1.D Legal Framework
Why is this important?
A community sponsorship program can only succeed if mobilized communities have access to a vehicle enabling them to act. Governments need to enact laws and regulations, and create policies and procedures, that permit communities to engage directly in resettling refugees.
Policymakers thinking about developing a community sponsorship program in their own countries will need to consider what sort of legal framework they will adopt to give effect to community involvement in refugee resettlement.
Canada’s Legal Context
As a State party to the 1951 Convention Relating to the Status of Refugees (Refugee Convention), Canada has made a commitment to work with international partners in resettling refugees, recognizing that refugee protection is a shared responsibility and that resettlement eases the strain on certain countries (e.g. those bordering states from which refugees arrive). Canada has implemented the legal obligations established by the Refugee Convention in its domestic law, giving it binding effect.
Federalism in Canada
The Canadian Constitution divides legislative powers between two orders of government: federal (matters of national interest) and provincial (matters of local interest). Section 95 of Canada’s Constitution gives concurrent jurisdiction over immigration to the provincial and federal governments, although in practice the federal government is primarily responsible for selecting and processing refugees for resettlement to Canada. Federal law such as Canada’s Immigration and Refugee Protection Act (IRPA) and Citizenship Act regulates right of entry into Canada, and legal status and rights of refugees upon entry. Canada has chosen to provide durable solutions to all refugees it resettles by granting them permanent resident status. Many aspects of refugee resettlement (e.g. access to services like education or health) fall to the provincial and territorial governments of Canada. Specific constitutional provisions apply to the Province of Quebec, which is responsible for selecting refugees to resettle to Quebec based on referrals from the Government of Canada.
Canada has implemented its commitment under the Refugee Convention of responsibility sharing by resettling refugees in the IRPA and Immigration and Refugee Protection Regulations (IRPR). The IRPA and IRPR also regulate other immigration avenues to Canada, including family sponsorship and various economic immigration categories. The commitment to resettle is explicitly set out in the IRPA, stating that an objective of the legislation is “to fulfill Canada’s international obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement” (s. 3(2)(b)). Importantly, the Act emphasizes that the IRPA is first and foremost about “saving lives and offering protection to the displaced and persecuted” (s. 3(2)(a)). The IRPA is one piece in a complementary web of domestic laws which entrench important Canadian values, including Canada’s Constitution, the Canadian Charter of Rights and Freedoms, the Citizenship Act, the Multiculturalism Act, the Human Rights Act, provincial Human Rights Codes, and the Employment Equity Act, to name a few.
Canadian Laws Regarding Private Sponsorship of Refugees
Who Can be Sponsored?
Canadian laws specify that in order to qualify for resettlement by Canada, refugees must either be referred to Canada by private sponsors, or by a referral organization like UNHCR (IRPR Regs. 139(1)(f), 140.3). This creates three central categories of refugees eligible for resettlement to Canada:
- Government-Assisted Refugees: Refugees referred for resettlement to Canada by UNHCR or another referral organization. Refugees resettled under this program are entirely supported by the Government of Canada during their first twelve months in Canada;
- Privately Sponsored Refugees: Refugees who are referred for resettlement to Canada by private sponsors – Canadian citizens or permanent residents. Under this stream, private sponsors provide financial support and settlement assistance during the refugees’ first twelve months in Canada.
- Visa Office-Referred Refugees: Refugees who are referred to Canada by UNHCR and matched with Canadian private sponsors. Costs of resettlement are shared by Canada and private sponsors (see A.4(v)). There are two types of Visa Office-Referred sponsorships:
- Visa Office-Referred (VOR) sponsorships where private sponsors are responsible for full financial and settlement support during the sponsorship period;
- Blended Visa Office-Referred (BVOR) sponsorships where Canada and private sponsors share the financial costs of sponsorship but private sponsors are responsible for settlement support; and
- Joint Assistance Sponsorships (JAS) for government-assisted refugees with special needs (e.g. victims of trauma or torture, refugees with particular medical conditions, exceptionally large families) where Canada provides full financial support throughout the sponsorship period, normally two years, and private sponsors are responsible for providing settlement support.
Canadian laws also specify which individuals will qualify as “refugees” for the purpose of resettlement in Canada. These include Convention Refugees (refugees meeting the definition of the Refugee Convention) and persons in similar circumstances, “taking into account Canada’s humanitarian tradition with respect to the displaced and persecuted” (IRPA s. 12(3)). Canada has created a class called the “Country of Asylum Class” to further define who may qualify as “persons in similar circumstances.” For more information, see 2.A.1(iii).
Who Can Sponsor?
Canadian laws also set out the legal framework for who is eligible to sponsor. The IRPA provides that “[a] Canadian citizen or permanent resident, or a group of Canadian citizens or permanent residents, a corporation incorporated under a law of Canada or of a province or an unincorporated organization or association under federal or provincial law – or any combination of them – may sponsor a foreign national, subject to the regulations” (IRPA s. 13).
The laws further specify that an eligible sponsoring group must have five or more Canadian citizens or permanent residents, each over eighteen years old, who are acting together for the purpose of sponsoring a refugee (IRPR Reg. 138). For more information about types of sponsoring groups see 2.B.3(ii).