Refugee Protection Claims

The right to seek protection from persecution is recognized in the 1951 Convention relating to the Status of Refugees (the Geneva Convention), which Canada signed in 1969. The right to life, liberty and security of the person is also enshrined in the Canadian Charter of Rights and Freedoms.

Who Is Considered A Refugee?

A person is considered a refugee under the Convention if they have a well-founded fear of persecution upon return to their country of citizenship or permanent residence. The grounds of persecution recognized internationally are race, religion, nationality, political opinion and membership in a particular social group (which can include sexual orientation or gender).

The person applying for refugee status needs to demonstrate that their country is unable or unwilling to provide them with adequate state protection. A refugee or protected person applicant may also qualify as a “person in need of protection”: someone who, if returned to their home country, would personally face a danger of torture, a risk to their life, or a risk of cruel and unusual treatment or punishment.

Eligibility for Canada Refugee Status

A person is not eligible if:

∎ The claimant has previously made a refugee claim in Canada that was rejected, withdrawn, abandoned or found ineligible.

∎ The claimant has been recognized as a refugee in another country and can be returned to that country.

∎ The claimant came to Canada through a designated “safe third country”.

∎ The claimant has been determined to be inadmissible on the basis of security, serious criminality, organized criminality, or violating human or international rights.

Note: Canada has signed an agreement with the United States designating the U.S. as a “safe third country”. Claimants who enter Canada from the U.S. at an official land border crossing, or who cross anywhere else along the land border and claim within 14 days, are generally ineligible and will be returned to the U.S. unless they meet an exception. For claims made on or after June 3, 2025, a claim is also ineligible if it is made more than one year after the person first entered Canada (for entries after June 24, 2020), or more than 14 days after entering between ports of entry on the Canada-U.S. land border; unaccompanied minors are exempt from these two rules. A claim is also ineligible if the claimant is under a removal order or has already made an asylum claim in another country.

Refugee Claim Process

Canada has undertaken to protect genuine refugees, that is, not to send them back to persecution. People who get to Canada on their own can claim refugee protection at any port of entry when they arrive, or from inside Canada by starting their claim online.

A Canadian immigration official first decides if a refugee claim is eligible. For a refugee claim made inside Canada, this involves an eligibility interview at which documents and biometrics are collected.

Referral to the Immigration and Refugee Board

If an immigration official considers the claimant to be eligible, then the file is transferred to an independent administrative tribunal called the Immigration and Refugee Board (IRB). The IRB determines whether the claimant is a genuine refugee and deserving of protection in Canada. The claimant must complete a Basis of Claim (BOC) form explaining who they are and why they are seeking protection. For claims made at a port of entry, the form must reach the IRB within 15 days of the claim being referred; for claims made inside Canada, it is provided at the eligibility stage. The claimant then attends a hearing before a member of the IRB’s Refugee Protection Division. Waiting times for a hearing vary. In some less complex cases, a claim may be accepted without a hearing.

Refugee Status Decision

If the IRB determines that the claimant is a genuine refugee, the claimant becomes a protected person and can apply for Canadian permanent residence inside Canada.

If the IRB refuses the refugee claim, most claimants can appeal to the IRB’s Refugee Appeal Division. Those who cannot appeal, or whose appeal fails, may apply to the Federal Court for leave and judicial review. If the claimant does not succeed, removal from Canada becomes probable.

Pre-Removal Risk Assessment (PRRA)

Individuals who have a refugee claim rejected, abandoned or withdrawn may eventually apply for a Pre-Removal Risk Assessment (PRRA). This is an opportunity for people who are facing removal from Canada to seek protection by describing, in writing, the risks they believe they would face if removed.

A person can apply for a Pre-Removal Risk Assessment (PRRA) once the Canada Border Services Agency confirms they are eligible. The same grounds for protection are assessed as in a refugee claim, but the decision is made by a Canada immigration official instead of the IRB. In cases that have already been considered by the IRB, only new evidence and changes in circumstances that have occurred since the IRB decision will be taken into account. In some instances, even claimants who are ineligible to make a refugee claim are entitled to a Pre-Removal Risk Assessment (PRRA).

Refugee claims are complex and there is always a lot at stake. It is advisable for people seeking refugee protection to be represented by a Canadian attorney with experience in this particular area of the law.

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