Canada’s Refugee Determination System and the International Norm of Independence

Refuge, Vol. 25, No. 2, 2010

24 Pages Posted: 24 Nov 2010

Date Written: August 1, 2010

Abstract

Refugee protection decisions engage migrants’ fundamental life, liberty and security of the person interests. As a result, refugee protection claimants enjoy institutional and procedural rights under conventional international law. These include the right to a fair adjudication of their protection claims by an independent tribunal. To be independent, a tribunal must meet the formal guarantees of security of tenure, financial security and administrative independence and must actually be independent, in appearance and practice, from the executive and legislature, particularly in the appointments process. Refugee protection decisions must be made by first instance adjudicative bodies that either fully comply with the requirements of tribunal independence or whose decisions are subject to subsequent review by a tribunal that meets these requirements and has sufficient jurisdiction over the merits of the dispute. The Canadian refugee protection system fails, in certain respects, to meet international standards of independence. The Canadian Immigration and Refugee Board’s Refugee Protection Division enjoys statutory, objective badges of independence and appears to operate independently of the executive. However, the independence of Canadian officials engaged in eligibility determinations and in pre-removal risk assessments is very much in question because they have a closer relationship to executive law enforcement functions.

Keywords: Administrative Independence, International Law, Refugee Status Determination, Refugees, Refugee Law, Adjudication, European Court of Human Rights, UN Committee on Human Rights

Suggested Citation

Heckman, Gerald, Canada’s Refugee Determination System and the International Norm of Independence (August 1, 2010). Refuge, Vol. 25, No. 2, 2010, Available at SSRN: https://ssrn.com/abstract=1713540

Gerald Heckman (Contact Author)

University of Manitoba ( email )

Robson Hall, 224 Dysart Rd
Winnipeg R3T 5V4, Manitoba
Canada

Here is the Coronavirus
related research on SSRN

Paper statistics

Downloads
74
Abstract Views
560
rank
357,495
PlumX Metrics