Special Issue "Vulnerability and the Legal Protection of Migrants: A Critical Look at the Canadian Context"

A special issue of Laws (ISSN 2075-471X). This special issue belongs to the section "Human Rights Issues".

Deadline for manuscript submissions: closed (14 January 2022) | Viewed by 10074

Special Issue Editors

Prof. Dr. Anna Purkey
E-Mail Website
Guest Editor
Human Rights Program, St. Paul’s University College at the University of Waterloo, Waterloo, ON N2L 3G5, Canada
Interests: international human rights and refugee law; international migration; Canadian refugee law; human dignity and legal empowerment
Prof. Dr. Delphine Nakache
E-Mail Website
Guest Editor
Faculty of Law, University of Ottawa, Ottawa, ON K1N 6N5, Canada
Interests: public international law; immigration and refugee law; human rights; security-based implications of migration; citizenship and refugee laws and policies in Europe and Canada; protection of migrant workers, asylum seekers and non-status migrants

Special Issue Information

Dear Colleagues,

“Vulnerability” is a word so widely and frequently used that its meaning is often taken for granted. But what does vulnerability really mean, and why are some people considered vulnerable and others not? Answering these questions is important because the concept of vulnerability draws attention to those persons (or groups of people) who society views as deserving of special care and/or special protection. Thus, how vulnerability is understood and who qualifies as being “vulnerable” (or not) has concrete consequences on peoples’ lives.

One of the most critical and interesting applications of this concept is in the context of migration. The term “vulnerability” is increasingly used as a conceptual tool to guide the design and implementation of law and policy pertaining to migration, despite the absence of any solid understanding of its concrete meanings, practical consequences and legal implications. This reality is illustrated at the global level with the adoption of the 2016 New York Declaration for Refugees and Migrants, the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees. The New York Declaration refers to the vulnerabilities of migrants no less than 15 times, while the Global Compact for Migration requires states to consider the specific needs of migrants in a vulnerable position and outlines a number of measures whereby States adopt the moral commitment to respond to the needs of vulnerable migrants by assisting them and protecting their human rights “in accordance with [their obligations] under international law” (Objective 7). Given the lack of conceptualization of “vulnerability”, which has been broadly recognized in the literature1, it has thus become essential to provide a more thorough understanding of the concept’s meaning, practical consequences and legal implications for migrants seeking legal protection in host countries.

With this in mind, this Special Issue seeks to contribute to the debate by providing a series of papers offering a critical analysis of how “vulnerability” is defined and understood in Canadian law, policy and practice in the context of migration. This Special Issue is based upon the first series of results from a Canadian research project funded by the Canadian Research Council SSHRC/CRSH and the Fonds de recherche du Québec—Société et Culture (FRQSC) as part of the VULNER project, an international research initiative which has received funding from the European Union’s Horizon 2020 research and innovation program under grant agreement No. 870845 (www.vulner.eu) with partners in Belgium, Germany, Italy, Norway, Lebanon, Uganda and South Africa. The Issue will present a selection of articles that examine how the legal and policy instruments, institutions and informal/formal practices of Canada’s protection regime address and/or potentially contribute to the vulnerabilities of people seeking protection. The articles will focus on different dimensions of Canada’s protection regime (in-land claims, overseas claims, human trafficking, irregular migration, etc.) and different types of vulnerabilities (youth/age, gender, sexual orientation, systemic/administrative vulnerabilities, disability, etc.). Although the focus of this Issue will be on the situation in Canada, the observations and conclusions drawn from this research will have relevance to the broader international community, as many of the challenges facing the Canadian system are reflective of common challenges facing migration governance and protection regimes around the world.

Prof. Dr. Anna Purkey
Prof. Dr. Delphine Nakache
Guest Editors

Manuscript Submission Information

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Keywords

  • migration
  • vulnerability
  • treatment of vulnerable migrants
  • asylum application process
  • Canadian migration regime
  • human trafficking
  • discretionary power
  • decision-making processes

Published Papers (7 papers)

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Research

Article
The Juridification of ‘Vulnerability’ through EU Asylum Law: The Quest for Bridging the Gap between the Law and Asylum Applicants’ Experiences
Laws 2022, 11(3), 45; https://doi.org/10.3390/laws11030045 - 31 May 2022
Viewed by 677
Abstract
‘Vulnerability’ is flooding EU asylum law. Based on the analysis of the ECtHR’s case-law in deportation cases, the EU Directives’ provisions towards ‘vulnerable’ asylum applicants, and their implementation in the domestic legislations and practices of two EU member states that were studied as [...] Read more.
‘Vulnerability’ is flooding EU asylum law. Based on the analysis of the ECtHR’s case-law in deportation cases, the EU Directives’ provisions towards ‘vulnerable’ asylum applicants, and their implementation in the domestic legislations and practices of two EU member states that were studied as part of the VULNER project (Belgium and Italy), this contribution establishes a typology of the various legal and bureaucratic functions that ‘vulnerability’ has received in the EU. It also reflects on the ‘juridification’ trend at play, the implementation challenges that have emerged as a result, and how they are currently being addressed in the EU. Full article
Article
Unsafe from Any Angle: Vulnerability-Generation on the US–Canada Border
Laws 2022, 11(3), 44; https://doi.org/10.3390/laws11030044 - 27 May 2022
Viewed by 761
Abstract
This article provides a review of the functioning and legality of the Safe Third Country Agreement between Canada and the United States, placing it in the broader context of systemic factors that generate and exacerbate the vulnerability of protection seekers. It offers a [...] Read more.
This article provides a review of the functioning and legality of the Safe Third Country Agreement between Canada and the United States, placing it in the broader context of systemic factors that generate and exacerbate the vulnerability of protection seekers. It offers a critical evaluation of what the legal challenges against the STCA reveal about the promises and limitations of safe-country-related litigation and the future of the Agreement. Full article
Article
Humanitarian and Compassionate Applications: A Critical Look at Canadian Decision-Makers’ Assessment of Claims from “Vulnerable” Applicants
Laws 2022, 11(3), 40; https://doi.org/10.3390/laws11030040 - 29 Apr 2022
Viewed by 1177
Abstract
For many people who have made Canada their home but have uncertain legal status and are ineligible to apply for permanent residence through other channels, the Humanitarian and Compassionate (H&C) application is the only available pathway to permanent residence and stability in Canada. [...] Read more.
For many people who have made Canada their home but have uncertain legal status and are ineligible to apply for permanent residence through other channels, the Humanitarian and Compassionate (H&C) application is the only available pathway to permanent residence and stability in Canada. Applications for permanent residence on H&C grounds have become a key component of Canada’s immigration system and yet this pathway remains under-researched. Drawing upon extensive desk research and the preliminary analysis of interview data, this article addresses this gap in the scholarship by offering a critical analysis of the H&C program. In it, we begin by discussing the specific challenges that this highly discretionary decision-making process poses for vulnerable applicants and suggest areas for improvement. We then focus on H&C applications and decisions that directly impact children and explain why a change in the Canadian application of the best interests of the child principle is required. Finally, we consider two recent trends in H&C cases: the sharp increase in the number of applications and the increasingly high rates of refusal. Throughout this analysis, we highlight the negative repercussions the current system has on the most vulnerable categories of migrants and the need to better understand these phenomena. Full article
Article
Band-Aid on a Bullet Wound—Canada’s Open Work Permit for Vulnerable Workers Policy
Laws 2022, 11(3), 36; https://doi.org/10.3390/laws11030036 - 20 Apr 2022
Viewed by 1208
Abstract
In June 2019, the Government of Canada implemented the Open work permit for vulnerable workers (OWP-V) policy, authorizing immigration officers to issue open work permits to migrant workers on employer-specific work permits if they demonstrate reasonable grounds to believe that they are experiencing [...] Read more.
In June 2019, the Government of Canada implemented the Open work permit for vulnerable workers (OWP-V) policy, authorizing immigration officers to issue open work permits to migrant workers on employer-specific work permits if they demonstrate reasonable grounds to believe that they are experiencing abuse or are at risk of abuse in their workplace. Drawing on research conducted by a community organization on the impact of the policy, this article examines the policy’s potential to remedy the problematic effects of the employer-specific work permit and whether it has been implemented efficiently. Semi-structured interviews were conducted with organizations that provide direct legal and social support to migrant workers in Canada. Additionally, two datasets regarding the role of the OWP-V policy in IRCC’s employer compliance regime were analyzed. The research concludes that the OWP-V policy cannot be expected to counteract the high risk of abuse imposed on workers through the employer-specific work permit. Numerous barriers were identified that make it difficult for migrant workers to apply for the permit. The small number of OWP-V permits issued in proportion to the number of employers authorized to hire migrant workers makes it unlikely that the policy will significantly impact employers’ propensity to comply with the program conditions. Full article
Article
Locating the Concept of Vulnerability in Canada’s Refugee Policies at Home and Abroad
Laws 2022, 11(2), 25; https://doi.org/10.3390/laws11020025 - 18 Mar 2022
Viewed by 1786
Abstract
How is the concept of “vulnerability” employed in Canadian immigration law? This article presents findings from research conducted as part of the VULNER project (2019–23). We analyze how vulnerability is operationalized in Canada’s inland refugee (or asylum) determination procedures compared to its overseas [...] Read more.
How is the concept of “vulnerability” employed in Canadian immigration law? This article presents findings from research conducted as part of the VULNER project (2019–23). We analyze how vulnerability is operationalized in Canada’s inland refugee (or asylum) determination procedures compared to its overseas resettlement program by first discussing some general principles, followed by an examination of the treatment of women and LGBTQI+ individuals seeking protection. We show that legal-bureaucratic logics have constructed two very heterogeneous worlds of vulnerability that may reproduce and exacerbate vulnerabilities rather than create a more inclusive, equitable protection regime in law, policy, and practice. Full article
Article
From Vulnerability to Empowerment: Critical Reflections on Canada’s Engagement with Refugee Policy
Laws 2022, 11(2), 22; https://doi.org/10.3390/laws11020022 - 10 Mar 2022
Viewed by 1643
Abstract
The making and implementation of global policy are prominent areas of activity for the global refugee regime, with a specific focus on policy relating to the categories of vulnerable refugees. Recent collective efforts globally have highlighted the importance of meaningfully including refugees themselves; [...] Read more.
The making and implementation of global policy are prominent areas of activity for the global refugee regime, with a specific focus on policy relating to the categories of vulnerable refugees. Recent collective efforts globally have highlighted the importance of meaningfully including refugees themselves; and a discursive shift away from the language of vulnerability towards that of empowerment in policy making, and humanitarian assistance. Despite this, efforts to implement these commitments have largely been unsuccessful, raising questions about how refugees are engaged in these processes, and in what ways the label of vulnerable continues to influence the making and implementation of global refugee policy. Using the case of Canada’s engagement with the global refugee regime, and with refugee women in particular, this article argues that the continued framing of refugee women as vulnerable has impeded progress, and that for transformative policy to be realized, refugee women must be seen as actors with capacity to participate, and must be included in all processes of policy making, implementation and evaluation. A feminist geopolitical framework is presented as a way to decenter states and institutions in favor of centering the individual embodied experiences of refugee women in global refugee policy making. By doing so, empowerment can be realized in policy and practice. Full article
Article
Vulnerability and the Quest for Protection: A Review of Canadian Migration Case Law
Laws 2022, 11(2), 20; https://doi.org/10.3390/laws11020020 - 04 Mar 2022
Cited by 3 | Viewed by 1790
Abstract
Although the concept of vulnerability has become increasingly prevalent in both domestic and international migration policy in recent years, its precise meaning and implications remain ambiguous and under-examined. Without a coherent understanding of what makes individuals vulnerable, the concept can either act as [...] Read more.
Although the concept of vulnerability has become increasingly prevalent in both domestic and international migration policy in recent years, its precise meaning and implications remain ambiguous and under-examined. Without a coherent understanding of what makes individuals vulnerable, the concept can either act as a justification for additional consideration or reinforce stereotypes of disempowerment. To address this lack of clarity, this article presents the results of an extensive review of Canadian case law. Drawing on data from over 750 cases primarily from the Immigration and Refugee Board and the Federal Court of Canada, this study sought to examine how the concept of vulnerability is used by both decision-makers and parties to cases involving migrants seeking legal status and various forms of protection (including, but not limited to, asylum) under national or international law in Canada. Although an analysis of case law necessarily produces only a partial image of the landscape, this review identified two understandings of vulnerability at play: a procedural one associated with the need to ensure access to justice and a fair hearing, and a substantive one where vulnerability is linked to the categorization of particular groups. In both instances, the recognized importance of the concept is offset by its narrow and inconsistent application and a failure to acknowledge the role that the institutions and mechanisms of “protection” play in creating and perpetuating vulnerability. Full article
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