Thursday Thinkpiece: Carasco on the Rights of Non-Citizens

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Non-Citizens in Canada: Status and Rights
Emily F. Carasco
Toronto: LexisNexis Canada, 2012

Excerpted sections from Chapter 1

Citizenship Status, Non-Citizenship Status and Human Rights

Citizenship status is a critical determinant of the extent of human rights protection available to an individual. The relationship of an individual to the state in which he or she resides (i.e., whether the person is a citizen or a non-citizen), influences the degree to which a person can legally enforce a claim to human rights. Citizenship status within a state affords an individual far greater protection with regard to human rights than is the case with non-citizenship status. The concept of state sovereignty permits a state to determine the extent of human rights protection within the state except if specifically limited by international law. As a result, some states have a long history of distinguishing between the “rights of man” and the rights of citizens. This distinction has survived until today when most states continue to exclude non-citizens from various activities, benefits and protections afforded to citizens. . . . .

While some differentiation between citizens and non-citizens has always been legally defensible, the current state of international human rights law no longer permits a state to deny fundamental human rights to any person. The underlying premise of the modern concept of fundamental human rights is the notion that all human beings by virtue of their human status are entitled to dignity and respect. Treating non-citizens differently from citizens contradicts the principles of equality and non-discrimination which are regarded as cornerstones of human rights law. Theoretically then, all human beings should be able to lay claim to the fundamental human rights which have been set out in various widely ratified international human rights instruments. In practice however, increasing numbers of persons are being denied these rights because of their status as non-citizens. The issue has attracted considerable attention at the United Nations where eminent jurists have noted that distinctions between citizens and non-citizens with regard to fundamental human rights should only be made if they serve a legitimate state interest and are proportional to the achievement of that goal. . . .

Restrictions on the entry into Canada by non-citizens still exist and even today, the level of human rights protection afforded to non-citizens, whether temporary workers, asylum seekers or even permanent residents, is lower than that enjoyed by Canadian citizens. Although making distinctions between citizens and non-citizens in terms of human rights protection is not a new practice for Canada, the issue merits a fresh examination today in light of international and domestic human rights law. The human rights axiom, that “[all] human beings are born free and equal in dignity and rights” necessarily demands that citizens and non-citizens be treated equally with respect to fundamental human rights . . . .

Having ratified a wide variety of human rights instruments, Canada has bound itself under international law to protect and promote fundamental human rights for all persons. Given Canada’s binding international obligations, is Canada’s continued practice of differential treatment of non-citizens defensible? Canadian judges have followed a strategy of subtle avoidance in relation to the application of international law in the domestic system. This failure to apply binding international law within the domestic system is particularly glaring in relation to non-citizens and human rights. The reluctance to incorporate relevant international law into the domestic system is singularly incongruous as Canada has ratified almost all the significant human rights treaties and because significant provisions within Canada’s Charter of Rights mirror international human rights principles. Furthermore, the legislation governing most issues of immigration status in Canada, the Immigration and Refugee Protection Act (“IRPA”) clearly contemplated a role for international law in matters dealing with citizenship and non-citizenship matter. Section 3(3)(f) of the IRPA calls for interpretation and application of that Act to be in compliance with international human rights instruments that Canada has signed. . . .

The dramatic and ongoing increase in numbers of non-citizens in Canada provides another reason for a complete review of human rights protection for non-citizens. Whether propelled by economic forces, natural disasters or armed conflict, migration (legal and otherwise), is on the rise world-wide. The phenomenon now referred to as globalization, has led to increasing mobility around the world and the numbers of non-citizens in many countries including Canada is at an all-time high. While some non-citizens enjoy a level of human rights protection close to that enjoyed by citizens, many others by virtue of their precarious status, are denied fundamental human rights. The foundational principles of human rights law, equality and non-discrimination make these distinctions indefensible on rational grounds . . . . .