A number of provisions of the Immigration and Refugee Protection Act, (2001), (IRPA) require decisions to be made with account of the best interests of the child. Section 25(1), states that in providing discretionary humanitarian and compassionate status, the Minister must take into account the best interests of any child directly affected by his decision to grant such status.

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A number of provisions of the Immigration and Refugee Protection Act, (2001), (IRPA) require decisions to be made with account of the best interests of the child. Section 25(1), states that in providing discretionary humanitarian and compassionate status, the Minister must take into account the best interests of any child directly affected by his decision to grant such status. In relation to permanent residence status, section 28 states that the best interests of the child must also be taken into account when making a decision on the retention of permanent residence due to humanitarian and compassionate circumstances. The Immigration Appeal Division when allowing an appeal is also authorised under section 67(1)(c) to take into account the best interests of the child in deciding whether sufficient humanitarian and compassion and considerations exist to grant relief. Under section 68(1) the Immigration Appeal Division is granted the same power in relation to decisions to stay removal orders.

Section 30(2) of the IRPA provides all minor children with the authorisation to education at pre-school, primary or secondary level. The only exception to this provision is for minor children of temporary residents who have not been authorised to work or study in Canada.

In relation to detention, section 60 of the IRPA states that minor children should only be detained as a measure of last resort, taking into account the child’s best interests and other grounds and criteria that may apply. Regulations made under the Act may take into account any special considerations that apply in relation to the detention of children, as set out under section 61(c).

No specific provision is made under the IRPA for unaccompanied refugee children. However Guidelines, in effect from September 1996, under the Immigration Act set out procedural and evidentiary issues related to child refugee claimants for Chairpersons of the Immigration and Refugee Board (IRB). After the IRPA came into effect the Guidelines remained in force under section 159 (1)(h) of the Act. Although the guidelines are not legally binding they set out the recommended approach in making decisions on refugee children claims.

The case of Langner et al. v. M.E.I. in 1995, in the Federal Appeal Court of Canada relates to the rights of parents of Canadian citizens. The court confirmed an earlier decision that migrants without legal rights to remain in Canada, despite having children who are Canadian citizens, do not themselves have any Charter rights to remain in Canada. As removal orders issued against the parents do not include the children, and the children have no connection to those removal orders, the Court found that the removal of the children from the country would result from a decision of the parents. Such a decision would therefore not give rise to a claim by the children of a violation of their rights under section 6 of the Charter against the State, their citizenship would therefore not ensure that their parents could remain in the country.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.

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