Lack of any link of causality between residency status and the right to family life

Facts

Nadem Khan, who sought refugee status in Canada in 1997, was granted this status in 1999, and later applied for permanent residence. However, due to alleged past affiliations with organizations involved in terrorism (MQM and MQM-H), Canadian authorities deemed him inadmissible for permanent residence. Despite multiple interviews, a deportation order was issued in 2007 after a series of legal challenges and appeals. Concurrently, he sought ministerial relief to overcome his inadmissibility, which was ultimately denied in 2015 after a lengthy process, including a Supreme Court ruling and redetermination. The Federal Court dismissed his final appeal, upholding the decision that, despite his refugee status, his inadmissibility on grounds of terrorism precluded him from obtaining permanent residence, aligning with Canadian immigration law that allows for refugees to be denied permanent residency on serious grounds.

The author’s complaint centres around the emotional and psychological distress he has endured due to living in Canada under temporary status for 20 years, arguing this constitutes cruel treatment under article 7 of the Covenant. He highlights the constant fear of deportation to Pakistan as a significant source of this distress. Additionally, he contends that Canada’s refusal to grant him permanent residence interferes with his right to respect for his home under article 17 (1) of the Covenant. He interprets “home” as not only a physical place but also the network of personal, social, and economic relationships that constitute private life. The author describes how his uncertain status has prevented him from establishing long-term relationships, starting a family, and experiencing significant personal milestones, such as being with his dying father. He also mentions the challenges of securing long-term employment and feeling excluded from Canadian society. The complaint suggests that the State’s actions are arbitrary and disproportionate, failing to balance national security concerns with the right to respect for his home, thus violating article 17 of the Covenant.

Admissibility

Despite the State’s argument that the author’s claims didn’t fall under the Covenant’s provisions for residency rights and emotional suffering, the Committee found the claim about mental suffering admissible under article 7, emphasizing the broad scope of protection for individual dignity and integrity. However, it deemed the claim related to the right to a “home” under article 17 inadmissible, interpreting “home” more narrowly and not as implying a right to a particular immigration status. This interpretation can be found in General Comment No. 16 (1988) and in the case Naidenova et al. v. Bulgaria.

Recalling its General Comment No. 20, the Committee noted that article 7 aims to protect an individual’s dignity and physical and mental integrity against harm, intended or not. The Committee addressed the State party’s contention that the term “home” in article 17 (1) does not extend to imply a right to a specific immigration status or residency in the country. The Committee clarified that “home” refers to a place of residence or usual occupation, leading to the conclusion that claims about interference with the right to a “home country” as a country of residence are outside the scope of article 17 (1), rendering these claims inadmissible under article 3 of the Optional Protocol.

In another claim, the author argued that the State party’s refusal to grant permanent residency constituted cruel treatment under article 7 due to the mental anguish caused by his temporary status. The Committee noted that while the Covenant does not specify acts constituting cruel treatment, the assessment depends on the treatment’s nature, purpose, severity, and the victim’s characteristics. Despite acknowledging the author’s stress and anguish from his uncertain status, the Committee found that the mental suffering did not meet the severity threshold required under article 7. Thus, this claim was also deemed inadmissible due to insufficient substantiation under article 2 of the Optional Protocol. However, the Committee found the author’s claim regarding arbitrary interference with his family life under article 17 (1) to be sufficiently substantiated for admissibility and decided to proceed with an examination of its merits.

Merits

The Committee reviewed the case to decide if denying the author permanent residence interfered with his right to family life under article 17 of the Covenant. The State argued that the author could work, engage in romantic relationships, and maintain family ties in Canada, asserting that the denial of permanent residence was lawful, not arbitrary, and didn’t violate article 17. The Committee highlighted that while the Covenant doesn’t guarantee aliens the right to enter or reside in a State, protections may apply in cases affecting non-discrimination, inhuman treatment, and family life. Noting the author’s established life in Canada since 1997 and his strong family and social ties within the country, the Committee found that the author didn’t provide sufficient evidence to show that his residency status directly impeded his family life or that the State prevented him from maintaining family ties, including with his mother. Therefore, the Committee concluded that the denial of permanent residence did not constitute an arbitrary interference with his family life as defined by article 17, finding no violation of the Covenant by the State.