(Montreal) Federal immigration officials had warned the government that it risked undermining the temporary immigration system with its emergency visa program for Ukrainians displaced by the war, newly released court documents reveal.
Shortly after the special program was announced, senior officials at the Immigration Department expressed their concerns in a memo to then-minister Sean Fraser.
The senior officials’ notes describe the operation of the “Canada-Ukraine Emergency Travel Authorization,” an exceptional program that allowed an unlimited number of Ukrainians and their family members to come to Canada while waiting out the war.
However, the policy also removes the requirement for fleeing Ukrainians to promise to leave when their visas expire – a measure ministry officials advise against.
Waiving this obligation “would set an important precedent that is not recommended, as it would undermine a fundamental element of the legal framework” for temporary residence, reads the note addressed to Minister Fraser, signed on March 14, 2022.
Staff warned that waiving the requirement – which is the foundation of the temporary residency program – would create “the expectation that this could be done for other populations and not just those affected by the conflict” in Ukraine.
The ministerial notes were released as part of a proposed lawsuit that three Afghan-Canadians are seeking to file against the federal government. The plaintiffs allege the Canadian government discriminated against Afghan refugees by treating them differently from Ukrainians fleeing the Russian invasion.
The lawsuit has not yet been allowed to proceed by a court.
“The government knew what it was doing was unfair,” said Nicholas Pope, one of the lawyers representing the Afghan Canadians.
“That’s exactly what we’re saying in this case. That it’s unfair, it’s discriminatory, and there’s no good reason why the protections shouldn’t be extended to people who don’t come from Europe,” he added.
The lawsuit was filed by Canadians who served as language and cultural advisers to the Canadian government and NATO during the war in Afghanistan but were not allowed to bring family members who remained in Afghanistan to safety in 2021.
Canada has since granted some 962,600 emergency visas to Ukrainians since the 2022 Russian invasion. These visas allow people fleeing the conflict to work and study while the war rages in Ukraine.
Ukrainians welcomed
The program has been generally well received in Canada, where citizens have opened their homes to Ukrainians and donated clothing, furniture and other essentials to help them settle in during their stay.
About 298,000 people actually made the trip to Canada, although it is unclear how many stayed or how many have since applied for permanent residency.
The documents also warn that the design of the program could disadvantage Ukrainians by effectively creating “second-class” permanent residents, without access to settlement benefits or equivalent status under the law.
The government argued that the emergency program for Ukrainians cannot be compared to the program for Afghan refugees, because it is unlikely that Afghans will ever be able to return home.
In the ministerial note, however, officials stress that the key distinction between temporary and permanent programs is the requirement for visa holders to declare their intention to leave one day.
Ministry officials called Ukraine’s emergency visa program “exceptional.”
“This highlights Canada’s unique relationship with Ukraine, the extensive diaspora and family ties, as well as the unique nature of the conflict as a major land invasion adjacent to European Union countries, with generous immigration measures,” the note reads.
“However, this risks setting an important precedent, which could lead to future pressure on the government to take similar action in other emergency situations.”
Two full pages of legal considerations set out by officials were redacted from documents provided to the court.
Minister Fraser ultimately accepted officials’ recommendation not to make the policy public, given the “unprecedented and exceptional nature” of the approach taken.
Mr Pope raised this inconsistency.
Why wouldn’t you publish a policy if you’re proud of it, if you think it’s right, if you think it’s fair and if you think it’s consistent with the Charter?
Nicholas Pope, one of the lawyers representing the Afghan Canadians.
“I think they really understood the problematic nature.”
Disparities with Sudan
The office of Mr. Fraser, now housing minister, and that of current immigration minister Marc Miller did not immediately respond to requests for comment.
The government stressed that the Ukrainian program was intended to be temporary and encouraged people without family ties to Canada to apply for permanent residency through traditional means if they hoped to stay in the country.
Since Mr Fraser announced the emergency visa program, the government has been accused of unfairly limiting temporary refuge to people trying to flee conflict in Sudan and the war between Israel and Hamas in the Gaza Strip.
In February, the Canadian Council for Refugees highlighted the disparity between the program for Ukrainians and temporary shelter programs for Sudanese.
“The crisis in Sudan is reaching catastrophic proportions,” the organization wrote to Minister Miller.
Given the magnitude of the crisis, the limit of 3,250 applications under the humanitarian pathway for people with family in Canada is not adequate to meet current needs.
Canadian Council for Refugees
“Yet Canada admitted an unlimited number of Ukrainians on temporary visas, and the pathway to permanent residency for Ukrainian nationals was not capped. The media’s neglect of Sudan should not impact the objectives of Canada’s response.”