Peggy and Simon are from the Democratic Republic of the Congo (DRC). In 2018, fleeing political repression, they set off for Brazil, after which they made their way to North America by way of a treacherous route dubbed by some as the road of death. They travelled with their two children aged two and four, embarking on the journey while Peggy was pregnant with their third. Their goal was to get to Canada, where they hoped to gain refugee status.

The family experienced separation for the first time at the Mexico/Texas border. Simon and the children were detained. Peggy, as an expectant mother, obtained permission to enter the United States and had to continue the journey alone. Arriving in Canada via Roxham Road (an unofficial border crossing that has since been closed), she was placed under arrest before being allowed to apply for asylum.

Simon and the kids arrived in Canada two weeks later. Lacking identity documents, Simon was separated from his children and detained. The family was reunited three weeks later, a few days after the birth of Benjamin. They moved to Montreal and began the lengthy administrative process that would eventually lead to their hearing.

Three years passed. Peggy and Simon, by now essential workers in Canada, had their first asylum claim refused; their subsequent appeal was turned down as well. Currently considered “refused refugee claimants” (i.e., undocumented or non-status, but retaining certain specific rights), the family is fighting to rectify their administrative situation so that they may continue to live in the safe country where, over the last five years, they have put together a new life.

Theirs is not an isolated case. Between 2017 and 2021, one-third of all asylum claims in Canada were refused.

On average, 32% of refugee claims are denied the first time around. Of those that are appealed, 66% are denied. After that, the last chance for asylum seekers is to apply for permanent residence on humanitarian grounds, for which the refusal rate is 70%. An estimated 6% of refused asylum seekers will be removed from Canada once all avenues of legal recourse have been exhausted.

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Why are people fleeing the Democratic Republic of the Congo (DRC)?

Peggy and Simon were among the many who were subject to political persecution in the DRC. Simon had been imprisoned and tortured in 2017 after he had filmed a demonstration against the then-regime. To this day, the couple cannot set foot on Congolese soil without risking severe persecution. In fleeing their country, they accept that they may never be able to return home.

The DRC is Africa’s third-largest nation in terms of land area, with a population of over 95 million. Since 1998, some five million Congolese have died due to the effects of poverty and/or violent conflict. Rooted in various political, ethnic, economic and military factors, the conflicts have forced many to flee their homes in search of safety. A long and costly civil war ended in 2003, but waves of violence continue to rock the country regularly.

The country that has hosted the greatest number of Congolese refugees is Uganda [1]. In 2022 alone, attacks from armed groups in the eastern DRC led to a refugee influx of 98,000 into Uganda, which already hosts nearly half a million displaced Congolese.

Canada received 1,059 refugee claims from the DRC in 2022 [2].

What is the situation in the refugees’ home countries?

Peggy and Simon are among the nearly 90 million [3] people worldwide who, each year, are forced to leave their homes due to persecution, conflict, violence or serious human rights abuses.

The vast majority of the world’s refugees are hosted in the Global South, with Turkey, Colombia, Pakistan and Uganda leading the way in terms of numbers received [3]. Indeed, in 2021, developing nations welcomed 85% of all refugees worldwide; of these, the least developed nations — many of which border the planet’s biggest conflict zones — accounted for 27%. Very few refugees actually make their way to the world’s wealthier nations like Canada. Indeed, according to the UNHCR, the proportion of all refugees worldwide hosted by Canada is a scant 1.5%.

What are Canada’s obligations toward asylum seekers?

Forced to leave the DRC, Peggy and Simon gathered up their savings and made every possible effort to settle in Canada. For two people dreaming of a safer life in a French-speaking environment, Quebec represented an ideal: a place to live in peace and raise their children without fear.

The right to seek and enjoy asylum from persecution is enshrined in the Universal Declaration of Human Rights. In 1969, Canada signed the UN’s Convention Relating to the Status of Refugees (also known as the 1951 Refugee Convention) [3], which sets out the obligations of participating states. Under the agreement, Canada must offer asylum to anyone whose life is threatened in their country of origin due to their race, religion, nationality, political beliefs or membership in a particular social group.

There are exceptions to this rule, particularly if the claimant had obtained legal status in another country deemed “safe” before traveling to Canada.

What is the “road of death”?

After landing in Brazil, Peggy and Simon decided to head North. Together with their two children aged two and four, they made their way under dangerous and appalling conditions through 11 nations in the Americas before reaching Canada. The most difficult part of the journey was the Darién Gap, a remote and inhospitable stretch of jungle between Colombia and Panama. Here, the family crossed the border on foot, walking for 10 days through the mountains in an area controlled by drug traffickers. They lost their identity papers and exhausted their food supplies, going days without eating before eventually being fed by local villagers. The journey from São Paulo to Montreal took three months.

The “road of death,” as some call it, refers to the clandestine journey from Brazil to Canada through 11 countries. Migrants navigate some 20,000 km of dirt roads, jungle, rivers, seas and mountains by foot, bus and makeshift watercraft, passing through Peru, Ecuador, Colombia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, Mexico and the United States before reaching the Canadian border. This hazardous journey is controlled by smugglers, who at each stage extort considerable sums from the migrants, desperate as they are to reach Canada and seek asylum.

What is Roxham Road?

Peggy was alone when, in October 2018, she reached the final stage of her long journey: Roxham Road, a rural road straddling the New York/Quebec border. Like thousands of other migrants, she was unable to apply for asylum at an official crossing and so had to resort to this unofficial point of entry instead. Upon arriving in Canada, she was arrested by the Royal Canadian Mounted Police (RCMP) and detained for two days in a temporary camp, where she went through multiple interrogations to prove her identity and start her asylum claim.

An isolated country road on both sides of the Canada/U.S. border, Roxham Road had long been an uncontrolled means of access. Between 2017 and 2023, it was the irregular border crossing most used by asylum seekers to get into Canada. 

In 2002, Canada and the U.S. signed the Safe Third Country Agreement, which makes it impossible to seek asylum at a land border crossing between the two countries. Under the agreement, refugee claimants are required to request refugee protection in the first safe country they arrive in. Since both Canada and the U.S. designate the other as “safe” for refugees, asylum seekers who arrive directly from the other country will be turned away.

Until recently, the way to get around this rule had been for asylum seekers to enter Canada irregularly (including via Roxham Road), which, though it would result in an immediate arrest by the RCMP, at least allowed them to apply for asylum straight away. However, the coming-into-effect on March 24, 2023 of the expanded STCA has made entry points like Roxham Road no longer viable.

In 2022, roughly 40,000 of the 92,175 people who sought asylum in Canada had entered the country via Roxham Road [3].

Now that Roxham Road is “closed,” how can refugees apply for asylum in Canada?

To apply for asylum, refugees cannot enter Canada through an official land border crossing. Instead, they must find a crossing that is uncontrolled, a situation that can expose them to greater risks. They must then remain in Canada undetected for 14 days, with no access to health care and under constant fear of being caught by the authorities, before they can make an asylum claim.

Roxham Road was “closed” on March 24, 2023 following the expansion of the Safe Third Country Agreement [4]. As of now, people who enter Canada irregularly across the land border cannot make a claim for refugee protection until 14 days have elapsed and, if caught during that period, will be automatically returned to the U.S. The newly tightened border puts Canada out of reach for many refugees by making it more difficult and potentially more dangerous to enter the country by land.

For those who hold an electronic travel authorization (eTA) and arrive by air, it is possible to apply for asylum in Canada directly upon landing. Asylum seekers who have already been in the country for more than 14 days can also apply at a Canadian port of entry. Prior to the closure of Roxham Road, these two methods accounted for 60% of cases; today, they are the only means of claiming asylum in Canada.

By signing the Refugee Convention in 1969 [5], Canada committed to being a place of safety for all asylum seekers. The expansion of the Safe Third Country Agreement constitutes a breach of this commitment, making Canada inaccessible to a large proportion of refugees.

SPEAK OUT NOW to oppose this situation.

Why are some families separated when they cross the border?

When Simon got to Roxham Road with his two children, Adoration and Consolation, he had no identity papers; and since he was unable to prove either his nationality or his paternity, the RCMP took the children away. The little ones were sent to separate foster homes for 24 hours before being brought to Peggy, at the time housed at the downtown Montreal YMCA. Simon, detained for two weeks, was unable to be present for the birth of Benjamin, his third child — yet more trauma for a family who had already spent a harrowing three months on the road in the hopes of finding safety and respite in Canada.

According to a 2017 national directive, the Canada Border Services Agency must not separate or detain families seeking asylum, except in extremely rare cases. Yet Action Réfugiés Montréal reports that, in 2020, at least 182 children were separated from a parent detained at the immigration holding centre in Laval [6].

What happens to asylum seekers once they arrive in Canada?

Asylum seekers initially obtain temporary status that allows them to live and work in Canada while their cases are being processed. Peggy and Simon spent their first two months in a provisional residence for refugees. After receiving their work permits, they quickly found work in essential economic sectors (education and transportation) and, aided by various refugee support organizations, moved into an apartment in Verdun.

This was the start of their settlement in Canada as they waited for their hearing before the Immigration and Refugee Board (IRB). Through work, church and their children’s schooling, they quickly became part of the community. Three years were to pass before they would be given a date for their first hearing.

Asylum seekers often arrive in Canada with no financial resources: indeed, the majority will have exhausted their savings just getting here. In Quebec, they are eligible for last-resort financial assistance from the Ministère du Travail, de l’Emploi et de la Solidarité sociale [7]. Amounting to roughly $1,000 per month (which will vary according to the size of the family), the assistance is intended to help them settle as they wait to receive work permits. For many, the monthly stipend is what gets them out of temporary housing and into their own accommodation.

Who is an asylum seeker?

When they crossed into Canada in 2018, Peggy, Simon and their children became asylum seekers.

An asylum seeker is someone who has fled their country of origin to seek protection in a safe country. The right to seek and enjoy asylum is protected by the Universal Declaration of Human Rights.

Who is a refugee?

Refugee protection status is what Peggy and Simon had aspired to when they entered Canada, but were denied. During the first three years of their stay, they were classified as “asylum seekers,” which entitled them to live and work legally in the country while their claim was being processed. Had it been accepted, they would have been granted refugee status, which would have allowed them to become permanent residents. However, since their claim was refused, they are not considered refugees and are currently “non-status.”

Under the 1951 Refugee Convention [8], refugees are people who leave their country “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.” Social group membership can include sexual orientation, gender identity, being a woman, or having human immunodeficiency virus (HIV) status. To obtain refugee status, asylum seekers must prove that returning to their country of origin would put them at risk of torture, cruel and unusual treatment or punishment, or death. The authorities that rule on asylum claims in each country will vary, but the principle of the right to asylum is the same internationally.

How can asylum seekers prepare for their hearing?

As soon as they were settled, Peggy and Simon began the administrative process to prepare for their hearing before the IRB. Claimants are theoretically eligible for legal aid, but in practice, the number of immigration lawyers willing to take on legal aid assignments falls far short of the demand. Peggy and Simon therefore turned to an immigration consultant: a private advisor who, though not a lawyer, can legally represent them before the IRB.

The IRB, an independent administrative tribunal established by the Parliament of Canada, is responsible for hearing refugee claims. Asylum seekers have the right to counsel, i.e., to engage a lawyer or immigration consultant in preparation for their hearing. Each province makes this service accessible through its own legal aid program. There are two main eligibility criteria: the claimant must demonstrate financial eligibility for legal aid; and the legal field in question must be covered by the program. Immigration is one of the categories thus covered.

In Quebec, the legal aid fees allocated to immigration lawyers per asylum application are among the lowest in Canada: between $400 and $1,000, depending on family size and the number of forms to be completed. The fee covers reviewing the file, meeting the clients, preparing for the hearing, representing the clients at the hearing, receiving the decision and following up with the clients, all of which amounts to days if not weeks of work. Nor are immigration lawyers under any obligation to accept legal aid mandates. As a result, few agree to represent asylum seekers who have applied for legal aid, forcing claimants to privately hire a lawyer (generally $5,000 to $6,000 per case) or else engage a consultant who, if generally less costly, can also be less qualified.

If the legal aid allocation for asylum applications were higher in Quebec, more lawyers would accept these mandates, thus assuring asylum seekers more robust support before the tribunals.

Raise your voice now so that immigration lawyers can represent their clients with dignity.

What does an asylum hearing consist of?

Peggy and Simon first appeared before the IRB on September 8, 2021, nearly three years after they had first set foot in Canada. The initial hearing lasted a full day, largely due to incomplete documentation, so a second hearing was scheduled to continue verifying the family’s identity. This took place two months later on November 23, 2021, and focused on determining the family’s legal status in Brazil. On February 23, 2022, Peggy and Simon appeared for the third time to describe the persecutions they had undergone in the DRC. The ruling on their case wasn’t issued until June 8, 2022, when they received a notice of refusal in the mail, justified by an Article 1E exclusion. Under this article, Peggy and Simon already had permanent residence status in Brazil, a country deemed “safe,” and were therefore ineligible for refugee status in Canada [9].

After completing a Basis of Claim form [10] providing details on their backgrounds and the persecution they have suffered, asylum claimants must gather all documents attesting to their identity and supporting their allegations. They are then summoned for a hearing before the IRB, where a Member (administrative judge) questions them on their case and history. Hearings usually last half a day and take place in private in order to protect claimants and their families [11].

On average, 32% of claimants are refused the first time they apply, after which they have the right to appeal the decision with the IRB’s Refugee Appeal Division (RAD).

What does the appeal process involve?

Still hoping to have their claim approved, Peggy and Simon decided to appeal the IRB’s decision, as was within their rights. Aided by an immigration lawyer, they gathered all the documents required to have their case reviewed.

Within 15 days of receiving the IRB’s written decision, refused asylum seekers must file a notice of appeal asking to have their case reviewed. The Refugee Appeal Division (RAD) generally makes its decision without a hearing unless new documentary evidence of critical importance to the claim has been submitted.

An average of 66% of appeals are denied.

Claimants whose appeal is rejected can then either take the case to the Federal Court or, if they are eligible, apply for permanent residency on humanitarian and compassionate (H&C) grounds.

What status do Peggy and Simon currently have?

At time of writing, Peggy, Simon and their two eldest children, Adoration and Consolation, are refused refugee claimants, which means they are considered undocumented or non-status, though they retain certain specific rights. Their youngest, Benjamin, who was born in Canada, is a Canadian citizen.

In Canada, a refused refugee claimant is someone whose application for asylum has been refused by the IRB’s Refugee Protection Division (RPD) following their hearing, or whose subsequent appeal has been rejected by its Refugee Appeal Division (RAD).

Until they are removed from Canada, refused refugees have the right to continue working for as long as their temporary work permit remains valid; they may also renew it, for a fee. In addition, they are legally obliged to send their children to school and can continue to claim medical coverage through the Interim Federal Health Program (IFHP) and the Régie d’assurance maladie du Québec (RAMQ).

Why doesn’t Benjamin’s status as a Canadian citizen entitle the whole family to apply for citizenship?

Benjamin must wait until he is 18 to be able to sponsor other members of his family for Canadian permanent residency. Given that he is just four years old at present, this option is but a distant possibility for his parents and siblings.

In some countries, a child born to a non-resident will qualify the entire family for citizenship. For example, the foreign parents of a child born in Brazil automatically obtain the right to permanent residency.

In Canada, the principle of jus soli (“right of soil”) generally confers nationality on any individual born on Canadian soil. The other avenue is direct descent, or being born to a Canadian parent, more commonly known as “right of blood.” Right of soil applies only to children born in Canada, but not to their parents or family members.

A third avenue to Canadian citizenship is obtaining permanent residency. This is the status granted to refugees whose claims are accepted by the federal administration. A person can become a Canadian citizen if they have been physically in Canada for at least 1,095 days (three years) during the five years preceding their application.

How does permanent residency differ from Canadian citizenship?

Other than citizenship, permanent residency is the only means through which someone can live and work in Canada indefinitely. It grants most of the same rights as Canadian citizenship, except for the right to vote and to hold a Canadian passport. Nevertheless, this status is subject to rules regarding presence in the country. A permanent resident cannot spend more than two out of every five years outside of Canada if they are to maintain their status. Committing an offense that meets the definition of “serious criminality” under Canadian law can also deprive someone of their permanent resident status.

What does it mean to apply for permanent residency on humanitarian grounds?

Peggy and Simon have applied for “humanitarian and compassionate (H&C) consideration”: a last-resort option for those seeking permanent resident status and in which the support of the community plays a key role. Neighbours, friends, relatives and colleagues have all supplied positive letters of reference in support of their claim. The application process takes into account the family’s entire history, the degree to which they have integrated into Canadian society and their children’s well-being. Applicants are required to have exhausted all other avenues before becoming eligible to apply. Processing time is currently estimated at 25 months, during which the family remains vulnerable to deportation.

A H&C application is an exceptional legal remedy; it is not a regular avenue for obtaining Canadian permanent residency.

The federal government decides on whether to accept or deny the application. The decision may take into account such factors as:

  • The seriousness of the consequences for the applicant if the application were to be refused
  • Degree of integration into Canadian society at time of application (i.e. living and working in Canada)
  • Presence of other family members in Canada (e.g. children born in Canada)
  • The applicant’s well-being in Canada
  • The health, safety and best interests of the applicant’s children

Sign the letter of support to support the Nkunga Mbala family’s application for permanent residency on humanitarian and compassionate grounds.

What happens if the application for permanent residency on humanitarian grounds is denied?

The H&C application is the last legal recourse available to asylum seekers for obtaining permanent residency. On average, 70% of these applications are rejected. If a removal order is issued, refugee claimants can apply for a pre-removal risk assessment (PRRA). This is the final administrative step to avoid being sent back to the country of origin or other country of which the claimant holds nationality. The PRRA reassesses the risks incurred if the person were to be sent back to their country.

An estimated 6% of refused refugees are removed from Canada after having exhausted every legal recourse. Some end up staying in Canada as undocumented migrants, living in hiding from the authorities. From arriving in Canada to obtaining status (or in the worst case, being removed), the experience of the asylum seeker is fraught with uncertainty and hardship. Fear of job loss, language and cultural barriers, difficulties obtaining legal aid, limited access to employment and/or certain social benefits, barriers to travel (since returning to Canada will be impossible if they should leave), the inability to plan for the future: all of these make for a day-to-day dominated by instability. As Peggy says: “It’s as if my life is on hold.”

Act now to welcome asylum seekers to Canada with dignity.