Update: This story contains a response received from Immigration Canada after the article was originally published.
Humayun Sarwar came to Canada as a refugee from Afghanistan when he was 14 years old. Invited to attend a model U.N. conference in New York City, he fled north and crossed the Canadian border, legally.
Once in Canada, he applied for and received refugee protection because the Taliban had threatened to kidnap and kill him for participating in the conference and for his family’s pro-Western views and support of the United States.
“You will not be spared until you’re punished for your action,” read a “night letter” from the Taliban, slipped between the cracks of his parents’ doorway while he was in the U.S.
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Yet, despite these threats, Immigration Canada is blocking him from being reunited with his family.
But, according to regulations created by Immigration Canada, parents and siblings of child refugees are not considered “family members.”
And since only family members — defined by Immigration Canada as a spouse, common-law partner or dependent child — can be included in an application for permanent residency, Sarwar and hundreds more child refugees like him arriving into Canada each year are prevented from reuniting with their parents in the same way adult refugees reunite with their children.
“It was like a nightmare. I had nightmares every single night. I couldn’t sleep,” Sarwar said. “Every single moment I was thinking about my family.”
But the threats from the Taliban were too serious to ignore, he said. Sarwar had no choice but to flee to Canada.
Now 17, Sarwar lives in Toronto with the support of his sister and brother-in-law, while his parents — who’ve also faced death threats from the Taliban — are left hiding in Afghanistan.
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Sarwar says he fears for his parents’ lives and doesn’t understand why Canada is preventing them from being together.
According to half a dozen immigration lawyers who spoke with Global News, this “cruel” and “contradictory” policy not only creates severe mental anguish for children like Sarwar, already traumatized by the horrors of war, it also leads to prolonged, and sometimes permanent, family separation.
“It’s cruel because this is a child who had a big part of their childhood taken away from them through no fault of their own,” said Raoul Boulakia, with the Ontario Refugee Lawyers Association.
“The regulation is not humane because a child who’s a minor should be able to be reunited with his parents,” he said.
Meanwhile, Sarwar’s lawyer, Evgenia Rokhline, says she can think of no reason why this law should be allowed to continue.
“This is clearly a very unfair policy,” she said. “Family reunification is one of the objectives of our immigration act, this is the pillar of our immigration system. Yet somehow the children who are refugees are prevented from benefiting from our own law.”
Child refugees forced to go through costly ‘two-step’ process
Geraldine Sadoway has represented child refugees for more than 30 years and works to reunite families separated by a policy she says unfairly keeps children from their parents.
“The law shouldn’t prevent their reunification. The law should encourage their reunification,” she said.
Sadoway is an expert in these cases. She’s even developed a system for beating the policy that’s now used by other lawyers.
She advises child refugees to add their parents to their permanent residency application, knowing they’ll be denied. She then files a separate application under “humanitarian and compassionate” grounds for the parents to come to Canada.
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When Immigration officials deny the parents inclusion on the child’s residency application, which Sadoway says they always do, she challenges the constitutionality of the decision, arguing Immigration Canada’s definition of a “family member” violates Canada’s Charter of Rights and Freedoms, as well as Canada’s international obligations under separate UN conventions protecting the rights of children and refugees.
In almost every case, Sadoway says the government “settles,” meaning they approve the separate humanitarian application before the constitutional challenge goes before the courts.
This is because the government knows it has a losing case, Sadoway said. And any constitutional challenge allowed to proceed through the courts would almost certainly result in the policy being overturned, she said.
What this means is child refugees who have money, or who receive taxpayer-funded legal aid, have a chance of being reunited with their families — albeit after an extended period of time. But children who either do not have money or do not receive adequate legal advice are left separated from their families or forced to wait until they’re old enough to have the financial resources to bring them to Canada through the immigration sponsorship program.
In either case, Sadoway says forcing children through this costly and unnecessary process is contrary to Canada’s responsibilities and out of step with other areas of the country’s immigration policy.
If children come to Canada — with or without their parents — and are deemed legitimate refugees, they should have the right to be reunited with their families as quickly, and with as little cost, as possible, she says.
Not doing so is to “mix voluntary cruelty with voluntary kindness,” Sadoway said during a 2006 Federal Court hearing, citing a government report that looked at Canada’s obligations to reunite refugees with their families.
Boulakia, meanwhile, says the policy has destroyed the lives of some children.
“I’ve certainly seen what an emotional toll it takes on people who feel very devoted to their parents and who feel that their childhood was completely cleaved in half,” he said.
“They have a wound in the sense that their whole life got disrupted and it’s incredibly hard for them to repair that if the government doesn’t allow them to be reunited with their parents.”
Government has no ‘statistical information’ to support policy
The official said as many as 300 child refugees arrive in Canada each year and that the rule was put in place to protect children travelling alone from the “scourge” of child traffickers.
In his testimony, the official said Immigration Canada’s sole reason for supporting the definition of the term “family member,” as currently written, was the belief that children could be exploited and used as “anchors” or “beachheads” for parents and other family members to enter Canada.
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However, when pressed by Sadoway, the official agreed the government had conducted no research to support its claim. Instead, the policy was based on a handful of cases — particularly those involving children smuggled on boats from China.
Asked if the government had conducted any research to study the effects of preventing separated children from reuniting with their parents, the official said, “We do not have empirical studies on that phenomenon.”
And while the official acknowledged that there is potential for psychological harm to children separated from their families, and that it’s in the best interest of a child to be with their parents, he was adamant the policy is necessary and that child refugees alone in Canada are cared for properly.
“There’s an emotional want of the child that would not be met,” the official said.
But to Sadoway, this view is unacceptable. She says no child with a loving parent should be forced to become a ward of the state.
“It’s almost more like the situation of the residential schools where it was assumed the kids would be fine in a foster care environment,” she said.
Global News requested an interview with Immigration Minister, Ahmed Hussen, but was told he was unavailable.
However, a spokesperson for Immigration Canada provided a statement confirming the government’s justification for the policy is the same as it was in 2006.
“Family reunification is a fundamental pillar of our immigration system. At the same time, we must provide safeguards against the potential exploitation of children,” said Beatrice Fenelon. “Allowing children to include parents on their application increases this risk as unaccompanied minors are more vulnerable.”
She said the two-step process remains necessary so the “best interests” of child refugees are protected.
As for “statistical information” to support a policy that continues to deny children the right to add parents to their permanent residency applications, Fenelon confirmed none exists.
The law doesn’t make sense, lawyers say
It makes no sense that adult refugees can add children to their permanent residency applications, while child refugees — who are more vulnerable than adults — cannot add their parents, Sadoway says.
The reason for this difference, she says, is that when a parent allows a child to travel to Canada alone, the government has a “presumption” the parent is not acting in the child’s best interest. The government official, in 2006, said it’s not a presumption in “every case,” insisting the two-step process is necessary so the parent’s motivations can be further investigated.
But if a parent flees a war zone or any other dangerous situation, leaving kids behind, the government has no tools in place to investigate if the parent was acting in the best interest of the child, the official said.
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Whether left at home while a parent flees persecution or sent abroad to avoid imminent danger, children are almost always at risk, Sadoway said. To presume a parent who allows — or even encourages — a child to flee a life-threatening situation is not acting in their child’s best interest ignores the reality most refugees face, she said.
For Sadoway, the solution is simple. She says the immigration minister could simply change the term “family member” to allow children like Sarwar who apply for asylum under the age of 18 to add their parents and siblings to their residency applications once accepted as refugees. It wouldn’t even require an act of Parliament, she said.
She also thinks it’s strange Canadian politicians — including Prime Minister Justin Trudeau — would criticize the Trump administration’s policy that led to the separation of children, when Canada is itself keeping families apart.
“It doesn’t really make sense that you criticize the U.S. for doing something that Canada is actually involved in doing on a long-term basis, with accepted refugees who are children,” she said.
For Sarwar, however, the issue isn’t political.
“I see my friends with their parents and with their families all the time,” he said. “With the support and love that they get. But I don’t have that at the moment.”
“I feel alone. … I always feel that absence of my parents. I miss my mom every single day.”