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Chinese migrant children and Canadian migration law Sokhansanj, Banafsheh

Abstract

This thesis reviews the underlying theoretical and normative paradigm in Canadian migration and asylum law and its effect on the refugee determination process with respect to the approximately 100 unaccompanied children who were among 599 migrants from Fujian Province, People's Republic of China who arrived in four boats off the coast of British Columbia, Canada in the Summer of 1999. Upon deconstructing Canadian migration legislation and jurisprudence, especially with respect to asylum, it is apparent that the dominant paradigm is one of liberal communitarianism/realism, rather than one based on individual, universal human rights. This communitarian/realist paradigm is reflected in and reinforced by normative distinctions between immigrants and illegal migrants, and between politically motivated, forced migrants (refugees) and economically motivated, voluntary migrants (illegal migrants). Illegal migrants, such as the Fujianese children, are de-legitimized and criminalized under Canadian migration law. Moreover, this paradigm had the effect of subsuming the children's human rights claims into an assessment of their motivations for, and the voluntariness of, their emigration, that is, into a refugee determination process based on an understanding of the children's migration that was both inherently incoherent and inconsistent with a nuanced comprehension of migration as a structural phenomenon. The author concludes with a proposal for the development of a more strongly human-rights based paradigm in Canadian migration and asylum law.

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