When Should You Avoid Claiming Refugee Status in Canada?

Canada is known for offering protection to individuals fleeing persecution, but not all claims meet the legal criteria for refugee status. While the Canadian immigration system is designed to be fair, it also includes safeguards to prevent misuse. Those considering a refugee claim must understand that doing so may limit their ability to apply for other economic immigration pathways. It is essential to be aware of:

1. Situations where a refugee claim is not eligible;
2. The high legal threshold for being recognized as a Convention refugee; and
3. How filing a refugee claim can restrict access to economic immigration options.

Refugee law is complex, and this overview provides general information—it is not legal advice.

Ineligible Refugee Claims: When a Claim Will Not Proceed

Under Canadian immigration law, individuals may be granted refugee protection if they are recognized as a Convention refugee or a person in need of protection. However, certain claims are deemed ineligible and will not be heard by the Immigration and Refugee Board (IRB). According to the Immigration and Refugee Protection Act (IRPA), Section 101, a claim is ineligible in the following situations:

• Existing Protection in Canada or Another Country
  • If an individual has already been granted refugee status in Canada or another country where they can safely return, they cannot file another claim in Canada.
• Previous Negative Decision
  • If a previous refugee claim was rejected, withdrawn, or abandoned, the person cannot make another claim. In some cases, a Pre-Removal Risk Assessment (PRRA) may be an option, but there are restrictions on when it can be used.
  • If an individual has already filed an asylum claim in a country that shares information with Canada, they are also ineligible to claim refugee status in Canada.
• Safe Third Country Agreement (STCA)
  • Under the STCA between Canada and the United States, asylum seekers must apply for refugee protection in the first country they arrive in. Claims made at border crossings are generally ineligible unless an exemption applies, such as having close family members in Canada or being an unaccompanied minor.
• Security or Criminal Concerns
  • Claims are ineligible if the person is deemed inadmissible for reasons such as:
    • Threats to Canadian security;
    • Human rights violations or war crimes;
    • Serious criminal offenses or organized crime involvement.

Meeting the Legal Test for Refugee Protection

To obtain refugee protection in Canada, an individual must qualify under one of the following categories:

1. Person in Need of Protection (Section 97 of IRPA)
   • The person faces a personal risk of torture, threats to life, or cruel and unusual treatment in their home country.
   • The risk must not be general but specific to the individual and not due to a lack of medical care or lawful penalties.
2. Convention Refugee (Section 96 of IRPA)
   • The person has a well-founded fear of persecution due to race, religion, nationality, membership in a particular social group (e.g., LGBTQ+ individuals, victims of domestic violence), or political opinion.
   • They cannot seek protection from their home country, and no safe internal relocation option is available.

Economic Immigration Restrictions for Refugee Claimants

Filing a refugee claim can limit access to other immigration options:

• No Eligibility for the Canadian Experience Class (CEC):
  • Work experience gained while holding a refugee claimant work permit does not count towards Express Entry.
• Impact on Provincial Nominee Programs (PNPs):
  • Most PNPs require legal temporary resident status, which refugee claimants do not have.

By filing a refugee claim, individuals prioritize protection over economic immigration, which may prevent them from transitioning to permanent residence through other channels.

Risks of Making an Unfounded Refugee Claim

Individuals who submit weak or baseless claims face serious consequences, including:

• Deportation:
  • If the claim is rejected, the individual may be removed from Canada and face a ban on returning.
• Travel and Visa Difficulties:
  • Canada shares immigration data with other countries, which can impact future visa applications.
• Loss of Credibility for Future Applications:
  • Failed refugee claims can make it harder to apply for other immigration programs, including family sponsorship.
• Impact on Genuine Refugees:
  • Fraudulent claims burden the system, delaying decisions for those truly in need of protection.