Categories of Individuals in Canadian Immigration Law

• Author: Martin Jones - Sasha Baglay
• Profession: Centre for Refugee Studies, York University - Centre for Refugee Studies, York University. Faculty of Criminology, Justice and Policy Studies, University of Ontario Institute of Technology
• Pages: 70-92

CHAP TER 3

CATEGORIES OF

INDIVIDUALS

IN CANADIAN

REFUGEE LAW

A. OVERVIEW

Canadian im migration law distinguishes t hree main categories of indi-

viduals. These categories are def‌ined in relation to a person’s legal rela-

tionship to Canadia n society: foreign nationals, permanent residents,

and Canadian citizens. As w ill be shown in the subs equent chapters,

each of these categories of individuals brings wit h it different rights.

Citizenship represents f ull-f‌ledged membership in the commun-

ity, with rights of entry and residence. Citizen ship also entails var ious

political, social, and economic entitlements in Canada.

Permanent residents, while usually retaining foreign citi zenship,

are also understood to be members of Canadian s ociety, albeit individ-

uals whose membership is contingent upon various factors, including

their continued residence in the countr y and good behavior. They have

a qualif‌ied right to enter1 and remain in Canada and possess most of

the political, social, a nd economic entitlements of citizens, except for

the right to vote and stand in elections; they m ay also face some restric-

tions with regard to employment in the public ser vice.

Unlike the other two categories, foreign nationals have no entitle-

ment to be in Canada and requi re special authorization for entry, study,

or employment; they must depart upon expiry of such an authoriza-

1Immigration and Ref ugee Protection Act, S.C. 2001, c. 27, s. 27(1) [IRPA].

70

Categories of Ind ividuals in Canad ian Immigration Law 71

tion. Foreign nationals also have very few political, soci al, or economic

entitlements in Canada.

While other categories exist in C anadian imm igration law, includ-

ing for example aboriginal persons, these additional categories can be

understood as special i nstances of the foregoing categories. In this way,

for example, aboriginal per sons can be seen in i mmigration law as a

special inst ance of Canadian c itizen.2

B. CATEGORIES OF INDIVIDUALS IN

CANADIAN REFUGEE LAW

By def‌inition, the subjects of Canadia n refugee law are either foreign

nationals or perma nent residents. Citizens of Canada are excluded from

seeking refugee protection in Canada as a matter of policy.3 Interna-

tional law also does not recognize an ability to seek refugee protection

while within one’s own country of nationality.4 While it is theoretically

possible for a permanent resident to seek protection in Canada, it is a

rare occurrence.5

For the purposes of refugee law, the category of foreign nationals

can be subdivided into various groups, includi ng refugee claimant s and

refugees. These subgroups of foreign nationals require special consider-

ation and are granted a more extended range of rights and entitlements

than foreign nationals generally. Some of these entitlements f‌low from

Canada’s international commit ments to these groups; others f‌low from

policy reasons related to t he humanitari an purpose of the se categories.

2Ibid., s.19(1).The connection of abor iginal identity and Can adian citizensh ip

has been the s ubject of some critique, including in Glen St . Louis, “The Tangled

Web of Sovereignty and S elf-Governance: Can ada’s Obligation to the Cree Na-

tion in Consider ation of Quebec’s Threats to Secede” (1996) 14 Berkeley J. Int’l

L. 380.

3 Citizensh ip and Immigration Can ada, Manual “Protected Pers ons,” c. 1 at para.

7.2. Notwithstand ing the policy to this ef fect, the statutory scheme wh ich

deems an indi vidual eligible if not deter mined ineligible would like ly require an

immigrat ion off‌icer to refer the claim to t he Board.

4 The def‌inition of a “ref ugee” set out in the Refugee Convention requires an indi-

vidual to be out side his or her country of nat ionality (or, in the case of a stateles s

person, his or he r country of former habitu al residence). See Convention Relating to

the Status of R efugees, 28 July 1951, 189 U.N.T.S. 150, art. 1A(2) [Refugee Convention].

5 Although indiv iduals who were formerly perma nent residents (who for example

lost their per manent residence status due to fa ilure to maintain res idence in

Canada or misconduct) not infrequently seek protection during subsequent

removal proceedings.