Waive immigrant fees, court rules
Waive immigrant fees, court rules
Comments Adrian Humphreys, National Post · May 13, 2011 Last Updated: May 13, 2011 4:17 AM ET
The Federal Court of Appeal has opened the doors to indigent immigrants by forcing the government to consider requests to waive application fees from would-be immigrants who claim they can't afford to pay.
The case challenges a longheld tenet that immigration requires an economic component to help stimulate the Canadian economy rather than deplete social assistance.
The hard-fought appeals involve two people who ran afoul of Canada's immigration officials and then sought intervention from the Minister of Immigration, allowing them to stay on humanitarian and compassionate grounds. Their applications were refused because neither paid the $550 fee.
The Federal Court turned down both appeals but the decisions have been overturned by the appeal court, which combined the cases into one ruling and gave both claimants another hope at remaining here.
Andrew Dekany, who represents one of the applicants, Nell Toussaint, hailed the decision as a welcome relief for hard-luck cases.
"It is not meant to provide an alternate route for immigration into this country, by any means at all. It is for rare, exceptional cases that cry out for relief," he said in an interview.
He pointed to the precedents the government set after the 2004 Indian Ocean tsunami and the 2005 Pakistan earthquake when the government waived fees for victims wishing to move to Canada. This ruling opens that possibility to everyone rather than just members of those specific classes, he said.
Critics question the value of encouraging immigration by people who cannot even afford the application fee.
"Immigration is supposed to be an economic benefit for Canada, and I can see a level of justification for the government charging a fee to recover some of the costs of processing these applications," said Martin Collacott, a former Canadian ambassador in Asia and the Middle East and spokesman for the Centre for Immigration Policy Reform.
"Why would we want her to stay here if she's so broke, to be quite brutal about it. We'd be generous enough to allow her to legalize her status without her asking us to pay for everything," he said.
He said convention refugees fleeing tyranny and persecution abroad fall into a different category than indigent, illegal migrants and should be allowed to arrive in Canada with nothing.
Sergio Karas, an immigration lawyer and analyst, said it will inevitably lead to increased litigation and appeals in an already cluttered system.
"Anytime you ask bureaucrats to evaluate specific circumstances of a case you are going to have diverging results and people who will litigate the results," he said. "And if the claimants are indigent, usually that means replying on legal aid and increased costs to the taxpayer."
The Ministry of Citizenship and Immigration (CIC), meanwhile, said officials would abide by the ruling and reconsider the fee waiver applications but questions the ruling having much of a wider impact.
"CIC is considering what impact, if any, this deci-sion has on the assessment of pending humanitarian and compassionate applications," said Kelli Fraser, a CIC spokeswoman. "However, with the recent refugee reform, we do not believe at this time that this should be an issue."
Ms. Toussaint is a citizen of Grenada who came to Canada in December 1999 as a visitor. Her visitor's permit expired six months after her arrival, but she remained here without legal status.
She does not want to return to Grenada and remains unemployed in Canada while suffering kidney problems.
Ben Ndungu is a citizen of Kenya who came to Canada in July 2000 and later made a refugee claim, which was abandoned in 2002. He took no further steps to sort out his status until 2007, when he came to the attention of immigration authorities seeking to deport him.
Mr. Ndungu claimed he could not pay the fee because his family has no savings, his spouse receives social assistance and he is prohibited from working because of his illegal status.
Both claimed the fee was an "undue financial hardship."
The cases drew support from a coalition of poverty and immigration support groups who championed their cause, creating a Drop the Fee campaign, drafting petitions, holding marches and some being granted intervener status to argued their position in court.
The interveners pushed a Charter challenge of the fee, saying it discriminated against the poor but both the original ruling and the appeal dismissed the Charter argument. None of the groups involved could be reached yesterday.
The Immigration and Refugee Act states that foreign nationals are inadmissible for financial reasons if they are "unable or unwilling to support themselves."
The appeal court ruled that the statutory provision for the minister to grant discretion overruled the provision requiring an application fee.
About half of the applications for humanitarian and compassionate grounds to the minister are successful.
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