively, models for directly engaging private actors in international refugee resettlement; the use of criminal law to deny refugee protection; and access to justice issues relating to the use of evidence in refugee status determination processes. Some of Professor Bond’s other work discusses the constitutional implications of underfunding Canada’s criminal legal aid system; the limitations of duress as a defence in both refugee proceedings and international criminal law; the link between gender and the responsibility to protect; and the failure of a mechanism designed to ensure legislative compliance with Canada’s human rights instruments. Professor Bond is also co-founder and director of the University of Ottawa’s Refugee Hub and its three flagship initiatives: (1) the University of Ottawa’s Refugee Assistance Project (UORAP), a $1.5 million initiative that identifies and mitigates to justice deficits in Canada’s refugee system; (2) the Refugee Law Research Team (RLRT), which engages in appellate-level public interest litigation; and (3) the Refugee Sponsorship Support Program, a national project that mobilizes pro-bono legal support for private sponsorship groups. Professor Bond is also a member of the University of Ottawa’s Public Law Group.

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