OTTAWA – The federal government’s promise to fast-track family-class immigration applications from Haiti and put them at the head of the line could be impossible to fulfil without further measures by Immigration Minister Jason Kenney, lawyers who work in the area say.
The biggest obstacle - the legal requirement for a valid passport to get on a plane to Canada - may mean Kenney will have to exercise his power under the Immigration and Refugee Protection Act to waive the rule, according to Toronto immigration lawyer Joel Etienne.
He predicts the expedited family-sponsorship measures will be unworkable unless the government adapts its requirements for documentary evidence before Haitians can get approval for entry to Canada.
“They’ll have to modify the system and work on undertakings,” he tells Law Times. “The only way this can work would be for them to allow somebody like me, a Canadian citizen with a good civil record, to give an undertaking to authorities that this is who this person is, this is the family relationship, and let’s register with the Haitians and with the Canadians the fact that I am taking over this child.”
The sweeping destruction of the Jan. 12 earthquake left the personal and government records of millions of Haitians under the rubble of buildings that crumbled and will likely make the production of passports and other personal identity documents impossible, lawyers say.
They made the comments as the legal community in Canada was setting the stage for a major call for pro bono legal support to the Haitian-Canadian community through a dedicated web site under the auspices of the Canadian Bar Association.
The web site will allow Haitian-Canadians wishing to take advantage of expedited family-sponsorship immigration and adoption measures to reach lawyers offering pro bono help directly, the CBA says. The site was expected to be in operation this week.
Nevertheless, obtaining legal help will only be the first step for the thousands of Haitian-Canadians who want to reunite with their families in Canada. Stephen Green, chairman of the CBA’s national citizenship and immigration law section, also says requirements for documentary evidence of identity will be the biggest difficulty facing Haitians and the Canadian government.
“You need a passport to come to Canada,” he says. “You have to issue a visa inside a passport. You have to prove who your parents are, who your brothers and sisters are. I think documentation will be the hardest for both the Canadian government and the person that is applying. It’s going to have to be a trust situation, [which is] very hard.”
Still, Green says s. 25 of the immigration act gives Kenney the authority to take any steps he can to overcome roadblocks. “The minister has the right to do anything that he or she feels is appropriate to facilitate entry, so they could go ahead, waive that requirement, and things like that.”
Kenney has acknowledged the process will be “very difficult.” Already, he has waived passport requirements for about 100 Haitian orphans who were in the final stages of adoption before the earthquake, but it wasn’t clear as of press time whether he would do the same for other types of sponsorships.
“In adoption cases, we will waive normal requirements for a medical examination and travel documentation, such as a passport,” Melanie Carkner, a media relations officer with Kenney’s department, wrote in an e-mail.
There are other concerns as well, including the issue of conducting security and background checks. “You don’t need a passport to examine somebody’s background,” says Green.
“You need their name and date of birth, and if there is a hit [on a computer check], they would go further [with] fingerprints and so forth. Obviously, that’s very high up and should be on the Canadian government’s agenda - to make sure that anyone that does enter Canada meets any type of security and health concerns.”
Etienne, meanwhile, has been a high-profile voice advocating for more from the Conservatives than fast-tracking family reunification, a classification restricted to spouses, common-law and conjugal partners, children, parents, grandparents, and orphaned family members. He and other Haitian-Canadians say the government should expand the family class to include brothers, sisters, cousins, and other extended family members.
Etienne says that for the 10,000 Haitians now living in the Greater Toronto Area, an expanded definition is crucial because of the extended-family structure that has developed in Haiti through social and political upheavals over the past decades.
“They are obviously worried about extended family in Haiti, and broadening their ability to reunite with family members that are not direct family members, under the nuclear category, that’s the big concern,” he says.
The earthquakes are only the latest crisis for Canada’s Haitian community.
Many of the Haitian-Canadians in the Toronto region sought asylum here several years ago when they faced deportation to Haiti under the administration of former U.S. president George W. Bush. Many of those have had their applications for refugee status rejected and are involved in the long process of applying to stay under special humanitarian grounds. The remainder have had refugee status approved but are not yet Canadian citizens.
Because of a federal moratorium on deportations to Haiti, the failed applicants remain in Canada but are neither citizens nor landed immigrants able to sponsor family members under the post-earthquake rules.
“The issue for them is they don’t qualify to sponsor,” says Etienne. “They are not deportable because of the
moratorium. They’re working, they’re paying taxes but they’re not landed immigrants. They’re not citizens.”
Despite the concerns, Kenney has rejected calls to expand the family class, saying the government can’t tailor fundamental aspects of immigration policy to suit different humanitarian disasters around the world.
For commentary on the Haiti situation, see "Taking a balanced approach on Haiti".
