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.