The War in Ukraine
Since the start of Russia’s invasion of Ukraine, our firm has been focused on assisting Ukrainians affected by the war.
We recorded several videos addressing IRCC announcements, relayed information via the media, and setup a Telegram group to share information and guidance.
Given the technical nature of the refugee determination process, which requires a nexus between the persecution and an enumerated ground (more on this below), the fact that the refugee determination hearing will take place 10-12 months (in the best case scenario) after a claim is made, as well as the forward-looking nature of the analysis, one of the points repeatedly stressed by us was caution with respect to war-related refugee claims for Ukrainian nationals.
While our focus has been on Ukrainians fleeing the conflict, we have seen a significant increase in the number of Russian refugee inquiries, primarily from individuals who have expressed their opposition to the war and were targeted by the authorities and/or militarized segments of Russian society.
When it comes to such inquiries, our advice has generally been a mirror-opposite of that provided to Ukrainian nationals. That is, once you make an informed decision, we advise seeking protection as soon as possible. In this blog, we will take a deeper dive into the subject of political opinion-based refugee claims, and why we recommend that Russian clients pursue such claims at the earliest possible juncture.
Political Opinion and Refugee Protection
Canada is party to the 1951 Convention relating to the Status of Refugees, the key international refugee law instrument, and Section 96 of Canada’s Immigration and Refugee Protection Act adopts the definition of a refugee as set out in the 1951 Convention:
A Convention refugee is a person who by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, is unwilling to avail themselves of the protection of each of those countries, or
(b) not having a country of nationality, is outside their country of former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
The above definition provides that the persecution one seeks to escape must have a nexus (connection) to at least one of the specified grounds: race, religion, nationality, membership in a particular social group, or a political opinion.
Apart from imputed (attributed) political opinion cases, persecution related to one’s political opinion is generally tied to freedom of expression, which is a core human right.
It is important to note that the convention refers to political opinion rather than the narrower category of political activity. Such opinions may be expressed or unexpressed, real or merely imputed by the state. In addition, as noted by Professors Hathaway and Foster in Law of Refugee Status, actual expression of a political opinion in some countries may be impossible due to the extreme risk of persecution, and that the lack of expression should therefore not lead to a rejection of the claim (consider a country like North Korea as an example).
Russian Political Refugees
Since the annexation of Crimea in February of 2014, there has been a significant increase in both propaganda as well as a crackdown on freedom of expression in Russia. Russian authorities have used laws on “foreign agents” and “undesirable organizations” to curb the right to freedom of expression and silence independent media, journalists, and activists. Penalties and fines were introduced for non-inclusion of the mandatory headline-style “foreign agents” disclaimer in relevant publications.
Over the years, I have assisted with a range of political refugee claims from Russia, and while the objective basis for such claims (country conditions) was never a real issue during hearings, Russia’s slide towards full totalitarianism since the start of the war in Ukraine has only strengthened the objective basis for such claims. Examples of this include:
- The shutting down of the last independent media organizations and online portals;
- Increased persecution of independent journalists and opposition leaders (still in Russia);
- The criminalization of anti-war activities by way of persecutory laws;
- A far more aggressive and hardline approach towards real or perceived dissent from the states security apparatus;
- A significant intensification of the “opposition = enemies of Russia” which has led to an atmosphere of fear, hate, and increased attacks on those dating to take a stance against the war.
It is important to note, that while active persecution has significantly increased since the start of the war, one need not be subject to detention, violence, torture, or other forms of physical persecution to qualify for protection. Instead, when it comes to Russian political refugee claims, the key issues before Canada’s Refugee Protection Division (which hears refugee claims) are typically tied to establishing the fact that the claimant is unable to express his or her political opinion without facing persecution.
It is further important to note that in the current environment, one does not need to belong to a political and/or opposition organization or be able to demonstrate pre-war political activity such as attendance at meetings or support of opposition figures. Having an anti-war stance, which one cannot express without being persecuted either by the state and/or fellow Russians, should be sufficient to gain refugee protection.
If you would like to learn more about claiming refugee protection, contact us.