Court documents recently released as part of a proposed lawsuit against the federal government initiated by three Afghan Canadians reveal that federal immigration officials warned the government about risks to the temporary immigration system. These concerns were raised after the emergency visa program for war-displaced Ukrainians was announced.
Details of the Ukraine Visa Program
The memo outlined the design of the Ukraine visa program, which allowed an unlimited number of Ukrainians and their families to come to Canada to escape the ongoing war. A significant aspect of the policy was the waiver of the requirement for Ukrainians to promise to leave Canada when their visa expired. This waiver went against the advice of department staff, who emphasized that it undermined a fundamental component of the temporary resident legal framework.
“Waiving the need for a client to establish temporary intent would set a significant precedent that is not recommended, given that it would undermine a foundational component of the (temporary resident) legal framework,” the memo, dated March 14, 2022, stated. Staff also warned that this waiver could create expectations for similar actions for other populations affected by conflicts.
Legal Implications and Discriminatory Allegations
These documents were disclosed in connection with a proposed lawsuit against the federal government by three Afghan Canadians, who claim that Canada discriminated against Afghan refugees by treating them differently than Ukrainians fleeing the Russian invasion. The lawsuit, which has yet to be certified by the court, argues that the government’s actions were unfair and discriminatory.
Nicholas Pope, one of the lawyers representing the Afghan Canadians, stated, “The government knew that what they were doing was unfair. That’s just what we’re arguing in this case. That it’s unfair, it’s discriminatory, and there’s not a good reason why protections shouldn’t be applied to people who aren’t from Europe.”
Concerns Over ‘Second Class’ Permanent Residents
The lawsuit was filed by Canadians who served as language and culture advisers to the Canadian government and NATO during the war in Afghanistan but have been unable to bring their family members in Afghanistan to safety. Since the 2022 Russian invasion, Canada has approved approximately 962,600 emergency visas for Ukrainians, allowing them to work and study while the conflict continues. Around 298,000 Ukrainians have made the trip to Canada, although it is unclear how many have remained and how many have applied for permanent residency.
The documents also highlighted the risk of creating “second class” permanent residents among Ukrainians, who might not have access to settlement supports or equivalent legal status.
Government’s Stance and Public Reception
The government has argued that the emergency program for Ukrainians cannot be compared to the program for Afghan refugees, citing the unlikely prospect of Afghan refugees being able to return home. However, the memo described the Ukraine emergency visa program as “exceptional in nature,” underscoring Canada’s unique relationship with Ukraine, the extensive diaspora and family links, and the distinctive nature of the conflict as a significant land invasion adjacent to EU countries with generous immigration measures.
Fraser ultimately agreed with the department’s recommendation not to publish the policy publicly due to its unprecedented and exceptional nature. Nicholas Pope questioned this decision, stating, “Why would you not publish a policy if you’re proud of it, and you think that it’s fair, and you think that it’s just and you think that it’s Charter compliant?”
Ongoing Accusations of Unfair Treatment
Since the announcement of the visa program, the government has faced accusations of unfairly limiting temporary refugee to people fleeing conflicts in Sudan and the war between Israel and Hamas in the Gaza Strip. In February, the Canadian Council for Refugees highlighted the disparity between the program for Ukrainians and the temporary refugee programs for Sudanese people, noting that the crisis in Sudan was of catastrophic proportions and criticizing the limited application cap for Sudanese refugees.
The offices of Sean Fraser, now housing minister, and the current immigration minister, Marc Miller, did not immediately respond to requests for comment. The government has reiterated that the Ukrainian program is intended to be temporary and has encouraged those without family ties to Canada to apply for permanent residency through traditional means if they wish to stay.
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