A Public Policy to Allow LGBTQI+ Afghans to Enter Canada as GAR

November 18, 2021

A Public Policy to Allow 300 LGBTQI+ Afghans to Enter Canada as Government Assisted Refugees

MEMORANDUM TO:

The Honourable Sean Fraser, Minister of Immigration, Refugees and Citizenship and staff

The Honourable Mélanie Joly, Minister of Foreign Affairs and staff

The Honourable Justin Trudeau, Prime Minister of Canada and staff

Introduction

LGBTQI+ Afghans are facing state-directed homophobic, biphobic and transphobic violence on a widespread scale to the extent that Rainbow Railroad is urging the Government of Canada take additional measures in order to avoid loss of human life and further egregious human rights abuses. In this memorandum, we draw on our extensive work in the country since the end of August to provide a briefing on the security emergency facing LGBTQI+ Afghans, outline why this emergency requires immediate intervention, and provide a pathway forward.

Rainbow Railroad is urging the Minister of Immigration, Refugees and Citizenship to immediately use Section 25 under the Immigration and Refugee Protection Act (IRPA) to allow Rainbow Railroad to directly refer up to 300 LGBTQI+ Afghans for resettlement in Canada as Government Assisted Refugees.

The urgent activation of a public policy under Section 25 for LGBTQI+ Afghans would be complementary and concurrent to the resettlement of LGBTQI+ Afghan refugees through the Rainbow Refugee Assistance Program (RRAP). This document outlines why both a commitment to a new public policy under Section 25, and increased and expedited RRAP resettlement is the best path forward.

Since the fall of Kabul, the Government of Canada has signalled that it intends to directly support LGBTQI+ Afghans as well as other minority communities. On August 13, 2021, Immigration Minister Marco Mendicino, Foreign Affairs Minister Marc Garneau and Defense Minister Harjit Sajjan released a statement announcing that Canada “will introduce a special program to focus on particularly vulnerable groups that are already welcomed to Canada through existing resettlement streams, including women leaders, human rights defenders, journalists, persecuted religious minorities, LGBTI individuals, and family members of previously resettled interpreters. The program will welcome governmentsupported and privately sponsored refugees, along with those sponsored by family already in Canada”.

Since the announcement of the special program, Rainbow Railroad has fielded over 800 requests for help from LGBTQI+ people. Among these 800, we have fully verified the identities of 300 individuals who are facing immediate risk, and who need to be resettled. Within these 300 are 45 individuals who have sought refuge in Pakistan and the UAE that Rainbow Railroad is currently supporting. The situation of these 45 individuals is highly precarious and they are ready to travel immediately. This is why the time to act is now.

To ensure the 300 people we have identified and verified as extremely high risk can be moved to safety in Canada as soon as possible, this memorandum proposes a clear path forward on creating the new “special program,” for immediate implementation. Rainbow Railroad stands ready to work with the Government of Canada to deliver this program as the referring partner.

About Rainbow Railroad

In the spirit of and in homage to the Underground Railroad, the mission of Rainbow Railroad is to help LGBTQI+ people as they seek safe haven from state directed violence, murder, or persecution. Rainbow Railroad receives roughly 4,000 requests annually from people in nearly 70 countries where their sexual orientation, gender identity/expression or sex characteristics are criminalized.

Since our founding in 2006, Rainbow Railroad has helped more than 1,800 people relocate from 38 countries. These individuals have settled in 11 countries, including Canada, that provide safe harbour for LGBTQI+ asylum seekers.

The Security Emergency Facing LGBTQI+ Afghans

LGBTQI+ Afghans are facing a unique and dire threat under the Taliban, and at the hands of other militant groups operating within Afghanistan, such as ISIS-K. Rainbow Railroad is in direct communication with hundreds of individuals in Afghanistan who are living in constant fear for their lives. These individuals face insurmountable barriers to fleeing, are unable to access typical programs of the United Nations High Commissioner for Refugees (UNHCR) and many are not eligible for private sponsorship to Canada.

Most of Rainbow Railroad’s clients are in hiding and will put their lives at extreme risk if they attempt to flee to a neighbouring country without a clear plan of passage to a safe third country that upholds LGBTQI+ equality. Many are terrified that even if they escape Afghanistan to a neighbouring country such as Pakistan, without onward travel to a country like Canada secured, they will (A) face similarly dire circumstances given Pakistan’s criminalization of LGBTQI+ persons, (B) be at continued risk of tracking or threats by fellow Afghans or Taliban in Pakistan and (C) face refoulement.

Employees of Rainbow Railroad have conducted in-depth interviews with LGBTQI+ Afghans living underground in Pakistan. Interviewees live in constant fear of being returned to Afghanistan and again hunted down in Kabul. Some noted that in the process of fleeing, they were outed to their families or directly to the Taliban, and that they feared if they were to be sent back, they would be tortured or killed on arrival. Rainbow Railroad possesses ample documentation of LGBTQI+ persons who have been violently attacked and targeted by the Taliban.

The following are direct quotations from LGBTQI+ Afghans which demonstrate the direness of the security emergency:

“Under the Taliban’s interpretation of Sharia Law, homosexuality is strictly prohibited and the Taliban has explicitly announced their intention to actively seek and exterminate members of the LGBTQ community. Gay people like me are sentenced to death by such methods as stoning or being buried alive under rubble. In the past month, Taliban forces have dismembered and shot dead people they discovered to be gay.”

“My friend called to inform me that the government surrendered to the Taliban. When the Taliban came, target killing started suddenly. My friend got killed, because the Taliban knew he was LGBT. They also knew I was a friend of his. I [escaped] to my grandfather’s house with my boyfriend and stayed there for 20 days. One day I was in the house, someone knocked on the door and I realized it was Taliban and we both ran away from the house from the rooftop. The Taliban started firing at us.”

“When I moved to Mazar, I met a guy as well. He seemed like a nice person, we had sex twice and got into a relationship. After the Taliban took over, he joined them. He then contacted me. He sent me pictures of him with Taliban and said ‘you’re gay’. I was so scared I said ‘no I am not gay’.”

Many informants also noted that LGBTQI+ people face multiple threat dimensions under Taliban rule due to their additional status as human rights defenders or their alignment with U.S. based or supported organizations.

LGBTQI+ Afghans who have fled to Pakistan and the United Arab Emirates are facing continued threats to their safety and risk of refoulement. Pakistan and UAE both continue to criminalize same sex intimacy. Under the law in both countries, punishments include the death penalty.1 The rights of LGBTQI+ individuals are not protected legally, and communities of reception of LGBTQI+ Afghans are violent. The US Department of State Human Rights Report on Pakistan noted that violence and discrimination persists against LGBTQI+ people with impunity, as police generally refused to take action.2

Afghan nationals who have fled to Pakistan or the UAE cannot wait for the process of private sponsorship under the RRAP, even if the program was expedited under special circumstances. Individuals are at high risk of refoulement; if this took place, these individuals would face execution.

Rainbow Railroad’s Response to the Crisis in Afghanistan

Since the Taliban took power in Afghanistan in August of 2021, Rainbow Railroad has received approximately 800 requests for help. Rainbow Railroad works to verify each case individually and assess the level of risk an individual is facing. Among the total of 800 cases, we have to date fully verified 300 people and deemed them at a heightened risk of experiencing immediate and life-threatening violence due to their sexual orientation or gender identity. We are calling on the Government of Canada to resettle these 300 people through Ministerial direction. 45 of these 300 people are LGBTQI+ Afghans in Pakistan and the United Arab Emirates facing imminent danger - these individuals could be processed for resettlement to Canada immediately.

Rainbow Railroad has already undertaken significant engagement in Afghanistan due to the extreme and widespread nature of the threats facing LGBTQI+ people in the country. Here are some of our activities to date:

• We have sounded the alarm in Canadian and international media about the widespread nature of the human rights abuses facing LGBTQI+ people in Afghanistan.

• We worked directly with the U.K. Government to evacuate 29 people from Afghanistan into the U.K. via Pakistan We anticipate being able to evacuate another 30+ people through this partnership in the coming months.

• We worked with human rights defenders in the region and global organizations to resettle 17 LGBTQI+ Afghans in Ireland in September 2021.

1 https://www.humandignitytrust.org/country-profile/pakistan/ and https://www.humandignitytrust.org/country-profile/united-arabemirates/

2 https://www.humandignitytrust.org/country-profile/pakistan/

Differentiating A Public Policy from Private Sponsorship

Prioritizing expedited resettlement of LGBTQI+ Afghan refugees through the Private Sponsorship of Refugees (PSR) program under the RRAP remains essential to serving the varied profiles of at-risk persons in the context of this crisis. We are supportive of the Government of Canada adding this as an option for resettlement. However, this cannot be the only option. Many individuals who qualify for PSR under the RRAP fled Afghanistan prior to the most recent fall to the Taliban in 2021, given the protection concerns and persecution that had been taking place in the country long before this year’s crisis. However, those most critically impacted by the current crisis have severe and time sensitive needs that require immediate action and processing either in Afghanistan, Pakistan or the UAE.

Rainbow Railroad and the Rainbow Coalition for Refuge strongly believe that additional, expedited slots under the RRAP will benefit certain demographics of Afghan refugees at risk, but a more immediate public policy solution is absolutely necessary in tandem to meet the varied needs of our beneficiaries. Further, there is limited capacity for the coalition to cover the need for all persons at risk.

Demographics of LGBTQI+ persons who will benefit from the RRAP program include:

• Individuals who have the means to shelter themselves in place in neighbouring countries for a longer period of time with lower risk of detection of being LGBTQI+.

• Individuals who fled Afghanistan in advance of the most recent crisis.

• Individuals who are able to collaborate with coalition partners on detailed PSR application packages.

• Individuals whose sexuality was not disclosed in Afghanistan, or who have not been tracked or located by Taliban or hostile community members in their new location.

Demographics of LGBTQI+ persons who need protection outside of the RRAP program include:

• Individuals whose identities have been disclosed to the Taliban.

• Individuals who fled and are in countries that criminalize same sex intimacy with limited visa status and are at risk of refoulement.

• Trans, non-binary, and other visibly LGBTQI+ individuals who will be easily identified and persecuted in Afghanistan or neighboring countries.

• Individuals with complex medical or mental health concerns that limit their ability to safely flee to access refugee apparatus.

The PSR program, even where highly expedited by IRCC, requires months of organizational investment from coalition members in order to recruit volunteers, prepare application paperwork, fundraise, prepare arrival logistics, and provide supportive communication with the applicant. Some Afghans already within the refugee apparatus can survive the wait for this medium term solution - for these individuals, this is the best pathway to safety, and LGBTQ+ civil society in Canada is ready to support through this stream. However, for the bulk of the individuals who have reached out to Rainbow Railroad since the most recent re-taking of power by the Taliban in 2021, awaiting the limited program offerings under PSR would be a death sentence.

Rainbow Railroad’s unique ability to facilitate evacuations

Rainbow Railroad began working on the ground in the region immediately after the takeover of the Taliban. We are among the few non-profit organizations that facilitate international evacuations, and the only one with an LGBTQI+ specific mandate. Rainbow Railroad is sufficiently resourced and experienced at working in crisis situations - such that when this crisis hit, we were able to move people out on some of the first flights to depart to neighbouring Pakistan. We have also increased our organization’s capacity to respond to this crisis by hiring additional case workers. In short, Rainbow Railroad is ready to facilitate and coordinate the evacuation of at-risk Afghans with the guidance and support of the Canadian government.

Rainbow Railroad’s Contribution to ensuring the success of a Public Policy under Section 25 of the IRPA

Rainbow Railroad will identify up to 300 persons for referral to the Government of Canada for immediate resettlement by way of a public policy under Section 25. 45 of these 300 people are already in Pakistan or the UAE and ready to be resettled. For the rest, Rainbow Railroad will facilitate travel into a neighbouring country and where needed shelter people in secure safe houses while they await processing by the Government of Canada. In this way, Rainbow Railroad is uniquely capable of acting in a direct referring role to the government of Canada under section 25. We have partnered with the Government of Canada in this capacity in the past, facilitating the relocation of LGBTQI+ persons in Chechnya in 2017.

Legal Authority and Precedent

Under Section 25.1 of the IRPA, the Minister of Immigration, Refugees and Citizenship Canada (IRCC) may examine the unique circumstances of a foreign national and decide to grant them “permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations.”3 Section 25.2 serves a similar function, allowing the Minister to make exceptions if they believe “it is justified by public policy considerations.”

While acknowledging the use of Section 25 is only applicable under unique circumstances, Rainbow Railroad believes that the specific vulnerability LGBTQI+ Afghans, in particular internally displaced persons (IDPs) who are trapped in Afghanistan, and those who have fled to neighbouring countries such as Pakistan and the UAE meet this criteria. The International Organization for Migration (IOM) formally acknowledged the challenges facing LGBTQI+ IDPs, including “discrimination, prejudice, violence, difficulty accessing humanitarian services and barriers to articulating their protection needs,” and called upon the international community to do more.4 There is ample precedent for the creation of a public policy to support highly vulnerable populations under special circumstances. This includes Canada’s creation of a special program to resettle members of the Yazidi community who faced human rights abuses at the hands of Daesh.

The ongoing crisis in Afghanistan is an exceptionally brutal catastrophe for the LGBTQI+ community, and demands of Canada a robust and multi-pronged approach to supporting the most vulnerable and upholding Canadian values of equality, dignity, and human rights.

3 https://www.ourcommons.ca/DocumentViewer/en/42-1/CIMM/report-6/page-18

4 IOM, “UN Migration Agency Statement on International Day against Homophobia and Transphobia (IDAHOT),” https://malta. iom.int/unmigration-agency statement-international-day-against-homophobia-and-transphobia-idahot

Conclusion

Rainbow Railroad is calling on the Honorable Sean Fraser to use his authority under Section 25 of the Immigration and Refugee Protection Act (IRPA) to allow Rainbow Railroad to directly refer up to 300 LGBTQI+ Afghans to Canada. This should be coordinated with the Honorable Mélanie Joly and Global Affairs Canada.

Under this public policy, these individuals would arrive as Government Assisted Refugees (GARs) and Rainbow Railroad would work directly with IRCC and settlement partners across the country to support them in building prosperous and free lives in Canada.

What we are proposing is complementary to the RRAP. Rainbow Railroad and our partners in the Rainbow Coalition for Refuge will commit to the submission of RRAP applications under the PSR program, but given the distinct differences in beneficiary profiles that the proposed program and RRAP serve, it is Canada’s duty to activate both channels expeditiously. We understand that it will take years to adequately resettle refugees, however we also understand that Canada has the ability - especially with Rainbow Railroad’s support - to settle LGBTQI+ individuals as GARs as expeditiously as possible.

Rainbow Railroad remains committed to working with and hearing from the government about how we can partner to assist these 300 people to safety. Here, we have made a specific proposal, but we remain open to discussing alternate means of finding safety for these people, by whatever means necessary.

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