The Right to a Father

 By Downtown Legal Services and International Human Rights Program

*This op-ed is published as part of a DLS campaign to reunite separated Uyghur-Canadian families. For more information, please visit the campaign website.

Children from three Uyghur-Canadian families are growing up without a father because of inaction on the part of the Canadian government. Where are these men? Physically, they are scattered across the globe. Legally, they are in perpetual limbo, struggling with a dispassionate immigration system that refuses to acknowledge their innocence and allow them to reunite with their children. 

The Winding Road Home 

Ayub Mohammed, Salahidin Abdulahad, and Khalil Mamut are three Uyghur men from China who escaped the Chinese government’s long-standing efforts to ethnically cleanse the Uyghur population in Xinjiang province. While the arbitrary detention of more than one million Uyghurs and other minority groups in China is alarming news to onlookers, for these men, the threat of persecution and state violence loomed over their childhoods. In the early 2000s, they fled China to seek a better life through travel and education. 

Their dreams were imperiled when villagers in Pakistan sold the three men to American soldiers, who detained them, among others, and sent them en masse to Guantanamo Bay. Mohammed spent four years in some of the most deplorable detention conditions possible; and Abulahad and Mamut spent more than seven years in those conditions. They were initially detained after the US accused them of belonging to the alleged terrorist group, the East Turkestan Islamic Movement (ETIM). But after years of detention, the Combatant Status Review Tribunal in Guantanamo Bay removed the three men’s enemy combatant designation and confirmed what Mohammed, Abdulahad, and Mamut already knew: they were innocent. Yet, Canada continues to rely on the same evidence to raise concerns about these men’s admissibility based on their alleged “membership in a terrorist organization,” attempting to distance their eventual immigration decision from the mens’ exoneration in the US.

After Guantanamo Bay, each of the men had a glimmer of hope for a new life and freedom as they met their wives and started families. Their wives settled in Canada, first as recognized Uyghur refugees and now as permanent residents, and many of their children are Canadian born. Mohammed, Abdulahad, and Mamut’s wives all listed the men as dependants on their respective permanent residence applications. But Immigration, Refugees and Citizenship Canada (IRCC), has continually delayed a final decision on whether these three men will be granted permanent residence status for over five years. The IRCC has raised, on multiple occasions, concerns that these three men are inadmissible due to their alleged membership in a terrorist organization. Mohammed was, in fact, found by the IRCC to be inadmissible in 2016, but the Federal Court of Canada ordered a redetermination due to egregious procedural fairness concerns leading up to the original determination of inadmissibility. 

All three men have been in a game of legal ping-pong with the Canadian government, trying to finally live in Canada. But forgotten in this equation are the men’s children — all of whom live in Canada as Canadian citizens and permanent residents. Each visit is prohibitively expensive, meaning the children only get to see their fathers for a few months out of an entire year. By keeping these families separated, the Canadian government’s obstinate refusal to recognize the men as innocent and acknowledge the terrorism allegations as baseless disregards Canada’s commitments to these children under international human rights law. 

International Human Rights: Protecting the Family 

In 1989, the General Assembly of the United Nations (UN) adopted the UN Convention on the Rights of the Child (UNCRC) to create a safer world wherein children would have their legal rights respected across the globe. To date, it is the most widely ratified convention in international human rights law, with every UN member country except the US having ratified it. Canada was influential in its writing and ratified the treaty (agreed to be bound by it) one year after it had come into force. 

This acceptance of international human rights law into immigration law is an important step for Canada. Canada has significantly benefited from framing itself as a leader in human rights. From campaigning for a seat on the UN Security Council to frequently calling out other states who abuse human rights, Canada enjoys setting itself apart from other states. In 2015, Prime Minister Trudeau famously declared “Canada’s back” upon his election victory. But does the rhetoric match the reality? When the glossy veneer of political self-indulgence is stripped back, is Canada the defender of human rights it declares itself to be?

The UNCRC has played a role in the Canadian legal arena as well. In Baker v Canada, the SCC relied on the UNCRC to interpret domestic immigration law, signalling that Canada’s international legal obligations under the Convention should play a role in how political and administrative actors make decisions. However, since ratification, Canada’s track record protecting rights of the child has been problematic. In the joint submissions provided by Human Rights Watch and the University of Toronto’s International Human Rights Program (IHRP) to the Committee on the Rights of the Child’s Consideration of Canada’s fifth and sixth periodic reports, Canada’s use of detention centers to house child immigrants and refugees are another potential violation of international human rights law. While Canada has stated that this practice is also used as a last resort, it has refused to outlaw it.

As with many human rights obligations, legal hypocrisy rears its ugly head in the case of the rights of the child. Article 10 of the UNCRC guarantees that parents and children who live in different countries have the right to visit each other unless some extraordinary circumstance prevents it and that states must take steps to facilitate family reunification in a way that is positive, humane, and expeditious. Simply put, a parent and child should not be separated unless there is good reason and states should not create barriers to parental contact. The Committee of the Rights of the Child held in 2017 that “States Parties have an obligation to respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.” States cannot be blind to the fact that callous, ineffective, or obtuse administrative procedures relating to a parent can deprive a child of what so many Canadian children enjoy — the love of a parent. Yet that is exactly what the Canadian government is doing in the cases of Mohammed, Abdulahad, and Mamut. 

Although the men have been exonerated by the US, they remain in limbo abroad as they wait to be reunited with their wives and young children here in Canada. Abdulahad and Mohammed’s wives applied to sponsor their husbands under the family class of the Immigration and Refugee Protection Act (IRPA) in 2014, and Mamut’s wife did in 2015. Their applications remain pending today, over five years later. In the interim, there have been a litany of unexplained, abnormal, and persistent delays in their applications, including abnormally long wait times for disclosure. While their applications are being processed, these children are growing up in Canada without a father. 

Impacts of Ongoing Family Separation 

As Mohammed, Abdulahad, and Mamut remain separated from their families, the prolonged delay in their immigration cases may have particularly adverse effects on their children. Long-lasting relationships with family is essential to child development; however, the men’s children are separated from their fathers for months on end. Attachment plays a critical role in children’s development of social skills, emotion regulation, and sense of identity; and the lack thereof may increase the risk for stress-related disease and health problems down the road. The separation threatens the attachment bond and may form an additional source of fear and lack of safety. The rich body of literature provides a sound social science backing to the inherent injustice felt in Khalil, Salahidin, and Ayub’s cases. The literature is also implicit in the UNHCR’s understanding of the importance of close family relationships and how their continued existence is in the best interests of the child. 

Notwithstanding the detrimental impacts on child development, it is morally wrong to keep a parent separated from their children without the strongest of justifications. Indeed, Parliament’s creation of the spouse or common-law partner class in permanent residency applications is designed to promote family unity. Various international human rights instruments, including Article 16 of the Universal Declaration of Human Rights, state that the family is the fundamental social group and is entitled to protection by both society and the state. The aforementioned Article 10 of the UNCRC projects this right to family unity across national borders. The family reunification provision confers a right on adults to not be separated from their children and the right to reunite with them. It is inconsistent with Article 10 that the state should keep the family apart through dilatory immigration procedures that make separated parents wait without any certainty for years. While a simple ratification of an international treaty — without it being subsequently incorporated into domestic law through legislation — does not give the treaty domestic force of law, that does not mean that international treaties are of no utility in domestic law. In fact, Canadian courts generally must interpret Canadian laws in a way that is consistent with our international agreements and treaties. Parliament specifically includes this requirement in the objectives of the IRPA, requiring the Act to be construed and applied in a manner that “complies with international human rights instruments to which Canada is signatory.”  Thus, IRPA must ensure compliance with the UNCRC.

Best Interests of the Child 

The best interests of the child is a legal principle from the UNCRC that, unlike Article 10, has been incorporated by Parliament into domestic law, including sections of the IRPA. Read holistically, the best interests of the child should be further read into the IRPA under the section 3 objectives regarding family reunification. Section 3(1)(d) specifies that the Act aims “to see that families are reunited in Canada.” Section 3(2)(f) calls for the Act “to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada.” Both of these objectives implicitly acknowledge that children’s interests are aligned with family reunification. 

However, the best interests of the child are only considered in certain categories of permanent residence applications. Children’s interests are ingrained in the humanitarian and compassionate process (another pathway to permanent residence status), but because it is not explicitly mentioned in s.12(1) of the IRPA, it is not a factor of the permanent residence through family reunification process. It is strange that a category of permanent residence applications specifically created to promote family reunification does not consider as a predominant factor the children’s best interests; its exclusion strikes as contrary to the Act’s purported goal.

Reading the best interests of the child into the objectives of theIRPA would accord with the frequent invocation throughout the immigration framework, from section A. 25 and A. 25(1) of the IRPA (humanitarian and compassionate grounds), to sections 117 (on adoption) and 248 (on detention) of the Immigration and Refugee Protection Regulations, and to the Supreme Court jurisprudence established in Baker regarding the UNCRC.

Conclusion 

It is in the best interests of the men’s children that Mohammed, Abdulahad, and Mamut are able to reunite with their families in Canada. The prolonged, unexplained, and absurd delays by the IRCC in their permanent residency applications have left them and their families in legal limbo: unable to reunite and unable to make and pursue alternate plans. Meanwhile, their young children are growing up without their fathers. They are unable to form the attachment bonds critical to their identity development. 

Despite Canada claiming its role in the creation of the UNCRC and enjoying its reputation as a defender of international human rights, Canada has unmet legal obligations from the UNCRC. Merely ratifying it is not enough. The UNCRC, especially Article 10, must be incorporated into domestic legislation. Even where Article 3, the best interests of the child analysis, is incorporated into the immigration application process, its scope is limited largely to humanitarian and compassionate cases. 

It strikes as intuitively wrong for the families to remain separated, the men to be deemed as “security concerns'' without substantiation, and their immigration files to be dragged on with no end in sight. Childhood is fleeting. Their children are spending the critical years of childhood without their fathers because the IRCC chooses to persistently delay every step of the immigration process and cause pain and confusion along the way.