Federal migration officials have warned the government that the design of an emergency visa system for Ukrainians displaced by the war could undermine the temporary migration system, according to newly unsealed court documents.
Immigration officials raised the concerns in a memo to then-Immigration Minister Sean Fraser shortly after the program was announced.
The memo outlined the design of a Ukrainian visa program that would have allowed an unlimited number of Ukrainians and their families to come to Canada to wait out the war.
The policy also exempted fugitive Ukrainians from having to promise to leave the country when their visas expired, against the advice of State Department officials.
“Waiting for clients to demonstrate temporary intent would undermine a fundamental element of the (temporary resident) legal framework and set a significant precedent that is not recommended,” staff said in a memo to Mr Fraser signed on March 14, 2022.
Officials warned that waiving the requirement, which is the cornerstone of the temporary resident program, would create “an expectation that it can be implemented not only for conflict-affected people, but also for other groups.”
The documents were made public as part of a lawsuit filed against the federal government by three Afghan-Canadians who claim Canada discriminated against Afghan refugees by treating them differently than Ukrainians fleeing the Russian invasion.
The case has yet to be certified by the court.
“The government knew what they were doing was unfair,” said Nicholas Pope, one of the lawyers representing Afghan-Canadians.
“And that is exactly what we are arguing in this case: that it is unfair, it is discriminatory and there is no justification for not applying protective measures to people who are not of European origin.”
A warning to “second-class” permanent residents
The lawsuit was brought by a Canadian who served as a linguistic and cultural adviser to the Canadian government and NATO during the Afghanistan war, but was not allowed to take his family members to safety in Afghanistan.
Canada has approved about 962,600 emergency visas for Ukrainians since Russia’s invasion in 2022, allowing those fleeing conflict to work or study as the war rages.
The program has been generally well-received in Canada, with people welcoming the Ukrainians into their homes and donating clothes, furniture and other necessities to help them survive during their stay.
About 298,000 people actually made it to Canada, but it is unclear how many stayed and how many subsequently applied for permanent residency.
The document also warns that the program’s design could disadvantage Ukrainians by effectively creating “second-class” permanent residents with no access to resettlement assistance or equal status under the law.
The government argues that the emergency program for Ukrainians cannot be compared to the program for Afghan refugees because Afghans are unlikely to be able to return to their home country.
But in the memo, staff said the main difference between the temporary and permanent programs is that visa holders must declare their intention to leave the country.
A ministry official described the Ukraine emergency visa program as “exceptional in nature.”
“This highlights the unique relationship between Canada and Ukraine, the widespread diaspora and family ties, and the unique nature of the conflict – a large-scale land invasion bordering EU countries with generous immigration policies,” the memo said.
“But it risks setting a significant precedent and could put pressure on the government to take similar action in future for other emergencies.”
In court filings, two full pages of the legal considerations outlined by the department were blacked out.
Fraser ultimately agreed with the department’s recommendation not to publish the policy because of the “unprecedented and exceptional nature” of the approach.
The Pope made that point on Tuesday.
“If you’re proud of your policy and you think it’s fair, just and compliant with the Charter, why don’t you make it public?” he asked.
“I think they really understood the nature of the issue.”
The offices of Fraser, who is now Housing Minister, and current Immigration Minister Marc Miller did not immediately respond to requests for comment.
The government has stressed that the Ukraine program is temporary, and is encouraging people without family ties to Canada to apply for permanent residency through the traditional route if they want to stay.
Since Fraser announced the visa program, the government has been accused of unfairly restricting temporary refuge for people fleeing the conflict in Sudan and the war between Israel and Hamas in the Gaza Strip.
In February, the Canadian Council for Refugees pointed out discrepancies between programs for Ukrainians and temporary refuge programs for Sudanese.
“The crisis in Sudan is of catastrophic proportions,” the group wrote to Miller earlier this year.
“Given the scale of the crisis, the limit of 3,250 applicants for the family-based humanitarian pathway is insufficient to address the need. In contrast, Canada does not place any restrictions on the number of temporary visas it accepts for Ukrainians, and there is similarly no cap on permanent residence pathways for Ukrainians.”
