John Ivison: Unilateral regulatory changes could be answer to Canada’s border problems

Interesting series of suggestions from former immigration officials and Conservative staffers, some more well thought out than others (Ivison and I spoke briefly regarding this option).

But fundamentally, I am unconvinced that unilateral approaches, without US cooperation or at least acquiescence, will work. Will the US accept back those refused asylum seekers? And if not, then what.

Not to mention the likely legal challenges that will emerge. After all, the government lost one Federal Court decision regarding appeals to negative refugee rulings and unclear whether an appeal would have changed that decision:

In his State of the Union address in 1995, Bill Clinton said the U.S. is a nation of immigrants but also a nation of laws. It is wrong and self-defeating to permit abuse of those laws at the border, he said.

In his recent interview with the National Post, Justin Trudeau sounded more concerned with rationalizing the surge of migrants on Canada’s southern border than regaining control of the flow of asylum-seekers crossing from the U.S.

He offered no new ideas on how to stop those entering Canada illegally between official ports of entry and suggested the new arrivals will be an economic boon for the country.

“The fact that we have extremely low unemployment, we’re seeing labour shortages in certain parts of the country, (means) it is a good time to reflect that we are bringing in immigrants who are going to keep our economy growing,” he said.

The government has paid lip-service to modernizing the Safe Third Country Agreement with the U.S. that states migrants claiming refugee status must make their claim in the first “safe” country they arrive in – Canada or U.S.

A loophole in the pact with the Americans means it does not apply between official points of entry.

But there has been no progress in actually closing that loophole. The Trudeau government appears to have thrown up its hands in the face of American intransigence.

But Canadians’ faith in an immigration system that is legal, secure and economically-driven has been shaken. There is disbelief that the federal government can do nothing to take back control of Canada’s borders.

With good reason. There is no question that the political and legal environment has limited the government’s room for manoeuvre. But it is also true that the Liberals have not shown the will to reinforce the integrity of the refugee system. For example, once elected, the Trudeau government decided not to appeal a Federal Court decision that ruled it was unconstitutional for the government to strip asylum-seekers from countries designated as “safe” from appealing negative refugee rulings.

James Bissett was head of Canada’s immigration service and is a former Canadian ambassador. He suggested that by passing new regulations under the current Immigration Act, the government could act unilaterally and prevent applications for asylum from people residing in a “safe” country (apart from citizens of that country).

“Designating the U.S.A. a ‘safe’ country and passing an order-in-council accordingly would stop the flow across the border. I don’t see this as a violation of the Safe Third Country agreement, but if it is, then we should unilaterally end the agreement,” he said. “But I’m afraid the government doesn’t want to stop the flow and hopes a large portion of the population will agree to keep the flow coming.”

Andrew House, a lawyer at Fasken and a former chief of staff to successive Conservative public safety ministers, called Bissett’s idea a “sound approach” but said that there is “virtually no possibility” of it being adopted by the Liberal government that dropped the legal appeal on refugees.

Howard Anglin, Jason Kenney’s former chief of staff when he was immigration minister, agreed that building on the existing designation of the U.S. as a safe third country would be legally possible but would likely face major practical problems. While the 1951 Refugee Convention ruled out asylum shopping, the U.S. is unlikely to take back claimants who don’t have legal status in the States, he said.

But Anglin said Canada could at least pass a regulation making anyone with legal status in the U.S. (either temporary or permanent) ineligible to claim asylum. It could include anyone who has been denied asylum in the U.S., after having gone through its asylum process.

“There is some risk the U.S. might consider this a unilateral expansion of the Safe Third Country agreement, and thus a violation of it, and that they could become difficult in administering it on their end, or even cancel it altogether,” he said. But, despite the likely outcry from refugee lobbyists, he said most Canadians would understand why Canada should not encourage asylum shoppers.

Andrew House was more enthusiastic about another of Bissett’s suggestions – that those who cross illegally be brought to an official port of entry and have their case examined there. House suggested that this could be done without abrogating the Safe Third Country agreement.

“There is no sensible reason why Canada would not choose to view the geography in imminent proximity to a port of entry as the port of entry.

“The language in the STCA is clear: ‘country of last presence’ means that country being either Canada or the United States, in which the refugee claimant was physically present immediately prior to making a refugee status claim at a land border point of entry.

“Consider the geography of many Canadian ports of entry – they are not right on the border, they’re often set back several hundred metres. And yet we deem the ‘country of last presence’ to be the U.S., not Canada. Why doesn’t Canada choose to interpret the STCA in such a way that a person attempting to cross 100 metres to the left of a port of entry is simply apprehended, brought to the port of entry and processed per the intended operation of the STCA – that is, turned back to the U.S.?”

If Canada is to live up to its aspiration to be a nation of laws, it’s high time it started exploring some of these regulatory changes. The lack of action smacks of a clash between the administrative will and the political won’t.

Source: John Ivison: Unilateral regulatory changes could be answer to Canada’s border problems

How Canada could prepare for potential new wave of asylum seekers: Anglin and House

Former CPC staffers offer their suggestions on how to stem asylum seekers (for Anglin’s earlier piece, see How Canada can restore order to its immigration system: Anglin), essentially having the RCMP escort asylum seekers to ports of entry, where the safe-third country agreement applies and they can be returned to the US (rather than helping them with their luggage).

Canada’s reputation as a refugee-protecting country was further burnished last Wednesday, when Immigration Minister Ahmed Hussen announced a multi-year plan that will see over 137,000 refugees and other persons deemed in need of protection settling in Canada by 2020. And, after a fraught few months, Canada is enjoying something of a respite from the illegal border crossings we saw over the summer. According to the Canada Border Services Agency (CBSA), by the end of the summer, they were processing “only” 50 to 100 claims a day, down from 1,200 a day earlier that same season.

Whether this is a trend or a pause, only hindsight will tell. But neither the generosity of Hussen’s plan nor the current respite should make us complacent about the problem of what to do about unplanned arrivals at the Canada-U.S. border. In fact, recent media reports in Canada and the U.S. predict that the issue could flare up again in the coming months.

Currently, there are 250,000 Salvadorans, Hondurans, and Nicaraguans living in the United States without valid visas who face reviews of their Temporary Protected Status (TPS) in the coming months—four times the number of Haitians who received notice earlier this year that their TPS would be lifted, prompting the mass migration north to Canada this past summer. On Nov. 6, the U.S. Department of Homeland Security decided that the Nicaraguans can be removed safely, while postponing for now a decision with respect to the Hondurans and saying nothing about the Salvadorans. Then there are the 800,000 beneficiaries of the Deferred Action on Childhood Arrivals, whose status remains in limbo.

To his credit, after first appearing to invite asylum seekers to try their luck in Canada, Prime Minister Justin Trudeau now seems to accept the problem it would pose to Canada if populations living illegally in the U.S. were to come north, rather than returning south to their home countries. Walking back his earlier message in a late-summer press conference in Montreal, he said: “Canada is an opening and welcoming society. But let me be clear: we are also a country of laws. There are rigorous immigration and customs rules that will be followed. Make no mistake.”

That’s the right message, even if it was belatedly delivered. But to be credible, it must be backed by action. Otherwise, migrant networks—including for-profit operations—will quickly notice that, despite tough talk, Canada is still an easy mark for opportunistic economic migrants. And so far, three months after Trudeau’s change of tone, there is little evidence of change on the ground.

The problem is the gap in enforcement created by the 2001 Safe Third Country Agreement. This agreement allows Canada to turn back an asylum-seeker coming from the United States who failed to make his claim first in that country, but only if he arrives at an officially designated port of entry. This gives asylum-seekers a strong incentive to simply avoid official ports of entry, crossing the border illegally along back roads and across farmers’ fields.

The government should use the RCMP more effectively to close gaps in our porous border. Just as the U.S. has Immigration and Customs Enforcement (ICE) to police its borders, in Canada, the RCMP has the mandate to patrol between ports of entry run by CBSA. Mounties serving in this capacity are tasked with ensuring Canada’s immigration laws are observed and the border is secure. You’d hardly know this, though, from the widely shared images of the RCMP politely assisting asylum-seekers with their luggage. That bellhop service isn’t required by the law, but it has become a government policy—one that should change.

Since the spike in illegal crossings this summer, several ideas have been advanced about how to protect the border. But before we reinvent the wheel, engage new resources, or chart new legal territory, there is something the government could do right now—with no new resources or laws—to defend our border: Public Safety Minister Ralph Goodale has the authority under Section 5 of the RCMP Act to direct the Mounties to respectfully but firmly stop migrants from illegally entering Canada.

At the border itself, the RCMP could direct migrants to the nearest Canadian port of entry via a route on the U.S. side of the border. If necessary, the RCMP, authorized as members of a joint Canada-U.S. Integrated Border Enforcement Team, could even escort them there personally. Once at a port of entry, the Safe Third Country Agreement would apply and most migrants would be returned to the U.S. to make asylum claims there.

This would be consistent with the Immigration and Refugee Protection Act of 2001, in which Parliament directed that RCMP officers cannot accept a claim for refugee protection (only a CBSA officer or a designated employee of Immigration, Refugees & Citizenship Canada can do that). That decision frees the RCMP to meaningfully protect the border between ports of entry, reestablishing control over the boundary between our two countries. In extreme cases, that could mean brief detention of the rare aggressive asylum seeker for transport to the nearest Canadian port of entry—but as incentives to run the border build, this would allow the RCMP to reestablish control over the boundary, meaning physically obstructing people will become unnecessary, and ensure that our border means something.

Canadians are generous and welcoming people, but our support for high and now increasing levels of immigration, including refugees, goes hand-in-hand with a belief that the immigration process is orderly and lawful. When Canadians feel their generosity is being abused, goodwill evaporates, as we saw in the backlash against the arrivals of the Ocean Lady and Sun Sea migrant vessels in 2009 and 2010.

If we are to maintain a political consensus in favour of current levels of legal immigration, the Prime Minister must show that his commitment to enforcing the law against illegal migration is more than a rhetorical feint. The government needs to send a clear message that we will enforce our laws and defend the sanctity of our border. And it needs to do so now, in this respite—before winter conditions again increase the danger to northbound migrants.

via How Canada could prepare for potential new wave of asylum seekers – Macleans.ca