When Refugees Face Deportation, What Happens to Their Canadian-Born Children?

On December 13, 1991, the Canadian government ratified the United Nations Convention on the Rights of the Child. This pledge states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” However, through its treatment of Canadian-born children of failed refugees, Canada has been violating this pledge for years.

Since 2020, I’ve helped prepare over a hundred applications for failed refugees to prevent their deportation and secure permanent residency, and I am working on a book about the Canadian immigration system. In that work, one group has stood out: failed refugee claimants with Canadian-born children.

A failed refugee is an asylum seeker whose refugee claim has been denied by the Refugee Protection Division and the Refugee Appeal Division of the Immigration and Refugee Board of Canada. On many occasions, it takes years to receive decisions from the RPD and RAD. While they wait, asylum seekers get jobs, volunteer their time, immerse themselves in their communities, and have children. As these children are born in Canada, they are automatically granted Canadian citizenship through what is known as jus soli—the right of the soil. But despite their birthright citizenship, many of these children are stripped of what they are entitled to, for no fault of their own.

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When parents with a Canadian-born child under the age of majority receive an official order of removal from Canada that they intend to comply with, they are faced with four options.

First, the parents can take their child with them, forcing the child to abruptly adapt to a brand-new culture, as many would have never been to the country of their parents’ birth. These children, often still in school, end up being ostracized by their new peers for being “Canadian.” And they are exposed to the same problems their parents initially fled—from violence and poor infrastructure to porous health care and education systems.

Second, in the event that only one parent faces removal, the Canadian-born child, while still able to remain in the country of their birth, is forced to separate from their other parent. One does not need precarious immigration status to understand how devastating it is to be separated from a parent at a young age for an indefinite period of time.

The third option is for parents to abide by their order of removal and leave their Canadian-born child in the care of social services. The effects of that choice on the child are twofold, since they suffer separation from both parents while also having to adapt to living in a completely different, and often difficult, environment.

Finally, some parents choose to ignore the order of removal and remain in Canada illegally, citing the best interests of their child as the primary reason. All of these options can, and do, lead to tremendous hardship for the child.

“The best interests of the child are almost always served by the parent NOT being removed,” John D. McLennan, editor-in-chief of the Journal of the Canadian Academy of Child and Adolescent Psychiatry, writes in an article he contributed to in May of 2023.

“The ministry of immigration ought to consider,” McLennan told me, “that humanitarian or compassionate grounds should always apply under conditions where a Canadian child is going to lose their parent to deportation, and that the onus should be on the government to justify why these grounds don’t apply for a given case if they are honouring the commitment to the best interests of the child.”

The Canada Border Services Agency, while keeping records of how many people are deported every year, does not maintain a count of how many Canadian-born children end up joining them; as citizens, they have the right to remain in Canada and are not considered deportees. (Despite the absence of official CBSA statistics, in my experience, the majority of parents who are removed from Canada opt to take their Canadian-born children with them.) This stance is especially maddening when, for example, one of those children is, say, an infant or a six-year-old starting grade one and both parents are forced to leave the country—which begs the question: What good is that child’s right to remain in Canada when there are no realistic means to do so?

I reached out to the CBSA to find out how this treatment of Canadian-born children abides by the UN Convention on the Rights of the Child. “Canada seeks to balance its UN obligations while adhering to legislative requirements when administering cases involving minor children,” the CBSA responded. “Canada recognizes the importance of promoting and safeguarding the rights of children, both in Canada and abroad, and works closely with other levels of government, law enforcement authorities, and intergovernmental organizations to ensure that decisions on behalf of children are made in consideration of their best interests and in accordance with laws and regulations.”

It added: “The CBSA always considers the best interest of the child in carrying out its mandated duties. The CBSA officer will assess the case history and schedule removal interviews to discuss travel arrangements including proposed departure dates. During this interview, parents may identify exceptional circumstances that may support the best interest of their children. Exceptional circumstances may include additional time for the children to finish their school year or additional time for children to attend a scheduled medical appointment, etc. All circumstances pertaining to the best interest of the child brought forward by the parents during the removal interview are discussed and considered by CBSA officers when determining when the removal is to occur.”

It’s worth remembering here that recognizing the importance of the child is not what is stated in the UN convention Canada ratified thirty-three years ago. Instead, the rights of the child, in all actions, are to be the primary consideration.

In its robust response, the CBSA does state they consider the rights of the child—but what does that really mean? How long do they consider it? How much of that consideration ultimately dictates their decisions? The term itself is far too ambiguous, and as can be seen from the response itself, that ambiguity allows for a great deal of flexibility, which the CBSA has exploited time and time again.

I also asked the CBSA why no record is kept of how many Canadian-born children have been forced to leave their country of birth. “The Agency tracks immigration enforcement measures, such as removals, within our National Case Management System,” the CBSA replied. “As Canadian born children are not subject to any immigration enforcement measures, their departures from Canada are not tracked within the system.”

Canada has failed Canadian-born children who find themselves in such situations—whose best interests are supposed to be at the forefront of any decision made on their behalf. And while this treatment would be abhorrent against any child, we need to remind ourselves that the Canadian government is acting against children who are citizens as much as the prime minster.

Jonathan R. Rose has completed a book titled Humanitarian and Compassionate: An Inside Look at the Canadian Immigration System During the COVID-19 Pandemic and Its Aftermath, from which this excerpt has been adapted with permission.