Refugee advocates in Canada breathed a sigh of relief in October of 2015. Immediately upon the election of the Liberals under the leadership of Justin Trudeau, the doors opened to thousands of Syrian refugees. Tens of thousands of Syrians have arrived since then. Canadians across the country continue to work to support their integration into Canadian society. These newcomers to Canada are already giving back to the country that welcomed them to safety.
How devastating then, that only 3½ years later, and on the cusp of an election campaign, Mr. Trudeau’s government appended a series of changes to refugee law, without public consultation, to the new federal budget released on Monday. These changes will serve only to make it harder for some of the most vulnerable individuals to gain a fair hearing of their asylum claims in Canada. Gone is the open and welcoming Mr. Trudeau who was photographed in airports, welcoming refugees and helping them to choose their new winter coats.
As reported, the changes will impact those who cross into Canada at unauthorized border crossings, denying them the right to a full refugee hearing. They will particularly affect those who have opened asylum claims in the United States already, but who are attempting to open a separate claim in Canada. According to reports, they will be barred from doing so. Bill Blair, Minister of Border Security, defended these changes, saying, “There’s a right way to come to the country to seek asylum and/or to seek to immigrate to this country, and we’re trying to encourage people to use the appropriate channels and to disincentivize people from doing it improperly.”
The individuals in question are sometimes described as taking advantage of a “loophole” in the Safe Third Country Agreement. This agreement, signed between Canada and the United States, governs the proper treatment of individuals who arrive in one country and attempt to cross into the other to seek asylum. According to the agreement, both Canada and the United States are “safe,” and thus any person who lands in one of them desiring asylum must claim it in that country. Any person who attempts to seek asylum in the other, declaring this intent at a legal border crossing, can legitimately be turned away and asked to complete the process in the country in which they landed first.
The loophole is that the right of either Canada or the US to turn back asylum claimants applies only at legal border crossings. If an asylum claimant enters Canada at an irregular crossing, they may claim asylum and, until Monday, were entitled to make their claim in Canada with access to a full hearing.
Some have been calling for closing this loophole, citing an upsurge in claimants crossing from the United States into Canada (largely, but not exclusively, into Quebec). But this upsurge was related to US policies now two years old. It is also, according to statistics, petering out. The Globe and Mail notes, “Statistics for RCMP interceptions of asylum seekers at unauthorized border crossings show crossings were down in January and February of 2019, for a total of 1,696, compared with the 3,082 interceptions during the same two-month period in 2018.” Others have called for an abandonment of the agreement, arguing that the United States is no longer the “safe” country that signed on in 2004.
In the meantime, at least, this so-called loophole has permitted some of those at risk in the United States to cross into Canada to gain access to fair and independent hearings of their claims. Trudeau’s changes, which appear to close this option for irregular border crossers, show that his government has opted for a tough line against these highly vulnerable individuals. In language characteristic of someone attempting to side-step confronting the real harms their actions will perpetrate, Mr. Trudeau said, “We need to recognize that there are larger numbers now than before because of global instability in terms of refugees. That’s why we’re putting more resources and we’re also ensuring that the system is fair for everyone. That’s what Canadians expect.” Even worse, he has chosen this approach in spite of recent survey evidence that Canadians are not that anxious about irregular border crossers and the ways in which the government has been handling them.
Refugee advocates are already preparing challenges to this change, arguing that a 1985 Supreme Court ruling requires that every asylum claimant is entitled to a full and fair hearing. Moreover, there is ample evidence that irregular crossers are right to think that they will not be able to access a fair hearing in the United States at the moment.
In responding to these changes, Janet Dench, Executive Director of the Canadian Council on Refugees described them as “a devastating attack on refugee rights,” which rather than doing more to protect Canada’s border security, will simply act to create a “whole category of people who will be denied access to the refugee determination system on an arbitrary basis.”
To a government that has chosen to politicize the actions of vulnerable individuals seeking safety in Canada: remember that the decision to offer and defend this protection was a winning electoral strategy in 2015.
Patti Tamara Lenard is Associate Professor of Applied Ethics at the Graduate School of Public and International Affairs. Her areas of research expertise include refugee and migration policies, multiculturalism, and the impact of counter-terrorism policies on minority communities. She is presently authoring her second book, tentatively titled, How Should Democracies Punish Terrorists?