Refugees or migrants? And other frequently asked questions

Neither the Convention nor the Immigration and Refugee Protection Act (IRPA) provide a specific definition of “persecution.” The courts have therefore had to define the term based on several criteria.

The Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada (IRB) identifies persecution as follows:

• Serious harm to a fundamental human right
• Repetitive, persistent or systematic harm
• The harm must relate to a Convention ground (see below)
• Harm associated with a criminal act for which an individual cannot seek state protection
• Harm caused by an agent of persecution whether or not such agent is a representative of state authorities
• Cumulative acts of discrimination or harassment where state protection is not available

According to the Convention and the IRPA, individuals may be subjected to persecution for their:

• race or ethnicity
• religion
• nationality
• political opinions, real or assumed
• membership in a particular social group (sexual orientation, gender identity, etc.)

or, under the IRPA, have faced:

• personal risk (victim of crime)
• risk of torture

The right to seek asylum is a universal human right. This fundamental right does not vary based on how someone arrived in a country to claim asylum. People fleeing conflict or persecution have the right to come to Canada to claim asylum.

When someone claims asylum, Canadian authorities conduct stringent security screenings, including fingerprinting, luggage inspection, and identity and background checks through North American and Interpol databases.

A refugee claim is a long and complex process. In Canada, several of the steps involved may take years to complete depending on the processing capacity and the number of claims.

In Canada, a refugee claim is determined to be accepted if the claimant is:

• a Convention refugee (Immigration and Refugee Protection Act (IRPA), s. 96); or a person in need of protection because
• a person in need of protection because their lives would be at risk or because they would be subjected to cruel and unusual treatment or punishment in their country of origin (IRPA, s. 97).

Some asylum-seekers may be detained in Canada Border Services Agency’s (CBSA) immigration holding centres (IHC) or, in some cases, in provincial correctional facilities. In Canada, asylum-seekers are detained primarily for identity and flight risk reasons. In addition to their refugee claim process, they must undergo a regular detention review process before the Immigration Division (ID) of the IRB. The UNHCR detention guidelines urge States to use detention for asylum-seekers as a measure of last resort with liberty being the default position.

Under the Safe Third Country Agreement (STCA), individuals coming to Canada from the United States via a land border cannot apply for asylum unless they qualify under an exception to the agreement.

Originally, the agreement applied only to asylum claims made at official land points of entry. Asylum-seekers who entered Canada through irregular border crossings were allowed to make a refugee claim in Canada.

However, on 25 March 2023, an Additional Protocol to the STCA came into force. The Additional Protocol extended the application of the STCA to the entire border. It requires irregular asylum-seekers crossing between official land points of entry from the U.S. to also qualify for an exception to the agreement.

For more information on the STCA, including exceptions, visit the IRCC website.

Refugees are sometimes denied their fundamental human rights in a country where they sought refuge. Their lives and freedom can still be threatened, or they sometimes have needs that cannot be met in their host country. Resettlement allows UNHCR to help them relocate to a third country.

Canada may also select refugees to resettle in its national territory. Resettled refugees, identified by UNHCR, are selected by the Canadian government before they arrive in Canada, and are granted permanent residency once on Canadian soil. Three different resettlement programs operate in Canada: the Government-Assisted Refugee Program (GAR), the Private Sponsorship of Refugees Program (PSRP), and the Blended Visa Office-Referred Program (BVOR).

In 2022, UNHCR helped resettle 114,300 refugees to third countries around the world at a time when nearly 2 million refugees were in need of resettlement.

In addition to traditional resettlement designed for the most vulnerable, other migration pathways offer refugees safety and opportunities. These pathways can take many forms, including labour mobility, family reunification or education in Canada. They expand the concept of refugee mobility from a purely humanitarian perspective to one that includes mobility based on skills, abilities and other attributes. For more information on programs in Canada, visit IRCC’s website.

Climate change and natural disasters can increase and aggravate the threats that force people to flee across international borders. The interaction between climate, conflict, poverty, and persecution significantly increases the complexity of refugee crises.

Most climate-change-related displacement is internal to one’s country, not cross-border. When people are displaced solely by the effects of climate disasters and natural risks and cross international borders, they are not generally considered refugees under the Convention’s definition which does not capture these criteria as a reason to seek asylum.

Technically speaking, the term “climate refugee” is therefore problematic because it has no basis in international law. However, millions of refugees and displaced populations are affected by climate change and natural disasters, and these factors could weigh into their decision to leave or contribute to the causes of their persecution.