Regularization and immigrants’ rights

Regularization and immigrants’ rights

What possibilities and risks are there in the struggle to win legal immigration status for people in Canada? Jean McDonald looks at the history of such struggles and draws important lessons for today’s context.

Since 1960, the Canadian government has implemented a number of regularization programs – many hard-won through the struggles of directly affected communities – providing opportunities for non-status immigrants residing in Canada to apply for legal immigration status. While they can positively change the lives of thousands of people, there are significant dangers in advocating for these programs. Regularization programs have historically coincided with increased enforcement and security measures, including more detentions and deportations for those excluded from the programs, as well as tightened border controls. However, today the only avenue for a non-status immigrant to obtain legal status is through a Humanitarian and Compassionate application. With an estimated 5% success rate, this process is far from adequate, leaving the struggle for an inclusive regularization program one of the central demands of many immigrant rights organizations.

Politics of Regularization

Although often portrayed as the humanitarian act of a compassionate government, the history of regularization programs in Canada shows a more complicated reality. Regularization programs are often referred to as ‘amnesties’. This can be misleading in several respects. First, ‘amnesty’ implies the state is a ‘benevolent protector’ capable of forgiveness, and non-status immigrants are people who need to be forgiven, thus reproducing their alleged (and wrongly perceived) criminality and illegality. The language of ‘amnesty’ also feeds into a nationalist mythology that casts Canada as a kind, embracing, compassionate and humanitarian country – legitimating the existence of the Canadian state and erasing the fact that the very existence of this nation-state relies on colonization and theft of Indigenous territories. Second, amnesties are presented as an exceptional act, reaffirming the state’s authority to make decisions about who is desirable and suitable for integration, and who is undesirable and destined for detention and removal.

Third, regularization programs have never been full ‘amnesties’. Governments have always attached criteria for eligibility that exclude many people from getting full legal status. But what happens to non-status immigrants who do not qualify? Most regularization programs put significant resources into monitoring and apprehending failed applicants which can actually increase the number of non-status immigrants in detention and under deportation orders. Regularization programs often happen at the same time that the government makes it more difficult to enter Canada, potentially creating more non-status immigrants as more people must enter Canada illegally. As well, more restrictive criteria force people who think they will not be accepted to avoid the risk of applying – thus remaining ‘underground’.

These are not reasons to give up on the idea of a regularization program for non-status immigrants. On the contrary, they highlight the importance of being aware of and careful about the type of exclusions that governments make while they claim to be including people.

Regularization since 1960

The Chinese Adjustment Statement Program (1960-1972) allowed Chinese migrants who came to Canada without status documents, or with the documents of a relative of a Canadian citizen (‘Paper Sons’), to apply for permanent residency. Applicants needed to demonstrate that they were of ‘good moral character’ and were not involved in the ‘industry’ of ‘illegal immigration’. Chinese communities in Canada were active in pressuring the federal government to change racist immigration laws that had for decades excluded Chinese immigrants, such as the Chinese Head Tax and the Chinese Exclusion Act. It is estimated that around 12,000 people were regularized through this program.

The Adjustment of Status Program – the largest regularization in Canada to date – was implemented in 1973. In the early 1970s, increasing numbers of immigrants became non-status because they could no longer apply for permanent residency from within Canada. Many community groups and political organizations advocated for a regularization program, and garnered much public support. Despite the narrow time frame – August to October of 1973 – tens of thousands applied. Information about the program was widely disseminated, largely through community organizations. Although it is unknown how many were excluded or rejected, an estimated 39,000 people were successful.

In 1981, Haitians living in Quebec fought for and won a regularization program. By 1980, more and more Haitians in Canada found themselves with fragile status: they had student or work visas, or perhaps had overstayed their visa and had become ‘non-status.’ As the political situation in Haiti worsened, Haitians in Quebec began to organize for a program that would address their needs collectively, rather than on a case-by-case basis as refugee claimants. The Office of Christian Haitians played a key role in this struggle, as well as in campaigns for regularization in 1972 and 1987. This group first came together when immigration laws changed in 1972-73, and Haitian nationals could no longer apply for permanent residency from within Canada. This change left many Haitians without legal status, and several were targeted by immigration authorities while attending church. The group organized meetings, lobbied government, and successfully increased public awareness through news coverage. The 1981 program regularized over 4,000 people. Unfortunately, this program rejected applicants with criminal records and serious medical problems.

The Minister’s Review Committee (1983-1985) was a program in which non-status immigrants who had lived in Canada for more than five years, and were deemed to be ‘successfully established and integrated,’ could become regularized. At this time, ‘illegal immigration’ was considered an important political issue by the federal government. Several reports were commissioned, including two by W.G. Robinson, “Illegal Immigrants Issues Paper” (February 1983) and “Illegal Migrants in Canada” (June 1983), both of which rejected a general amnesty and recommended ‘conditional settlement’ and increased enforcement and border controls. Through the Minister’s Review Committee an estimated 1,000 people were regularized.

From 1994-1998, the Deferred Removals Order Class (DROC) regularized several thousand failed refugee claimants who had remained in Canada for three years or more without a removal order. Refused claimants were generally stuck ‘in limbo’ because they were from moratorium countries – countries that the federal government considered too dangerous to deport people to. China was one of these countries at this time, and Chinese community organizations in Canada began to advocate for permanent residency for failed refugee claimants. Groups from Toronto, Montreal and Vancouver, including many non-status immigrants, drew public attention to this issue. Approximately 3,000 applicants from China, Iran and other countries were regularized through this program, but many more were rejected because they did not meet residency requirements, had criminal records or serious medical conditions.

In 2002, failed refugee claimants from Algeria fought for and won a regularization program. In the 1990s, many people came to Quebec from Algeria due to the violent conflict that has continued for many decades. In 1997, the Canadian government stopped all deportations to Algeria as a moratorium country, yet at the same time many Algerians’ refugee claims were refused. In 2002, the Canadian government decided to start deporting people to Algeria again, after a lucrative trade deal was struck between the two countries. About 1,069 failed refugee claimants from Algeria found themselves at risk of deportation. Many non-status Algerians in Quebec mobilized to put pressure on the government to regularize their status. They created the Action Committee for Non-status Algerians (CASSA), and worked with allies from No One Is Illegal (Montreal), individual supporters, and various labour, faith and women’s groups. Forced to act, the Canadian and Quebec governments introduced a regularization procedure for failed Algerian refugee claimants who had been living in Quebec. While approximately 900 people were regularized through this program, over 150 people were refused and continued to face deportation, most because they did not meet the Quebec residency requirement, or could not afford to pay the large application fee for the program. Many were not accepted because they had criminal records for small offences such as stealing to survive – or for their political activities.

Criteria in Regularization

Criminal inadmissibility, among the most common criteria used to exclude people from regularization programs, is implicated in an insidious and racist discourse that produces the immigrant as a source of fear and danger who must be ‘screened’ in order to prevent the ‘contamination’ of the national body politic. Further, this condition does not address systemic racism and sexism within policing and the criminal justice system both in Canada and in countries of origin. Many non-status immigrants and community activists argue that this criterion imposes a ‘double punishment’ – a non-status immigrant could ‘serve their time’ in jail, but then face deportation afterwards. Citizens, on the other hand, are only punished once.

Regularization programs have also historically excluded people with serious medical conditions. Like criminality, this criterion is implicated in a nationalist production of fear, and reinforces the racist discourse that constructs the immigrant as dangerous and diseased – to be screened, tested, monitored and contained. People with physical disabilities, or who have chronic illnesses such as kidney disease, HIV/AIDS, leukemia, or tuberculosis, are often found ‘medically inadmissible’ for landed status, despite the reality that non-status immigrants often get sick as a result of the unsafe and dangerous work conditions they are forced to accept.

Employment and economic wealth have also been used to exclude certain people from regularization programs, either through the work that they do or because of their inability to financially support themselves and their families. The expensive application fees that are necessary to apply for programs and to become landed are huge barriers for many non-status immigrants, as is the Right of Landing Fee of $975 for each adult. The use of fees to exclude and further marginalize certain groups of people is just one example of the classist, racist and sexist ways the immigration system works. People who cannot always do paid work (for example, people with disabilities, single mothers, elderly people) should not be excluded from regularization programs. Community activists have criticized regularization programs that would only allow applicants to obtain temporary work permits, such as the one proposed by the Greater Toronto Home Builders’ Association, because they cannot provide the security and stability that permanent residency offers. Work permits simply do not address the long-term needs of non-status workers and their families.

Residency requirements are another means of exclusion from regularization programs. Like criminal checks and medical conditions, this requirement is implicated in an exclusionary nationalist discourse that demands ‘loyalty’ and proof of ‘belonging’ from those viewed as ‘outsiders’ or ‘foreign’ to the national body politic. Residency requirements serve to keep non-status immigrants in a state of ‘illegal limbo’ where exploitation by employers, landlords and other people can continue.

Family, integration and country of origin have also been used as criteria in regularization programs. Many non-status immigrants and community agency workers point out that the definition of ‘family’ in the Canadian immigration system is narrow and exclusionary. It privileges the patriarchal hetero-nuclear family, while queer, single-parent and non-nuclear families are likely to be excluded. The criterion of ‘integration’ is largely discretionary and arbitrary – it is often one immigration officer who decides what ‘integration’ means. As noted above, programs specific to country of origin have occurred, particularly following pressure and community mobilization from groups directly affected to push for regularization.

The Struggle Today

Despite the dangers of advocating for a regularization program, it remains one of the key demands and struggles of many immigrant rights’ organizations across the country, including No One Is Illegal (Vancouver, Toronto, Montreal), the Solidarity Without Borders coalition (Montreal), the Coalition Against the Deportation of Palestinian Refugees, the Action Committee of Non-Status Algerians, the STATUS campaign and many other groups. One of the major dangers in a campaign for regularization would be to concede to exclusionary practices, such as criminal or medical inadmissibilities. To advocate for a regularization program is to participate in a nation-building exercise; to ask the state to re-assert itself and make decisions about who is desirable and who is undesirable. Yet, a regularization program would have a huge impact on the lives of possibly tens of thousands of people who would no longer have to live with the threat of detention and deportation. An historical study of the struggle for regularization teaches us not only its victories but also its downfalls. In this context, a campaign such as the one in Toronto for a ‘Don’t Ask, Don’t Tell’ municipal policy (see Shiraz Vally’s article in NS #47, June-July 2004) becomes that much more important, as it not only accounts for the time in which we wait for the next regularization – it also accounts for those who may be excluded from such a program.

Jean McDonald is a member of No One Is Illegal – Toronto and a doctoral student in Social Anthropology at York University. Special thanks to Peter Nyers and Erika Khandor for their help in writing this article.

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