Irregular or illegal? The fight over what to call the thousands of migrants streaming into Canada

Nice summary. My mother was an “irregular” if not “illegal” when her mother spirited her and her siblings to Latvia when fleeing the Russian Revolution:

On Monday, Immigration Minister Ahmed Hussen publicly rebuked Ontario’s new government for using the term “illegal border crossers” in a press release.

“I’m very concerned by Premier (Doug) Ford and (provincial) minister (Lisa) MacLeod really making statements that are difficult to understand when it comes to how they’re describing asylum seekers,” Hussen told reporters in Halifax.

The minister was referring to a statement in which Ford blamed Ontario’s housing crisis on Liberal government policies that “encouraged illegal border crossers to come into our country.”

The spat speaks to an intractable political fight in Canada: Whether the approximately 50 people per day streaming into Canada over the U.S. border are “illegal” or “irregular” migrants.

The Immigration and Refugee Board uses the term “irregular” when referring to the more than 23,000 refugee claimants who have walked into Canada since January 2017 without first passing through an official port of entry. The RCMP, meanwhile, prefers the neutral term “interceptions.”

The official CBC language guide favours “illegal border crossers,” calling it “bureaucratic jargon” to use the term “irregular” favoured by Ottawa.

“Some refugee activists have insisted that expressions such as ‘illegal’ border crossings should be banned from our journalism. The modifier ‘illegal’ in this context is accurate and clear, and it instantly helps our audience understand the story,” reads the guide.

In the House of Commons, the use of the term “illegal border crosser” is strictly divided along partisan lines.

It has been uttered 67 times in parliamentary debates since the crisis began in January 2017. Of those, 65 came from the mouths of Conservatives, and the other two came exclusively from New Brunswick Liberal MP Serge Cormier.

“They are not “irregular” border crossers; they are illegal border crossers. Let us get this straight,” Conservative MP John Brassard said in April.

The NDP and Liberal benches, meanwhile, have repeatedly accused the Tories of scaremongering.

“The Conservatives have repeated ad nauseam that these people are crossing the border illegally, implying that they are criminals. However, they have been unable to name a single law broken by the immigrants crossing the border,” said the NDP’s Anne Minh-Thu Quach in April.

Crossing the Canadian border without passing through an official port of entry is indeed illegal. Most migrants illegally crossing the border, in fact, pass directly in front of a bilingual sign telling them that they are breaking the law.

“It is illegal to cross the border here or any place other than a Port of Entry. You will be arrested and detained if you cross here,” reads a sign placed near Saint-Bernard-de-Lacolle, Que., a focal point for unauthorized border crossings.

However, the illegality ends up being moot since every border crosser immediately claims asylum after being met by an RCMP officer on the Canadian side.

By doing this, their crossing is still illegal, but Canadian law stops considering them a criminal the moment they claim to be a refugee.

Under the Immigration and Refugee Protection Act (section 133, to be precise), a refugee claimant is explicitly “deferred” from prosecution for a variety of illegal measures that they may have used to enter Canada for claiming asylum.

This includes forging false papers, assuming a false identity and illegally crossing the border.

The measure is an acknowledgement that people fleeing political prosecution can’t always get to Canada without breaking a few laws.

One of the more dramatic examples would be Soviet chess grandmaster Igor Ivanov. On a flight back from Cuba in 1980, Ivanov fled his KGB handlers during an emergency refueling stop in Gander, N.L.

Jumping from an airliner onto an airport tarmac is illegal, but Ivanov was never prosecuted after being granted political asylum.

Immigration lawyer Russ Weninger said it’s a criminal law concept called the “defence of necessity.”

“A person can in some cases perform acts that would otherwise be considered criminal if they must perform those acts to avoid some significant harm,” he said. “For example, if you are fleeing an axe-wielding maniac, you can ‘trespass’ onto someone’s property in order to effect your escape.

It’s why, if a border crosser is a “bona fide refugee,” Weninger says she has a right to enter Canada “whether she waits politely at the border or parachutes onto Parliament Hill.”

It’s for that reason that Toronto immigration lawyer Matthew Jeffery describes the recent crossings as being “perfectly legal.”

He noted that Canada is a signatory to the UN Convention on the Status of Refugees “which legally obliges us to allow those entering the country as refugees to be admitted for a fair adjudication of their case.”

Prior to 2001, anybody on U.S. soil seeking asylum in Canada would have needed only to make their claim at a Canadian border station — no illegal entry necessary.

After the 9/11 attacks, however, the U.S. and Canada struck the Safe Third Country Agreement, a law which allows Canada to turn away refugee claimants from the U.S. on the basis that they are already in a “safe country” and are no longer in need of asylum.

By first crossing the Canadian border, however, asylum-seekers are effectively making an “inland” claim and are thus exempt from the provisions of the act.

Raj Sharma, a Calgary immigration lawyer, said “irregular” is the more accurate term given that an asylum seeker is technically still following Canadian law if they cross the border without authorization.

But the term “illegal” is still appropriate for anyone who is unlawfully crossing Canada’s border after already having been deported — or if they have no intention of making an asylum claim, Sharma said.

“It’s admittedly true that not all ‘irregular’ entries into Canada are legally justified,” said Weninger. “But for those people who are genuinely fleeing persecution, failure to wait in line at the border does not, and should not, preclude them from making successful refugee claims.”

Source: Irregular or illegal? The fight over what to call the thousands of migrants streaming into Canada

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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