Know Your Rights
Ten Essential Protections for Refugees and Asylum Seekers
An overview of protections under the Immigration and Refugee Protection Act, its Regulations, and the Canadian Charter of Rights and Freedoms. All information is provided for educational purposes.
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Right to Seek Asylum
Protection Rights
Everyone has the right to seek protection from persecution in Canada.
Under IRPA s.99, a claim for refugee protection may be made in or outside Canada; a claim made inside Canada must be made in person to an officer and may not be made by a person who is subject to a removal order. IRPA s.96 defines a Convention refugee as a person outside their country who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, and s.97 defines a person in need of protection. IRPA s.101 lists the claims that are ineligible to be referred to the Refugee Protection Division.
Legal Statute
IRPA ss.96, 97, 99, 101
Principle of Non-Refoulement
Protection Rights
Canada cannot return people to places where their life or safety is at risk.
IRPA s.115(1) provides that a protected person, or a person recognized as a Convention refugee by another country to which they may be returned, shall not be removed from Canada to a country where they would be at risk of persecution on a Convention ground or at risk of torture or cruel and unusual treatment or punishment. Section 115(2) sets out exceptions for certain persons found inadmissible for serious criminality, security, human rights violations or organized criminality.
Legal Statute
IRPA s.115
Right to a Fair Hearing
Procedural Rights
Asylum seekers have the right to a fair and impartial hearing before the IRB.
Under IRPA s.170, the Refugee Protection Division must hold a hearing on a referred claim, must notify the claimant and the Minister of the hearing, and must give the claimant and the Minister a reasonable opportunity to present evidence, question witnesses and make representations. The Division may allow a claim without a hearing where the Minister has not given notice of an intention to intervene.
Legal Statute
IRPA ss.100, 170
Right to Legal Counsel
Procedural Rights
Asylum seekers can access legal representation throughout the claim process.
Under IRPA s.167(1), a person who is the subject of proceedings before any Division of the IRB may, at their own expense, be represented by legal or other counsel. IRPA s.91 limits representation or advice for a fee to members in good standing of a provincial law society (including paralegals where the law society licenses them), the Chambre des notaires du Quebec, or the College of Immigration and Citizenship Consultants (Regulated Canadian Immigration Consultants). Legal aid for refugee proceedings is provided by provincial legal aid plans, each with its own eligibility rules; it is not guaranteed by IRPA.
Legal Statute
IRPA ss.91, 167(1)
Right to Healthcare (IFHP)
Social Rights
Eligible refugees and asylum seekers receive temporary health coverage.
The Interim Federal Health Program, established by the Order Respecting the Interim Federal Health Program, 2012 (SI/2012-26), provides limited and temporary health coverage to eligible groups including refugee claimants, protected persons and resettled refugees, until they qualify for provincial or territorial health insurance or leave Canada. IRCC's coverage summary lists basic coverage (hospital and physician services), supplemental benefits such as urgent dental care, vision care and mental health counselling, and prescription drug coverage, with coverage depending on the eligibility group.
Legal Statute
Order Respecting the Interim Federal Health Program, 2012 (SI/2012-26)
Right to Work
Social Rights
Refugee claimants can apply for work authorization while awaiting a decision.
Under IRPR s.206(1), a work permit may be issued to a person in Canada who cannot support themself without public assistance and whose claim for refugee protection has been referred to the Refugee Protection Division but not yet determined. IRCC's page for claimants describes this as an open work permit, issued without a fee to eligible claimants whose claim was found eligible to be referred and who have completed the immigration medical exam.
Legal Statute
IRPR s.206 (SOR/2002-227)
Right to Education
Social Rights
Refugee children are entitled to access public primary and secondary education.
Under IRPA s.30(2), every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level. IRCC states that minor children of refugee claimants do not need a study permit and that the Refugee Protection Claimant Document can be used for school registration. Admission and fees are governed by provincial education law; in Ontario, s.49.1 of the Education Act provides that a person under 18 shall not be refused admission because they or their parent is unlawfully in Canada.
Legal Statute
IRPA s.30(2); provincial education legislation (for example Ontario Education Act s.49.1)
Freedom from Arbitrary Detention
Protection Rights
Immigration detention must be justified and subject to regular review.
Section 9 of the Charter protects everyone against arbitrary detention, and s.10 gives a detained person the right to be informed promptly of the reasons and to retain and instruct counsel without delay. Under IRPA s.55 an officer may detain a foreign national or permanent resident only on the grounds set out in that section. IRPA s.57 requires the Immigration Division to review the reasons for continued detention within 48 hours, again at least once in the following seven days, and at least once in each 30-day period after that. IRPA s.58 sets out when the Division must order release and allows conditions to be imposed.
Legal Statute
IRPA ss.55 to 58; Charter ss.9, 10
Right to Family Unity
Protection Rights
Refugee protection includes consideration of family relationships and reunification.
IRPA s.3(2)(f) makes it an objective of the Act to support the well-being of refugees by facilitating reunification with their family members in Canada. Under IRPR s.176, a protected person may include family members in their application for permanent residence; a family member who is outside Canada is issued a permanent resident visa if they apply within one year after the day the protected person becomes a permanent resident and are not inadmissible on the grounds listed in IRPA s.21(2).
Legal Statute
IRPA ss.3(2)(f), 21(2); IRPR s.176
Right to Appeal
Procedural Rights
Most negative RPD decisions can be appealed to the RAD, and decisions can be judicially reviewed.
Under IRPA s.110, a claimant or the Minister may appeal a Refugee Protection Division decision to the Refugee Appeal Division on a question of law, of fact, or of mixed law and fact. Section 110(2) lists the decisions that cannot be appealed, including claims found manifestly unfounded or with no credible basis, and abandoned or withdrawn claims. IRPR s.159.91 sets 15 days to file the appeal and 30 days to perfect it, counted from receipt of the written reasons. Separately, IRPA ss.72 to 74 allow an application for leave and judicial review in the Federal Court of a decision under the Act.
Legal Statute
IRPA ss.72 to 74, 110, 111; IRPR s.159.91
Disclaimer: This information is provided for educational purposes only and does not constitute legal advice. While efforts are made to ensure accuracy, refugee law is complex and subject to change. For personalized guidance specific to your situation, consult with an immigration lawyer or RCIC.
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