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The Politics of “Doing Exactly Nothing”: Feminist Legal Change and Bureaucratic Administration of Refugee Protection

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Abstract

This article explore the limitations of progressive and feminist legal change through a study of the development of gender-based refugee policy in Canada. I argue that the actual impact of feminist and progressive legal change is determined in interaction with the wider bureaucratic and administrative contexts of its implementation; administrative strategies and bureaucratic procedures may, in fact, capably undermine the potentially expansive effects of progressive jurisprudence. As I will show, feminist legal interventions in Canada’s refugee policy did not increase actual access to refugee protection. Not only were these interventions delivered in a decidedly limited administrative form, they occurred simultaneously with highly innovative and coordinated bureaucratic practices that limited the access of large groups of refugee claimants to protection. Thus, while the Canadian refugee system expanded jurisprudentially, access to this system was tightly restricted through administrative and bureaucratic measures.

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Notes

  1. Immediately after the publication of the Canadian Guidelines, American and British press and advocates began to call on officials to follow Canada’s example and formally recognize gender as a basis for refugee protection (see The Arizona Daily Star 1993; Trueheart 1993; Wheelwright 1993).

  2. The IRB’s 1993 Guidelines were updated and reissued in 1996.

  3. Unfortunately, despite this independence, political and policy interests have continued to impact refugee adjudications indirectly.

  4. Osgoode Hall Law School Professor Sean Reehag has studied the IRB acceptance rates on a yearly basis since 2006. His work has revealed vast and consistent discrepancies across different adjudicators’ acceptance rates. Importantly, Reehag’s studies have shown that major discrepancies persist even when one controls for regions of claims: adjudicators who hear claims from similar and comparable regions continue to produce highly disparate acceptance rates. In other words, discrepancies in acceptance rates are associated with individual adjudicators rather than the regions from which claims originate. For a fuller discussion see Rehaag (2017).

  5. Other administrative devices currently used to increase consistency in decision making at the IRB include Jurisprudential Guides and Persuasive Decisions. In the past, the IRB has also used Preferred Position Papers (see IRB 1992, 1993), and the Lead Decision (to be discussed shortly).

  6. For instance, the absence of state protection and the possibility of internal flight within the home country are to be considered in decisions on gender-based claims.

  7. The issue of domestic abuse produced a particularly complex discussion, especially since domestic abuse remains an ongoing problem in Canada. Legal scholars debated whether Canada may grant refuge to women against forms of violence that also pertain to Canada (See Macklin 1995). Eventually, this question was resolved by making absence of state protection against domestic abuse a condition for granting refugee status in these cases (Trueheart 1993).

  8. Those opposing the development of a gender-based refugee policy were also concerned that expanding refugee protection based on gender could potentially lead to demands for more expansions, such as on the basis of sexual orientation, poverty or famine (Scanlan 1993). Without the hindsight of history, opponents could not imagine that in a matter of years persecution based on sexual orientation and gender identity would be widely acknowledged in refugee jurisprudence.

  9. Not all advocates joined this mode of reasoning in defense of the gender-based refugee policy. Groups such as the Canadian Council for Refugees and The National Action Committee on the Status of Women held more radical positions that did not appeal to the restrictionist tendencies of the time, and criticized the limitations of the Guidelines in offering real protection to actual women (for instance see Ulbrich 1993; Miller 1993b).

  10. The IRB had already announced that it was considering a draft policy paper on the topic of gender-based claims (Thompson 1993b). This paper laid the foundation for the Gender Guidelines (Miller 1993a).

  11. IRB Acceptance Rates-Response, 1995, RG 76 B-1, Box 1993/1994, File 8620-19, Volume 8, Refugee and Displaced Persons- General-Immigration and Refugee Board, Department of Employment and Immigration fonds, Library and Archives Canada, Ottawa, Canada.

  12. These statistics were acquired through an Access to Information Act request (A-2018-00418/SD) to the IRB.

  13. These strategies continued to be used well into the 2000s, until they were appealed and overturned in Kozak v. Canada (Minister of Citizenship and Immigration) at the Federal Court of Appeal in 2006.

  14. This unpublished report was acquired through the author. Paul St. Clair is a long time refugee advocate and settlement worker at CultureLink, with specialized focus on Roma migrants and refugees. He has been intimately involved in advocacy for Roma refugees and the appeal of the Lead Case. Sections of his report have been published online by the Hungarian Free Press at http://hungarianfreepress.com/2017/08/25/hungarian-roma-refugees-in-canada-the-lead-case-its-aftermath-and-the-future-parts-2-3/.

  15. Visa requirement were eventually imposed on Hungarians in 2001. For more on the geopolitics of visa requirements in relation to Hungary and the Czech Republic see St. Clair (2007), Levine-Rasky et al. (2014), and Levine-Rasky (2016).

  16. See Kozak v. Canada (Minister of Citizenship and Immigration) (F.C.A.), 2006 FCA 124; [2006] 4 F.C.R. 377, Canada: Federal Court of Appeal, 27 March 2006, para 18. Available at https://www.refworld.org/cases,CAN_FCA,4716146b1a.html. Accessed 20 August 2019.

  17. Much remains unknown about how the Lead Case was developed. According to St. Clair (2007), more than half of the communications between the IRB, the immigration and Department, and other government departments pertaining to the development of the Lead Case were not released even during the appeal proceedings due to national security concerns.

  18. Travel costs were covered by the Ontario Legal Aid (St. Clair 2007).

  19. For a detailed account of this chilling case see Mitrovica (2017).

  20. Kozak v. Canada (Minister of Citizenship and Immigration), para 65.

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Acknowledgements

This research was funded by a Social Sciences and Humanities Research Council Canada Graduate Scholarship as well as an Ontario Graduate Scholarship. I would like to thank the anonymous reviewers of this article for their thoughtful feedback.

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  1. Department of Sociology, Acadia University, Wolfville, NS, Canada

    Azar Masoumi

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Masoumi, A. The Politics of “Doing Exactly Nothing”: Feminist Legal Change and Bureaucratic Administration of Refugee Protection. Fem Leg Stud 27, 243–261 (2019). https://doi.org/10.1007/s10691-019-09410-5

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