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European Union: Freedom of movement, residency and social security regulations for European Union (EU) nationals who move to other EU countries; the situation of Czech, Hungarian, and Slovak nationals who move to other EU countries, including labour rights and access to social services (2013-June 2015)

Publisher Canada: Immigration and Refugee Board of Canada
Publication Date 16 July 2015
Related Document(s) Union européenne : information sur la réglementation en matière de liberté de circulation et de séjour ainsi que de sécurité sociale pour les ressortissants de l'Union européenne (UE) qui s'établissent dans un autre pays de l'UE; information sur la situation des ressortissants de la République tchèque, de la Hongrie et de la Slovaquie qui s'établissent dans un autre pays de l'UE, y compris sur les droits du travail et l'accès aux services sociaux (2013-juin 2015)
Cite as Canada: Immigration and Refugee Board of Canada, European Union: Freedom of movement, residency and social security regulations for European Union (EU) nationals who move to other EU countries; the situation of Czech, Hungarian, and Slovak nationals who move to other EU countries, including labour rights and access to social services (2013-June 2015), 16 July 2015, available at: https://www.refworld.org/docid/55bf53234.html [accessed 2 June 2023]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

1. Directive 2004/38/EC and Its Application

According to the website of the European Commission, the rights of citizens of the EU and their family members to move and reside freely within the territory of the EU member states [1], subject to certain conditions, are "conferred directly on every EU citizen" under the Treaty on the Functioning of the European Union (EU n.d.e). The freedom to move and reside are also established by Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 (EU 29 Apr. 2004, 2). EU member states were required to transpose the provisions of Directive 2004/38/EC into their national legislation by 30 April 2006 (EU n.d.d). A copy of the Directive is attached to this Response (attachment 1).

2. Movement and Residence Regulations

According to Article 6(1), Chapter III of the Directive 2004/38/EC, EU citizens "shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport" (EU 29 Apr. 2004).

Article 8(1), Chapter III indicates that for periods of residence longer than three months, "the host Member State may require Union citizens to register with the relevant authorities" (ibid.).

Article 7(1), Chapter 3 indicates that for periods beyond three months,

[a]ll Union citizens shall have the right of residence on the territory of another Member State for a period of longer than three months if they:

are workers or self-employed persons in the host Member State; or

have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State; or

- are enrolled at a private or public establishment, accredited or financed by the host Member State on the basis of its legislation or administrative practice, for the principal purpose of following a course of study, including vocational training; and

- have comprehensive sickness insurance cover in the host Member State and assure the relevant national authority, by means of a declaration or by such equivalent means as they may choose, that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence; or

are family members accompanying or joining a Union citizen who satisfies the conditions referred to in points (a), (b) or (c). (ibid.)

The 2013 EU publication, Freedom to Move and Live in Europe: A Guide to Your Rights as an EU Citizen, which is attached to this Response (attachment 2), explains that EU citizens who "continue to seek employment in the host EU country and have a genuine chance of getting work" have the right to reside without conditions for a period of six months or longer (EU 2013, 13). The publication also indicates that "[o]ther economically inactive persons (e.g.[,] unemployed, retired, etc.) must also have sufficient resources for themselves and their family not to become a burden on the host EU country's social assistance system during their residence and have comprehensive sickness insurance cover" (ibid., 16). The source notes that "becoming a burden on the social assistance system may endanger [a citizen's] right to reside" (ibid., 21).

Article 16(1-2), Chapter IV of the 2004/38/EC Directive, dealing with the general rules regarding permanent residence, provides that EU citizens and their family members who have resided legally in another member state for five consecutive years have the right to permanent residence in that state (EU 29 Apr. 2004).

Article 27(1), Chapter VI of the Directive indicates that "[s]ubject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends" (ibid.).

3. Social Assistance

Social assistance is defined by the European Commission as a "'subsistence benefit' … to cover minimum living expenses" (EU 25 Nov. 2013b). According to the 2013 EU guide to EU citizen rights, EU citizens who relocate are "entitled to receive social assistance on the same grounds as nationals in the host EU country," including 'benefits for low-income families to support their housing costs' (EU 2013, 28). However, during the first three months of residence, the host country is not obliged by EU law to grant social assistance to economically non-active EU citizens (EU Nov. 25 2013b; EU 2013, 28), who are not working, or self-employed (ibid.). In the period between three months and five years of residence, "[e]conomically non-active EU citizens are in practice unlikely to be eligible for social assistance benefits, since to acquire the right to reside they would have initially needed to show to the national authorities that they had sufficient resources" (ibid.). Member states cannot automatically refuse to grant the benefits, and cannot automatically consider that the person applying does not have sufficient resources and therefore, no right to reside; however, if, following an individual assessment, authorities conclude that the person considered has "become an unreasonable burden, they may terminate their right of residence" (ibid.).

After five years of legal residence, "EU citizens who have acquired the right of permanent residence are entitled to social assistance, in the same way as nationals of the host country" (ibid.).

4. Social Security Regulations

EU social security regulations ensure that "mobile EU citizens remain protected by social security coverage after they move" within the EU, by coordinating the responsibilities of member states to provide social security benefits (EU 25 Nov. 2013b). The website of the European Commission on Employment, Social Affairs and Inclusion indicates that EU rules on social security coordination apply in the EU, Iceland, Liechtenstein, Norway and Switzerland (EU n.d.f). According to a 2013 EU document on the free movement of citizens that explains who is entitled to social security benefits, "EU citizens do not lose acquired rights when moving within the EU" (EU 25 Nov. 2013a, para 2.3). The document indicates that "typical social security benefits include old-age pension, survivor's pensions, disability benefits, sickness benefits, birth grants, unemployment benefits, family benefits or health care" and that "employed and self-employed [workers] and their families are covered by the host country's social security system under the same conditions" as the country's own nationals (ibid.). Similarly, an Open Society Foundations [2] website about freedom of movement in Europe explains that once an individual is employed and "satisfies certain conditions, he or she has the same rights as nationals of that country to access benefits such as health care, education, and incapacity benefit," and such access extends also to family members that the EU citizen brings with them when they move (Open Society Foundations Dec. 2013).

The website of the European Commission states that the "rules on social security coordination do not replace national systems with a single European one" but rather, "[a]ll countries are free to decide who is to be insured under their legislation, which benefits are granted and under what conditions" (EU n.d.f). The 2013 EU report on freedom of movement indicates that there is no EU harmonization and that "benefit entitlements therefore vary from one Member State to another" (EU 25 Nov. 2013a, para 2.3). Open Society Foundations also states that benefit accessibility rules for EU job-seeker vary between EU member states (Open Society Foundations Dec. 2013). The same source explains, for instance, that in some countries, job seekers can only claim unemployment benefits if they have previously worked (e.g., Austria, Belgium), while in other countries, there is a waiting period for such benefits (e.g., Netherlands, France), and still in others, unemployment benefits are immediate (e.g., Germany, UK, Ireland) (ibid.). Job-seekers must show that they are actively seeking work and "stand a real chance of being given employment" (ibid.).

According to Open Society Foundations, free movement rights extend to "other categories of EU citizens who are not workers or self-employed. However, these citizens have fewer rights because they are not contributing in the same way to the host country's economy" (ibid.). Citizens who are "economically non-active … can only obtain social security benefits once they pass a strict habitual residence test, proving that they have a genuine link to the Member State in question" (EU 25 Nov. 2013a, para. 2.3).

A table regarding social security coordination in the EU, produced by the Migration Policy Institute (MPI) of Europe, a non-profit independent research institute based in Brussels (MPI Europe Nov. 2013), provides a summary and analysis of how EU legislation applies to different groups of EU nationals and their families, and is attached to this Response (attachment 3).

5. Reports of EU Citizens Having Problems Accessing Freedom of Movement

Sources indicate that problems persist with the implementation of Directive 2004/38/EC by member states (Citizens Without Borders n.d., 11, 56, 60; ECAS Jan. 2013, 6; EU 2012, 8; EU 29 Mar. 2012, para. F, M, 16). EU sources report that specific problems with citizenship and free movement rights mainly involve the following:

right of entry, right of residence for more than three months, validity of residence permits, retention of rights of residence and permanent residence (EU 29 Mar. 2012, para. F);

The EU's European Report on the Free Movement of Workers in Europe in 2012-2013 found that national rules and practices on the issuance of residence certificates, permanent residence certificates and cards was "less than satisfactory" (EU Feb. 2014, 3);

problems with accessing social security benefits, due to difficulties of coordination between national systems, "failure to provide correct information on the applicable rules," and "cumbersome administration of cases" (EU 29 Mar. 2012, para. M);

lengthy or unclear" administrative procedures (EU 2012, 8);

lack of awareness of EU rights by local administrations or citizens themselves (ibid.);

problems exercising the rights of family members (EU 29 Mar. 2012, para. F; EU 8 May 2013, Sec. 2.3.1), such as entry and residence rights, as well as issues regarding the "conditions for issuing visas and residence cards to non-EU family members" (ibid.); and,

"material and procedural safeguards against the expulsion of EU citizens" (ibid.).

According to the 2013 European Commission report on progress toward effective EU citizenship, during the 2011-2013 period, free-movement and residence-related issues were among the top three areas of inquiries (922 inquiries) and cases (481 cases handled and closed) handled by the SOLVIT [an EU service that receives citizen complaints related to the incorrect application of EU law by national authorities (ECAS Jan. 2013, 19)] (ibid., Sec. 2.3.2).

According to the 2013 report on SOLVIT cases, there were 572 social security cases in 2013, with many of them related to the following:

delays in taking decisions;

delays in issuing social security documents … or unemployment benefits;

non-acceptance of the European Health Insurance Card (EHIC) or disagreement over its scope; and

denying people access to an EU country's social security system. (EU Dec. 2013, 11)

According to the report, the "underlying problem" in many social security cases is the failure of authorities to communicate and exchange information (ibid.).

In their 2013 report on the progress toward effective EU citizenship, the European Commission indicated that infringement proceedings had been pursued by the Commission against 12 member states [3] related to implementation problems with freedom of movement and EU rights, reportedly leading to 5 member states amending national legislation or committing to doing so (EU 8 May 2013, Sec. 2.3.1).

Further detailed information on problems experienced by EU citizens when accessing their EU mobility and residence rights could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5.1 Roma

The EU Fundamental Rights Agency (FRA), which is mandated to provide "evidence-based advice" on fundamental rights issues to the EU (EU n.d.h), conducted research in 2009 on the freedom of movement for Roma in the EU and found that Roma experience problems when relocating, such as: problems with border and visa officials demanding bribes when Roma leave or return to their countries of origin; and, while being aware of the general right to move, being "less aware of the specific, and often complex array or rights and obligations concerning the establishment of residence for EU citizens in another Member State" (EU Nov. 2009). Roma in Europe also have difficulties accessing the labour market when relocating to other EU states (EU Feb. 2014, 10; EU Nov. 2009), due to discrimination and stereotyping (ibid.).

In 2010, France removed a number of EU Roma occupants from French territory (EU 29 Mar. 2012, para. I; Human Rights Watch 28 Sept. 2011; EU 8 May 2013, 5) who were mainly of Bulgarian and Romanian nationality (ibid.). Sources report that France continued to evict Roma in 2014 (ERRC [2015]; Human Rights Watch 2015), and Roma in informal settlements in Italy were also subject to evictions (ibid.). According to comments made in 2015 by the European Roma Rights Centre (ERRC) to the UN Human Rights Committee, throughout 2014, French authorities continued evictions of Roma, and "those affected are EU citizens" who are from countries such as Romania or Bulgaria (ERRC [2015], 3). The ERRC indicated that in 2014, based on a survey of figures "gathered through media monitoring and NGO reports," 13,483 people identified as Roma in France were forced to leave the area where they lived and most of them became homeless (ibid.).

According to the European Report on the Free Movement of Workers in Europe in 2012-2013, there is a "greater tendency" of member states to expel EU Roma "on grounds relating to public order and being a burden to the social assistance system of the host-Member state" (EU Feb. 2014, 32). Citizens Without Borders, a project financed by the European Commission to study and enhance implementation of EU rights in accordance with the 2004/38/EC Directive (Citizens Without Borders n.d., 11), provides the view that the condition of "sufficient economic resources" stated in the 2004/38/EC Directive is "ambiguously or badly applied" by the countries studied in their December 2012-May 2013 report (Czech Republic, France, Spain, Italy and Romania) (ibid., 56), while the MPI of Europe also gave the view that the concept of "unreasonable burden" on the social security system is ambiguously interpreted by EU member states (MPI Europe Nov. 2013, 2, 4). Citizens Without Borders found that the ambiguity concerning "sufficient economic resources" is "often a reason for the denial of registration certificates" (Citizens Without Borders n.d., 56). According to their study, denial of registration certificates "has a serious impact on the attainment of the right to stay, above all for Roma minorities, Romanian citizens, but also for dependent family members" (ibid.). FRA found that Roma in Europe that relocated had difficulties registering their residence in a new country, and consequently, they "may face problems accessing the labour market, national health systems, public housing, [and] social assistance" (EU 9 Nov. 2009).

6. Complaint Mechanisms for Problems of Freedom of Movement Rights

According to the 2013 EU guide on citizen rights, if a person's rights to move and reside freely in Europe have been violated, they should appeal to the national courts, the Ombudsman or administrative bodies of the state (EU 2013, 34).

The European Citizen Action Service (ECAS), an international non-profit organization based in Brussels that provides EU rights enforcement services to EU citizens and to 150 European civil society organizations (ECAS n.d.), runs a free advice service called Your Europe Advice, consisting of 60 legal experts who deal with 17,000 questions per year; it is "limited to oral and written replies to questions advising citizens who to contact to solve their problems" (ibid. Jan. 2013, 19). ECAS also launched the EU Rights Clinic and a hotline in 2013 to assist and advise EU citizens on their rights (ibid.). ECAS indicates in a January 2013 report that advice services for EU citizens are generally "limited to referring citizens on to other bodies or national authorities to solve their problems," noting however, that these may be the same authorities who are "responsible for the difficulties in the first place" or that they may lack the practical knowledge to assist (ibid.).

According to ECAS, the SOLVIT cooperation system among members states is the "best example of a problem-solving approach" available to EU citizens (ibid.). Sources describe SOLVIT as an online problem-solving service offered by member states to assist EU citizens, without legal proceedings (ibid., 19-20; EU n.d.b). SOLVIT is a network whereby SOLVIT centres in each member state work together to resolve problems caused by the incorrect application of EU law by national public authorities (EU 2013, 35; ECAS Jan. 2013, 19). The SOLVIT website explains that it offers assistance when the EU rights of citizens have been breached by public authorities in another EU country (EU n.d.b). The SOLVIT service is provided by the national administration of each EU country, as well as in Iceland, Liechtenstein and Norway (ibid.).

SOLVIT deals with issues such as residence rights, benefits, unemployment, health insurance and access to education, among others (ibid.). The service is free, accessible online and at the SOLVIT centre in each country, and "aims to find solutions within 10 weeks" of the complaint submission (ibid.). The SOLVIT website explains that once it receives a complaint submitted by an EU citizen, the SOLVIT Centre in the person's home country will contact the citizen to obtain more information if necessary, then determine whether the problem "falls within SOLVIT's remit," and if so, "prepare a case and send it to the lead SOLVIT Centre in the country where the problem occurred (EU n.d.i).

According to ECAS, in 2011, 67 percent of complaints handled by SOLVIT were settled within 10 weeks (ECAS Jan. 2013, 20).

Sources report that a person can also formally complain to the European Commission, or lodge a petition with the European Parliament (EU 2013, 35; ECAS Jan. 2013, 21). Further information on the effectiveness of complaint mechanisms could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

7. Situation of Czech, Hungarian and Slovak Nationals

Sources report that 1 May 2011 marked the removal of restrictions on the right to work in any member state for citizens of the eight countries [also known as A8 countries] that joined the EU in 2004: Czech Republic, Hungary, Slovakia, Estonia, Latvia, Lithuania, Poland and Slovenia (EU 28 Apr. 2011; MRN 5 May 2011), meaning that restrictions on EU citizens' access to labour markets and state support systems are no longer in effect (ibid.). Czech Republic, Hungary and Slovakia have been part of the EU-Schengen zone since 2007 (BBC 21 Dec. 2007). According to a 2012 website of the EU, the "Schengen Area" consists of 26 European countries (of which 22 are EU states and 4 non-EU states) [4] (EU 11 Nov. 2012). At internal Schengen-state borders, there are no border checks, and "[c]onsequently, both EU and non-EU nationals may freely move around within the Schengen area" (EU n.d.a, 5).

EU statistics indicate that in 2012, 69,700 Czech nationals, 121,400 Hungarian nationals and 121,600 Slovak nationals were working in an EU member state other than their own (EU 26 Apr. 2013). In 2013, 68,000 Czech, 154,300 Hungarian and 121,100 Slovak nationals were working in an EU state other than their own (EU 25 Sept. 2014). A 2014 EU report on labour mobility indicates that the majority of active Hungarian, Slovak, and Czech citizens who have resided in another EU member state for up to ten years had education levels characterized as "medium" or "high" (EU Oct. 2014, 71).

In correspondence with the Research Directorate, a representative of the SOLVIT Centre in the Czech Republic provided information about problems encountered by Czech nationals who relocate to another EU member state, stating that

[t]he most common problems are social security issues (96%) … mainly related to family benefit claims being improperly administered by competent authorities in Member States and after SOLVIT intervention, paid out in arrears. Less common are cases related to recognition of professional qualifications (4%); in rare cases, SOLVIT CZ deals with problems related to access to education. (Czech Republic 3 July 2015)

In correspondence with the Research Directorate, a representative of the SOLVIT Centre in the Slovak Republic provided information about problems encountered by Slovak nationals who relocate to other EU member states:

The majority of cases which SOLVIT SK has handled concern the social security rights of the citizens that moved to another EU country (more than 85% of all cases). Most problems were concerning the family benefits, unemployment benefits and pensions. The people complained mainly about unjustified proceeding delays or discrimination. In 2013, we had 22 such cases; in 2014, the number already increased to 54 and during the first half of 2015, there were 29 cases.

The second main problem [that] SK citizens are facing are the problems with residence rights, more specifically, their family members coming from the third countries have troubles to receive visas or residence permits (4%) in other EU member states. The relevant authorities tend to ask for more documents than EU legislation allows and the proceedings are associated with excessive delays. In 2013, we had 7 such cases; in 2014, the number decreased to 1 case and during the first half of 2015, there were 2 cases.

Other problems our nationals face when moving to other EU member states concern the recognition of qualification in another member state (3%) - e.g., the qualification itself or the practice gained in another member state was not recognized.

SOLVIT SK submitted most of the above-mentioned cases against Germany and Austria (social security) and the UK (residence rights). These are the countries where SK citizens mostly move to. (Slovak Republic 3 July 2015)

According to the representative of the Slovak Republic's SOLVIT Centre, the resolution rate for cases that were submitted by Slovak nationals is "more than 90%" (ibid.). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Further information about the situation of Czech, Hungarian and Slovak nationals with regards to EU mobility rights could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] The EU is made up of Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Greece, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the UK (EU n.d.g). The European Economic Area (EEA) is made up of the EU member states, as well as Norway, Iceland, and Liechtenstein (EFTA n.d.). Since it joined the Union in July 2013, Croatia is the only EU member state in a period of transition, which may include restrictions on the free movement of its workers for up to 7 years after joining (EU n.d.c).

[2] The New York-based Open Society Foundations provides funding to a variety of programs throughout the world to "build vibrant and tolerant societies whose governments are accountable and open to the participation of all people" (Open Society Foundations n.d.).

[3] The European Commission took action against 12 member states in 2011 regarding compliance with free movement rules: Austria, Belgium, Germany, Cyprus, Czech Republic, Spain, Italy, Lithuania, Malta, Poland, Sweden, UK (8 May 2013). Malta amended its legislation and Spain, Italy, Poland, and Sweden committed themselves to doing so by 2013 (ibid.). Further information on the results of the commitments could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

[4] The Schengen area consists of the following EU states: Austria, Belgium, Czech Republic, Denmark, Germany, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Netherlands, Poland, Portugal, Slovakia, Slovenia, Finland and Sweden; as well as non-EU Schengen states: Iceland, Liechtenstein, Norway and Switzerland (EU 11 Nov. 2012).

References

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Citizens Without Borders. N.d. Free Movement and Residence in the European Union - A Challenge for European Citizenship. [Accessed 20 June 2015]

Czech Republic. 3 July 2015. SOLVIT Centre in Czech Republic. Correspondence from a representative to the Research Directorate.

European Citizen Action Service (ECAS). January 2013. Mind the Gap: Towards a Better Enforcement of European Citizens' Rights of Free Movement. [Accessed 20 June 2015]

_____. N.d. "ECAS, European Citizen Action Service." [Accessed 26 June 2015]

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_____. N.d.c. European Commission. "Enlargement - Transitional Provisions." [Accessed 5 June 2015]

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Slovak Republic. 3 July 2015. SOLVIT Centre of the Slovak Republic. Correspondence from a representative to the Research Directorate.

Additional Sources Consulted

Oral sources: Attempts to contact the following were unsuccessful within the time constraints of this Response: Associate Professor, Radboud University; European Citizen Action Service; European Union - Delegation in Canada, SOLVIT Centre in Hungary; Hungary - Embassy in Ottawa; Migration Policy Group; Professor of Public Law, Universität Konstanz.

Internet sites, including: Center for European Reform; Czech Republic - Ministry of Labour and Social Affairs; Factiva; European Union - European Migration Network, European Migration Portal, Eurostat, Ombudsman, Online Journal on Free Movement of Workers; Hungary - EU Policy Website of the Hungarian Government, Ministry of Human Capacities; Institute for European Studies; International Organization for Migration; Melting Pot Europa; Quaker Council for European Affairs; Righttomove.eu; Slovak Republic - Ministry of Foreign and European Affairs, Ministry of Labour, Social Affairs and Family; UN - International Labour Organization, Refworld.

Attachments

1. European Union (EU). 29 April 2004. Directive 2004/38/EC of the European Parliament and of the Council. Official Journal of the European Union. [Accessed 6 June 2015]

2. European Union (EU). 2013. European Commission. Freedom to Move and Live in Europe: A Guide to Your Rights as an EU Citizen. [Accessed 28 May 2015]

3. Migration Policy Institute (MPI) Europe. November 2013. Meghan Benton. "Table 1. Rights to Residence and Benefits of EU Nationals." Reaping the Benefits? Social Security Coordination for Mobile EU Citizens. [Accessed 8 June 2015]

Copyright notice: This document is published with the permission of the copyright holder and producer Immigration and Refugee Board of Canada (IRB). The original version of this document may be found on the offical website of the IRB at http://www.irb-cisr.gc.ca/en/. Documents earlier than 2003 may be found only on Refworld.

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