August 29, 2019

Cessation and Reavailment: Could I Lose My Refugee Protection, and My Permanent Residence Too?

After years in Canada, you get a letter in the mail saying your refugee protection will be “ceased” OR “cessated”. What happened?

What is Cessation?

In Canada, refugee protection can be ceased for any of the following five reasons:

1. the person has voluntarily reavailed themself of the protection of their country of nationality;
2. the person has voluntarily reacquired their nationality;
3. the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
4. the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
5. the reasons for which the person sought refugee protection have ceased to exist.

Prior to 2012, cessation only affected your refugee protection. But on 15 December 2012, the Protecting Canada’s Immigration System Act (S.C. 2012, c. 17; PCISA) came into effect. The PCISA changed the law so that when your refugee protection is ceased for reasons (1) through (4), you also lose your Permanent Residence.

Ceased refugees also become inadmissible. An inadmissible person is supposed to leave Canada. Their future applications to stay in Canada or return to Canada will normally be refused, unless they get special permission to get around their inadmissibility. There is no guarantee that they can get that special permission. Further, ceased refugees cannot ask for that special permission for at least one year following the cessation of protection. (Unless removal would subject them to a risk to their life caused by inability to obtain adequate health or medical care, or removal would have a direct, adverse effect on the best interests of a child).

Ceased refugees cannot make new refugee claims at the Immigration and Refugee Board.

For one year after cessation, they also cannot apply for discretionary Temporary Resident Permits, nor Pre-Removal Risk Assessments – unless their protection was ceased because of reason (5), in which case there is currently a policy allowing them to apply for a Pre-Removal Risk Assessment before one year passes, with certain exceptions beyond the scope of this post.

What is “Reavailment”?

Refugee protection is based on the assumption that a refugee cannot depend on the protection of their home country. Under international law, a refugee loses their protection when they go back to relying on that country’s protection. When a refugee relies on their home country’s protection, it is called “reavailment”.

The following behaviours are presumed to count as reavailment:

1. Renewing a passport from your home country
2. Using a passport from your home country to travel to another country
3. Entering your home country

Most people just think of a passport as a document that lets you travel. But requesting or using a passport from a country can be seen as a declaration you trust that country to protect you as you travel, and to help you if something goes wrong abroad – i.e. that you are relying on that country’s “diplomatic protection”.

What Happens if the Canadian Government Tries to Take My Refugee Protection?

If the Canadian government suspects someone has done any of the above, it may investigate and make an Application to Cease Refugee Protection (ACRP). Once an ACRP has been made, a hearing will eventually be scheduled before the Immigration and Refugee Board’s Refugee Protection Division (RPD). The RPD will decide whether you keep or loses your refugee protection.

Unfortunately, while the ACRP is pending, the government will often put a hold on the refugee’s citizenship applications and applications to sponsor.

Cessation is a complicated and rapidly-evolving area of law. So far in 2019, 88% of cessation hearings have ended with loss of status. If you are facing an ACRP, you should consult an immigration/refugee lawyer immediately.

Strategies for Dealing with an ACRP

Let’s start with the bad news: if someone obtains refugee protection in Canada, and then either obtains or uses a passport from the country against which they claimed protection (or returned to that country), there are no clear circumstances where they can avoid cessation. Unfortunately, many refugees risk returning home for understandable reasons – most often family emergencies.

However, even if you renewed/used a passport from the country against which you claimed protection, it may not count as reavailment if the act was not voluntary, was not intended to show reliance on that country’s protection, or did not successfully attract that country’s protection:

• Voluntariness:
  • Were you a minor when you applied for a passport?
  • Were you required to get a passport by the Canadian government?
  • Were you the one who applied for a passport, or did someone else do it without your instruction?
• Intent:
  • Were you aware of the meaning of a passport or a return trip under international law?
  • Were your properly advised about cessation by your former counsel?
  • Did you obtain refugee protection before 2012, when cessation was extended to affect Permanent Resident?
  • If you made a return trip, did you make efforts to protect yourself without relying on the government?
• Success:
  • Did you actually receive a usable passport?
  • If you made a return trip, were there any threats or risks you faced from your persecutors as a result?

If your citizenship or sponsorship applications have been put on hold, you also can challenge that hold at the Federal Court. However, this tactic has had mixed results, and the current case law on this point makes this strategy a challenge. The law surrounding this matter is still developing.

Additional Notes

Refugee protection can also be “vacated” if the government finds you obtained it by “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter”.

Citizenship cannot be lost because of cessation. However, it can be revoked if the government thinks you obtained your citizenship by lying or withholding important information.