A vulnerable person is a person who has significant difficulties coping with the refugee eligibility examination, due to a specific condition or circumstance.
NOTE: The decision to give special accommodation at the eligibility interview to persons due to their specific condition or circumstance does not bind the IRB to a determination that the person is vulnerable within the meaning of its Guideline on Procedures with Respect to Vulnerable Persons Appearing before the Immigration and Refugee Board of Canada. The provision of such accommodation does not constitute any implicit or explicit opinion with respect to the merits of the claim. Although the IRB is not bound by the officers’ decisions, ensure that the notes, clearly describing the claimant's particular condition and circumstance, are shared with the IRB.
Procedures for vulnerable persons
How to identify a vulnerable person
The following are some examples of persons who may be identified as vulnerable:
- individuals with physical disabilities or injuries
- pregnant women
- unaccompanied minor children
The following are examples of persons who may display less obvious symptoms of a vulnerability, which may not become apparent until the eligibility examination:
- victims of gender-based violence may become distressed during the eligibility examination. They may also show signs of distress at the prospect of being interviewed by an officer of the opposite sex;
- victims of trauma may have difficulty coping with the interview because it is conducted by a person in uniform or because they are confined in a closed room with the interviewer;
- children, including those who are victims of abuse, may fear persons in authority and may be intimidated by the questions that are being asked by officials.
Note: Individuals react to violence and trauma in various ways, and not all victims of violence and/or trauma exhibit identical or even similar symptoms. While some individuals may show signs of distress, including anxiety, irritability, nervousness, agitation, anger and aggressiveness, others may be easily intimidated and have difficulty communicating.
The refugee eligibility examination
During the eligibility examination, provide, whenever possible, special accommodation such as:
- conducting interviews as soon as practicable to reduce stress
- ensuring a vulnerable person’s physical comfort (provision of food, drink, place to rest etc.) to the extent possible and allowing for frequent breaks, if necessary
- being sensitive to cultural and gender issues
- Consideration as to whether a claimant may have difficulty discussing their claim in front of spouse or children. If so it may be warranted to interview family members separately
- allow victims of sexual violence the option of choosing the gender of the interviewing officer (when practicable).
Like all claimants, vulnerable persons may have a support person present at the interview.
Fingerprinting and photographs
Detention of vulnerable persons
Always consider alternatives to detention in the case of vulnerable persons. In the event that an officer does resort to detention in non-danger or non-security cases, detention should be for a short period of time only and primarily to support removal.
Guidelines for minor children
Capacity to make a claim
Definitions of child
The United Nations Convention on the Rights of the Child (CRC) defines a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.” In many federal government contextsa child is a person under the age of eighteen. In Canada, individual provinces have their own definitions of child.
Children between the ages of 16 and 18
Several provinces do not consider children between the ages of 16 and 17 to be within the jurisdiction of child protection agencies. This does not change the fact that they are considered to be children in the federal context and according to the CRC. For unaccompanied children who fall into this category, refer to local procedures.
Legislation on minor children
The IRPA does not set out specific procedures or criteria for dealing with refugee claims from children. However, Paragraph 3(3)(f) requires that the IRPA be interpreted and applied in compliance with international human rights instruments, including the Convention on the Rights of the Child.
The Convention on the Rights of the Child recognizes the obligation of a government to take measures to ensure that a child seeking refugee protection receives appropriate protection. Canada has signed and ratified this Convention.
Article 3(1) of the Convention on the Rights of the Child, notes that the “best interest of the child” should be a primary consideration in all actions concerning children. This principle has been recognized by the international community as a fundamental human right of a child.
These guidelines take into account the 1999 Supreme Court of Canada (SCC) decision on Baker v. Canada, , which noted that the principles that are reflected in international human rights law may serve as an aid in interpreting domestic law.
In Legault v. Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal noted that the interests of children must be examined with care and weighed with other factors. The “best interests” principle is but one of many factors to be considered when making a decision. There is no presumption that the “best interest of the child” must prevail over other important considerations.
What officers should know about claimants who are minor children
In addition to a determination of the admissibility and eligibility, officers must determine if a child claimant should be referred to provincial child welfare authorities.
The needs of children differ from those of adults and this must be reflected in the approach to the examination. Children may manifest fears differently than adults: they may not be able to articulate their fears in the same way, and they may not present their claims for refugee protection as adults would. Also, children may have been trafficked, smuggled or abducted.
For more information on such situations, refer to the following procedures:
Note: with respect to cases involving foreign nationals, the ENF manual primarily deals with visitors to Canada. Refugee claimants are seeking to remain in Canada permanently and as a result there are critical distinctions to be made.
- be mindful of children’s special requirements;
- determine the accuracy of claimed adult-child relationship(s);
- evaluate each case on its own merits, taking into consideration the above factors;
- in accordance with Article 12 of the CRC, children should be given an opportunity to express their views and wishes.
Determining whether a child is at risk
See the terms and definitions section for definitions of unaccompanied minor and separated child.
When a child is unaccompanied, or is accompanied or being met by persons without legal custody or guardianship, the child is considered to be at risk. However, children accompanied by one parent may be at risk as well.
Refugee claimants are seeking to remain in Canada permanently. As such, unless a child is with both parents, a sole custodial parent or his or her legal guardian, the case should be referred to the Our Missing Children program.
Check the following websites before an examination of children who may be at risk:
The following provides information to help you determine if a child may be at risk or unaccompanied.
Indicators that a child may be at risk
- accompanying adults’ display of unwarranted hostility to being questioned
- responding to questions with what appear to be prepared answers;
- undue hesitation when answering questions
- attempts by the adult to answer for or block questioning of the child
- suspicious identity or proof–of–relationship documentation
- overreaction by adults to the child’s answers
- signs of physical abuse such as bruising, poor hygiene or malnourishment
- nervousness or fear on the part of the child
- vague reasons for the absence of one or both parents
- child does not respond to questions or often replies “I don’t know”
Indicators that the child may be unaccompanied
- the child is alone
- the presence of adults does not necessarily mean that the child is accompanied, as the adult who is present may not be a parent or legal guardian – the adult must be able to demonstrate that they are a family member of the minor child
- suspicious identity and/or proof of relationship documentation
Presence or absence of parents, other adults
Unless the officer is satisfied that the child is accompanied by persons with rightful custody or guardianship they should:
- Contact the local/provincial child protection authorities, who will assess the situation and may take custody of the child;
- and refer the case to the Our Missing Children program
Child protection authorities should be contacted in any case in which there are signs of abuse or neglect.
- If the child is accompanied by: both parents; the sole custodial parent; or his/her legal guardian(s):
- Treat the child as a dependant
- Proceed as per normal procedures.
- If the child is accompanied by one parent
- Determine whether the parent has sole custody and/or the child’s birth certificate indicates that father is “unknown”.
- If neither is the case, officers should contact the “Our Missing Children” program.
- If the child is accompanied by adults other than parents/legal guardians (Includes any adults whether they are related to the child or not):
- Determine the relationship between the adult and the child and request documentation authorizing the adult to care for the child.
- If there is doubt about whether it is appropriate for the child to remain with the adult, contact the local child protection agency.
- If appropriate, refer the case to Our Missing Children.
- If no adult present:
- All children (under age 18) who are without a caregiver should be considered abandoned and must be referred to the appropriate child protection agency without delay.
- A child is being met by an adult in Canada (The adult may be a parent, legal guardian, or any other):
- Officers should establish whether the person meeting the child is a parent or legal guardian, or has written consent from the parents/legal guardian to pick up the child. The officer should question the adult about arrangements or plans.
- If the adult is not a parent or legal guardian, or does not have what the officer considers to be genuine consent from the parents to pick up the child: the officer must contact Our Missing Children, and refer the child to the local child protection agency.
- If the adult is a parent or legal guardian, or has parental consent to pick up the child: prior to releasing the child to his/her custody, the officer must document the identity of the adult and his/her relationship to the child.
If it appears that the claimant may be or has been a child soldier, officers are required to send the name, Client ID, date of birth and any other information deemed to be relevant to the National War Crimes Unit.
Fingerprinting and photographing minor children
Generally, children should not be separated from their parents or legal guardian during the eligibility examination, unless the officer determines that it is necessary. If it is necessary, the case notes should explain the reasons for the decision.
In the case of an unaccompanied child there must be a process of gathering information in order to determine eligibility. Ideally there should be an adult to support or represent the child during the interview. In the absence of parents or a legal guardian, a child welfare worker and/or authorized representative (lawyer, consultant) may attend the interview. Other considerations for interviewing a child include:
- children who have been victims of sexual violence, abuse or prostitution, may feel more comfortable in the presence of interviewers and interpreters of the same gender.
- use an icebreaker to make the child feel at ease.
- use plain language when speaking to a child and adopt a relaxed, non-threatening posture and tone of voice.
- explain the purpose of the interview and the role of the interpreter in simple terms.
- be conscious of cultural and gender issues that may affect communication, including both verbal and non-verbal signals.
- the attention span of children is shorter than that of adults and allowance should be made for breaks, if necessary. Some signs that a child may need a break include, but are not limited to, restlessness, hyperactivity, lack of concentration, crying, pouting, excessive laughter, acute distress, drawn out silences and a number of “I don’t know/I don’t remember” responses.
- use age-appropriate vocabulary and encourage children to indicate if they do not understand a question.
- initial questions should concern collecting personal information such as, confirming the child’s name, age and previous place of residence.
- use open-ended questions to avoid yes-no answers and to encourage the child to provide narrative answers. (For example: “Tell me about your family,” “tell me how you got to Canada,” or “tell me how you came to be separated from your parents…“)
- ensure that the child understands what has been said by using comprehension-checking techniques. For example, ask the child to repeat in their own words what has been explained to them.
Minor Children and the Safe Third Country Agreement (STCA)
There may be situations where children are eligible for an exception, or, if they are born in the U.S.A., exempted from the application of the STCA, but the parent(s) may not fit an exception under the STCA.
Refugee Protection Claimant Document (RPCD)
When officers make an eligibility decision, they issue the RPCD, as notification of eligibility determination results. The officer and the claimant, as well as the parent/legal guardian, when present, must sign this document. Accompanying parents/legal guardians must print their name, sign the document and indicate their relationship to the child in brackets on the RPCD. Children between the ages of 14 and 18 must also sign the RPCD. Claimants under the age of 14 are not required to sign the RPCD.
Referring unaccompanied minors to the Immigration Division
R228(4) stipulates that if an officer believes that an A44(1) report is well founded and the case involves a minor child who is not accompanied by a parent or adult who is legally responsible for them, the report must be referred to the ID of the IRB for an admissibility hearing. The ID will designate a representative to act on behalf of the child.
For more information, refer to the related Enforcement procedures.
Detention of minor children
A60 stipulates that a minor child should not be detained except as a last resort, taking into account other applicable criteria including the best interests of the child. Every alternative should be explored. A minor child should not be detained in adult correctional facilities.
For more information, see Enforcement procedures on detention of minor children.
Enter information into the database (FOSS/NCMS/GCMS)
Children accompanied by both parents should be entered as dependents, as well as those who:
- Are accompanied by one parent, and the officer is satisfied that they have sole custody of the child; and
- Are travelling with their mother, and the child’s birth certificate lists the father as “unknown”.
Unaccompanied minors should be entered as principal applicants, as well as children who:
- Are accompanied by one parent, and the officer is not satisfied that the parent has sole custody of the child; and
- Are accompanied by an adult other than their parents or legal guardian
CSIS security screening of minors
When warranted, an officer may refer a person younger than 18 years of age to CSIS for security screening.
Notifying child welfare authorities: formal reporting requirements
In all cases in which officers suspect that there may be a risk to the welfare of a minor child, whether the child is unaccompanied or not, provincial child protection authorities should be contacted. Provincial authorities have jurisdiction with respect to child welfare issues and they will investigate and take any action with respect to child protection issues.
If a local child protection agency refuses to become involved, officers should request that the refusal be put in writing and sent to them. Each office should maintain a record of contact and outcome with the local child welfare authorities.
Privacy and referrals to child welfare authorities
Subject to any other Act of Parliament, Paragraph 8(2)(a) of the Privacy Act states that personal information under the control of a government institution may be disclosed, on a case-by-case basis, to a third party for a use consistent for which it was collected, as long as there is a reasonable and direct connection to the original purpose for which the information was obtained. It is reasonable to expect that the authorities in a country of refuge would share information for the purpose of ensuring the safety of a child and providing assistance by referral to the appropriate agencies, such as child welfare authorities.
Only the minimum amount of information required should be disclosed in order to achieve the purpose, which in this context is the protection of a child. When an officer concludes that a child may be in need of protection, personal information regarding the child may be disclosed to the responsible child protection agency under Paragraph 8(2)(a) of the Privacy Act.
Reception: Regional agreements and informal arrangements
Some CIC/CBSA regions/offices have negotiated arrangements or procedures that cover the responsibilities of CIC/CBSA, as well as child protection authorities and/or other agencies with respect to the reception and care of separated (unaccompanied) children. Local arrangements and procedures should be on file at Regional Headquarters.
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