Abstract
AbstractThe United Nations (UN) human rights treaty bodies play an important role in defining the scope and the nature of non-citizens’ rights. This article offers a critical overview of the UN human rights case law from 2008 to 2018 pertaining to non-citizens — notably undocumented migrants, refused asylum seekers, and permanent residents ordered deported — in Canada. It examines the jurisprudence of the three UN human rights treaty bodies recognized by Canada as having competence to receive and consider individual complaints — namely, the UN Human Rights Committee, the Committee against Torture, and the Committee on the Elimination of Discrimination against Women. The purpose of this examination is two-fold. First, it intends to foster a better understanding of the cases lodged by non-citizens before the UN human rights treaty bodies. The second aim is to explore the substantive issues that the UN committees’ jurisprudence on non-citizens reveals about Canada’s immigration decision-making and enforcement. It is argued that some groups of non-citizens in Canada are at risk of being deported to persecution or hardship in violation of the non-refoulement principle and Canada’s international human rights obligations. The article illuminates several loopholes identified by the UN treaty bodies in Canada’s immigration and refugee protection system that heighten the risk of refoulement.
Highlights
In August 2018, the United Nations (UN) Human Rights Committee (HRC) ruled that Canada’s denial of essential health care services to Nell Toussaint, an undocumented migrant from Grenada, violated her right to life
We examine the jurisprudence of the three UN human rights treaty bodies recognized by Canada as competent to receive and consider individual complaints — namely, the HRC, the Committee against Torture (CAT), and the Committee on the Elimination of Discrimination against Women
The vast majority of individual complaints lodged against Canada before the UN treaty bodies concerned the condition of non-citizens
Summary
In August 2018, the United Nations (UN) Human Rights Committee (HRC) ruled that Canada’s denial of essential health care services to Nell Toussaint, an undocumented migrant from Grenada, violated her right to life. We proceed to discuss the core substantive issue we identified in our analysis of the UN committee decisions — namely, Canada’s implementation of the principle of non-refoulement To this end, we examine four interrelated topics: the ineffective nature of some domestic remedies available to non-citizens to challenge deportation orders against them; the insufficient accommodation by Canada of some non-citizens’ vulnerability; the precedence that considerations of state sovereignty and security take over the human rights of migrants; and, Canada’s unsatisfactory compliance with the UN committee decisions. 29 IRPA, supra note 6, s 36(1)(a); Faster Removal of Foreign Criminals Act, SC 2013, c 16
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