Refugee Access to Welfare Benefits

What Happened

In October 2014, as part of its omnibus budget bill, the federal government introduced proposed changes to the Federal-Provincial Fiscal Arrangements Act (“FPFAA”), the legislation governing how it funds provincial social assistance programs. While the FPFAA presently prohibits provinces from imposing minimum residency requirements on refugee claimants and others who apply for social assistance, the proposed amendments would lift this prohibition. This could allow the provinces to impose minimum residency requirements for refugee claimants and others without permanent status, resulting in an uneven patchwork of social assistance being available to refugee claimants and others seeking protection across Canada.


Background

The federal government helps the provinces fund core social programs, such as social assistance and child care, through the Canada Social Transfer (“CST”). Conditions are attached to these transfer payments and are detailed in the FPFAA, the legislation governing the CST. These conditions include prohibitions against provinces imposing minimum residency requirements on those who apply for social assistance, which includes both welfare and disability support programs. If a province breaches these conditions, it risks losing some or all of its CST funding.

The FPFAA’s prohibition against minimum residency requirements (at section 25.1) ensures that a national standard exists for all Canadian social assistance programs. This means that no matter which province an individual finds herself in, she can apply for social assistance without having to first prove that she has resided in that province for a minimum period of time. The prohibition aims to make social assistance funding, which is designed to cover the most basic of needs like food, clothing and shelter, promptly available to those in need across Canada regardless of their location.

The proposed changes to the FPFAA, buried in the most recent 458-page omnibus budget bill (Bill C-43), would remove the condition prohibiting residency requirements for all those lacking a permanent status in Canada, including refugee claimants.

This means that provinces would be able to impose minimum residency requirements on a variety of people without losing any of their CST funding. Some of the groups that could be the subject of residency requirements include:

  • permanent residence applicants whose applications are being processed, including those who have applied on humanitarian and compassionate grounds;
  • refugee claimants (those who have, on arrival to Canada, filed refugee claims and are waiting for their claims to be decided); and
  • those whose refugee claims have been denied, even if they are appealing this denial.

The amendments would still prohibit provinces from imposing residency conditions on members of other groups, including Canadian citizens, permanent residents, and those whose refugee claims have been accepted.

These proposed FPFAA amendments were introduced without broad consultation with the provinces. Rather, they were first introduced as part of a private members bill (Bill C-585) and then transplanted word-for-word into sections 172 and 173 of Bill C-43.

Vulnerable Newcomers to Canada Continue to Suffer

Refugee claimants are those who claim refugee status upon arrival in Canada and are waiting for their refugee claims to be accepted. Refugees are forced to flee their home countries because of a well-founded fear of persecution based on their race, religion, nationality, membership in a particular social group, or political opinion. They are protected by international law, including the United Nations’ Convention and Protocol Relating to the Status of Refugees, which was signed by Canada in 1969. In 2013, more than 10,380 people filed refugee claims from within Canada .

Upon arrival in Canada, many refugee claimants do not have resources to cover their basic needs and those who do may find their assets quickly depleted. In some cases, refugee claimants are eligible for a work permit. However, it can take anywhere from 3 to 5 months for a work permit to be approved. Even with this permit, it can be difficult for refugee claimants to find employment. Those who come from countries the Canadian government has designated “safe” are ineligible for work permits and thus prohibited from working while their refugee claims are being determined. Many refugees are traumatized, having fled persecution from their home countries, some may not speak English or French, and all lack the “Canadian experience” commonly sought by employers. In the interim, refugee claimants require an alternate source of income. Social assistance is critical for their survival.

The federal government has justified the FPFAA changes based on two main grounds. The first is that removing the minimum residency prohibition for social assistance applicants lacking permanent status in Canada empowers the provinces to administer social assistance as they see fit. However, there is no indication that the provinces have asked for the authority to impose a minimum residency requirement on anyone applying for social assistance, be they refugee claimants or otherwise.

The second justification for the proposed FPFAA changes is based on the goal of discouraging spurious refugee claims. A spokesperson for Immigration Minister Chris Alexander has asserted that Canada’s immigration system is the “most fair and generous” globally and that “Canadians have no tolerance for those who take unfair advantage of our generosity.” Yet Canada accepts far fewer refugees than many other countries, such as those in the Global South, and ultimately accepts only a small portion of the world’s refugees (2% of new refugees in 2012). Moreover, the proposed amendments to the FPFAA will affect all refugee claimants who arrive in Canada, including those whose refugee claims are ultimately successful. Allowing provinces to impose minimum residency requirements will not help weed out so-called “bogus” refugees, as such requirements rely on minimum residency in a province, not the success or failure of one’s refugee claim, as a tool for restricting access to social assistance.

Similar Restrictions on Refugee Claimants Held Unconstitutional

Amending the FPFAA so that provinces can require refugee claimants to meet minimum residency requirements before receiving social assistance is part of a broader pattern of disentitling certain groups in Canada. This trend of disentitlement runs against the spirit and letter of Canada’s Charter of Rights and Freedoms. The same rationale of preventing fraudulent refugee claims was used by the federal government to explain its significant cuts to refugee health care coverage in 2012. It also used the same technique for introducing these changes – namely, burying them in an omnibus budget bill. In late 2014, the federal government’s cuts to refugee health care were struck down by the Federal Court as an unjustifiable breach of the Charter. The federal government has appealed this decision.

The Court held that the refugee health care cuts amounted to cruel and unusual treatment, in violation of section 12 of the Charter, stating that “the 2012 modifications to the Interim Federal Health Program potentially jeopardize the health, the safety and indeed the very lives, [especially] of innocent and vulnerable children, in a manner that shocks the conscience and outrages our standards of decency” (at para 11).

The Court also held that the refugee health care cuts were discriminatory, in violation of section 15 of the Charter, stating that they resulted in the provision of “a lesser level of health insurance coverage to refugee claimants from [designated country of origin, or “DCO”] countries in comparison to that provided to refugee claimants from non-DCO countries. This distinction is … based upon stereotyping, and serves to perpetuate the disadvantage suffered by members of an admittedly vulnerable, poor and disadvantaged group” (at para 871).

It is likely that, should the FPFAA amendments become law, they would be subject to a similar constitutional challenge.

Effects of Proposed FPFAA Amendments

The proposed changes to the FPFAA were introduced for first reading at the House of Commons on October 23, 2014 and have since been debated at the Standing Committee on Citizenship and Immigration. They have not yet become law, as the omnibus budget bill has not yet been passed by the House of Commons. However, once the omnibus budget is passed and the FPFAA is amended, refugee claimants and others without permanent status could lose their only source of income, if the provinces in which they reside impose minimum residency requirements for social assistance. In other words, refugee claimants who arrive in provinces imposing minimum residency requirements would be ineligible for social assistance, and unable to feed, clothe or house themselves and their families. They would have to rely on already overburdened charities, shelters, or turn to living on the street.

The proposed FPFAA amendments remove the national standard for social assistance, which could lead to a patchwork of social assistance programs available to refugee claimants and others without permanent status. Provinces would be empowered to impose different residency requirements across Canada, which could result in social assistance being unequally available to refugees from one province to the next. Further, in the event that some provinces adopt residency requirements while others do not, those without residency requirements (or with more lenient requirements) may receive an increased number of refugee claimants as compared to those provinces with more stringent residency rules. Not only could this unevenly impact provincial and municipal social programs and the resources available to fund them, but the fear of negative political consequences may ultimately lead those provinces that do not now support residency requirements to impose them in the future. In any event, refugee claimants would be the ones most negatively impacted by the fragmentation of access to social assistance programs.

Amending the conditions of federal CST payments to the provinces through a 458-page omnibus budget bill reduces the accountability and transparency of the federal democratic process. The omnibus budget bill includes numerous other amendments to federal legislation, and the budget process does not allow opportunities for consultation with the provinces, public interest groups, refugee representatives and other social service providers who might be affected. Such a significant change deserves to be the subject of scrutiny and debate.

Important Dates

  • 1951: United Nations Convention on the Status of Refugees approved by the UN
  • 1966: United Nations International Convenant on Economic, Social and Cultural Rights adopted
  • 1967: United Nations Protocol Relating to the Status of Refugees adopted
  • 1969: Canada accedes to the Convention on the Status of Refugees and its Protocol
  • 1976: Canada accedes to the International Convention on Economic, Social and Cultural Rights
  • 1996: Shift from shared-cost Canada Assistance Plan to fixed-amount Canada Social Transfer (which reduced funding for provincial welfare programs and removed the requirement that social assistance be provided by the provinces on the basis of need alone)
  • April 2014: Private Members Bill C-585 introduced by Conservative MP Corneliu Chisu recommending amendments to the FPFAA
  • October 23, 2014: Bill C-43, the 2015 federal omnibus budget, introduced for first reading by Finance Minister Joe Oliver, including the FPFAA amendments from Bill C-585
  • November 18-19, 2014: Bill C-43 is considered by the Standing Committee on Citizenship and Immigration Committee, which must report its findings to the Finance Committee by November 21, 2014

Role or Position

The Federal-Provincial Fiscal Arrangements Act prohibits the establishment of minimum residency requirements on refugee claimants by provincial and territorial governments in order to ensure equitable and uniform provision of social assistance across the country. This social assistance is necessary in order to aid claimants during their intial time in Canada, when they may require additional social support. Ensuring a uniform provision of services across the country ensures that services for refugee claimants does not become politicized, and thereby possibly reduced or eliminated.

Implications and Consequences

Federalism: Once the FPFAA amendments become law, provinces may feel pressure to impose minimum residency requirements for refugee claimants and others without permanent status who apply for social assistance. Should some provinces introduce minimum residency requirements, the federal social safety net will be further eroded, creating an uneven patchwork of social assistance eligibility for refugee claimants across Canada.

Equality: The FPFAA amendments will impact all refugee claimants who arrive in Canada, even those whose claims are ultimately successful. Refugee claimants who apply for social assistance in provinces with minimum residency requirements may find themselves without enough resources to cover basic needs like food, clothing and shelter, leading them to rely on overburdened charities, shelters, working illegally (without a work permit), or living on the street.

Transparency: As with cuts to refugee health care, the proposed changes to social assistance aimed at those with precarious residency status in Canada have been buried in the latest federal omnibus budget bill, with virtually no opportunity for consultation with stakeholders or the Provincial and local governments responsible for delivering social assistance. Parliamentary Budget Officer Kevin Page has denounced the federal government’s use of omnibus budget bills to undertake cuts to social programs and has experienced significant barriers to obtaining information about the impact of such cuts. 

Published: 26 March 2014

Image: Fred Chartrand/The Canadian Press