Haitians Seeking Refuge: Canada’s Obligations Under International Law

Since the devastating earthquake in Haiti on January 12, 2010, Canadians have opened their hearts and their wallets, raising over $27 million during a recent two-day telethon, for a total of more than $50 million for victims of the Haitian earthquake. The Haitian community in Montreal is particularly sizeable and Quebecers have dispatched medical teams, emergency rescue squads and hundreds of soldiers from the Valcartier base. Canadians seem to feel a sense of unprecedented kinship and solidarity with the Haitian people.

It is little wonder then that phone lines have been ringing off the hook at Immigration Canada, with calls from well-intentioned viewers seeking to alleviate some of the pain and suffering they watch on their TV screens by adopting Haitian orphans. However, despite estimates that more than 50,000 children have become orphans as a result of the quake, many agencies are calling on governments to deliver aid, not adoptions.

While fast-tracking adoptions already approved by the Haitian and Canadian governments may be a humane and logical tactic to support Haiti, additional mass adoptions of children from the earthquake zone may in fact violate international law.  Haitians orphaned by the earthquake do not meet the traditional criteria of Convention Refugees, in that they are not subject to persecution based on their “race, religion, nationality, membership of a particular social group or political opinion”, but there have been calls to expand the definition of refugee to include victims of natural disasters. When the Convention on Refugees was drafted in 1951, the signatories notably prioritized “the unity of the family”, calling families “the natural and fundamental group unit of society” and deeming family “an essential right of the refugee”. Yet by whisking Haitian orphans away to western countries, foreign governments may be infringing on these children’s rights to family unity.

Save the Children has called on the international community to halt new adoptions of Haiti’s orphans. Advocates note that with the chaotic situation Haiti is in, it is impossible to verify the orphan status of many of these children, who might more appropriately be deemed “unaccompanied minors.”  Concerns of human trafficking have been raised, as children may be removed to fill the demand posed by Western parents. These unaccompanied minors may have their own parents, siblings or extended family members in hospital or in other locations in Haiti where they have lost contact. Removing young children from Haiti now would “compound the acute trauma they are already suffering and inflict long-term damage on their chances of recovery,” according to Save the Children. UNICEF has also chimed in noting that for the thousands of dollars per child spent on an adoption, many more could be fed, clothed and housed in Haiti.

Instead of focusing on the earthquake’s most photogenic victims – the young orphans – Canada should live up to it’s obligations under the Immigration and Refugee Protection Act, and widen the scope of family class migrants allowed to enter Canada. Jason Kenney, Canada’s Minister of Immigration and Citizenship, has received some praise for instituting a moratorium on deportations to Haiti, but the government could do much more. Indeed, that no one should be deported to the chaos of Port-au-Prince right now is hardly a generous gift from the Canadian government; any Haitian nationals in Canada right now most likely meet the definition of Protected Persons as per s.97 of the IRPA: deportation would pose a risk to their lives, and Canada is legally prohibited from doing so. The current list of would-be immigrants that the Canadian government has offered to process more quickly includes a very narrow family class, comprised of parents, grandparents, spouses, and dependents under 18. Brothers, sisters, uncles, aunts, cousins or adult children are not included. Much suffering could be alleviated if Jason Kenney used his ministerial discretion to allow such family class sponsorships. Regrettably, Kenney has rejected this humanitarian move, even though it would be in keeping with the Family Unity principles espoused by the 1951 Convention.

Previous Conservative governments in Canada have widened immigration criteria to allow massive influxes of refugees into the homes of willing Canadian host families – including churches, and diaspora groups – when other major crises have struck. Indeed, Canada welcomed 50,000 Southeast Asian “boat people” fleeing conflict zones in the late 1970s and early 1980s. Why limit Canada’s response now to only a few dozen orphans, or the 2,000 Haitians that had applied for immigration prior to the earthquake, when Montreal’s diaspora community of 100,000 Haitians and their many non-Haitian supporters could probably handle a much higher number, at little cost to the government? Instead of airlifting Haitian children whose families in Haiti may still be desperately seeking reunification, why not reunify Haitian Canadians with their families?

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