Labman and Gaucher: Why the ‘language of loopholes’ should be avoided if Trump cracks down on the Canada-U.S. border

Representative of the views of most academics/activists and divorced from both domestic and Trump administration realities.

It would be far more productive for them to make practical and realistic suggestions to attenuate the impact for those most in need rather than making these general arguments. (e.g., Rob Vineberg’s suggestion on how to improve asylum claim processing).

The general statement that these restrictions will result in an increase in “undertaking dangerous and sometimes deadly measures to seek protection” is correct but will likely cause some to reconsider the risks.

As to the loophole terminology, the reality is that it is likely perceived as such by migrants themselves and those helping them, as they understandably seek a way to enter Canada:

Refugee advocates on both sides of the Canada-United States border are already gearing up for the next round of battle regarding the Safe Third Country Agreement (STCA).

With the re-election of Donald Trump as U.S. president, the incoming appointment of Tom Homan as a “border czar” and stated plans for border crackdowns and mass deportations, there is heightened awareness of the impact on Canadian border crossings.

Trump, in fact, has threatened to impose 25 per cent tariffs on imports from Canada and Mexico until they clamp down on drugs and migrants crossing the border.

STCA timeline

Originally signed in 2002, the STCA permits the return of asylum seekers who arrive in Canada from the U.S. — or vice versa — because both countries are considered safe.

For more than two decades, refugee advocates have called for it to be suspended given the agreement’s negative impact on access to asylum and how it can fuel human trafficking. Instead, the agreement was expanded in March 2023 to make it harder to cross the border.

Simultaneously, Roxham Road, a central crossing point in Québec for asylum seekers travelling from the U.S. to Canada during the first Trump administration, was closed down in 2023.

Supposed loopholes

Debates around the STCA often feature complaints that the agreement contains loopholes that must be closed.

Prior to March 2023, the agreement allowed Canada to refuse refugees coming through the U.S. who sought entry at official border crossings. Crossing at an unofficial border point, however, did not trigger the agreement, a detail described by critics as a legislative loophole.

These critics argued that asylum seekers were exploiting the loophole by avoiding official land ports of entry to make their refugee claims.

To be clear, the decision about official and unofficial border crossings was not accidental. It was an intentional recognition of the expansive reach of the Canada-U.S. border and the impossibility of attentively monitoring or tracking all refugee routes into Canada or the U.S.

Obscuring understanding

Our research, featured in Emmett Macfarlane and Kate Puddister’s upcoming book Disciplinary Divides in the Study of Law and Politics, explores how this language of loopholes works to dangerously obscure our understanding of how migrants move, the STCA’s effectiveness as a tool of border control and whether the U.S. is in fact safe for refugees.

The idea of a loophole implies an error that must be addressed, and, at the border, a hole to be closed or a road to be sealed. The language of loopholes centres on the “security” of the border.

The revised STCA now applies across the entirety of the border between Canada and the U.S., at both official and unofficial crossings. The perceived loophole of crossing at unofficial entry points and being able to claim asylum has been closed. Yet, in the aftermath of the U.S. election, new loophole language is surfacing.

Under the new STCA, migrants who cross into Canada at irregular border points will be returned to the U.S. (or vice versa) — but only if they’re discovered within the first 14 days of their arrival. This incentivizes refugees to evade detection for two weeks so that they can make a claim for protection in Canada.

With the land crossing “loophole” closed, we now see critics pointing to this 14-day provision as yet another loophole, describing it as an ill-considered gap in the revised agreement that must be closed — further limiting access to asylum.

Placing asylum seekers in harm’s way

Many refugee advocates have argued this new 14-day condition puts asylum seekers at greater risk, pushing them into hiding and making them reliant on human traffickers. But these advocates don’t use the language of loopholes — they simply see it as further argument on why the STCA is not the right way to control irregular crossings and should be suspended entirely.

With a Canadian federal election on the horizon and ongoing debates around the agreement looming large, Immigration Minister Marc Miller acknowledged there may be need to consider a “different approach” to border management. He says the government is focused on a “secure” border.

This public fixation on the type of border crossing migrants undertake isn’t unique to commentary on the STCA.

Migrants arriving in Canada by sea from various South Asian regions on the Komagata Maru in 1914, the Amelie in 1987, the Ocean Lady in 2009 and the MV Sun Sea in 2010 were met with strong opposition from Canadian governments, accused of using a disingenuous channel to seek entry.

Excluding some migrants

Characterizing asylum seekers who are crossing the border as exploiting a loophole is therefore aligned with a Canadian immigration history that, while inclusive in certain respects, has been marked by both legal and illegal attempts to exclude certain groups of migrants.

In fact, crossing a territorial border to trigger a legal right to claim asylum is viewed fearfully in contrast to the airport receptions of resettled refugees who, for the fortunate few with access to this discretionary route to protection, are celebrated.

Debating whether asylum seekers are exploiting perceived loopholes taps into public sentiment about specific migrant arrivals of the past.

It also ignores both Canadian and American complicity in facilitating these unofficial crossings in the first place by choosing to place obstacles in the way of asylum seekers rather than devoting care and resources to a fair and orderly processing of refugee claims.

Closing ‘loopholes’ won’t deter migrants

This language of loopholes suggests that once the loophole is closed, applications for asylum and incidents of trafficking will decrease.

This assumption is empirically false given the grim realities of migration. The presence or absence of loopholes does not prevent asylum seekers from undertaking dangerous and sometimes deadly measures to seek protection.

Conversations around the STCA that focus on loopholes have lost sight of the needs of asylum seekers and our commitments in international law to protect refugees. Instead they emphasize the supposed illegitimacy of border crossers, echoing the country’s longstanding preoccupation with how one negotiates the border.

Source: Why the ‘language of loopholes’ should be avoided if Trump cracks down on the Canada-U.S. border