Categories of Status in Canadian Refugee Law

AuthorSasha Baglay/Martin Jones
Canadian immigration law distinguishes three main categories of indi-
viduals: foreign national s, permanent residents, and Canadian cit izens.1
These categories represent a hierarchy as each status denotes a different
scope of rights — from the nar rowest for foreign nationals to the fullest
for citizens.
Citizenship represents full-f‌ledged membership in the community,
with unconditional rights of entry and residence as well as the widest
scope of political, social, and economic entitlements in Canada.
Permanent residents, while usually retaining foreign citizenship,
are also understood to be members of the Canadian community, albeit
whose membership is contingent upon various factors, including their
continued residence in the country and good behaviour. They have a
qualif‌ied right to enter2 and remain in Canada and posse ss most of the
social and economic entitlements of citizens. They do not, however,
have a constitutionally protected right to vote and to stand in elections.
1 Aborigin al persons can be seen a s a special instance of C anadian citizen. Im mi-
gration and Ref ugee Protection Act, SC 2001, c 27, s 19(1) [IRPA]. The connection
of Aborigin al identity and Canadi an citizenship has b een the subject of some
critique (see, for exa mple, Glen St Louis, “The Tangled Web of Sovereignty and
Self-Gover nance: Canada’s Obligation to the C ree Nation in Consideration of
Quebec’s Threats to S ecede” (1996) 14 Berkeley Jour nal of International La w 380).
2 IR PA, above note 1, s 27(1).
Foreign nationals are individuals who are neither Canadian citizens
nor permanent residents. They include visitors, foreign workers and
students, refugee claimants, protected persons (who have not obtained
permanent resident status), holders of temporary resident per mits, and
individuals under unenforceable removal orders. Unlike permanent
residents and citizens, foreign nationals have no entitlement to be in
Canada: they require special authorization for entry, study, or employ-
ment3 and must depart Canada upon expiry of such an authori zation.
The scope of their entitlements is not only much narrower than for
permanent residents, but is also specif‌ically linked to the purpose of
their admission to Canada: for instance, visitors are usually not al-
lowed to either work or study in Canada; international students have
limitations on the ty pes and hours of employment (e.g., only part-time
during the academic year); and foreign workers cannot engage in post-
secondary studies unless they obtain a study per mit.
This chapter will focus primarily on the category of foreign nation-
als and specif‌ica lly on the treatment of refugee claimants and protected
persons in Canada.
By def‌inition, the subjects of Canadian refugee law are either foreign
nationals or permanent residents. Citizens of Canada are excluded
from seeking refugee protection in Canada as a matter of policy.4 Inter-
national law also does not recognize an ability to seek refugee protec-
tion while within one’s own country of nationality.5 As to permanent
residents, they theoretically may seek protection in Canada, but it is a
rare occurrence.6
3 Ibid, ss 29(1), 30(1).
4 Immigrat ion, Refugees and Citizen ship Canada, “In-Canad a Claims for Refugee
Protection: Int ake,” onl ine: IRCC sources/tools/re fugees/
canada /intake/claim s.asp. Notwithstand ing the policy to this ef fect, the statu-
tory scheme th at deems an individual el igible unless determi ned ineligible
would likely requi re an immigration off‌icer to re fer the claim to the Immig ra-
tion and Refugee Bo ard (IRB).
5 The def‌inition of a “refugee” set out in t he Refugee Convent ion requires an ind i-
vidual to be out side his or her country of nation ality (or, in the case of a stateless
person, his or he r country of former habitua l residence). See Convention Re lating to
the Status of Ref ugees, 28 July 1951, 189 UNTS 150, ar t 1A(2) [Refuge e Convention].
6 For example, individual s who were formerly permanent res idents (perhaps hav-
ing lost their pe rmanent residence statu s due to failure to maintai n residence
Categories of Stat us in Canadian Ref ugee Law 89
For the purposes of refugee law, the category of foreign nationals c an
be subdivided into the following groups: refugee claimants, protected
persons, rejected claimants, and foreign nationals under unenforceable
removal orders. These subgroups are granted more extended rights
and entitlements than foreign nationals generally. Some of these en-
titlements f‌low from Canada’s international commitments; others from
policy reasons related to the humanitarian purpose of the categories.
Each of these statuse s and related entitlements is discussed in turn,
following a trajectory of refugee determination process: from making
a claim to its resolution and in the case of a positive decision, further
application for permanent residence and citizen ship.
Please note that rights and entitlements of refugees resettled from
abroad are not discussed in detail. As a rule, the processing of applica-
tions of resettled refugees is completed abroad and they become perma-
nent residents upon arrival in Canada. Therefore, they immediately
enjoy rather extensive rights given to permanent residents. In certain
urgent cases, processing of applications cannot be completed before ar-
rival in Canada (e.g., when a person’s life is at risk and the indiv idual
must be resettled as soon as possible). In such a case, a resettled refugee
is admitted to Canada on a temporary resident permit (TRP)7 and can
apply for permanent residence from within Canada.8 As is the case for
refugee claimants and protected persons, individuals on TRPs would
have limited rights until they receive permanent residence.
The table below provides a brief overview of the main categories
discussed in this chapter.
in Canada or m isconduct) not infrequently seek prot ection during subsequent
removal proceedings.
7 Immigration and Refugee Protection Regulations, SOR 2002/227, s 151.1 [Regula tions].
8 Immigration, Refugee s and Citizenship Can ada, “Procedures for Proces sing
Urgent Protection Ca ses: Temporary Resident Permit s and Permanent Resident
Status,” online: IRCC /english/resources/tools/refugees /resettlement/
processing/urgent/perm it.asp.

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