People Forced to Flee: History, Change and Challenge Book Forum

By: Fatima Aamir (2L)

People Forced to Flee: History, Change and Challenge by Ninette Kelley. Credit: Oxford University Press

On October 28, 2022, the International Human Rights Program (IHRP) and David Asper Centre for Constitutional Rights co-hosted a book forum on Ninette Kelley’s People Forced to Flee: History, Change and Challenge (“People Forced to Flee”) (Oxford University Press, 2022). In the introduction to the event, University of Toronto Law Professor Rebecca Cook explained this event was co-hosted by the IHRP and Asper Centre to explore displacement not just as an international law problem, but to consider the domestic “scaffolding” required for durable solutions.

History of Asylum

Kelley brought important expertise to this book, having served in senior management positions at the United Nations High Commission for Refugees (UNHCR) in addition to Canada’s own Immigration and Refugee Board (IRB). She began the event by delving into the history of asylum, noting that prior to the mid-20th century, asylum occurred in an ad hoc and partial manner, and was often offered on the basis of shared identity or on whether refugees could benefit their host country. 

As a result, the 1951 United Nations Convention Relating to the Status of Refugees (“the Convention”) was conceived as a global framework aimed at providing the broadest protection for refugees. However, Kelley pointed out that there are gaps between countries’ commitment to the Convention and refugee protection. Importantly, People Forced to Flee does not only examine the traditional legal category of refugees, but also internally displaced people who face similar barriers to integration, such as government neglect and discrimination.

Rethinking Local Integration

Refugees face a host of barriers to integration, including a lack of education and employment opportunities—in addition to poor access to healthcare and social services. People Forced to Flee documents how the sheer scale of international displacement during the Syrian refugee crisis forced many host countries to reckon with these issues. Kelley analyzes this event as a major catalyst for change, providing the impetus for development agencies to become more involved in local integration efforts. 

Over the long term, humanitarian assistance has gone towards the improvement of institutions, providing more sustained relief for refugees in comparison to mere emergency relief. Yet, it is not always clear to host countries whether a political crisis that produces refugees will be permanent. During the Q & A of the event, Kelley acknowledged this, citing crises such as the Israel-Palestine conflict. This uncertainty affects host countries’ ability and political will to plan for long-term integration. Nonetheless, increased humanitarian assistance as well as a greater role of the private sector in some cases, improves the capacity of countries to host refugees over the long-term. In addition, Kelley noted that recent improvements in data collection have placed the UNHCR in a better position to understand the socio-economic vulnerabilities of displaced communities, which is critical in crafting future policy to meet their needs. 

Nonetheless, Kelley was careful not to paint an overly rosy picture. She pointed out that while there has been an overall positive trajectory, international responsibility-sharing for supporting refugees remains uneven, citing lack of political will as a critical factor. Further, while humanitarian assistance has improved outcomes for refugees, it is insufficient to address the root causes of their displacement and provide durable solutions. Fen Hampson, a panelist at the event and President of the World Refugee and Migration Council, pointed out the increased frequency and scale of forced displacement due to worsening crises like climate change. He noted Canada’s immigration backlog of nearly two million people and that provinces seem to lack the resources to accommodate newcomers—with many in big cities like Toronto ending up in homeless shelters.

In the face of ongoing challenges to the integration of displaced peoples, Kelley emphasized the need for long-term, effective solutions tailored to local contexts, recognizing that these are more sustainable when they benefit both forcibly displaced persons and their host countries. The panelists at the event added to Kelley’s insights with their diverse perspectives on what such integration might look like. 

Professor Yin-Yuan Chen, a trained social worker and IHRP and Asper Centre alumnus, brought a socio-legal perspective in his critical examination of the health inequities experienced by non-citizens. He pointed out that parallel health systems are unsustainable over time, especially as the health needs of refugees generally converge with those of the local population. In addition, most refugees live among local communities, rather than inside camps. To work towards greater integration, however, he questioned whether integration of healthcare delivery is sufficient, instead suggesting we may need greater integration of healthcare financing. He explained that refugees, asylum-seekers and trafficked individuals might be integrated into the healthcare system, but their source of healthcare coverage is federal funding through the Interim Federal Health Program (IFHP), rather than through provincial or territorial funding, as it is for other residents of Canada. Chen has often criticized this dichotomy for posing serious barriers to healthcare for forcibly displaced peoples, including having service providers turn away IFHP beneficiaries, or charging them additional fees at the point of healthcare delivery. 

Fen Hampson added that socio-economic institutions have a unique role to play in promoting integration that benefits both displaced persons and their host country. He recommended that the private sector provide better access to capital and credit for displaced persons to better enable them to become successful entrepreneurs, and that universities address their barriers to access. 

Ghizaal Haress, another panelist, visiting scholar, and scholar-at-risk at the University of Toronto Faculty of Law and Munk School of Global Affairs and Public Policy, added that refugees themselves must be involved in the process of designing these solutions to better address their needs and to empower them with a sense of ownership over their own lives. Haress explained that refugees do not just leave behind danger and violence when they flee their homes, but also tightly knit social networks, their cultural connections, and their property and assets. The participation of refugees in designing solutions is thus important to better account for the unique hardships they experience and the deleterious impact to their mental health as a result of displacement, including from trauma, losing their sense of place and belonging, and experiencing ongoing identity crises in their new homes. 

Limits to International Burden-Sharing: Canada as an Example 

Following Kelley’s recognition of the uneven burden-sharing of refugee protection worldwide, Erin Simpson, another panelist and a practicing refugee lawyer in Toronto, discussed the ways wealthy countries like Canada erect legal barriers for asylum-seekers. Specifically, she focused on Canada’s ineligibility, inadmissibility, and cessation provisions in the Immigration and Refugee Protection Act (IRPA).

Ineligibility concerns a refugee claimant’s ability to have the IRB hear their claim  in the first place. Simpson explained how the U.S.-Canada Safe Third Country Agreement (STCA)—a policy she and other lawyers argued was unconstitutional at a recent Supreme Court hearing—renders refugees ineligible to claim if they arrive in Canada through the U.S., as Canada considers the U.S. to be a “safe third country.” Examples of how this eligibility provision keeps refugees out of Canada are the cases of women seeking protection from gender-based violence who arrive at the Canada-U.S. border. Under the STCA, these women are ineligible to seek refugee protection in Canada as the U.S. is considered a “safe” country. However, the U.S. arguably does not protect these women, as it interprets the Convention narrowly and fails to see gender-based persecution as a ground for refugee protection, while Canada does. Canada finding these women “ineligible” effectively precludes them from accessing protection altogether. 

During the Q & A, Simpson delved further into the recent constitutional challenge launched against the STCA at the Supreme Court. The case was put together over the course of nearly six years, with an evidentiary record of over 30,000 pages from individuals who were returned to the U.S. under the STCA and put in jail for seeking Canada’s protection. While the Federal Court had acknowledged how these returns violated individuals’ s. 7 rights under the Canadian Charter of Rights and Freedoms (the Charter), the Federal Court of Appeal’s response was rather abhorrent, as it stated that psychological suffering to the Applicants was not relevant to the s. 7 analysis because they were refugees and were already suffering. Receiving leave to appeal the Federal Court of Appeal’s decision thus felt like a monumental moment. Simpson explained that the outcome of this Supreme Court decision will affect whether, how often, and in what ways refugee advocates will use s. 7 arguments in future cases.

The IRPA’s inadmissibility provisions similarly pose a barrier for refugees seeking protection in Canada as they seek to exclude individuals deemed to be a threat to Canadian security. Panelist Fen Hampson noted later in the event that security tends to overshadow humanitarian concerns as Canada’s government agencies struggle to find a “balance” among their competing duties to offer refugee protection and “protect” Canada from international threats. However, Simpson pointed out that these inadmissibility provisions can be broad in their reach and risk going far beyond “protection.” For instance, though these provisions target individuals who have had “membership” in any organization deemed to be a terrorist group, “membership” is defined broadly to include anybody associated with the group, regardless of how minor of a role they might have played, or whether they had any say in its operations at all. 

Cessation is another mechanism by which Canada regulates and restricts access to refugee protection. It involves revoking an individual’s refugee status if they are seen to re-avail themselves of the protection of their country of origin. If a refugee is a permanent resident (PR), the consequences of cessation become even more severe, as it results in the automatic loss of their PR status, regardless of how many years they had been living in Canada. Simpson gave examples of reasons for which individuals have had their refugee status terminated, including for obtaining a national passport or returning to their home country to see a dying parent. 

In addition to these severe provisions, Simpson noted that the Canadian legal system can also create barriers for refugees through narrow interpretation of the law, narrow interpretation of the Charter, and the administrative leeway given to Immigration, Refugees and Citizenship Canada and Canada Border Services Agency officers tasked with the administration of the IRPA. 

Lack of Resources & Political Will: Way Forward? 

At the conclusion of the event, panelist Hampson asked Kelley about what seems like a “dire financial situation for the UNHCR,” inviting her to speak more about resourcing and inquiring whether an assessed contribution framework for states—much like the way the UN conducts peacekeeping—might be useful. Kelley responded that in her experience, anything involving assessed contributions and the budget committee of the United Nations has proved to be a “political nightmare,” doubting that changing the way the UNHCR is financed is the most effective way to support forcibly displaced peoples going forward. 

Instead, she interrogated the role of the UNHCR in supporting long-term goals. Kelley argued that international agencies like the UN need to take a more critical look at when they might withdraw from certain situations altogether and instead transfer their responsibilities to local delivery organizations to support more sustainable and contextualized development approaches. The UNHCR, after all, is built for emergency operations, she explained—it lacks the capacity, time and necessary expertise to support long-term development goals. 

Kelley’s honesty might sound radical to some, but it reflects a refreshing look at the limits of our existing ways of supporting forcibly displaced peoples and opens up creative new possibilities. 

Editor’s Note: The recording of the event is available on the Faculty of Law’s YouTube channel. You can access a digital version of Ninette Kelley’s book, People Forced to Flee: History, Change and Challenge (Oxford University Press, 2022) on the UNHCR website for free.