Designated Classes

A regulatory device to target humanitarian resettlement programs.

Those who were around at the time might argue that the government’s decision in November 1978, to enact 3 separate classes to facilitate the selection of immigrants in refugee-like situations from Eastern Europe, Latin America and Indo China respectively, was directly attributable to an attack of Delhi Belly suffered by Immigration Minister Bud Cullen during a trip abroad in May of that year. In fact the decision was precipitated by operational teething problems following the coming into force of the 1976 Act and its accompanying regulatory package on April 1, 1978. Bud Cullen’s misfortunes only served to bring the problems of implementation to the attention of the senior executive in a timely way. Let me elaborate.

In the early post war years, humanitarian immigration programs were largely conceived and delivered administratively. As the practitioners know, humanitarian immigration selection turns on two factors: eligibility and admissibility. Normally, the government decides the eligible group when it gives the green light for a resettlement program; while visa officers apply statutory and regulatory criteria to determine admissibility in individual cases. Although some structure was provided for admissibility criteria in 1966/7 with the introduction of standard selection factors that were point-rated for economic immigrants, eligibility criteria were established by administrative fiat right up until the proclamation of the 1976 Act.

The policy underpinning for humanitarian immigration was altruistic but notably vague in detail. The 1951 Geneva Convention on the Status of Refugees, among other things, defined refugees as persons affected the events surrounding World War II. For European countries there were issues of protection since they were the host to massive numbers of people displaced by war and by the communist takeover in Eastern Europe in the immediate post-war years. For Canada and other countries far removed from the European scene, the policy issue was that of burden-sharing through financial support and through resettlement of the permanently displaced. Canada had reaffirmed an aggressive population-building immigration policy in the immediate post war years and it was not difficult to make room for a healthy component of Eastern European refugees at the same time.

It can be argued that the public imagination in Canada was captured by the Hungarian movement in 1956 and that, subsequent to that, Canada’s response to any disaster, whether man made or natural, contained a component of immigrant resettlement to assist the victims. In policy terms, refugee resettlement programs were as seen as part of Canada’s contribution to the UNHCR effort to assist Convention Refugees but over time it became increasing clear that not all of those who needed help were included within the narrow confines of the 1951 Convention.

There were often marked differences in the circumstances of the individuals the government deemed worthy of inclusion in our humanitarian programs. In some cases the eligible group consisted of people who were no longer in their own countries and could credibly claim to be refugees while others, notably some ethnic minority groups which were still in their countries of habitual residence prior to emigrating to Canada, obviously could not.

By the early sixties it was recognized that the Convention definition could not cover all circumstances in which Canada could appropriately intervene. Rather than ground on the shoals of definitions, the policy staff in Immigration coined the term Oppressed Minorities to give policy coherence to the humanitarian choices of the government. Interestingly enough, the UNHCR made a similar choice many years later in creating the term Persons of Interest to the UNHCR in order to assist and in some cases protect vulnerable people who could not squarely meet the Convention definition.

Until 1978, the legislative format that gave legitimacy to this rather flexible policy framework was structurally supine and certainly not transparent. The Immigration Act of 1952 which endured for some 26 years, simply delegated to the Governor-in-Council open-ended power to make regulations to select immigrants without specifying even general categories or classes. Anybody at all who was not prohibited because of medical, criminal or security concerns could be accommodated within the immigration program if that is what the department wanted. Despite having a very active humanitarian resettlement program, the word refugee did not appear in the Act until the Immigration Appeal Board Act was proclaimed in 1962, and only then in the context of removal.

Operationally, the overriding principle that supported admissibility decisions was that each immigrant had to demonstrate the ability to establish successfully in the labour market. As a result, the selection process in humanitarian cases although more “relaxed” than labour market selection was very often little different from that applied to economic migrants, thereby giving credibility to charges that Canada took only the best qualified. The idea that we should try to help those refugees or other humanitarian cases in most need took some time to take root and only really gained acceptance in the immigration field in the late 80s.

The move to a more structured approach to the selection of immigrants on humanitarian grounds began after 1969 when we finally signed the 1951 Geneva Convention on Refugee Status and the 1967 Protocol in 1969. The main causal factor for change, however, was not due to our signing the Convention but rather because of a general mess in the immigration program that had resulted from regulatory measures pushed through in 1966/7 by Deputy Minister Tom Kent during the tenure of Minister Jean Marchand.

The Kent initiative, among other things, was designed to make immigration processes more equitable and transparent. Immigration applications were permitted from within Canada and appeal rights against deportation were accorded to anyone and everyone. This compromised immigration control for almost 5 years because unsuccessful immigrant applicants in Canada appealed en masse and the Immigration Appeal Board had a statutory limit of 10 decision makers. The launching of an appeal guaranteed long term de facto residence in Canada to the appellant and there was nothing to prevent a new appeal by the few who lost at the IAB. The direct result of this debacle which was dramatized by a wildcat strike by Immigration Officers at Dorval airport was a backlash against the government, driving the Liberals into minority in the 1972 federal election.

Realizing this, Prime Minister Trudeau wasted no time in bringing in a team of trouble shooters in the persons of Minister Robert Andras and Deputy Minister Allan Gottlieb, giving them a mandate to get immigration under control. Andras and Gottlieb were determined not only to regain control of the border but to modernize the statute and make the operations more transparent. They insisted that the objectives of immigration policy and the framework for rules and practices had to be directly legislated by parliament. In 1973 the department launched a full scale review under the direction of Richard Tate with the objective of producing a Green Paper on immigration policy and holding public consultations prior to bringing in a new and durable statute. The general review would also apply to humanitarian immigration and Canada’s role as a signatory to the 1951 Geneva Convention on Refugee Status.

While the Green Paper process broke new ground in many areas, the treatment of refugee policy issues in the discussion document was largely one-dimensional. It simply reaffirmed the government’s intention to maintain Canada’s primary role as a country of resettlement as opposed to first asylum—an approach that was remarkably shortsighted and sowed the seeds of future difficulties both in Canada and abroad.

Canada had declined to sign the Convention in 1951 due to an unfounded concern that signature might lead to an obligation which would force Canada to resettle certain people or numbers of people who met the Convention definition but not necessarily our idea of who would make a successful immigrant. After signature, there was also a serious misunderstanding of the nature of the obligation not to refoule refugees who managed to arrive at our border without prior screening or permission. We may not have wanted to become a country of first asylum for any number of refugees but, as we were to discover within a few years, the choice was not in our gift. We continued to view our obligation as a convention signatory largely as one of resettlement.

Even after the signature of the Convention by Canada in 1969, operations abroad were continued much as before. The Special Program for Ugandan Asians which began in the same year, for example, was not affected by our new standing as a Convention signatory. Citizen or not, ethnic Asian residents of Uganda were compelled to leave their country on relatively short notice. While no one had any doubt that these victims of racial hatred were refugees, in fact most could not meet the Convention definition because they were still in their country of citizenship or usual residence. However, whether the individuals were refugees or not in the strict definition of the Convention was academic since Idi Amin himself had defined the eligible group based on their ethnicity. We had no problem with selection because the selection system was still administratively open-ended. The operating instructions (OM) to the field for this movement were a direct lift from the OM that created the Moroccan Jewish movement in the early sixties which was the first to take place under the rubric of our Oppressed Minority outreach.

Another example occurred a few years later in our own hemisphere. The coup d’état that toppled Salvador Allende in Chile in 1971 and the following brutal repression of democracy in that country, led to a limited international resettlement effort of Allende supporters. The Convention was once again irrelevant since the target group we were trying to assist was by definition outside the Convention since most of the victims of oppression were still within their country of nationality. The OM therefore defined the eligible group in exactly the same terms as did the Convention but the requirement that the individual be outside of his or her own country had been shorn from an otherwise identical text. In programming terms this was a difficult movement since it was hard to identify eligible individuals among the population at large where emigration pressures were general and where there were few international agencies to assist.

Despite the fact that the Green Paper consultations were launched during the peak of our difficulties with the NDP and the Churches over Chile and with the growing number of claims for refugee status in Canada, the process did not end with a ready-to-implement strategy or framework that would make much easier the department’s task of managing the most generous humanitarian immigration program in the world. The framework consisted of a provision in the Act for a Convention Refugees class, Section 6(1), coupled with a regulation making authority to create other humanitarian classes by regulation when the international situation so warranted (Section 6(2). For refugee claims in Canada, the IAB was given authority to conduct a de novo appeal of a refusal by an in-house administrative determination by the Minister whether to accept a claim to refugee status. No change was made to the ten-member statutory limit on the IAB.

When the 1976 Act came into effect in April 1978, there was a fair bit of wheel spinning in implementation, particularly in the area of humanitarian migration. Convention refugees had become an admissible class but there was no immediate follow-up on the regulation-making authority for other humanitarian classes. As a result upwards of 8 million Convention Refugees were covered by the new class definition while several of our humanitarian programs of long standing were orphaned. Apart from Convention Refugees, there was no longer a means to select anyone who did not meet selection criteria either as family or economic applicants.

The impact of this was early and negative. For the Ongoing Program for Eastern Europeans, officers in the field spent a great deal of time trying to fit our share of the annual resettlement effort from camps in Austria and Italy, into the Convention definition. Often these same applicants did not consider themselves to be refugees and were reluctant to advance a claim. The Jewish émigrés from Russia, in fact, considered the term to be pejorative and took offence at the idea it should be applied to them. Elsewhere, immigration officers encountered the same problem as had been encountered in Chile. The population of refugees in the world was vast. Just who among them we were looking to resettle was not clear. Annual planning of resettlement priorities was in its infancy and the rights and obligations of both clients and the department were not well understood. What was more problematic was that the UN agency responsible for refugees, the UNHCR, was not really interested in helping us since third country resettlement was at best a 1% solution for refugees in their care.

While this problem had been debated by headquarters staff well before the proclamation of the 1976 Act, the only explanation as to why it was not solved prior to the launch of the new Act is that there was an abiding belief in the departmental culture which had always found a way to deliver a policy even when the enabling regulations were deficient. It is probable that the issue had been put on the back burner while higher priority work was attended to. Once the Act was launched, the focus of attention was drawn to problems in Canada which were of a more urgent nature.

Hence the timeliness of Bud Cullen’s attack of gastro-enteritis. In late May of 1978, shortly after the 1976 Act came into effect, Minister Bud Cullen accompanied by Deputy Minister Jack Manion, set out on a tour of selected posts abroad including India and Italy. The Minister’s plan to do some fence mending among the Italian/Canadian constituency on that trip, however, was not to be fulfilled. Stricken by stomach bugs of some ferocity while in Delhi, the Minister cancelled his Italian visit delegating the Deputy, Jack Manion, to make the trip in his stead along with Manion’s Executive Assistant, Victor Glickman, late of the office of the former minister, Robert Andras.

What had been planned as an important ministerial level political bilateral discussion with the Italian government was quickly reformatted into an in-depth look at the gamut of Canadian immigration programs by visiting senior officials. Coincidentally the Visa Office in Italy was at the time one of the pillars, along with Vienna, of the Ongoing Program for refugee resettlement of Eastern Europeans. Rome was also the major player in settling Jewish emigrants from the USSR.

As a career Immigration Officer himself, the Deputy Minister had an abiding interest and exceptional perceptiveness about the workings of the program. He quickly perceived the disconnect between our humanitarian objectives and the selection mechanism. The cumbersome tool of the Convention definition was yielding fewer results than desired despite the fact that the entire staff of the Visa Office was doing the best it could with a maximum of goodwill toward the clientele.

The major hurdle was to convince Mr. Manion that the high refusal rate of Russian Jewish applicants as well as other Eastern Europeans was not due to a niggardly approach in applying the Convention but rather because of the unsuitability of the Convention as a tool for establishing eligibility. Once convinced that there was a lacuna in the regulations, Mr. Manion put the wheels in motion for redress immediately on his return to Canada later in May. The Refugee Affairs Directorate, headed by Mike Molloy, seized upon the opportunity to rectify not only the problem of Eastern Europeans, but all of the others that had cropped up when it was discovered that the Convention would only cover a portion of those people in humanitarian need that Canada wanted to assist.

The resulting regulatory package in November 1978 created not one but three designated classes under Section 6(2) of the Immigration Act. Nevertheless, they all had a common objective which was to simplify the process of humanitarian selection. Collectively they defined eligibility without requiring an elaborate refugee determination of Convention status. For Eastern Europe the eligible group consisted of those irrevocably exiled from their own countries because those countries arbitrarily stripped emigrants of their nationality on departure. Whether they were Convention eligible individually was not really relevant since they all had to be resettled somewhere other than in the country of first asylum. For Latin Americans, the designated class overcame the problem that the eligible group consisted of people still in their own country. (This class was later extended to provide for the selection of political prisoners and oppressed minorities in any country designated by the government through regulation.) For the Indo-Chinese the designated class was an operational godsend that reduced the selection process to determining admissibility rather than eligibility. Given that none of the boat people in South East Asia were going to return to Vietnam and they could not stay any length of time in the countries of first asylum, the issue of the Convention status of the individuals was not crucial to their need for resettlement. This greatly enhanced the efficiency of our selection activities in the field.

The moral of that story which is as valid today as it was then, is that in the field of humanitarian immigration generic regulations cannot do the job. Resettlement is a very selective device for individuals and groups with specific characteristics and for whom resettlement is the only durable solution. The regulation must be cast so that selection activities can focus on those who most need it. It therefore has to be underpinned by an enabling regulation to ensure accuracy in delivery and efficiency in operation. Certainly such an approach is discriminatory but reasonably so in the sense of the Charter, especially when the UNHCR priorities for durable solutions to refugee problems are first of all, repatriation in safety and second, local resettlement. The Convention Definition is a device to ensure protection of those in danger of refoulement it is not a selection tool of any great value. Certainly, many Convention Refugees need to be resettled but not only because they satisfy the definition. Over and above that they are in a situation that calls for redress through permanent relocation. Similarly, there are many who may not meet the legal definition of the convention for reasons that have nothing to do with their vulnerable status that requires that they be resettled. It is that situation that that was evident in the Canadian Odyssey from a practical effective system to a paralyzing structure and finally back again to a practical flexible system that can serve as a template for the successful delivery of the government’s stated objectives.