When NOT to claim refugee status: Understanding Ineligible Refugee Claims, the Legal Test for Refugee Protection in Canada, and how making a claim restricts other options.
Canada has a reputation for providing refuge to those fleeing persecution. However, not every claim meets the criteria for refugee protection. While Canada’s immigration system strives to ensure fairness, it also includes safeguards to prevent abuse of the refugee process. People who make refugee claims face restrictions in pursuing other economic immigration pathways, underscoring the need to carefully consider the implications of making a claim for refugee protection. It is important for people to understand:
when they are not eligible to make a refugee at all;
how difficult it is to meet the legal test for Convention refugees; and
how making a refugee claim forecloses most other economic immigration options.
Refugee law is very complex and the following is intended to be a high-level overview for general information and is not legal advice.
Ineligible Refugee Claims: when the claim will not proceed
Under Canadian immigration law, refugee protection can result when a person is found to be either a Convention refugee or a protected person. Refugee claims are assessed by the Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration and Refugee Board (IRB). However, certain refugee claims are deemed ineligible and will not proceed to a full hearing before the IRB’s Refugee Protection Division (RPD). According to the Immigration and Refugee Protection Act, SC 2001, c 27, section 101, a claim is NOT eligible in the following circumstances:
Previous Protection in Canada or in Another Country:
If the claimant has already been recognized as a refugee in Canada or in another country to which they can return, their claim is ineligible. A person is not allowed to make multiple refugee claims and Canada will not duplicate refugee protection when a person already has a safe haven elsewhere.
Previous Negative Determination:
If the claimant previously made a refugee claim in Canada that was rejected, abandoned, or withdrawn, they cannot submit another claim even if there is a significant change in circumstances. In some cases, a person inside Canada might have the ability to apply for a Pre-Removal Risk Assessment (PRRA) but there are certain PRAA bars also. If a person made an in-country asylum claim in another country with which Canada has an information sharing agreement, they are also ineligible to make a claim in Canada.
Safe Third Country Agreement (STCA):
Under the STCA between Canada and the United States, claimants must seek refugee protection/asylum in the first of these two countries in which they arrive. Claims made at border crossings are usually ineligible unless specific exceptions to the STCA apply, such as for certain claimants who have family members in Canada or unaccompanied minors (see IRPR s.159.5).
Security and Criminality Concerns: Claims are ineligible if the claimant is inadmissible because they:
Pose a danger to the security of Canada;
Has violated human or international rights; or
Has committed serious crimes, including war crimes or crimes against humanity or organized crimes.
The Legal Test for Refugee Protection
Remember that a person can obtain Canadian refugee protection if they are a Convention Refugee or a person in need of protection.
The legal test for a person in need of protection (s.97 of IRPA)
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection
The legal test for a Convention Refugee (s. 96 of IRPA)
A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
The term "Convention refugee" originates from the 1951 United Nations Convention Relating to the Status of Refugees, and Canada is a party to that Convention. To qualify as a Convention refugee in Canada, a claimant must satisfy the following criteria:
Well-Founded Fear of Persecution: The claimant must demonstrate a genuine fear of persecution in their home country. The fear must be both subjective (personally felt) and objectively reasonable (supported by facts or evidence). Delay in leaving a country of persecution and delay in making a claim in Canada tend to erode the ability to prove a well-founded fear. The IRB will assess the claimant’s activities, motivation and credibility as well as events in the home country.
Nexus to Protected Grounds: The persecution must be “by reason of” and linked to one of the five enumerated grounds outlined in the Convention:
Race
Religion
Nationality
Membership in a particular social group (groups defined by an unchangeable characteristic, groups whose members associate for fundamental human dignity, groups associated by a former voluntary status, unalterable due to its historical permanence e.g., LGBTQ+ individuals or victims of domestic violence)
Political opinion
State Protection: Claimants must prove that they cannot avail themselves of state protection in their home country. Except in situations where a state is in complete breakdown, states are presumed capable of protecting their citizens. Claimants have to rebut the presumption with clear and convincing evidence that their state is unable or unwilling to protect them and that they have actually sought state protection. If someone did not seek state protection, they must show it was reasonable for them not to seek state protection because it would not reasonably have been forthcoming.
Internal Flight Alternative: Furthermore, if the Minister puts the claimant on notice that an internal flight alternative (a safe area within the home country) is available, the claimant has to show they do not have an IFA. The test is two-pronged and includes whether, on a balance of probabilities, there is not a serious possibility of the claimant being persecuted in the IFA, and that conditions in the IFA make it not unreasonable for the claimant to seek refuge there.
Exclusion Clauses: Certain individuals are excluded from refugee protection under the Convention. This includes individuals who:
Are excluded under Article 1 E: They have residency in a country that recognizes them as having rights and obligations substantially similar to those of a national of that country;
Are excluded under Article I F: Have committed crimes against peace, war crimes, crimes against humanity, serious non-political crimes or engaged in acts contrary to the principles of the United Nations.
Key Differences Between Ineligibility and Failing the Refugee Test
It is essential to distinguish between ineligibility to make a claim and failing to meet the legal test for refugee status. Ineligibility occurs when a claim does not meet the procedural or legal criteria and the claim will not proceed further.
Even if a person is eligible to make a claim for refugee protection and proceeds to a hearing, it is difficult to prove all the elements of the refugee test. A claimant will not be found to be a protected person by the IRB unless they establish a well-founded fear of persecution (risk of serious harm, is credible and they did not delay), with a nexus to one of the five grounds, that there is no state protection, and they rebut an Internal Flight Alternative if the Minister raises it, and they are not excluded.
Economic Immigration Restrictions During a Refugee Claim
Making a refugee claim can have far-reaching consequences for a person’s ability to apply under other economic immigration pathways. Eligible Refugee claimants whose claim has been referred to the IRB are typically issued temporary work permits to support themselves during the processing of their claims but these refugee work permits do not confer temporary resident status. Anyone considering making a refugee claim should be aware that:
Ineligibility for CEC under Express Entry:
Refugee claimants cannot claim work experience gained while on a refugee work permit towards the Canadian Experience Class (CEC). High-skilled Canadian work experience must be gained by people who have valid temporary resident status. When a refugee makes a claim, they are given a removal order that only takes effect once their refugee process is over. Any refugee work or study permit will contain the clause that the permit does not confer temporary resident status.Impact on Provincial Nominee Program (PNPs) eligibility:
Most PNPs also require applicants to have legal temporary resident status in Canada. Refugee claimants generally cannot apply to PNP programs while their refugee status is unresolved.
By submitting a refugee claim, individuals effectively prioritize protection over economic immigration, which may prevent or delay their ability to transition to permanent residency through other channels.
Risks of Making an Unfounded Refugee Claim
Filing a refugee claim that lacks merit or is not supported by genuine evidence carries significant risks. These include:
Removal from Canada:
Claimants whose applications are rejected may face removal, deportation and be barred from returning unless they obtain special Authorization to Return (ARC). Once removed, re-entry to Canada is generally difficult.Impact on travel and visa approval with other countries:
Canada shares certain types of information with other countries. If you have an abandoned, withdrawn or refused refugee claim, it will likely be difficult for you to claim a valid temporary intent and other countries may not approve your visa application.Loss of Credibility for Future Applications:
Individuals who make an unfounded claim jeopardize their ability to seek other forms of immigration, such as economic PR. Work permits or study permits issued to refugee claimants do not confer temporary resident status. A spouse or common-law partner who was issued a work or study permit if their claim was referred to the IRB is not a temporary resident. They do not meet the requirements of IRPR s.124(b) and do not qualify as members of the spouse or common-law partner in Canada class (but the spousal policy may waive the requirement for them to have status). Regardless, IRCC will be suspicious about the genuine nature of a spousal sponsorship where the person first made a refugee claim and then married a Canadian.Impact on Genuine Refugees:
Unfounded claims strain Canada’s immigration system, delaying decisions for genuine refugees who urgently need protection.
Conclusion
Canada's refugee determination system is designed to balance the protection of vulnerable individuals with maintaining the integrity of its immigration system. Understanding the grounds for ineligible claims and the legal framework for assessing refugee protection helps highlight the rigour and fairness embedded in Canada's approach to refugee protection. Submitting an unfounded refugee claim can have long-term consequences, including removal, loss of other options, and diminished credibility. Those considering a refugee claim should seek legal advice to ensure they are eligible, admissible and present a credible, well-supported case.
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About the author:
Alicia Backman-Beharry
Canadian Immigration Lawyer