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La demande d’examen des risques avant renvoi (ERAR)
La demande d’examen des risques avant renvoi (ERAR) permet à une personne, dont le processus de renvoi du Canada a déjà commencé, d’éviter un retour dans son pays d’origine et d’obtenir le statut de personne protégée.
Cet examen se base sur les mêmes motifs qu’une demande d’asile. Il consiste donc à vérifier si, advenant un retour dans son pays, la personne serait à risque de subir :
Exception : ce motif ne sera pas considéré si la menace ou le(s) risque(s) découlent de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats
de la persécution en raison de sa race, religion, nationalité, appartenance à un groupe social ou opinions politiques.
Exception : ce motif ne sera pas considéré si la personne est interdite de territoire pour grande criminalité, sécurité, atteinte aux droits humains ou internationaux ou crime organisée.
Pour quelles personnes une demande d'ERAR peut-il être particulièrement utile?
pour les personnes qui ne sont pas autorisées à faire une demande d’asile (leur demande a été jugée irrecevable et n’a jamais été référé à la CISR). C’est la seule manière pour eux de présenter leurs risques de persécution, de torture ou de mauvais traitement.
pour les personnes dont la demande d’asile a été refusée par la CISR , s’ils:
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sont encore au Canada 12 après le refus ; et
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peuvent présenter de nouveaux éléments de preuve qui sont devenues disponibles après le rejet de leur demande (ou qu'ils ne pourriez pas raisonnablement présenter avant le rejet).
Cependant, contrairement à une demande d’asile durant laquelle le demandeur peut exposer ses risques en cas de retour dans son pays lors d’une audience devant un commissaire indépendant de la SPR, la demande ERAR est examinée par un agent d’IRCC qui est un fonctionnaire du gouvernement fédéral, sans qu’il y ait obligatoirement une audience.
➔ A refugee
A refugee is outside their country of origin or usual residence because they cannot be protected and return as they fear persecution for:
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Quand puis-je soumettre une demande d'ERAR?
Examples:
Ethnic or linguistic group or minority.
Their race
Examples:
Religious minority, convert person.
Their religion
Examples:
Real or perceived government opponent, human rights activist, journalist.
Their political opinions
Their nationality
Examples:
Sexual violence, sexual orientation, gender identity.
Their social group
➔ A person in need of protection
They are in Canada and cannot return to their country of origin or country of usual residence because there is a risk of:
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torture,
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life threat, or cruel and unusual treatment or punishment.
What are the situations where I cannot be eligible?
Even if you meet the definition of a refugee or person in need of protection, your asylum application will be considered ineligible (i.e. it will not be sent to the RPD of the IRB or you will not be allowed to apply fo asylum in Canada) if you are in one or several of the following situations:
You are subjected to a removal order from Canada.
You entered Canada from the United States through an official point of entry (exceptions apply).
You have applied for asylum in Canada in the past and your application has been rejected, deemed inadmissible or withdrawn.
You have already applied for asylum in the United States, United Kingdom, Australia or New Zealand (whether it is being processed, refused or withdrawn).
You already have refugee status in another country where you can be returned.
You are inadmissible to Canada for reasons of security, crime or violation of human rights.
Either CBSA or IRCC will determine if your asylum application is eligible.
Note that the eligibility examination does not consider your reasons for seeking protection in Canada. Rather, it determines your right to apply for asylum. If your asylum application is eligible, it will be forwarded to the RPD of the IRB.
IMPORTANT:
During the eligibility interview, if you are unable to prove your identity or if the immigration officer considers you to be a threat to Canada, you may be detained, even if your asylum application is eligible.
How can I submit my application?
All asylum applications are submitted from inside Canada:
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when you arrive at the Canadian border,
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or within Canada if you are already in Canada.
You arrive at the Canadian border.
➔ You can apply for asylum at an official point of entry (airport, seaport or land border crossing) with the CBSA.
➔ In this situation, you will need to complete the forms given to you by a CBSA officer (except the BOC form).
➔ The CBSA officer will interview you to determine your eligibility to apply for asylum.
You are already in Canada.
➔ If you are already in Canada, you can submit your asylum application at a local IRCC office.
➔ In this situation, you must complete all required application forms in advance, including the BOC, and deliver them in person to an IRCC officer.
➔ IRCC will determine if the asylum application is eligible.
Due to the pandemic, and until further notice, you can begin your asylum process by sending an email to IRCC:
IRCC.RefugeeClaim-Demandedasile.IRCC@cic.gc.ca
For more instructions, please read the page Claim refugee status from inside Canada.
Your asylum application is
eligible.
➔ You receive the asylum application document (RPCD or "brown paper") that confirms that you have applied for asylum and are eligible for IFHP health insurance.
➔ If you arrived at the border, you receive the BOC form which you must complete and submit to the RPD of the IRB no later than 15 days after the date your asylum application was sent to them.
Your asylum application is
ineligible.
➔ You may be subjected to a removal order.
➔ You may be allowed to apply for a Pre-Removal Risk Assessment (PRRA) and receive an asylum application document.
You arrive at an official Canadian border crossing from the United States.
➔ The Canadian government has concluded an agreement with the United States which says that an asylum seeker must file their application in the first safe country they arrive in. This is know as the "Safe Third Country Agreement".
➔ This means that if you arrive at the Canadian border from the United States at an official border, you will not be able to apply for asylum in Canada and will be sent back to the United States.
Exceptions apply where you may be allowed to apply for asylum despite the agreement: for example, if you have family members in Canada, if you are an unaccompanied minor or if you have a valid Canadian document.
➔ The Basis of Claim Form (BOC) is very important because it contains the reasons you need protection from Canada.
➔ Since 2017, in Quebec only, it is possible to partially fill the BOC. The IRB will consider the form to be completed if you answer questions 1, 8, 9, 10, 11 and 12.
➔ This interim measure is in effect until further notice and helps ease the process for people who could not find a lawyer when filing their asylum application.
➔ You will later be asked to complete the other questions on the form (including your risks in the event of a return) with the help of your lawyer or representative.
Important BOC Information (Basis of Claim Form)
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➔ You can apply for a work permit free of charge, at the same time as your asylum application, when you check the related box in the Annex 12 form.
➔ For more information on the services available to asylum seekers in Quebec, please read the Guide to services offered to asylum seekers by the government of Quebec.
➔ For more details on the rights and obligations of asylum seekers, please see our Frequently Asked Questions (under construction).
PLEASE NOTE
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How to prepare for the asylum hearing?
If your asylum application is eligible, it will be forwarded to the RPD of the IRB who will hear you on the risks you would face if you returned to your country of origin.
In order to make a decision on your asylum application, the commissioner will use the information provided in the BOC form, your hearing testimony and all of the evidence submitted.
The particular elements taken into account by the commissioner will be the following:
Your identity.
Examples: passport, national identity card.
The inability to settle safely in any other region of your home country.
Examples: documents that show you tried to escape to another area, reports that prove the problem exists across the country.
The risks of persecution in your country of origin.
Examples: police reports, medical records, photos, affidavits, letters from healthcare professionals, proof of membership in a political or religious group, notes or recordings of threats against you.
Your credibility.
The lack of protection from your government.
Examples: national reports on lack of government protection or police corruption, unanswered complaints to the police, evidence that your persecutor is a state agent.
It is strongly recommended that you prepare all of these documents, as well as the hearing, in consultation with your lawyer or legal representative.
For more details regarding the asylum application hearing, you can:
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read the Kinbrace Refugee Hearing Preparation Guide available on our Online Resources & Workshops page,
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register for a READY Tours information session organized by the IRB,
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read the Kinbrace Frequently Asked Questions about the hearing in times of COVID-19.
What happens after the hearing?
The commissioner may communicate their decision orally during the hearing or by mail after the hearing.
Your asylum application is accepted.
➔ You obtain refugee or protected person status.
➔ You are allowed to stay in Canada and no longer risk being returned to your country of origin.
➔ You can request a CSQ (free) as well as a provincial health insurance card from the RAMQ.
➔ You can apply for permanent residence. It is possible to include your family members in Canada and abroad (spouse, common-law partner, dependent children) in your application.
Your asylum application is rejected.
➔ You can decide to leave Canada voluntarily.
➔ You have 15 days after you receive notice to appeal the decision to the RAD of the IRB and you are allowed to stay in Canada until a decision is made.
➔ If your appeal to the RAD is rejected, or if you were not eligible to challenge the RPD decision before the RAD, you have 15 days after you receive the decision to apply to the Federal Court of Canada for judicial review.
For more details on the asylum application, be sure to read the official sources:
The information presented on this page does not constitute legal advice. It is important to ask a lawyer or other legal counsel for professional advice before making decisions.
Glossary
IRB:
Immigration and Refugee Board. This independent administrative tribunal is responsible for rendering decisions on asylum claims through the RPD.
CBSA:
Canada Border Services Agency. These federal government agencies have offices at Canada's land, sea and air borders. CBSA officers make legal decisions regarding entry and removal from Canada.
Federal Court:
Canadian court that adjudicates litigation related to immigration, for example.
CSQ:
Quebec selection certificate. This document issued by the MIFI (Ministry of Immigration, Francization and Integration) allows you to settle in Quebec and obtain Canadian permanent residence.
RPCD:
Refugee Protection Claimant Document. This document is proof that the person holding it has applied for asylum and is eligible for IFHP health insurance. In some cases, it can also be used to confirm identity (application for provincial benefits). It is issued to the claimant when their asylum application has been forwarded to the RPD of the IRB or when the claimant is not authorized to apply for asylum but is eligible for PRRA.
PRRA:
Pre-Removal Risk Assessment. This assessment, if favorable, allows an applicant who has received a removal order from Canada to avoid a return to their country of origin and to obtain protected person status. The pre-removal risk assessment is carried out by an IRCC officer according to the same criteria as the asylum application: it assesses whether the applicant is exposed to risks and dangers related to cruel and unusual treatment or punishment, persecution, torture or threat to life if returned to their country of origin.
BOC:
Basis of Claim Form. This form contains the reasons why the applicant is seeking asylum in Canada and is sent to the RPD. It is given to the asylum seeker by a CBSA officer upon arrival at a port of entry. It is also available online for applicants who are already on Canadian territory.
RCMP:
Royal Canadian Mounted Police. This is Canada's national police force, responsible for example for municipal policing and intelligence gathering for the security of the country.
IRCC:
Immigration, Refugees and Citizenship Canada. This is the department responsible for immigration, settlement, refugee determination in Canada, resettlement of refugees from overseas and citizenship programs and services.
IRPA:
Immigration and Refugee Protection Act. It defines, among many other things, the concepts of refugee and person in need of protection.
IFHP:
Interim Federal Health Program. This medical coverage provides limited and temporary health care protection to refugees, protected persons, asylum seekers, detainees and victims of human trafficking. This coverage ends when the person benefits from the health insurance plan of the province in which they live, usually upon obtaining permanent residence or a CSQ. If a person has a removal date from Canada, it also ends on that date.
RAMQ:
Quebec Health Insurance Plan. This is the provincial medical coverage available to refugees, protected persons, temporary residents (conditions apply), permanent residents and Canadian citizens. RAMQ holders can access free health care and partial reimbursement of the cost of prescribed drugs.
Permanent residence:
Permanent residence status allows you to legally immigrate to Canada and remain here for an unlimited period of time. Permanent residents receive a permanent residence card which is useful for travel and ID purposes and can be renewed. However, it is not necessary to renew the card in order to maintain permanent residence status. A permanent resident can generally apply for Canadian citizenship after three years in Canada.
RAD:
Refugee Appeal Division. This division of the IRB reviews appeals against RPD decisions.
RPD:
Refugee Protection Division. This division of the IRB renders decisions on asylum claims.
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