Abstract

This Working Paper examines the concept of the vulnerability of migrants which has become a key term in the UN's negotiations for a Global Compact on Safe, Orderly and Regular Migration. The authors argue that the concept must be interpreted inclusively and related to the human rights obligations of states through the UN conventions. All too often migrants are vulnerable because of state action. States must ensure that they deliver on their human rights obligations in ways which reduce the vulnerability of migrants.
Electronic copy available at: https://ssrn.com/abstract=3124392
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Queen!Mary!University!of!London,!School!of!Law!
Legal!Studies!Research!Paper!No.!273/2018!!
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“Migrants in vulnerable situations” and the Global Compact for
Safe Orderly and Regular Migration
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Idil Atak!
Delphine Nakache!
Elspeth Guild!
François Crépeau!
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2018 CanLIIDocs 61
Electronic copy available at: https://ssrn.com/abstract=3124392
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“Migrants in vulnerable situations” and the Global Compact for Safe Orderly and Regular
Migration!
Idil Atak (Ryerson University), Delphine Nakache (University of Ottawa), Elspeth Guild (Queen
Mary University of London), François Crépeau (McGill University)
Introduction
The New York Declaration for Refugees and Migrants adopted by the United Nations General
Assembly on 19 September 2016 expresses the political will to protect the rights of refugees and
migrants.1 World leaders agreed to work on a global compact for safe, orderly and regular
migration to be adopted in 2018 under the auspices of the United Nations. This framework will
include a set of common principles and guidelines on the treatment of “migrants in vulnerable
situations”. It also aims to achieve a more equitable sharing of the burden and responsibility for
hosting and supporting the world’s refugees by adopting a global compact on refugees in 2018.
The emphasis on the vulnerability of migrants is noteworthy throughout the New York Declaration
where the term is used no less than fifteen times. Most notably, in paragraph 10, the Heads of State
and Government and High Representatives indicate their determination to save lives. They go on
to state that their “[…] challenge is above all moral and humanitarian. Equally, we are determined
to find long-term and sustainable solutions. We will combat with all the means at our disposal the
abuses and exploitation suffered by countless refugees and migrants in vulnerable situations.”
To follow-up on these commitments,2 the UN Human Rights Council passed a resolution on 22
June 2017 requesting the Office of the High Commissioner for Human Rights (OHCHR) to
“submit, as co-chair of the Global Migration Group Working Group on Migration, Human Rights
and Gender, principles and practical guidance on the protection of the human rights of migrants in
vulnerable situations, on the basis of existing legal norms.”3 Following the publication of a draft
paper by the Global Migration Group Working Group (GMG) in October 2017,4 the zero draft of
the Global Compact for Safe, Orderly and Regular Migrations was released on 5 February 2018.
This paper aims to contribute to current discussions on the concept of vulnerability in the context
of migration and refugee protection. The language of vulnerability became increasingly
widespread in discussions about migrants and foreigners towards the end of the 20th century.5
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1 We choose the term ‘migrant’ in preference to foreigner, alien or other term consistent with the definition of a migrant
by IOM, available at: https://www.iom.int/who-is-a-migrant, accessed 3 January 2017.
2We will consider developing non-binding principles and voluntary guidelines, consistent with international law, on
the treatment of migrants in vulnerable situations (especially unaccompanied and separated children) who do not
qualify for international protection as refugees and who may need assistance. These guiding principles and guidelines
will be developed using a State-led process with the involvement of all relevant stakeholders and with the input from
the Special Representative of the Secretary General on International Migration, the International Organization for
Migration, OHCHR, UNHCR and other relevant UN entities. These would complement national efforts to protect and
assist migrants.” UN General Assembly, New York Declaration for Refugees and Migrants, 19 September 2016, para.
52.
3 United Nations Human Rights Council, Resolution on the Protection of the Human Rights of Migrants: The Global
Compact for Safe, Orderly and Regular Migration, 22 June 2017, A/HRC/RES/35/17, para. 18(b).
4 Global Migration Group, Principles and Guidelines, Supported by Practical Guidance, on the Human Rights
Protection of Migrants in Vulnerable Situations within Large and/or Mixed Movements, available at:
http://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf, accessed 10 February 2018.
5 S Cattacin and P Naegeli. ‘Vulnerable Migrants: Coping Strategies and Multiple Paths to Social Exclusion’ in S
Sabatinelli (ed), Social Vulnerability in European Cities (Palgrave Macmillan, 2014) 244-270; G Craig, L Waite, H
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However, as noted by Brown, Ecclestone and Emmel, “the ubiquity and elasticity of [the term]
vulnerability generates a sense of familiarity and common-sense or assumed understandings which
conceal diverse uses with enormously varied conceptual dimensions.”6 Given that different
understandings of vulnerability might give rise to different kinds of responses and might have
implications for state interventions, what is meant by “migrants in vulnerable situations” matters
a lot. A better understanding of the term is thus needed to inform the debates on the Global
Compacts, particularly in a context where vulnerability is seen as a central concept in shaping
international and domestic responses to the current “migration crises”.
This paper examines the sources and intersections of vulnerability and offers an overview of how
various courts have conceptualized the vulnerability of migrants. It is argued that, in the context
of the Global Compacts and at national level, the term “vulnerability” too often serves to portray
migrants in a negative light, as helpless victims. Policy makers and judges often discard the fact
that the precariousness in which migrants find themselves is mostly constructed by states and other
actors through policies and practices that are well documented.
The paper starts by defining the concept of vulnerability before discussing how and why this
definition applies to migrants. It goes on to distinguish between vulnerability and precariousness
with a view to identifying the main reasons for migrants’ vulnerability (Section 1). The paper then
offers a critical analysis of the term “migrants in vulnerable situations” as defined by the New
York Declaration and in the ensuing policy papers (Section 2). Section 3 shows how the human
rights courts in Europe have successfully resisted state policies and practices that construct
migrants’ precariousness and exclude them from access to social rights. The last section, which
examines a set of cases where Canadian courts invoked migrants’ vulnerability/precarity, discusses
how domestic judges are approaching these issues.
1. Understanding vulnerability and precarity among migrants
Generally speaking, vulnerable persons are those with limited or reduced capacity, power, or
control to protect their interests relative to other agents. From a biological or physiological
perspective, vulnerability refers to a person's inherent characteristics and to a lack of means to
cope without damaging loss.7 To be vulnerable means to be exposed to the possibility of being
harmed, either physically or emotionally.8 Vulnerability has also a social or relational dimension
and points to external risks and stress to which an individual is subject. It may arise in
circumstances within which a person might be denied the ability to make a free choice.9
Rogers, Mackenzie and Dodds propose a taxonomy of different sources of vulnerability. Inherent
vulnerability refers to sources that are intrinsic to the human condition and arise from our
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Lewis and K Skrivankova (eds), Vulnerability, Exploitation and Migrants: Insecure Work in a Globalised Economy
(Palgrave Macmillan, 2015).
6 K Brown, K Ecclestone and N Emmel, ‘The Many Faces of Vulnerability’ (2017) 16 Social Policy & Society 497.
7 R Chambers, ‘Editorial Introduction: Vulnerability, Coping and Policy’ (1989) 20 IDS Bulletin 1.
8 Oxford Dictionary, https://en.oxforddictionaries.com/definition/vulnerable, accessed 10 February 2018.
9 MJ Watts and HG Bohle, ‘The Space of Vulnerability: The Causal Structure of Hunger and Famine’ (1993) 17
Progress in Human Geography 43.
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corporeality, our dependence on others and our affective and social natures.10 Situational
vulnerability is, according to the authors, context-specific and may be caused or exacerbated by
the personal, social, political, economic or environmental situations of individuals or social groups,
including abusive relationships and oppression or injustice.11 This category highlights the ways in
which inequalities of power, dependency, capacity, or need render some individuals vulnerable to
harm or exploitation by others. In addition, both inherent and situational vulnerability may be
dispositional (potential) or occurrent (actual).12 For instance, women, children or migrants with
disabilities are dispositionally vulnerable to exploitation. But whether or not these groups of
migrants are actually vulnerable to exploitation will depend on a range of factors, such as their
socioeconomic status or geographical location. The distinction between dispositional and actual
vulnerability is important since it helps identify the sources of vulnerability in a particular case.
These definitions of vulnerability refer to risk factors and underline its severe consequences.
Vulnerability undermines autonomy, curtails individual capabilities or creates a sense of
powerlessness. Quoting the philosopher North Whitehead, Hoffmaster notes that vulnerability
means loss to all three urges human beings have: loss of opportunities to live better, loss of abilities
to live well, and, at its extreme, loss of living.13 Ultimately, as stated in the New York Declaration,
vulnerability impacts one’s ability to access and effectively enjoy their fundamental rights and
freedoms.
Three possibilities are immediately apparent as to the sources of migrants’ vulnerability. Migrants
may be vulnerable because of a temporary or permanent characteristic such as a disability or
illness. This corresponds to the inherent vulnerability described above. In this regard migrants may
be just as vulnerable as citizens. Secondly, migrants may be vulnerable because of external threats
such as fires, floods or earthquakes. Similarly, this vulnerability to external circumstances, or
situational vulnerability, is shared among citizens and migrants.14 Thirdly, migrants may be
rendered vulnerable by state authorities. It is this third category which is of interest here. This
category divides into those people whose vulnerability arises as a result of the actions of their state
of nationality – these are people who claim a right not to be returned to a country where they are
likely to suffer persecution, torture or inhuman or degrading treatment or punishment or
disappearance.15 If these people are outside their country of nationality they have an international
law framework on the basis of which to claim non-refoulement.16 But, as discussed below, there
are many other migrants whose vulnerability is not (or not exclusively) on the basis of the treatment
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10 C Mackenzie, W Rogers and S Dodds, ‘Introduction: What Is Vulnerability and Why Does It Matter for Moral
Theory?’ in W Rogers, C Mackenzie & S Dodds (eds), Vulnerability. New Essays in Ethics and Feminists Philosophy
(Oxford University Press, 2014) 1-29.
11 Ibid, 9.
12 Ibid, 4.
13 CB Hoffmaster, ‘What Does Vulnerability Mean?’ (2006) 36 Hastings Center Report 38, at 43.
14 D Cubie, The International Legal Protection of Persons in Humanitarian Crises: Exploring the Acquis Humanitaire
(Hart Publishing 2017).
15 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series,
vol. 189, p. 137, available at: http://www.refworld.org/docid/3be01b964.html, accessed 4 January 2018; UN General
Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10
December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at:
http://www.refworld.org/docid/3ae6b3a94.html, accessed 4 January 2018; UN General
Assembly, International Convention for the Protection of All Persons from Enforced Disappearance, 20 December
2006, available at: http://www.refworld.org/docid/47fdfaeb0.html, accessed 4 January 2018.
16 The right not to be sent to a country where the prohibited treatment is likely to occur.
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they fear in their country of origin but on the basis of their treatment while they are en route or in
the country where they are present.
Labman suggested, in her 2012 doctoral thesis,17 a distinction between vulnerability and
precariousness. Vulnerability is related to the characteristics of the person, and corresponds to
Rogers, Mackenzie and Dodds’ “inherent vulnerability”, while “precariousness” would be a social
construction corresponding to the third category or source of vulnerability described above. The
interest of the distinction is double. First, “precariousness” detaches the qualification from the
person of the migrant and ascribes it to the social environment: a precarious situation is determined
by other actors and imposed upon the migrant. In their analysis of the “precarious migrant status”
in Canada, Goldring, Berinstein and Bernhard show how this concept “reflects insecurities
associated with policies designed to control immigration and curb the overall number of permanent
immigrants on the part of states of immigration.”18 They note that the acknowledgment of the
systemic and contextual production of precarious status shifts the responsibility for precarious
status and illegality away from individual failure. This also reframes the process as one embedded
in elements of state policy and global trends.19 Second, it also has the advantage of avoiding the
word “vulnerable”, which, in the public discourse and collective imagination, tends to be equated
with the helplessness and hopelessness of perfect victims. The use of the word “vulnerability”
negates the considerable agency20 that almost all migrants, and in particular those in most
precarious situations, manifest in their daily lives, where such decisions as taking public transit or
going to the doctor may trigger life-altering events, such as detention, deportation and separation
of families. Brown, Ecclestone and Emmel note that, under the guise of assistance and protection,
the vulnerability narrative can bolster advancement of strategies for managing individuals through
new forms of governance, limiting individual agency or choice. Further, they remark how ideas
about vulnerability can be associated as a pervasive form of ‘victim blaming’ focusing attention
on individual deficit rather than wider structural issues and problems.21 The word “precariousness”
reveals that much of the “vulnerability” of the migrants is policy-driven and does not depend in
any way on the inherent characteristics of the migrants themselves.
Distinguishing between vulnerability and precariousness is important, as it allows drawing
attention on the constructed nature of precariousness and the state’s role in this process. The
distinction also enhances the design and implementation of effective solutions to ensure an
adequate protection of migrants. Indeed the present precariousness of the migrant’s situation could
be reversed through active forward-looking policy changes, in the same way that the
precariousness of the situation of the industrial worker was reduced through numerous policy
changes, which defined the construction of the welfare state at the beginning of the 20th century.
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17 S Labman, At Law's Border: Unsettling Refugee Resettlement, University of British Columbia, defended on 15
November 2012.
18 L Goldring, C Berinstein and J Bernhard, ‘Institutionalizing Precarious Migratory Status in Canada’ (2009) 13
Citizenship Studies 239, at 245.
19 Ibid, at 258.
20 W Walters, ‘On the Road with Michel Foucault: Migration, Deportation and Viapolitics’ in M Tazzioli, S Fuggli
and Y Lanci (eds) Foucault and the History of Our Present (Palgrave Macmillan UK, 2015) 94-110.
21 K Brown, K Ecclestone and N Emmel, ‘The Many Faces of Vulnerability’ (2017) 16 Social Policy and Society 497,
at 500 and 502.
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The concept of precariousness is actually used in the draft document released by the Global
Migration Group Working Group in October 2017.22
2. “Migrants in vulnerable situations” in the Global Compacts
The term “migrants in vulnerable situations” is not defined in the New York Declaration. Instead
the Heads of State and Government and High Representatives refer to various groups of migrants.
For instance, they acknowledge that refugees and migrants experience similar vulnerabilities, but
only in the context of “large movements”, a notion that is not defined either (par. 6).23 Thus, a list
of migrants in vulnerable situations who are travelling within large movements of refugees and
migrants is provided in para. 23. It includes: “women at risk, children, especially those who are
unaccompanied or separated from their families, members of ethnic and religious minorities,
victims of violence, older persons, persons with disabilities, persons who are discriminated against
on any basis, indigenous peoples, victims of human trafficking, and victims of exploitation and
abuse in the context of the smuggling of migrants”.24 This list points to the vulnerability of
migrants stemming from inherent and immutable individual characteristics such as age, gender,
ethnicity; and the factors that construct migrants’ precariousness, such as conditions conducive to
discrimination or the situation of children separated from their families. It does not however
distinguish between vulnerability and precariousness, which is problematic
Strikingly, the New York Declaration does pay attention to how different stages of the migration
process may affect the situation of migrants. As an example, the particular vulnerabilities of
women and children during the journey from country of origin to country of arrival are highlighted.
This includes their potential exposure to discrimination and exploitation, as well as to sexual,
physical and psychological abuse, violence, human trafficking and contemporary forms of slavery
(par. 29). Similarly, the Declaration underlines how vulnerability may arise in the country of
destination. It notably calls on states to address the special situation and vulnerability of migrant
women and girls by, inter alia, incorporating a gender perspective into migration policies and
strengthening national laws, institutions and programs to combat gender-based violence, including
trafficking in persons and discrimination against women and girls (par. 60). As well, the states are
reminded of their obligations during the removal of migrants: “Particular attention should be paid
to the needs of migrants in vulnerable situations who return, such as children, older persons,
persons with disabilities and victims of trafficking” (par. 52).
Although such a categorization is helpful to identify the processes that create migrants’
precariousness or exacerbate their vulnerability, it has two shortcomings. First, the Declaration,
with some exceptions, almost exclusively deals with the situation of migrants prior to their arrival
in the country of destination. In so doing, it avoids pointing to the pull factors of migration in
countries of destination. For example, the Declaration never mentions the major labour needs of
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22 Principles and Guidelines, Supported by Practical Guidance, on the Human Rights Protection of Migrants in
Vulnerable Situations within Large and/or Mixed Movements, available at:
http://www.ohchr.org/Documents/Issues/Migration/PrinciplesAndGuidelines.pdf, accessed 10 February 2018.
23 The GMG Working Group (2017) refers to the following definition: “Whether a movement is characterized as
‘large’ depends less on the absolute number of people moving than on its geographical context, the receiving States’
capacities to respond, and the impact caused by its sudden or prolonged nature on the receiving country.” Report of
the UN Secretary-General, In Safety and Dignity: Addressing large movements of refugees and migrants, A/70/59, 21
April 2016, para. 11.
24 UN General Assembly, New York Declaration for Refugees and Migrants, 19 September 2016, para. 23.
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countries of destination in specific sectors of their economies (agriculture, construction, care,
hospitality, fisheries, extraction), in which numerous employers are actively calling for “cheap
labour”, i.e. migrant workers who will be abused due to the paucity of the policy environment and
lack of access to enforcement mechanisms25. Second, by omitting to distinguish between
vulnerability and precariousness, the Declaration also avoids reminding states, especially in
destination countries, of their responsibility in the infringement on migrants’ human rights. This
distinction shows its usefulness when one reads, in the New York Declaration, that states consider
that their “challenge is above all moral and humanitarian” (par. 10). Migrants are thus perceived
as “helpless victims” in need of the humanitarian help of generous states. This indicates that states
do not see the protection of migrants as their legal obligation to respect, protect and promote the
rights that migrants derive – like any other human being – from international human rights law.
And even less do they see this protection as one of empowering migrants to fight for their rights
and freedoms, through tools that are often readily available to citizens, such as unionisation or
accessible legal aid. It is noteworthy in this regard that the Heads of State or Government and High
Representatives avoid to undertake strong legal commitments in favour of these human rights, but
only commit to “consider developing non-binding guiding principles and voluntary guidelines”
(par. 52). This language is at odds with the abundant reference, throughout the text, to legally
binding international human rights instruments. We will revert to this problem.
The Draft Principles and Practical Guidance on The Protection of The Human Rights of Migrants
in Vulnerable Situations within Large and/or Mixed Movements (Draft Principles and Practical
Guidance) drafted by the GMG avoid using the term “vulnerable” despite the mandate it was given
and opts for the concept of “migrants in precarious situations”.26 A decidedly human rights-
centered discourse is adopted in the text. As well, the twenty principles outlined by the GMG in
the Draft Principles and Practical Guidance is a laudable effort, which puts forward the primacy
of human rights and non-discrimination as overarching principles that apply to all migrants. The
document duly considers the inherent vulnerability of two groups, in particular: child migrants and
women migrants (Principle 10 and Principle 11). It then covers various policies and practices that
create and/or exacerbate migrants’ precariousness, especially during the journey or return: access
to justice, rescue and assistance, border governance, returns, protection from violence,
immigration detention, protecting family unity (Principles 3 to 9). A number of social and
economic rights are also highlighted and include the rights to health, to an adequate standard of
living, to decent work, to education and to information (Principles 12 to 16). Thus, the GMG
reminds states of their responsibility in the creation of the migrants’ precariousness, while it
emphasizes the importance of promoting access to and effective implementation of these
fundamental rights as a means of avoiding migrants’ precariousness. Hence, Principles 17 to 20
are centered on such measures as monitoring and accountability, data collection, capacity building
and cooperation.
The GMG does not bring much conceptual clarity to the debate. However, led by OHCHR, it is
somehow subverting the states’ definition of vulnerability: from the states’ humanitarian approach,
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25 A De Giorgi, ‘Immigration Control, Post-Fordism, and Less Eligibility: A Materialistic Critique of the
Criminalization of Immigration across Europe’ (2011) 12 Punishment & Society 147; F Düvell, ‘Paths into Irregularity:
The Legal and Political Construction of Irregular Migration’ (2011) 13 European Journal of Migration and Law 275.
26!Draft Principles and Practical Guidance on The Protection of The Human Rights of Migrants in
Vulnerable Situations within Large and/or Mixed Movements Draft February 2017, available at:
http://www.ohchr.org/EN/Issues/Migration/Pages/Draftsforcomments.aspx, accessed 15 February 2018.!
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the GMG moves covertly to a human rights framework, therefore insisting on the responsibility of
states to create the conditions that empower migrants to fight for their rights, i.e. their responsibility
to reduce precariousness. This should not come as a surprise since the GMG draws on the work
done by various international organizations and other stakeholders on the
vulnerability/precariousness of migrants and its crosscutting nature. For example, the human
mobility goals, found in the draft 2035 Agenda for Facilitating Human Mobility developed by the
UN Special Rapporteur on the human rights of migrants, address similar issues and suggest similar
solutions to those identified by the GMG.27
The zero draft of the Global Compact for Safe, Orderly and Regular Migrations, released on 5
February 2018, reiterates the aim of the Global Compacts “to reduce the risks and vulnerabilities
migrants face at different stages of migration by respecting, protecting and fulfilling their human
rights and providing them with care and assistance”.28 In fact, Objective 7 titled “Address and
reduce vulnerabilities in migration” includes some positive elements: the recognition that migrants
face multiple and intersecting forms of vulnerability; the placement of human rights at the centre
of states’ action, in particular through the engagement to adopt a child-specific and gender-specific
approach in their actions. Another positive element is the acknowledgment that there are “legal
and practical impediments” in destination states that are conducive to irregular migration and that
there needs to be policies in place to prevent such situations. It should however be noted that many
positive commitments made in the GMG Draft Principles and Practical Guidance are not found in
the recently released Zero draft. Under Objective 7 of the Zero draft, only children are identified
explicitly as a vulnerable group. The situation of many other groups of vulnerable migrants- such
as pregnant women, migrants with a disability, mental illness or acute/chronic illness, elderly
migrants, LGBTQ migrants and migrants subjected to extreme violence, trafficking, torture etc.-
is unacknowledged. In each case, though, these groups of migrants have clearly defined rights that
entail obligations towards them for transit and destination countries. Moreover, although the
specific focus on children is a positive step in the right direction, the principle of the child’s best
interest should not only be presented as a “primary consideration”: it should be clearly highlighted
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27 Goal 1. Offer regular, safe, accessible and affordable mobility solutions to all migrants, regardless of their status or
skill level Goal 2. Protect the labour and human rights of all migrant workers, regardless of their status and
circumstances Goal 3. Ensure respect for human rights at border controls, including return, readmission and post-
return monitoring, and establish accountability mechanisms Goal 4. End the use of detention as a border management
and deterrence tool against migrants Goal 5. Provide effective access to justice for all migrants Goal 6. Ensure easy
access for all migrants to basic services, including education and health Goal 7. Protect all migrants from all forms of
discrimination and violence, including racism, xenophobia, sexual and gender-based violence and hate speech Goal
8. Increase the collection and analysis of disaggregated data on migration and mobility. UN Human Rights Council,
Report of the Special Rapporteur on the Human Rights of Migrants on a 2035 Agenda for Facilitating Human Mobility
(28 April 2017) A/HRC/35/25. See also: A Aliverti, ‘Making People Criminal: The Role of the Criminal Law in
Immigration Enforcement’ (2012) 16 Theoretical Criminology 417; Inter-Parliamentary Union, the International
Labour Organisation (ILO) and the Office of the United Nations High Commissioner for Human Rights (OHCHR),
Migration, Human Rights and Governance. Handbook for Parliamentarians No 24 (16 October 2015); UN Human
Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants on Labour Exploitation of
Migrants (3 April 2014) A/HRC/26/35; OHCHR, The Economic, Social and Cultural Rights of Migrants in an
Irregular Situation (New York, Geneva 2014); ILO, Multilateral Framework on Labour Migration; Non-binding
Principles and Guidelines for a Rights-Based Approach (Geneva 2006); ADB Institute, OECD and ILO, Safeguarding
The Rights of Asian Migrant Workers From Home to Workplace, 2017; UN Committee on the Elimination of
Discrimination against Women, General Recommendation No. 26 on Women Migrant Workers (5 December 2008)
CEDAW/C/2009/WP.1/R.
28 Zero draft of the Global Compact for Safe, Orderly and Regular Migrations (5 February 2018), par. 10, available
at: https://refugeesmigrants.un.org/sites/default/files/180205_gcm_zero_draft_final.pdf, accessed 10 February 2018.
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as a principle that will always prevail over any other consideration. As well, Objective 7 omits the
fact that the vulnerability in which migrants find themselves is mostly constructed by states
through policies and practices, such as border controls, interception measures, restrictive migration
and asylum rules. Interestingly, the only other references to vulnerability found in the zero draft
clearly point to the constructed nature of migrants’ vulnerability. In fact, Objective 4 lists
statelessness as a factor for vulnerability whereas Objectives 9 and 10 refer to the vulnerability of
migrants in relation to smuggling and human trafficking. Another problematic aspect of the Zero
draft is its support of the creation of a new, binding protocol to address the protection of vulnerable
migrants. There is no such need since, as discussed below, the relevant protection norms already
exist and states have already signed up to the relevant international and regional human rights
instruments. Upholding states’ legal obligations vis-à-vis migrants is crucial in addressing
migrants’ vulnerability. In the remaining of this paper, we explore these obligations that stem from
international, regional and domestic legal instruments, as well as some of the strengthS and
limitations of the relevant case law.
3. Migrants’ Vulnerability, Human Rights and the Case-Law of the European
Courts Pertaining to Social Rights
Anyone who finds him or herself in a vulnerable situation may need assistance from state and civil
society. If someone has been the victim of a crime, assistance from the police may be needed. If a
person is in a place at risk of physical disaster, then he or she may need assistance from the state.
But what if a person is in a vulnerable situation because he or she is a migrant not a citizen? How
does this fit with the duty of states to safeguard the human rights of all people within their
jurisdiction?
The New York Declaration re-affirms more than 30 times states’ commitments to human rights as
contained in the Universal Declaration of Human Rights (UDHR) and the UN and regional treaties
which they have ratified. The objective of human rights as set out in the Universal Declaration is
to make concrete “recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family [,] the foundation of freedom, justice and peace in the world,
(recital 1). The Declaration states that is to be achieved, by “a common standard of achievement
for all peoples and all nations, to the end that every individual and every organ of society, keeping
this Declaration constantly in mind, shall strive by teaching and education to promote respect for
these rights and freedoms and by progressive measures, national and international, to secure
their universal and effective recognition and observance, both among the peoples of Member
States themselves and among the peoples of territories under their jurisdiction” (operative part).
The UDHR is founded on the principle that human rights belong to all people because they are
part of humanity. Human rights are not reserved for citizens of a state but are equally applicable
to migrants and refugees. As the UDHR states, human rights are the patrimony of everyone. Yet,
the UDHR never uses the word “vulnerable”. Instead, it focuses on state action contrary to human
rights. It is the actions of states against people which violate their human rights. The starting place
is that state abuse of human rights is the cradle of legitimate rebellion. But do migrants have the
right of rebellion? As Article 21(3) UDHR states “The will of the people shall be the basis of the
authority of government; this will shall be expressed in periodic and genuine elections which shall
be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting
procedures.” What about the migrant? If migrants do not have the right of rebellion because they
are not citizens, and thus not entitled Article 21(3) political participation, does this render them as
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objects of human rights rather than co-producers? In this reading of UDHR, migrants whose human
rights are not respected and protected by the state where they find themselves may not be entitled
to rise up against tyranny and oppression – instead migrants are constructed as simply vulnerable
to the tyranny and oppression of the state. Yet, migrants too are entitled to human rights protection.
The UDHR is a bulwark against the oppression of minorities (including migrants), even unpopular
ones, by governments. The separation of persons into citizens and migrants is a state act and a
political choice. It is rarely a choice of people individually and it is a separation applicable to only
the most specific situations in the UDHR (such as Article 21(3)). The political choice to oppress
one category of person within a state as opposed to another is exactly that politically. It is not an
inevitable or natural result of the specific status of the people oppressed – be it ethnic or religious
minorities, women, migrants or others whose ‘essential’ difference is the result of political choices
not nature. But people who are classified as part of minorities on the basis of which discrimination
and social exclusion measures by states are applied become vulnerable. This is a result of the
political choice to classify them in an unfavourable group, such as ‘migrants’, and then to justify
excluding them from security of residence, access to social rights on the basis of their
categorisation as part of this minority etc..
Migrants often find themselves in vulnerable situations simply because states refuse to issue them
with lawful entry, residence and work documents and family reunification. They may become
vulnerable as a result of a state’s actions to expel them from the state. The political choices of
states to reify immigration documentation and to make acquisition of the right kind of
documentation the sole portal through which migrants can gain access to social rights such as to
food, shelter, healthcare and education renders all those migrants unable to obtain the necessary
documents vulnerable. This is inconsistent with states obligations under the International
Covenant on Economic Social and Cultural Rights 1966 (ICESCR). The UN Social Rights
Committee in General Comment 3029 has stated that the ground of nationality should not bar access
to Covenant rights including education, access to adequate food, shelter and affordable healthcare.
Specifically, it states: “The Covenant rights apply to everyone including migrants, such as
refugees, asylum-seekers, stateless persons, migrant workers and victims of international
trafficking, regardless of legal status and documentation”30. The Social Rights Committee has
clarified that the ICESCR requires states to afford the social rights set out in the Covenant on the
basis of non-discrimination. This includes equality for migrants irrespective of their immigration
status having access to social rights. Migrants are rendered vulnerable by the refusal of states to
afford these internationally recognised rights. But what is the solution? How can states be
encouraged to comply with their human rights obligations, as the UDHR requires them to? Two
approaches are immediately available. The first is to require states to provide all necessary
documentation to migrants so that they can access their human rights to shelter, food, health,
education etc. The second is to require states to provide access to internationally recognised social
rights to migrants without documentation.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
29 UN Committee on Economic, Social and Cultural Rights (UNCESCR 1966) is the Treaty Body responsible for
monitoring the implementation of the ICESCR.
30 UNCESCR, General Comment 20 Non-Discrimination in Economic, Social and Cultural Rights (Art. 2, para. 2, of
the International Covenant on Economic, Social and Cultural Rights) (2 July 2009), E/C.12/GC/20, para. 30, available
at:
http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fGC%2f20&Lang=
en, accessed 4 January 2018.
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In many Western states, in Europe, North America and elsewhere, little progress has been made
in requiring states to provide documentation to migrants in order for them to access social rights.
One reason for this is that such documentation is normally the preserve of interior ministries which
are exactly those ministries responsible for creating the citizen/migrant divide through their
classification of people. Social affairs ministries in many countries have traditionally used the
principle of physical presence or residence in the state as the guide to access to social benefits.31
A documentation approach to access to social benefits has been introduced in a number of these,
most notably the Netherlands and the UK, which provides interior ministries with a tool to ensure
the social exclusion of migrants to whom they have refused documentation.32 This complicity of
states in making migrants vulnerable or leaving them in vulnerable situations is something which
has not gone unnoticed by many courts, particularly the European Court of Human Rights
(ECtHR)33 and the European Social Committee (ESC).34 In a seminal series of judgments on states’
obligations to protect the human rights of everyone within their jurisdiction, the ECtHR stated:
232. …[T]he Court must take into account that the applicant, being an asylum-seeker, was
particularly vulnerable because of everything he had been through during his migration
and the traumatic experiences he was likely to have endured previously.
251. The Court attaches considerable importance to the applicant’s status as an asylum-
seeker and, as such, a member of a particularly underprivileged and vulnerable population
group in need of special protection (see, mutatis mutandis, Oršuš and Others v. Croatia
[GC], no. 15766/03, § 147, ECHR 2010).35
The experiences of asylum seekers are recognised by the ECtHR as making them vulnerable. These
experiences, according to the ECtHR, should not continue in the country where the person seeks
protection. If the state does not provide social rights to the asylum seeker then it is in breach of its
obligations under the European Convention on Human Rights.36 The European Social Committee
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
31 U Lundberg and K Åmark, ‘Social Rights and Social Security: The Swedish Welfare State, 1900-2000’ (2001) 26
Scandinavian Journal of History 157; N Kildal and S Kuhnle, ‘The Nordic Welfare Model and the Idea of
Universalism’ in N Kildal and S Kuhnle (eds) Normative Foundations of the Welfare State: The Nordic
Experience (Routledge 2005), 13-33; K Nash and A Scott, ‘Citizenship and Welfare: Politics and Social Policies’
(2012) 33 The Wiley-Blackwell Companion to Political Sociology 360.
32 Conference of European Churches (CEC) v. the Netherlands (decisions on the merits), Complaint No.
90/2013, Council of Europe: European Committee of Social Rights, 10 November 2014, available at:
http://www.refworld.org/cases,COEECSR,54e363534.html, accessed 4 January 2018. 79. CEC observes that access
by migrants to food, clothing and shelter is made conditional upon a residence permit. As provided by the Categories
of Aliens Regulations (Regeling verstrekkingen bepaalde categorieën vreemdelingen; “RVB”), the right to food,
clothing and shelter does not cover migrants in an irregular situation, except in the extraordinary cases discussed
below.”
33 This court interprets the European Convention on Human Rights 1950.
34 This court interprets the Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163, available
at: http://www.refworld.org/docid/3ae6b3678.html, accessed 4 January 2018 and its predecessor Council of
Europe, European Social Charter, 18 October 1961, ETS 35, available at:
http://www.refworld.org/docid/3ae6b3784.html, accessed 4 January 2018.
35 M.S.S. v. Belgium and Greece, Application no. 30696/09, Council of Europe: European Court of Human Rights, 21
January 2011, available at: http://www.refworld.org/cases,ECHR,4d39bc7f2.html, accessed 19 December 2017.
36 See also : Mubilanzila Mayeka and Kaniki Mitunga v Belgium, Application No. 13178/03, Council of Europe:
European Court of Human Rights, 12 October 2006, para. 55; J-Y Carlier, ‘Des droits de l’homme vulnérable à la
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has gone further in its jurisprudence.37 The Committee dealt with the question of the scope of the
Charter to irregularly present migrants. It held that “When human dignity is at stake, the restriction
of the personal scope should not be read in such a way as to deprive migrants in an irregular
situation of the protection of their most basic rights enshrined in the Charter, nor to impair their
fundamental rights, such as the right to life or to physical integrity or human dignity” (para 66).
The purpose of this finding was in part to bring the interpretation of the Charter into conformity
with international law including the ICESCR (para 114). Accordingly, it held that “[…]access to
food, water, as well as to such basic amenities as a safe place to sleep and clothes fulfilling the
minimum requirements for survival in the prevailing weather conditions are necessary for the basic
subsistence of any human being [including irregularly present migrants]” (para 122).
In Europe, two supra-national courts have found that the human rights of migrants include
obligations on states to provide them with access to food, water, shelter and healthcare irrespective
of their immigration status. The principles of non-discrimination and equality guide the European
courts’ case law when it comes to migrants’ access to basic social rights.
4. Vulnerability/precarity of migrants: an analysis of Canadian case law
This section examines a set of cases where Canadian courts invoked migrants’
vulnerability/precarity. Specifically, it analyses 28 cases to uncover the approach of Canadian
court justices to these issues. The LexisNexis data was used to conduct a preliminary search of
Canadian case law based on the following criteria:
- Cases decided by the Supreme Court of Canada, the Federal Court of Appeal or the Federal
Court;
- Cases invoking the Canadian Charter of Rights and Freedoms38, or an unreasonable
immigration/refugee protection decision as the basis for the appeal/judicial review;
- Appeals/reviews related directly to non-citizens.
The initial set of cases was abstracted using a combination of specific keywords (see Appendix 2).
The search was conducted in December 2017 and January 2018. There was no specific “date
range” in terms of court decisions. The search identified 402 cases, but many of these cases were
excluded for the following reasons:
- The only reference to “precarity” or “vulnerability” (and related words) appeared when
quoting from or paraphrasing doctrinal works or court testimonies;
- The only mention of “precarity” or “vulnerability” (and related terms) was made by the
appellant/respondent;
- The terms “precarity” or “disability” (and related terms) were used in another context – for
example: “vulnerable to persecution”, “vulnerable to repercussion”, “vulnerable to that
violence”, “precarious health”, “situation in the country of origin is precarious” etc.
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vulnérabilité des droits de l’homme, la fragilité des équilibres’ (2017) 79 Revue Interdisciplinaire d’Etudes Juridiques
175.
37 Conference of European Churches (CEC) v. the Netherlands (decisions on the merits), Complaint No.
90/2013, Council of Europe: European Committee of Social Rights, 10 November 2014, available at:
http://www.refworld.org/cases,COEECSR,54e363534.html, accessed 4 January 2018.
38 Constitution Act, 1982. Part I.
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The remaining 23 cases constitute the set of federal court cases that are considered in this analysis.
Given that several key decisions regarding migrant workers were rendered at the provincial court
level, we also also included 5 provincial court decisions (from Ontario and British Columbia) to
our set of data. Given the inclusion criteria used in this study, our sample of 28 cases cannot be
representative of the view of all Canadian judges, but it reveals some interesting results about how
domestic court justices view “vulnerable”/” precarious” migrants (i.e., how vulnerability/precarity
among migrants is portrayed by them and why). .
Migrants without status in Canada
Non-citizens do not have a right to enter and remain in Canada, but while in Canada, they are
entitled to Charter protection.39 In its first ruling on the application of s. 15 (equality rights) of the
Charter to non-citizens, the Supreme Court established that grounds of discrimination “analogous”
to those enumerated in s. 15 could receive Charter protection, and it recognized non-citizenship
as the very first analogous ground of protection. The Supreme Court stated:
Relative to citizens, non-citizens are a group lacking in political power and as such
vulnerable to having their interests overlooked and their rights to equal concern and respect
violated (…) I emphasize, moreover, that this is a determination which is not to be made
only in the context of the law which is subject to challenge but rather in the context of the
place of the group in the entire social, political and legal fabric of our society. While
legislatures must inevitably draw distinctions among the governed, such distinctions
should not bring about or reinforce the disadvantage of certain groups and individuals by
denying them the rights freely accorded to others.40
The above decision referred to non-citizens generally, as compared to citizens, and the applicant
in that case was a permanent resident of Canada who had been barred from practising law in British
Columbia because he was not a Canadian citizen. While the Supreme Court has not specifically
considered “immigration status” itself as potential analogous ground, the Federal Court of Appeal
did so in 2011, in the Toussaint case.
The facts of the case are worth summarising. The applicant (Ms. Toussaint) came to Canada in
1999 as a visitor and remained in Canada without regular immigration status for more than 10
years. She worked for the first seven years, but in 2006, became severely ill and unable to work.
The provincial health authority refused her access to public health care on the basis of her lack of
immigration status in Canada, and she claimed she was unable to pay for her required health care
services. She attempted to regularize her status by applying for permanent and temporary residence
in Canada in 2009, but could not afford to pay the processing fees. She requested a waiver of the
processing fees for these applications, but her request was denied and thus neither application was
ever considered. As her medical condition worsened, she applied to the federal government to be
covered under the Interim Federal Health Plan (IFHP),41 but her application was refused and she
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39 Singh v Minister of Employment and Immigration, [1985] 1 SCR 177. For a complete analysis of the application of
the Charter to non-citizens, see: C Dauvergne, ‘How the Charter has Failed Noncitizens in Canada: Reviewing Thirty
Years of Supreme Court of Canada Jurisprudence’ (2013) 58 McGill Law Journal 663.
40 Andrews v. Law Society of British Columbia, [1989] 1 SCR 143, at para. 5.
41 The Interim Federal Health Program (IFHP) provides limited, temporary coverage of health-care benefits to
refugees, refugee claimants and certain other groups of migrants who aren’t eligible for provincial or territorial health
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sought judicial review of that decision. Ms Toussaint argued that the decision denying her coverage
under the IFHP violated s. 7 (life, liberty and security of person) and s. 15 (equality rights) of the
Charter. The Federal Court dismissed her application and the Federal Court of Appeal confirmed
the trial level decision. Drawing on the Supreme Court of Canada’s decision in Corbiere,42 the
Court found that “immigration status” does not qualify as an analogous ground under section 15
of the Charter because:
[I]mmigration status is not a "characteristic that we cannot change." It is not "immutable
or changeable only at unacceptable cost to personal identity." [It] is a characteristic that the
government has a legitimate interest in expecting [the person] to change. Indeed, the
government has a real, valid and justified interest in expecting those present in Canada to
have a legal right to be in Canada.43
Based on this reasoning, the Court of Appeal held that “immigration status” is a matter of
individual choice, and thus, completely disregarded the social context that could have influenced
the applicant’s decision to remain in Canada. Interestingly, the trial level decision had displayed a
greater understanding of the choices and constraints of irregular migrants in the Canadian society.
It had commented that “illegal migrants lack political power, are frequently disadvantaged, and
are incredibly vulnerable to abuse”, and that “this, combined with the difficulty of changing one's
illegal migrant status, might support an argument that such a characteristic is an analogous
ground”44. However, since Ms. Toussaint did not make this argument at the Federal Court level, it
did not assess the merits of such an argument.
The Court of Appeal also confirmed the trial level decision that, contrary to the applicant’s
argument, s. 15 of the Charter was not infringed by her exclusion from the IFHP on the basis of
her citizenship. In fact, the only reason for her exclusion from coverage is based on “her illegal
status in Canada”.45 As for s. 7 argument, the Court reiterated that s. 7 applies to all non-citizens,
including “illegal immigrants”, but that “this does not mean that non-citizens, and in particular
illegal migrants, are entitled to remain in Canada”.46 The Court then found that Ms. Toussaint had
established a deprivation of s. 7 rights on the facts of her case, but also stated:
At its core, the purpose of the IFHP is to provide temporary healthcare to legal migrants.
Canada also provides IFHP coverage to some illegal migrants, such as victims of
trafficking, who are often unwittingly illegal migrants. Canada feels responsible for such
illegal migrants because of the fact that they have been exploited by unscrupulous human
traffickers. Ms. Toussaint is neither a legal migrant nor is she unwittingly an illegal
migrant. Although she entered this country legally, she chose to remain here illegally; there
is nothing stopping her from returning to her country of origin. She has chosen her illegal
status and, moreover, she has chosen to maintain it [our emphasis].47
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insurance. For more on this topic, see: https://www.canada.ca/en/immigration-refugees-
citizenship/services/refugees/help-within-canada/health-care/interim-federal-health-program/coverage-
summary.html, accessed 24 January 2018.
42 Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203.
43 Toussaint v. Canada (Attorney General), 2011 FCA 213, at para. 99.
44 Toussaint v. Canada (Attorney General), 2010 FC 810, at para. 82.
45 Ibid at paras 81 and 82.
46 Ibid, para. 87.
47 Ibid, para. 93.
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Thus, despite Ms. Toussaint’s economic and social contribution to Canadian society, her claim
was disregarded on the basis that the Canadian government cannot “feel responsible” for those
migrants who -like Ms. Toussaint- have “decided “to remain irregularly in Canada. In fact, the
Canadian government ought to be responsible only towards “unwittingly illegal migrants”.
But who are, according to the Canadian courts, the “involuntary” non-status migrants who would
deserve state protection? Drawing from Toussaint and other court cases in this area, they are, first
and foremost, the “victims of trafficking”, that is, “illegal migrants [who] have been exploited by
unscrupulous human traffickers”.48 They could also be migrants in an “acute vulnerable state”. For
example, in reviewing a negative refugee decision, the Federal Court made an obiter statement that
the applicant, a citizen of St. Vincent who suffered of a history of sexual and physical abuse from
several individuals, both in her country and in Canada, “would be a significant candidate for
Humanitarian and Compassionate Considerations (H&C). The Court noted:
The Applicant has endured a lifetime of sexual violence and insecurity. Illiterate and IQ-
challenged, the Applicant came to Canada hoping for a better life, without requesting
refugee status for five years, as she was initially under the subjugation as a virtual hostage
of [a man] who abused her. She did not know where she resided and could not discern her
circumstances but was subjected to even more sexual violence at the hands of the very man
who offered her the promise of a better life (…) As an illegal migrant, she has had little
opportunity to work. Her narrative stands uncontradicted; she has been sexual abused,
repeatedly forced out in the cold and has had to continually move in with friends. As per
the medical evidence, she now suffers from severe depression, anxiety, post trauma and
suicidal ideation. It is extraordinarily suggested that the Applicant be allowed to remain in
Canada to give her an opportunity to have an eventual H&C decided (…) The Applicant's
voice had been silenced for years by psychological paralysis, resignation and post dramatic
stress and she still remains a battered woman and suffering therefrom. Her voice had been
stifled and hers was a silent cry which could not be released for years. It is for that reason
that the Court recommends that the Applicant is indeed a strong candidate for H&C.49
In another decision regarding an Immigration Officer's refusal to permit the applicant to apply for
permanent residence from within Canada on humanitarian and compassionate grounds, the Federal
Court found that the decision was unreasonable because it ignored important aspects of the
applicant’s “extreme” vulnerability: a “single, childless, elderly woman” with mental health
deficiencies, highly dependent on others, who “has been seriously mistreated in Canada by
employers”.50
The above decisions illustrate a rather simplistic portrayal by Canadian courts of irregular
migrants, one that characterizes them in the extreme, either as ‘‘victims’’ of exploitation or as
‘‘villains’’ who [consciously] broke the laws”.51 Such portrayal obscures their agency and it does
not account for the many circumstances that constrain migrants’ choices in their everyday life in
Canada. Thus, when migrants are seen as having “voluntarily” decided to remain, they should be
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48 Ibid.
49 J.K.M. v. Canada (Minister of Citizenship and Immigration), 2013 FC 1060.
50 Nwaeme v. Canada (Minister of Citizenship and Immigration), 2017 FC 705, at paras 65 and 86.
51 B Anderson and M Ruhs, ‘Guest Editorial: Researching Illegality and Labour Migration’ (2010) 16 Population,
Space and Place 175.
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ready to “fully” assume this decision.52 In relation to this point, courts are also clear to the effect
that “choosing” to have a Canadian-born child “during a period of instability with regard to their
immigration status” does not entitle non-citizens to remain in Canada. In such cases, the best
interests of the child (enunciated at s. 25(1) of the Immigration and Refugee Protection Act53)
cannot be ignored for the reason that it was the parents' "choice" to have a child despite their
precarious immigration status, and in fact, it must be given “substantial weight”. Decision makers
should also bear in mind that “[c]hildren will rarely, if ever, be deserving of any hardship54”. But
this does not mean, according to the courts, that the best interests of the child should outweigh all
other considerations.55
Migrant workers
In Canada, farm workers have traditionally been viewed by courts as “vulnerable workers” who
should be provided with greater labour protections.56 In a decision regarding the freedom of
association rights of agricultural workers, the Supreme Court made an interesting comment on
agricultural workers. It noted that because these workers “are heavily drawn from a migrant and
immigrant population”, they “[face] even more serious obstacles to effective participation in the
political process”.57 Lower court decisions have confirmed this opinion.
In 2009, a discrimination complaint was filled with the Ontario Human Rights Tribunal after the
Office of the Chief Coroner declined a request to conduct a discretionary inquest into the
workplace death of the applicant’s brother, a migrant farm worker from Jamaica who was
employed under the Seasonal Agricultural Workers Program (SAWP). Police had investigated the
death and found the brother had not followed the safety training he had received. In its 2014
decision, the Tribunal noted that “there is no doubt that SAWP workers are a racialized and (…)
uniquely vulnerable group” and that “the primary factor contributing to the vulnerability of SAWP
workers resides in the "closed" nature of their relationship to their employers (…) and the risk and
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52See for example the Daniel decision, where Justice Noel acknowledged that “failed refugee claimants” are with a
“precarious status” in Canada, but also noted that the applicant was aware of her precarious status and that she made
her decision to stay in Canada and to have a Canadian born child “with full knowledge of the situation”: Daniel v.
Canada (Minister of Citizenship and Immigration), 2011 FC 797, at para. 19
53!Immigration*and*Refugee*Protection*Act,!S.C.!2001,!c.!27.!
54!Hawthorne*v.*Canada*(Minister*of*Citizenship*and*Immigration),!2002!FCA!475,!at!para!9.!
55 Ibid. For more on this topic, see: Qureshi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.
1551, at para. 26 (“the parents' deliberate intention to have a second child, (…) knowing their precarious immigration
status (…) has nothing whatsoever to do with the due consideration of the best interests of the child that the officer
was obliged to give). See also: Khoja v. Canada (Minister of Citizenship and Immigration), 2010 FC 142, at para. 55
(“the fact that the Applicants have a Canadian-born child during a period of instability with regard to their immigration
status, while not an excuse for minimizing the best interests of that child, does not entitle the Applicants to a certain
outcome on an application for H&C”). See again: Tchicaya-Loembet v. Canada (Minister of Citizenship and
Immigration), 2012 FC 711 at para. 25 (“although the interests of a child are an important element to be considered,
they do not outweigh other considerations” (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at paragraph 75; Legault v Canada (Minister of Citizenship and Immigration), 2002 FCA 125 at paragraphs 11,
12 and Kisana v Canada (Minister of Citizenship and Immigration), 2009 FCA 189, at paragraph 24). See finally:
Daniel, 2011 FC 797; Duran v Canada (Public Safety and Emergency Preparedness), 2007 FC 738; Brar v. Canada
(Minister of Citizenship and Immigration), 2011 CF 691.
56 See for example: Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016; Ontario (Attorney General) v.
Fraser, [2011] 2 S.C.R. 3
57 Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 348 (quoting Prof. Beatty’s writings in this area).
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fear of being repatriated with the resultant consequences on their livelihood”.58The Tribunal added
that, because of these factors, migrant workers are “reluctant to make complaints about their
employers, including health and safety complaints, are more willing to continue working while
sick or injured, and are less able to resist work demands placed upon them, including both the
nature of the work being performed and the incredibly long hours of work required”.59 While
highlighting the vulnerabilities experienced by SAWP workers, the Tribunal found, however, that
the legal provision in place did not discriminate against migrant farm workers by denying them
the benefit of mandatory inquests into preventable workplace fatalities. It found that this section
had a disproportionate impact on migrant workers but that the purposes underlying the requirement
for mandatory inquests in accidental workplace deaths in mining and construction, but not in
agriculture, were non-discriminatory. In 2017, an application for judicial review of the Human
Rights Tribunal’s decision was dismissed. The Ontario Superior Court of Justice held that the
Tribunal’s conclusion was reasonable. On the evidence before the Tribunal, the workplace fatality
rate among SAWP workers was much lower than the rate for construction and mining workers,
and the causes of workplace death among SAWP workers were not as varied as they were for
construction and mining workers. There was therefore good reason, according to the Ontario court,
to conduct an inquest into all workplace construction and mining deaths, but not into all SAWP
workplace deaths.60
It is not unusual for Canadian courts to address issues of vulnerability among SAWP workers.61
But recently, Canadian courts have also started to consider a broader category of migrant workers
as “vulnerable”. In 2012, the British Columbia Supreme Court certified a class proceeding against
Denny’s Restaurants and Decan Restaurants. The plaintiffs in this case were 75 migrant workers,
recruited from the Philippines and admitted to Canada with a closed work permit (i.e., a permit
that requires them to be tied to one employer). They alleged that their Canadian employer failed
to provide them with the hours of work promised, failed to pay overtime, and failed to reimburse
them for certain expenses they incurred relating to their employment, such as travel expenses from
the Philippines and agency recruitment fees. In rendering its decision, the court referred to “the
vulnerable situation in which these temporary workers find themselves” and noted that “a class
proceeding will provide the access to justice that they require in an environment that will be of
assistance to them”.62 This decision was the first case in Canada to address claims of migrant
workers who contended that a Canadian employer was liable for breaches of obligations or duties
relating to their employment in Canada. In 2017, the British Columbia Supreme Court certified
another class proceeding involving another Canadian employer recruiting migrant workers from
abroad.63 So far, only the province of British Columbia has determined that employers can be
subject to class action suits from migrant workers, but these decisions illustrate that greater care
should be taken in hiring migrant workers. It is also worth mentioning a recent British Columbia
Court decision awarding a migrant worker her damages resulting from a breach of an agreement
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58 Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611, at para. 273.
59 Ibid.
60 Peart v. Ontario (Minister of Community Safety and Correctional Services), [2017] O.J. No. 558.
61 See for example: Farms v. Canada (Minister of Employment and Social Development), 2017 FC 302 (para 31, where
the Federal Court refers to SAWP workers as “highly vulnerable temporary foreign workers, given the tenuous
circumstances of their employment which lack the normal safeguards preventing abuse otherwise available to most
Canadian workers”).
62 Dominguez v Northland Properties Corp, 2012 BCSC 328, at para. 263.
63 Basyal v Mac’s Convenience Stores Inc., 2017 BCSC 1649.
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by the employer to provide her employment. In granting leave to the plaintiff to apply to the court
for an award of aggravated damages, the court noted:
Ms. Tadena was put in a very vulnerable position by the callous treatment of her by Mr.
Mroke on behalf of the defendant company. I infer Mr. Mroke would have known that it
would cause extreme emotional distress to a person who was induced to travel half-way
around the world to take up residence in a new country relying on a promise of employment
to find that for no apparent reason the promised employment is not available. I infer Mr.
Mroke was well aware of the tenuous position [migrant workers] are in when they arrive
from overseas in that they are able to work only for a particular employer at a particular
location. By refusing to honour the employment offer made to Ms. Tadena, the defendant
left her adrift without resources in a country she had recently immigrated to and in a
precarious situation with respect to her status in Canada. Mr. Mroke should have
appreciated that Ms. Tadena would have expended significant sums to relocate to Canada
from Dubai to continue to perform menial work at a minimum wage and that without
employment she would have no means to relocate if she was unable to find another
opportunity. I also find that Ms. Tadena would have anticipated experiencing the emotional
distress she in fact did suffer as a result of the breach of contract.64
Refugee claimants
As in European case law, Canadian jurisprudence shows a treatment by courts of refugee claimants
as a vulnerable population group in need of special protection.65 In a 2014 decision on cuts to
health care coverage for refugee claimants, the Federal Court noted in several passages that refugee
claimants are a “vulnerable, poor and disadvantaged group” and that the cuts to the Program
intentionally “set out to make the lives of disadvantaged individuals even more difficult in an effort
to force those seeking refuge in Canada to leave more quickly, and deter others from entering
Canada to seek protection”. The Court held that such treatment “was cruel and unusual” and hence
constituted a violation of s. 12 of the Canadian Charter (protection against unusual treatment or
punishment) that was not justifiable under s. 1 of the Charter.66 The Court found that the cuts had
a disproportionate impact on children who had been brought to Canada by their parents, and that
they “potentially” jeopardized “the health, the safety and indeed the very lives, of these innocent
and vulnerable children in a manner that shocks the conscience and outrages our standards of
decency”.67 The Court noted:
[It] must be recognized that children ordinarily have no choice in where they live: this is a
matter that will be determined by the adults in their lives. Children are thus the innocent
victims of world events and family choices.68
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
64 Tadena v. Dawat Restaurant Ltd. (c.o.b. Palki Restaurant), 2017 BCPC 205, at para 14.
65 For example, in a Federal Court decision, Justice Blancher noted: “In my opinion, the vulnerability of refugee
claimants militates in favour of an increased requirement for procedural protections [and a] refugee claimant's
particular vulnerability is therefore a factor to be considered in the circumstances of each case”. See: Thamotharem v.
Canada (Minister of Citizenship and Immigration), 2006 FC 16, at para. 90. See also: Canadian Council for Refugees
v. Canada, 2007 FC 1262 (Justice Phelan considering refugee claimants as “vulnerable persons”).
66 Canadian Doctors for Refugee Care v. Canada (Attorney general), 2014 FC 651
67 Ibid, at para. 691.
68 Ibid, at para. 638.
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Generally speaking, the vulnerability of refugee and asylum-seeking children – both accompanied
and unaccompanied- has been recognized by Canadian Courts. In a Federal Court decision
involving 12 unaccompanied minors from China (all aged between 16 and 17), Justice Muldoon
draws on documentary evidence to remind that refugee children are "the most vulnerable category
of an already vulnerable population. When they cross a border to flee persecution or conflict,
refugee children often lose whatever social or familial protection they enjoyed at home”.69 This is
why children are “entitled to special care and assistance”.70
Finally, it is worth noting that the Immigration and Refugee Board (IRB), which is Canada's
administrative tribunal responsible for making decisions on refugee protection claims, has
implemented a series of guidelines providing guidance to decision-makers.71 One of these
guidelines- Guideline 8- provides procedural accommodation(s) for individuals who are identified
as “vulnerable persons” by the IRB (i.e., “mentally ill, minors, the elderly, victims of torture,
survivors of genocide and crimes against humanity, women who have suffered gender-related
persecution, and individuals who have been victims of persecution based on sexual orientation and
gender identity72”). While not mandatory, decision-makers are expected to apply these guidelines
or provide a reasoned justification for not doing so. Thus, for example, in one case involving a
citizen of Syria who claimed he was interrogated and tortured by his government, the Federal Court
noted that the IRB's failure to consider Guideline 8 led to an unreasonable decision because it
“would have expected the Board to raise the issue of whether the applicant is a vulnerable
person”.73 Indeed, the court noted that the specific purpose of Guideline 8 is to ensure that members
are alert to the fact that the testimony of victims of torture may not be of the same quality and
consistency as other witnesses. In another case regarding a claim for refugee protection involving
a husband, wife and their child, who claimed they were detained and abused by authorities in their
home country, the Federal Court ruled that it is not enough for the IRB to recognize refugee
claimants’ specific vulnerability and to accord them procedural protection according to Guideline
8. In this case, the IRB had accepted that the applicants were suffering from Post-Traumatic Stress
Disorder but disregarded what the medical evidence said about the applicants' ability to recall past
events when facing the stress of the hearing. The Federal Court ruled that the board’s decision,
based on inconsistencies in the Applicants’ testimony, did not acknowledge that traumatized
individuals can make key omissions and untruths that undermine their credibility, and that this
render its decision unreasonable.74
In sum, the above analysis reveals that Canadian courts federal courts in particular- tend to
merely see vulnerable migrants as passive subjects, that is as helpless victims of actions determined
by other players than the Canadian state. There needs to be a clearer recognition that the lives of
migrants in Canada can also become precarious due to specific Canadian policies and practices,
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
69 Zhu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 884, at para. 20.
70 Ibid, at para. 16.
71 The Immigration and Refugee Protection Act, in s. 159(1)(h), provides statutory authority for the Guidelines.
72 IRB, Guideline 8 - Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration
and Refugee Board of Canada, Art. 2.1. On the legal treatment of elderly people as a particularly vulnerable group of
refugee claimants, see also: Nagaratnam v. Canada (Minister of Citizenship and Immigration), 2010 FC 204;
Ariprasatham v. Canada (Minister of Citizenship and Immigration), 2016 FC 16.
73 Wardi v. Canada (Minister of Citizenship and Immigration), 2012 FC 1509.
74 AB v. Canada (Minister of Citizenship and Immigration), 2014 FC 899.
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and that even when migrants are seen as being capable of making choices, these choices are in fact
made with limited options.
Conclusion: Vulnerability as a Regulatory Tool for the Global Compact for Safe Orderly
and Regular Migration?
This paper argued that the vulnerability of migrants is in great part constructed or induced by state
policies and practices. By denying or limiting migrants’ access to and enjoyment of fundamental
rights, states also create environments conducive for non-state actors to take advantage of and
exacerbate migrants’ socially constructed vulnerability, i.e. precariousness. The acknowledgement
of this fact is vital for the design and implementation of long-term and sustainable solutions to
combat migrants’ vulnerability.
The overview of the Canadian relevant case-law reveals the courts’ acknowledgement that legal
status puts migrants at a disadvantage. However, courts also take a harsh stance on irregular
migrants who are perceived to ignore deliberately immigration rules, without consideration of their
precariousness, i.e. their vulnerability caused by state policies. Only in exceptional cases, such as
human trafficking, are decision makers ready to acknowledge the protection needs of irregular
migrants. Of note, courts are more prone to recognize the precariousness of migrant workers that
stem from the restrictive nature of work contracts or migrants’ limited access to justice. Similarly,
they admit refugee claimants’ precariousness caused by the recent deterrence policies, including
health care cuts. Therefore state sovereignty and the “legal-illegal migrant” dichotomy continue to
be the central principles guiding the Canadian case-law. Although courts sometimes highlight
migrants’ precariousness caused by external factors such as state policies, they still do not
distinguish between vulnerability and precariousness. Thus the Canadian case-law illustrates that
national courts tend to approach vulnerability in a narrow manner- seeing “vulnerable migrants”
only as “innocent victims” and overlooking the fact that those migrants who are not seen as
“vulnerable” because they make decisions for themselves are in fact constrained in their choice by
a series of factors, including state actions. By contrast, the European supra-national courts tend to
adopt an approach that recognizes the negative impact of state actions on migrants, making them
more vulnerable. This evolving case-law, centered on the principle of non-discrimination,
promotes the social rights of all, regardless of immigration status.
Accordingly, states need to consider migration and refugee policies not only as matters of state
sovereignty, but also as human rights issues. This may prove challenging in the current political
climate, in which migrants are scapegoats without a voice. The GMG’s Draft Principles and
Practical Guidance and the zero draft of the Global Compact for Safe, Orderly and Regular
Migration constitute positive steps in the right direction as they are centered on the human rights
of migrants rather than on their vulnerability. However, the solution to migrants’ vulnerability is
not to create yet other new, binding protocols as recommended by the zero draft (Objective 7), but
to ensure states’ compliance with their obligations set forth in domestic and international human
rights instruments. Many of these obligations, including the protection of social rights, as defined
in the ICESCR and in the case-law of the European courts, are legally binding. Therefore, what is
needed is a commitment by states to ensure the protection of vulnerable migrants based on these
existing instruments. There is no doubt that states’ commitment to uphold the human rights of
migrants and to be held accountable of human rights violations need to be supported with effective
mechanisms of access to justice, accountability and independent oversight. This would require a
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radical change in policies, one that is not foreseeable at present: Through the toxicity of a multi-
layered policy environment, migrants are actively disempowered from the capacity to defend their
rights against the many actors who may violate them, such as employers, recruiters, landlords or
smugglers. Our democratic system is such that most politicians are devoted to their electorate,
which comprises the exploiters but not the migrants.
Human rights have never been better defended than by the rights holders themselves, using the
political and legal tools at their disposal: this is the history of the empowerment of women,
indigenous peoples or gays and lesbians, to take only a few examples.75 Migrants have no political
traction whatsoever for a lack of the right to vote – and they rarely publicly protest, contest,
mobilise, unionise or participate in public debates – for fear of retaliation in the form of detention,
expulsion or non-renewal of contract –. Therefore, responses to migrants’ vulnerabilities must take
the form of measures that reduce the precariousness of their status and provide them with the
confidence that a public protest or a lawsuit will not trigger detention, expulsion or other forms of
retaliation on the part of their employer or landlord, or of the State.
Only an effective human rights framework would achieve these goals. Such a framework would
also entail, at minimum, a strong commitment by states to their domestic and international human
rights obligations. Improved mechanisms for inter-agency collaboration should be developed to
ensure implementation of these norms and principles.76 The establishment within the UN of a
standing platform on the human rights of migrants would enable systematic interaction between
all relevant stakeholders – including States, other international and regional organisations, civil
society and migrants themselves – on a broad range of crosscutting human rights and migration
issues.
The Global Compact for Safe Orderly and Regular Migration must remind states of their obligation
not to render any migrant vulnerable. If the purpose of the Global Compact is to be achieved as
demanded by the New York Declaration, the human rights of migrants must be respected and
delivered by all states.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
75!Empowerment refers to the enhancement of one’s individual capabilities to access and effectively enjoy his or her
fundamental rights and freedoms.!
76 A Betts, ‘Towards A ‘Soft Law’ Framework for the Protection of Vulnerable Irregular Migrants (2010) 22
International Journal of Refugee Law 209.
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Annex 1 – Vulnerability of Migrants: Extracts from the New York Declaration 19 September
2016 A/71/L.1
"We will combat with all the means at our disposal the abuses and exploitation suffered by
countless refugees and migrants in vulnerable situations. “ para 10
"Equally, we will address movements caused by poverty, instability, marginalization and exclusion
and the lack of development and economic opportunities, with particular reference to the most
vulnerable populations. “ para 12
"We recognize and will address, in accordance with our obligations under international law, the
special needs of all people in vulnerable situations who are travelling within large movements of
refugees and migrants, including women at risk, children, especially those who are unaccompanied
or separated from their families, members of ethnic and religious minorities, victims of violence,
older persons, persons with disabilities, persons who are discriminated against on any basis,
indigenous peoples, victims of human trafficking, and victims of exploitation and abuse in the
context of the smuggling of migrants. para 23
“We take note of the work done by the Global Migration Group to develop principles and practical
guidance on the protection of the human rights of migrants in vulnerable situations.” Para 51
“We will consider developing non-binding guiding principles and voluntary guidelines, consistent
with international law, on the treatment of migrants in vulnerable situations, especially
unaccompanied and separated children who do not qualify for international protection as refugees
and who may need assistance. The guiding principles and guidelines will be developed using a
State-led process with the involvement of all relevant stakeholders and with input from the Special
Representative of the Secretary-General on International Migration and Development, the
International Organization for Migration, the Office of the United Nations High Commissioner for
Human Rights, the Office of the United Nations High Commissioner for Refugees and other
relevant United Nations system entities. They would complement national efforts to protect and
assist migrants.” Para 52
“Particular attention should be paid to the needs of migrants in vulnerable situations who return,
such as children, older persons, persons with disabilities and victims of trafficking.” para 58
“While recognizing the contribution of civil society, including non-governmental organizations,
to promoting the well-being of migrants and their integration into societies, especially at times of
extremely vulnerable conditions, and the support of the international community to the efforts of
such organizations, we encourage deeper interaction between Governments and civil society to
find responses to the challenges and the opportunities posed by international migration.” Para 61
Content Annex 2: “(i) Effective protection of the human rights and fundamental freedoms of
migrants, including women and children, regardless of their migratory status, and the specific
needs of migrants in vulnerable situations;”
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Annex 2: List of terms searched in Lexis-Nexis Canada (up to January 15, 2018)
Terms Searched
Results
“Vulnerable migrant”
No case found
“Precarious migrant”
No case found
“Migrant” & “vulnerable”
- 2 cases found at the SCC level
- 22 cases found at the FC level
- 60 cases found for al court cases levels
“migrant” & “precarious”
- No case found at the SCC level
- 2 cases found at the FC level
- 13 cases found for al court cases levels
“migrant” & “precariousness”
- No case found at the SCC level
- No case found at the FC level
- 1 case found for all court cases levels
“migrant” & “precarity »
No case found
« vulnerable immigration status »
- No case found at the SCC level
- No case found at the FC level
- 3 cases found for all court cases levels
« migrant » and "vulnerable
status"
No case found
“migrant” and “precarious
status”
- 1 case found for “all Canadian Court Cases”
“migrant” and “precarious
situation”
- No case found at the SCC level
- No case found at the FC level
- 2 cases found for all court cases levels
“migrant” and “vulnerable
situation”
- No case found at the SCC level
- 1 case found at the FC level
- 2 cases found for all court cases levels
“precarious immigration status”
- No case found at the SCC level
- 5 cases found at the FC level
- 22 cases found for all court cases levels
“precarious migration status”
No case found
“precarious migratory status”
No case found
“precarious status migrant”
- 1 case found for “all Canadian Court Cases”
“precarious immigration status”
- No case found at the SCC level
- 5 cases found at the FC level
- 22 cases found for all court cases levels
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!
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“illegal migrant” and
“vulnerable”
- 3 cases found for all court cases levels (all of 3 at the FC
level)
“illegal migrant” and
“precarious”
- 1 case found at the FC level
“irregular migrant” and
“vulnerable”
No case found
“irregular migrant” and
“precarious”
No case found
"undocumented migrant" and
vulnerable
No case found
"undocumented migrant" and
precarious
No case found
"without status migrant" and
vulnerable
No case found
"without status migrant" and
precarious
No case found
“illegal immigrant” and
“vulnerable”
No case found
“illegal immigrant” and
“precarious”
- No case found at the SCC level
- 1 case found at the FC level
- 2 cases found for all court cases levels
“irregular immigrant” and
vulnerable
No case found
“irregular immigrant” and
precarious
No case found
“undocumented immigrant” and
precarious
No case found
“undocumented immigrant” and
vulnerable
No case found
"non-status immigrant" and
"precarious"
No case found
"non-status immigrant" and
"vulnerable"
No case found
“Migrant” + “vulnerable” +
“undocumented”
- 1 case found at the FC level
- 2 cases found for all court cases levels
“Migrant” + “vulnerable” +
“irregular”
No case found
2018 CanLIIDocs 61
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24!
“Migrant” + “vulnerable” +
“illegal”
No case found
“Migrant” + “vulnerable” +
“non-statusl”
No case found
“Migrant” + “precarious” +
“undocumented”
No case found
“Migrant” + “precarious” +
“irregular”
No case found
“Migrant” + “precarious” +
“illegal”
No case found
“Migrant” + “precarious” +
“non-status”
No case found
“precarious status immigrant”
No case found
“uncertain immigration status”
- No case found at the SCC level
- 13 cases found at the FC level
- 31 cases found in “all Canadian Court Cases”
“uncertain migration status”
No case found
“Migrant” and “smuggling”
- 2 cases found at the SCC level
- 3 cases found at the FC level
- 16 cases found in “all Canadian Court Cases”
“Migrant” and “trafficking”
- 2 cases found at the SCC level
- 36 cases found at the FC level
- 69 cases found in “all Canadian Court Cases”
“Migrant” and “smuggling” and
“precarious”
- No case found at the SCC level
- No case found at the FC level
- 3 cases found in “all Canadian Court Cases”
“Migrant” and “smuggling” and
“vulnerable”
- No case found at the SCC level
- 6 cases found at the FC level
- 57 cases found in “all Canadian Court Cases”
“trafficking” or “trafficked” and
“migrant” and “vulnerable”
- No case found at the SCC level
- 7 cases found at the FC level
- 16 cases found in “all Canadian Court Cases”
-
“trafficking” or “trafficked” and
“migrant” and “precarious”
- No case found at the SCC level
- 1 case found at the FC level
- 2 cases found in “all Canadian Court Cases”
2018 CanLIIDocs 61
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!
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“human smuggling” and
“vulnerable”
- No case found at the SCC level
- 5 cases found at the FC level
- 29 cases found in “all Canadian Court Cases”
-
“human smuggling” and
“precarious””
- No case found at the SCC level
- 1 case found at the FC level
- 1 case found in “all Canadian Court Cases”
“human trafficking” and
“vulnerable”
- No case found at the SCC level
- 9 cases found at the FC level
- 113 cases found in “all Canadian Court Cases”
“human trafficking” and
“precarious”
- No case found at the SCC level
- 1 case found at the FC level
- 3 cases found in “all Canadian Court Cases”
“Temporary Foreign Worker”
and “abuse”
- No case found at the SCC level
- 6 cases found at the FC level
- 12 cases found in “all Canadian Court Cases”
“Temporary Foreign Worker”
and “abusive”
- No case found at the SCC level
- No case found at the FC level
- 3 cases found in “all Canadian Court Cases”
“Temporary Foreign Worker”
and “vulnerable/vulnerability”
- No case found at the SCC level
- 4 cases found at the FC level
- 12 cases found in “all Canadian Court Cases”
“Temporary Foreign Worker”
and “precarious”
- No case found at the SCC level
- No case found at the FC level
- 2 cases found in “all Canadian Court Cases”
“Temporary Foreign Worker”
and “exploitation”
- No case found at the SCC level
- 2 cases found at the FC level
- 3 cases found in “all Canadian Court Cases”
“Temporary Foreign Worker”
and “coercion”
- No case found at the SCC level
- No cases found at the FC level
- 1 case found in “all Canadian Court Cases”
2018 CanLIIDocs 61
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!
26!
“foreign worker” and “precarity”
No case found
“foreign worker” and
“precariousness”
- No case found at the SCC level
- No cases found at the FC level
- 2 cases found in “all Canadian Court Cases”
“Migrant” and “child” and
“vulnerable”
- No case found at the SCC level
- 13 cases found at the FC level
- 42 cases found in “all Canadian Court Cases”
“Migrant” and “child” and
“precarious”
- No case found at the SCC level
- 3 cases found at the FC level
- 14 cases found in “all Canadian Court Cases”
“Migrant child/ren” and
“vulnerable”
- No case found at the SCC level
- 1 case found at the FC level
- 1 case found in “all Canadian Court Cases”
“Migrant child/ren” and
“precarious”
- No case found at the SCC level
- 1 case found at the FC level
- 1 case found in “all Canadian Court Cases”
“Unaccompanied minor” and
“vulnerable”
- No case found at the SCC level
- 6 cases found at the FC level
- 12 cases found in “all Canadian Court Cases”
“Unaccompanied minor” and
“vulnerability”
- No case found at the SCC level
- 3 cases found at the FC level
- 4 cases found in “all Canadian Court Cases”
“Unaccompanied minor” and
“precarious”
- No case found at the SCC level
- No case found at the FC level
- 37 cases found in “all Canadian Court Cases”
“Asylum seeker” and
“vulnerable”
- No case found at the SCC level
- 33 cases found at the FC level
- 189 cases found in “all Canadian Court Cases”
“Asylum seeker” and
“precarious”
- No case found at the SCC level
- 8 cases found at the FC level
- 9 cases found in “all Canadian Court Cases”
“Asylum seeker” and “vulnerable
status”
- No case found at the SCC level
- No case found at the FC level
- 3 cases found in “all Canadian Court Cases”
“Asylum seeker” and “precarious
status”
- No case found at the SCC level
- No case found at the FC level
- 1 case found in “all Canadian Court Cases”
2018 CanLIIDocs 61
!
!
27!
“asylum seeker” and “precarity”
No case found
“asylum seeker” and
“precariousness”
No case found
“asylum seeker” and
“vulnerability”
- No case found at the SCC level
- 10 cases found at the FC level
- 13 cases found in “all Canadian Court Cases”
“Vulnerable asylum seeker”
No case found
“vulnerable refugee claimant”
- No case found at the SCC level
- 2 cases found at the FC level
- 2 cases found in “all Canadian Court Cases”
“vulnerability of refugee
claimant(s)”
- No case found at the SCC level
- 1 case found at the FC level
- 1 case found in “all Canadian Court Cases”
“refugee claimant's particular
vulnerability”
- No case found at the SCC level
- 1 case found at the FC level
- 1 case found in “all Canadian Court Cases”
(same as above)
“Refugee” and “vulnerable”
More than 3000 Results
“Refugee” and “precarious”
- No case found at the SCC level
- 149 cases found at the FC level
- 814 cases found in “all Canadian Court Cases”
“Refugee” and “vulnerable
status”
- No case found at the SCC level
- 1 case found at the FC level
- 5 cases found in “all Canadian Court Cases”
“Refugee” and “precarious
status”
- No case found at the SCC level
- 9 cases found at the FC level
- 54 cases found in “all Canadian Court Cases”
2018 CanLIIDocs 61
... The precarity of their situations due to economic insecurity renders them vulnerable and pushes them to migrate ( Crush and Tevera, 2010 ). The precarity results from multiple and intersecting socioeconomic inequalities embedded in structural and societal dynamics leading to heightened levels of poverty and vulnerability to livelihood risks and shocks ( Atak et al., 2018 ). Given the precarity of circumstances leading to migration and the challenges associated with formal mobility, much of the migration has been irregular through clandestine routes ( Ċ Mainwaring and Brigden, 2016 ;Zack et al., 2019 ). ...
... Given the precarity of circumstances leading to migration and the challenges associated with formal mobility, much of the migration has been irregular through clandestine routes ( Ċ Mainwaring and Brigden, 2016 ;Zack et al., 2019 ). While on the move, migrants are exposed to risks, violence and abuse and such factors like gender, age and ethnicity may further worsen the vulnerability ( Atak et al., 2018 ). Notably, their vulnerability is situational in that they are irregular and personal because of their gender. ...
... In the case of irregular female migrants, the intersection of their irregular status with their gender makes them more susceptible to abuse and violation than men ( Maphosa, 2012 ;Atak et al., 2018 ). This further worsens their vulnerability and exposure to risk during the migration journey and at detention. ...
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Background: Migration is a common and visible feature of global mobility where the driving factors would be the search for better livelihood opportunities. Due to economic hardships in Zimbabwe, women have also been noted to migrate to neighbouring countries in search of opportunities to look after their left-behind families. However, the COVID-19 restrictions and other state regulations have become facilitators of illicit migration as irregular migrants (including women) devise more complex means to traverse borders and gain access. This paper assesses the vulnerabilities and the lived realities of female irregular migrants between Zimbabwe and Botswana during the clandestine migration journeys. Methods: A qualitative descriptive survey that targeted nineteen (19) participants was conducted using semi-structured and unstructured interviews. The participants included fifteen (15) Female irregular migrants and four (4) Key Informants who worked at Plumtree Border Post. The interviews were recorded, transcribed verbatim, coded and thematically analysed. Results: Four vulnerabilities were reported/experienced by the participants: violence and robbery, Rape and sexual harassment, Psycho-emotional harassment, and health vulnerabilities in detention. The participants reported that these vulnerabilities are experienced at different levels of the migration process and deportation. Conclusions: Female migrants are generally at risk as they are bound to be taken advantage of at different levels during migration and deportation. Therefore, there is a need to relook at the policies implemented at the ports and ensure women are subjected to humane treatment even during the deportation process.
... Nevertheless, we believe that such a holistic analysis of the concept of vulnerability as it is operationalized in both components of Canada's refugee policy is timely, given that at the global level, shared commitments to address migrant vulnerability in state policies and practices have been steadily increasing, for instance in the 2018 Global Compact for Safe Orderly and Regular Migration (Atak et al. 2018). Finally, given Canada's historic leadership in the global refugee regime (Milner 2021), there are good reasons to expect that Canadian laws, policies, and practices may hold valuable lessons for scholars and policy makers 1 All VULNER project partners also interviewed immigration lawyers, government decision makers, frontline practitioners, and migrants themselves. ...
... The reasons for this move are two-fold. First, the concept places a stronger emphasis on the construction of vulnerabilities by state policies, laws, and social processes (Goldring et al. 2009;Atak et al. 2018). Furthermore, precariousness captures a broad range of irregular and illegalized statuses in law and is often highly gendered and racialized (Goldring et al. 2009). ...
... We further avoid referring to migrants as inherently vulnerable and instead opt for "migrants made vulnerable" to help signify the external processes at play. As Atak et al. (2018) put it, a framing of precarity acknowledges the external and systemic production of conditions that create vulnerable situations that place individuals at risk. Trends suggest that precarious statuses will likely continue to expand (Goldring et al. 2009), further underlining the constructed nature of the concept and the role that states play in sustaining it. ...
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... The European Court of Human Rights in M.S.S. v Belgium and Greece reiterated that the recognition of the inherent vulnerability and special protection needs of asylum seekers rests on broad international consensus referencing the Geneva Convention, the UNHCR and the European Reception Directive. 15 Objective 7 of the UN's Global Compact on Safe, Orderly, and Regular Migration aims to 'address and reduce vulnerabilities in migration' (UNGA 2018, p. 5) requiring contracting states to review and eliminate policies and laws that exacerbate migrant vulnerability (Atak et al. 2018). These perspectives reiterate a focus on systemically generated vulnerability related to displacement, rather than vulnerability stemming from other shared characteristics, such as age or gender. ...
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... Despite a large body of literature documenting the benefits to communities of mobile money remittances [16][17][18][19], less has been recorded about the welfare and hardships faced by the individuals who migrate to urban areas in search of employment. Qualitative literature suggests that new migrants represent a particularly vulnerable community: a lack of opportunities in particular neighbourhoods increases the risk of poverty, exploitation, and even indentured labour and trafficking [2,20]. Yet migrants are not a homogeneous group. ...
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Understanding what factors predict whether an urban migrant will end up in a deprived neighbourhood or not could help prevent the exploitation of vulnerable individuals. This study leveraged pseudonymized mobile money interactions combined with cell phone data to shed light on urban migration patterns and deprivation in Tanzania. Call detail records were used to identify individuals who migrated to Dar es Salaam, Tanzania’s largest city. A street survey of the city’s subwards was used to determine which individuals moved to more deprived areas. t-tests showed that people who settled in poorer neighbourhoods had less money coming into their mobile money account after they moved, but not before. A machine learning approach was then utilized to predict which migrants will move to poorer areas of the city, making them arguably more vulnerable to poverty, unemployment and exploitation. Features indicating the strength and location of people’s social connections in Dar es Salaam before they moved (‘pull factors’) were found to be most predictive, more so than traditional ‘push factors’ such as proxies for poverty in the migrant’s source region.
... Despite a large body of literature documenting the benefits to communities of mobile money remittances [16][17][18][19], less has been recorded about the welfare and hardships faced by the individuals who migrate to urban areas in search of employment. Qualitative literature suggests that new migrants represent a particularly vulnerable community: a lack of opportunities in particular neighbourhoods increases the risk of poverty, exploitation, and even indentured labour and trafficking [2,20]. Yet migrants are not a homogeneous group. ...
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Full-text available
Understanding what factors predict whether an urban migrant will end up in a deprived neighbourhood or not could help prevent the exploitation of vulnerable individuals. This study leveraged pseudonymized mobile money interactions combined with cell phone data to shed light on urban migration patterns and deprivation in Tanzania. Call detail records were used to identify individuals who migrated to Dar es Salaam, Tanzania's largest city. A street survey of the city's subwards was used to determine which individuals moved to more deprived areas. t-tests showed that people who settled in poorer neighbourhoods had less money coming into their mobile money account after they moved, but not before. A machine learning approach was then utilized to predict which migrants will move to poorer areas of the city, making them arguably more vulnerable to poverty, unemployment and exploitation. Features indicating the strength and location of people's social connections in Dar es Salaam before they moved ('pull factors') were found to be most predictive, more so than traditional 'push factors' such as proxies for poverty in the migrant's source region. Supplementary information: The online version contains supplementary material available at 10.1140/epjds/s13688-022-00340-y.
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In our globalised world, where inequality is deepening and migration movements are increasing, states continue to maintain strong regulatory control over immigration, health and social policies. Arguments based on state sovereignty can be employed to differentiate irregular migrants from other groups and reduce their right to physical and mental health to the provision of emergency medical care, even where resources are available. Drawing on the enabling and constraining factors of human rights law and public health, this book explores the scope and limits of the right to health of migrants in irregular situations, in international and European human rights law. Addressing these peoples' health solely with an exceptional medical paradigm is inconsistent with the special attention granted to people in vulnerable situations and non-discrimination in human rights, the emerging rights-based approach to disability, the social priorities of public health and the interdependence of human rights.
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We deploy a novel and radical approach to vulnerability theory to investigate Scotland's response to asylum seekers’ vulnerability during the COVID-19 pandemic and test Scotland's self-affirmation as a hospitable country. Our ethical vulnerability analysis enhances Fineman's vulnerability analysis by denationalising the vulnerable subject and locating her within our ‘uneven globalised world’. We further enrich this fuller version of vulnerability analysis with insights from Levinas's and Derrida's radical vulnerability theory and ethics of hospitality. We demonstrate how our ethical vulnerability analysis enables us to subvert the hostile premise of migration laws and policies, and thus fundamentally redefine relationships between guests and hosts so that the host is compelled to respond to the Other's vulnerability. We argue that this hospitable impulse yields a generous and absolute commitment to progressive social welfare provision for asylum seekers, which brings Scotland closer to fulfilling its aspirations to be a hospitable host by welcoming the Other.
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This research report presents some of the intermediate research results of the VULNER project, based on the first phase of the project, which consisted of mapping out the vulnerability assessment mecha- nisms developed by state authorities in Lebanon, including how they are implemented on the ground through the practices of the public servants in charge. In addition, the report examined the vulnerability assessment mechanism employed by international organizations in Lebanon, whether the United Na- tions agencies or other international and national non-governmental organizations.
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Despite attempts by the Dutch government to combat and discourage unlawful residence, there are people who live in the Netherlands without a residence permit. However, little is known about the way they live (or survive) and work in the Netherlands. Although their residence is not legal, this does not mean that migrants without residence permits have no rights. On the contrary, this book connects the legal legislation and regulations on the national and international level with the socio-economic reality of this vulnerable group of migrants. Based on unique empirical material, this study shows the discrepancy between the rights that also apply to migrants without residence permits, for example as workers, as patients or as residents, and shows the absence of protection in everyday practice. The book concludes with an exploration of possibilities for improving the vulnerable position of migrants without residence permits in the Netherlands. Freely available at https://library.oapen.org/handle/20.500.12657/52883
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Although the concept of vulnerability has become increasingly prevalent in both domestic and international migration policy in recent years, its precise meaning and implications remain ambiguous and under-examined. Without a coherent understanding of what makes individuals vulnerable, the concept can either act as a justification for additional consideration or reinforce stereotypes of disempowerment. To address this lack of clarity, this article presents the results of an extensive review of Canadian case law. Drawing on data from over 750 cases primarily from the Immigration and Refugee Board and the Federal Court of Canada, this study sought to examine how the concept of vulnerability is used by both decision-makers and parties to cases involving migrants seeking legal status and various forms of protection (including, but not limited to, asylum) under national or international law in Canada. Although an analysis of case law necessarily produces only a partial image of the landscape, this review identified two understandings of vulnerability at play: a procedural one associated with the need to ensure access to justice and a fair hearing, and a substantive one where vulnerability is linked to the categorization of particular groups. In both instances, the recognized importance of the concept is offset by its narrow and inconsistent application and a failure to acknowledge the role that the institutions and mechanisms of “protection” play in creating and perpetuating vulnerability.
but also noted that the applicant was aware of her precarious status and that she made her decision to stay in Canada and to have a Canadian born child "with full knowledge of the situation": Daniel v. Canada (Minister of Citizenship and Immigration)
precarious status" in Canada, but also noted that the applicant was aware of her precarious status and that she made her decision to stay in Canada and to have a Canadian born child "with full knowledge of the situation": Daniel v. Canada (Minister of Citizenship and Immigration), 2011 FC 797, at para. 19 53 Immigration and Refugee Protection Act, S.C. 2001, c. 27.
Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 348 (quoting Prof. Beatty's writings in this area)
  • Ontario
Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 348 (quoting Prof. Beatty's writings in this area).
Dawat Restaurant Ltd. (c.o.b. Palki Restaurant
  • Tadena
Tadena v. Dawat Restaurant Ltd. (c.o.b. Palki Restaurant), 2017 BCPC 205, at para 14.
2006 FC 16, at para. 90. See also: Canadian Council for Refugees v. Canada
  • Canada
Canada (Minister of Citizenship and Immigration), 2006 FC 16, at para. 90. See also: Canadian Council for Refugees v. Canada, 2007 FC 1262 (Justice Phelan considering refugee claimants as "vulnerable persons").
Public Safety and Emergency Preparedness)
  • Canada Duran V
Duran v Canada (Public Safety and Emergency Preparedness), 2007 FC 738;
  • Peart V Ontario
Peart v. Ontario (Community Safety and Correctional Services), 2014 HRTO 611, at para. 273.