The End of the (Roxham) Road: Leuprecht on “Seeking coherence on Canada’s border migration compact” and some fundamental flaws

Reading Christian Leuprecht’s recent above study for MLI one statement caught my eye in particular, his assertion that:

“…. the timing and implementation of actual changes in regulations initiated by President Trump, which have expanded the remit of migrants who are now at risk of deportation, appear to have had little effect on the flow of irregular migrants crossing into Canada.

This study is skeptical of Trump as the arsonist: his policies are merely an accelerant on a slow-burning fire. A series of factors had affected migration from the United States to Canada prior to the 2016 US presidential election. However politically expedient, misidentifying Trump as a causal rather than an intervening variable is problematic insofar as it leads to a misinformed prescription, such as simply waiting out the current US presidential administration in the mis- guided belief that Trump and his policies are merely an aberration.”

As evidence, he cites the study by Craig Damian Smith, Changing U.S. Policy and Safe-Third Country “Loophole” Drive Irregular Migration to Canada, which states the contrary:

“The Trump administration’s decision not to extend a long-standing Temporary Protected Status (TPS) designation for some 46,000 Haitians was the catalyst for the drastic increase in asylum claims in Canada in 2017. In April 2017, just 140 Haitians crossed into Canada at Roxham Road. The following month, the number increased to 1,355, and to 3,505 that June. Roughly half of the 6,500 Haitians who arrived during the April 2017 – June 2019 period examined, were U.S. residents, with the rest arriving from Haiti and third countries, particularly Brazil. Thus an announced U.S. policy change resulted in roughly 7.5 percent of all Haitians in the United States with TPS choosing Canada rather than risking deportation, moving to a third country, or remaining unauthorized in the United States.”

The various other measures, that Leuprecht cites as pre-Trump reasons for the spike (“electronic Travel Authorization (eTA) for visa-exempt nationals, cracked down on human traffickers, used enhanced technology to reduce fake passports, and improved intelligence sharing on at-risk travellers”) are more germane to the overall influx of irregular arrivals rather than the almost quadrupling that occurred between June and July 2017 (RCMP interceptions) and which have since stabilized as per the chart below (“the new normal”):

The following chart looks at overall inland claims (regular and irregular), again highlighting the post-Trump impact:

A marked increase in irregular border crossers, especially outside of official ports of entry, has put Canada’s immigration and refugee system under scrutiny and fuelled an emotionally charged debate with important policy implications for Ottawa, the provinces, and Canada-US relations: Who should qualify for asylum, or refugee protection, under domestic and international law? Proponents defend migrants’ unequivocal legal entitlement to lodge a claim as a refugee in Canada; critics deem these irregular crossings to be an end-run around Canada’s refugee system by breaking – or at least abusing – the law.

In an immigrant country with a checkered history of immigration policy, to champion the underdog migrant who actually makes it to Canada is par for the course. However, this lenient attitude has effectively turned irregular migration into a back door to Canada: A disproportion- ate number of refugee claims by irregular migrants turn out to be unfounded yet few rejected claimants ever end up being deported.

A disproportionate number of refugee claims by irregular migrants turns out to be unfounded.

On one hand, irregular migration is a function of a complex interplay of domestic, bilateral, and international factors. On the other hand, the Canadian dislike for US President Donald Trump has given rise to a narrative that attributes the surge in irregular migration to the outcome of the 2016 US presidential election. However convenient and appealing, simplistic explanations also tend to be wrong or, as this study explains, at least inchoate. This study lays out the myriad aggravating political factors in the US that predate the Trump administration.

At the same time, Canada has implemented the electronic Travel Authorization (eTA) for visa-exempt nationals, cracked down on human traffickers, used enhanced technology to reduce fake passports, and improved intelligence sharing on at-risk travellers. While these measures have reduced the number of irregular migrants arriving by air and sea, they have made crossing by land from the US much more attractive for those who prefer Canada as a destination. Contrary to claims that most of those who are crossing are taking flight from the Trump regime, about two-thirds of asylum seekers crossing irregularly into Canada by land actually enter the United States legally on a visa for the sole purpose of making their way to Canada. By way of example, Saudi nationals have obtained American visas at the embassy in Riyadh under false pretense, intent on entering Canada to claim asylum.

Between 2016 and 2017 irregular migration into Quebec, primarily from New York state across the now infamous Roxham Road, surged by 230 percent. Although not wholly without precedent, these numbers are nonetheless high by historical standards. Through September 2019, 12,080 irregular migrants had been apprehended by the RCMP out of 46,165 total claims, or 26.2 percent of claims, in 2019. The 2019 numbers are a decline from the RCMP apprehension of roughly 20,000 irregular migrants in each of the two previous years, although at a rate of 1,200 a month in the fourth quarter, the final tally for 2019 will probably range around 15,700. It appears to be a case of squeezing the snake: total claims from all sources are running close to 6,500 a month in the third quarter of 2019 compared to 4,900 a month during the same quarter in 2018.

Canada’s migratory regime is based on a social contract. Recent trends challenge the integrity, sustainability, and legitimacy of that social contract because they undermine the cornerstones of Canada’s migratory regime writ large, and especially its approach to refugees:

  • the legitimacy of a well-administered migration policy that is grounded in the rule of law and preserves the integrity of Canada’s borders;
  • the successful political and economic socialization and integration of migrants; and migration’s collective benefit in fostering Canadian prosperity.

How, then, is Canada to confront the phenomenon of global migration in a way that respects the rule of law while preserving the legitimacy of domestic migration regimes?

As challenges to the integrity of border management and policy have compounded over the past 25 years or so, binational and bilateral cooperation between Canada and the United States has expanded incrementally. After all, open borders depend on extensive cross-border cooperation for their effectiveness and legitimacy. This is the premise that informs a sustainable approach to irregular migration across Canada’s land border between ports of entry.

The government is currently exploring extending the Safe Third Country Agreement (STCA) beyond ports of entry to cover the entire land border. This is a better option than unilaterally suspending the STCA, as some commentators have prescribed. Yet, given the disproportionate number of refugee claims at inland offices, extending the STCA to cover the land border is un- likely to solve the migration problem facing Canada.

This study lays out a cooperative strategy with the aim of sustaining a coherent border-migration compact that includes:

  • weighing the costs and benefits of changing Canada’s STCA with the United States;
  • obviating the need to cross between ports of entry by reinstating the “Direct Back” provision under Section 41 of Canada’s Immigration and Refugee Protection Regulations, which would allow claimants to lodge their claims for refugee status from the United States;
  • enhancing current bilateral and binational administrative, intelligence and enforcement cooperation; and
  • acquiring better data to drive (more) informed and timely decision-making.

The cumulative effect of both regular and back-door immigration risks undermining popular support for migration altogether. Polling data suggest that trend is well underway. These targeted measures are designed to reinforce confidence in Canada’s commitment to managing its borders, the integrity of the refugee migration system, the prospects of the political and economic integration of migrants, and consequences for the country’s prosperity as a whole.


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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