Afghan Canadians sue Ottawa over immigration rules
Suit argues program for Ukrainians is discriminatory
Afghan Canadians who worked for the Canadian military in Afghanistan are asking the Federal Court to declare a special immigration program for Ukrainians in breach of the Charter of Rights and Freedoms and expand it to include nationals from all countries.
Two Afghan Canadian men filed the lawsuit this week in a move they say may also be the last step left in a long fight by former language and cultural advisers to rescue their families from abroad.
“We are proud Canadians, we are proud of what we did for Canada and now we are being treated like trash,” said one of the men, who is referred to as “John Doe 1” in the lawsuit and who only spoke to the Star on the condition he not be named to protect his family.
Their application argues the Canada-Ukraine Authorization for Emergency Travel (CUAET) program is discriminatory because its wide-ranging provisions only apply to Ukrainians, as opposed to all those fleeing conflict.
The program also discriminates based on race, the lawsuit says.
“Ukrainians are predominantly white and European. Afghans are predominantly dark-skinned and Muslim. Thus, the CUAET has the effect of distinguishing based on race, colour, ethnic origin and religion, which are prohibited grounds under s. 15 of the Charter,” reads the application, which was obtained by the Star on Friday.
The men are asking for the court to declare the program in breach of the Charter, and order it applied to all foreign nationals.
Their application to Federal Court comes nearly six months after two other advisers settled a human rights complaint with the government over the fact they’d initially been completely shut out of immigration programs for Afghans set up in the wake of that country’s collapse to the Taliban in 2021.
Language and cultural advisers, known as LCAs, were recruited by the Canadian Armed Forces in Canada and deployed with soldiers to help them navigate the unfamiliar cultural terrain during Canada’s involvement in the war.
Unlike interpreters, who were hired by the military on contract via multinational firms, LCAs were akin to serving members of the military, wearing uniforms and given high-level security clearances to carry out their work.
Around 45 of them worked with the CAF over the course of the mission; John Doe 1 was in one of the last deployments to Kandahar before Canada’s combat mission ended in 2011.
When the Taliban took control of Afghanistan in 2021, Ottawa found itself rushing to find ways to rescue Afghans who’d worked alongside Canadian forces there.
Ultimately, Canada pledged to resettle 40,000 Afghans by the end of this year, including former interpreters, human rights activists and members of religious minority groups.
But LCAs were told they had to use traditional economic or family sponsorship programs to get family members in Afghanistan to Canada.
The settlement of the human rights complaint compelled Ottawa to expand its existing Afghan settlement policy to cover relatives of LCAs as well.
The lawsuit argues that program is too limited in scope compared to the one Canada put in place for Ukrainians.
The CUAET was one of the government’s responses to demands last year that Canada offer safe haven to Ukrainians following Russia’s invasion of their country.
It offers Ukrainians and their family members — even if they aren’t Ukrainian — extended temporary immigration status in Canada, and with it the ability to work and go to school here.
There is no cap on the number of applications under the program, many of the fees are waived and there is expedited processing of forms.
The policy for LCAs requires applicants to have been in Afghanistan on or after July 22, 2021, and meet a specific definition of family member. A maximum of 380 applications are being accepted.
The lawsuit argues that if the LCAs were Ukrainian, they’d have no problem bringing their currently excluded family members to Canada.
For “John Doe 2,” whose sister would be eligible to come to Canada under the existing program for LCA but won’t because she couldn’t bring her adult children, the lawsuit felt like the final option.
“We have knocked on everybody’s door,” he said, “and they ignored us.”
The federal government did not respond to a request for comment from the Star on Friday afternoon.
In its response to the human rights tribunal complaint earlier this year, Immigration, Refugees and Citizenship Canada argued the Afghans had no grounds to claim discrimination on the basis of national origin.
People who aren’t Ukrainian don’t have access to the specific Ukrainian program, IRCC wrote at the time, and all programs can’t be open to everyone.
“If that were the case, IRCC would be unable to respond in a targeted facilitative manner to any humanitarian crisis without responding equally and simultaneously to all humanitarian crises,” it said.
Canada has committed to resettling 40,000 Afghans by the end of the year via programs launched in 2021; to date, about 32,000 have arrived.
Those numbers are cold comfort to the men who are suing Ottawa. As Canadians, they say they don’t understand why they can’t bring family members here from abroad the way others can.
“We are Canadian citizens,” said John Doe 1. “We were on the front lines as Canadian citizens, and now they just don’t care about us.”