Proposed federal tool to ‘blacklist a country,’ stop visa processing alarms immigration lawyers

Of note, a further sign of tightening immigration policies (and the ongoing expansive use of budget omnibus legislation). Questions regarding the numbers involved are legitimate and necessary as part of evidence-based policy making, where transparency is important:

The Liberals’ omnibus budget bill gives the government a political tool to stop issuing some visas or permits to people from countries it deems difficult to deal with in deportation proceedings, a measure some immigration lawyers are calling “overly broad” and a “blunt instrument” without the necessary checks and balances.

One of the measures in the almost 400-page budget implementation bill, C-97, would change the Immigration and Refugee Protection Act to give cabinet the ability to make orders about processing applications for temporary resident visas, work permits, and study permits from nationals of a country where its government is “unreasonably refusing to issue or unreasonably delaying the issuance of travel documents” for its citizens or nationals “who are in Canada.” Such travel documents are necessary for deportations. The person being deported needs to be able to travel back home.

Lawyers see it as a political tool to apply pressure to countries delaying that process, and are divided on whether the proposed provision would be misused—because the power could simply be in the threat—but many agree the potential is there.

The tool would allow the Canadian government to retaliate by stopping visas or permits “to whatever extent it wants,” said lawyer Raoul Boulakia, who said he found it especially worrying that there are no checks and balances on what he called a “very radical” measure.

“I think it’s making a very big hammer to hit what might be a straight nail. The wording is overly broad. It can have impacts that have nothing to do with the probable policy intent and it allows for a situation that becomes unmeasured relative to the original problem,” said Mr. Boulakia, president of the Refugee Lawyers Association.

“There’s no mechanism for testing the argument that [another] government has been unreasonable,” he said.

Chantal Desloges, a lawyer who specializes in immigration and refugee law, called it a “blunt instrument” allowing the government to “blacklist a country” for certain types of visas or permits. That would mark a shift in approach, she said, and while there are restrictions in Canada’s immigration system through lottery systems or quotas, Canada still looks at those applications. If cabinet makes an order, it would mean Canada could “refuse to even entertain the application.”

The new tool is a “catch-all provision” that’s likely going to lead to legal challenges and “where it lands could be problematic for a number of reasons,” said Mario Bellissimo, a former chair of the Canadian Bar Association’s (CBA) national immigration law section. The current CBA national chair, Marina Sedai, said the group is studying the section and still developing a position.

The provision has “far-reaching potential,” said Mr. Bellissimo, who said it’s concerning that it could be retroactive in that it could apply to people who already submitted applications, for example.

“It alters rights that were previously held,” he said of the section of the bill that says that applications would be “suspended during the period or periods set out” in the government order and that the processing of any applications “that are pending on the coming into force of the order” may be “terminated.”

For him and Ms. Desloges, it raises a number of questions: how serious is the problem? What’s the current number of would-be deportees stuck in Canada who need travel documents? Where and how would the application being applied? What would be the criteria for its use?

“I assume [the government] will have to develop criteria otherwise they’re opening themselves up to issues of bias or discrimination,” said Ms. Desloges. “It’s such a sweeping thing.”

The CBC reported last fall that Canada’s border agency was boosting efforts to deport failed refugee claimants and others unwelcome in Canada, having 18,000 cases in its deportation inventory. Delays can happen not only due to a lack of valid travel documents, but also medical issues, appeals and other legal proceedings, a temporary suspension of removals, and other factors.

Canada has faced a wave of asylum seekers entering from the United States at unofficial entry points in recent years. The CBC reported that last spring officials said that of the 68,000 asylum claimants who had come to Canada since the start of 2017, less than one per cent had been removed, despite the fact that many had been deemed ineligible to stay.

Marie-Emmanuelle Cadieux, press secretary to Border Security Minister Bill Blair, said Canada “always looks to co-operate with countries when attempting to remove inadmissible persons, but there are instances when others countries refuse to give needed travel documents to their own nationals that Canada.”

“In instances when delays by such countries are unreasonable, our proposed legislative changes would also allow Canada to respond by‎ stopping the processing of certain visa and permit applications from that country.”

Asked at what point Canada would make such an order, if there are parameters to inform that decision, and whether it could be applied to address a single case or would require a pattern of delay, Ms. Cadieux said that it is “a targeted measure that will address certain visa and permit applications. Decisions will be made case-by-case.” She did not respond to queries about the number of people in Canada who have been flagged for removal, and lack travel documents, and the top countries with outstanding travel documents.

Measure ‘less problematic than other ‘earth-shaking’ changes to immigration system: lawyer

This measure is “less problematic” than the other “earth-shaking” changes to the immigration system proposed in the Liberals’ budget bill, said immigration lawyer Sarah Boyd.

Most refugee and immigration lawyers are focused on proposed changes to asylum laws that would prevent applicants from making refugee claims in Canada if they have made such claims in some other countries, including the United States. Ms. Cadieux said the changes are meant to “better manage, discourage, and prevent irregular migration,” while Mr. Blair (Scarborough Southwest, Ont.) said the intent is to prevent “asylum shopping.”

The Liberals campaigned on a promise to stop making legislative changes in this manner, Ms. Boyd noted, calling the omnibus bill a broken promise and a “really problematic” parliamentary development due to the last few governments.

It also means the House Finance Committee is most likely to study the provisions, when lawyers say they really should be before the House Immigration Committee, which is more likely to pick up on unintended consequences.

On April 29, Speaker Geoff Regan (Halifax West, N.S.) ruled against an NDP motion to split the bill, saying “all of the measures…appear to arise out of” budget commitments, including the immigration measures under the section saying the government would enhance the integrity of Canada’s borders and asylum system.

NDP immigration critic Jenny Kwan (Vancouver East, B.C.) had argued the omnibus bill includes “many unrelated measures” to the budget, highlighting the immigration changes as especially disheartening, saying the measures would “significantly transform the Canadian immigration system.”

The Canadian Association of Refugee Lawyers has been focused on these provisions and said by email it doesn’t have a comment on the provision dealing with travel documents.

The bill shows the government is “changing gears,” said immigration lawyer Ravi Jean, pivoting from the infamous 2017 tweet from Prime Minister Justin Trudeau (Papineau, Que.) saying Canada welcomed those fleeing persecution, war, and terror.

“Those moves around restricting the ability of refugees to make claims and trying to tighten up Safe Third Country [Agreement with the U.S.] show that the government feels vulnerable with respect to refugees,” said Mr. Jain, who is vice-chair of the CBA immigration law section.

The change to travel documents likely comes from frustration, he said, noting the government gets a “bad rap” for detaining people too long, but also for people staying too long in Canada who have been told they must leave.

Lawyers weren’t sure which countries the government had in mind when creating the provision, and Mr. Blair’s office didn’t answer which countries were the most unresponsive to requests for travel documents, but in the past some observers said China, Iran, and India, and some African nations have been problematic.

Use of the measure raises the prospect of pushback from within Canada too, from postsecondary institutions if the government targets educational visas, from businesses if it targets work permits, from trade and tourism industries if visitor visas are affected, and so on.

“That’s the balance they’re going to have a strike. Maybe the threat will be enough,” said Mr. Jain.

Ms. Boyd said it’s not an unusual legislative tool for countries and would “make sense” to deploy when a country generally refuses to accept deportation of its nationals.

“It would really depend on whether government misuses this,” she said, like in a case where countries may not have the resources to conduct full investigations on their own, or when identity documents simply don’t exist.

“I don’t know what good it would do, to put political pressure on that country,” she said, calling it a “strong-arm tactic,” to “bully” an outcome.

Anything that moves away from individualization and becomes country-based will “run right into potential constitutional challenges,” said Mr. Bellissimo, “because then you’re not dealing with individuals, you’re dealing with pre-determined countries of origin.”

He said the law should be more explicit, noting lawyers will often look at parliamentary debates to understand legislative intent because that can be brought to court. Such discussions are less likely with the time constraint and limited study for omnibus bills.

“It sets a pattern of lawmaking,” that he and CBA has said “ violates the rule of law and does not lead for ultimately good decision making down the road.”

Source: Proposed federal tool to ‘blacklist a country,’ stop visa processing alarms immigration lawyers

Early commentary on the Liberal omnibus provisions regarding asylum seekers: Contrasting views Ibbitson and Urback

Starting with Ibbitson, who supports the planned change but not it being done though the omnibus budget bill:

“Our country is full,” Donald Trump told asylum seekers last week. The President is wrong, of course, but uncontrolled migration is a crisis in the United States and a problem in Canada, because it undermines confidence in the immigration system.

This is one reason the Trudeau government introduced legislation this week to stem the flow of people who cross at unauthorized points of entry from the United States.

Another might be that, even though the Liberals have done a good job over the past year of slowing the flow of unauthorized crossings, they fear the public might think they haven’t done enough.

In either case, it’s also important to remember that the core purpose of immigration is to stoke the economy and prevent population decline. The intent of deterring crossings at unauthorized places should be to bolster the overall system.

The total fertility rate in the United States has fallen to 1.8 children per woman, and will likely continue to fall. The Canadian rate is 1.6. Both countries are reproducing far below the average of 2.1 children per woman needed to prevent population decline.

This is good news. Teenage pregnancy rates have fallen by two-thirds in the United States since 1990, and 80 per cent in Canada, thanks to improved access to sex education and birth control. In the United States, white, African-American and Latino birth rates are converging, reflecting improved education and economic opportunity for minorities. More women are waiting to establish their careers before having a child, a reflection of increasing equality. Low fertility means social progress.

But fewer babies eventually means fewer young workers to pay the taxes needed to sustain health care and pension for older folks. It also means lower economic growth, because there are fewer young consumers buying that first car, first house and so on. Two dozen countries are losing population each year, and in many cases their economies are struggling.

The United States and Canada counter the effect through high levels of immigration, which is why their populations continue to grow, and to age more slowly.

But the United States faces a growing crisis of uncontrolled immigration, with more than 100,000 crossers from Mexico detained in March alone. In Canada, the number of people who crossed at unauthorized points of entry was just less than 20,000 for all of 2018, mostly from the United States into Quebec.

Mr. Trump wants to build a wall, which would be ineffective, and is threatening to close the southern border completely, which would be an economic disaster.

Prime Minister Justin Trudeau’s government is taking a different approach. The budget bill introduced Monday includes a new law that would prohibit people from making refugee claims who have already made a similar claim in the United States and certain other countries. And Canadian officials are working with their American counterparts to toughen the Safe Third Country Agreement so as to further deter crossers.

The Canadian Association of Refugee Lawyers has condemned the new legislation as “callous.” But Canada will continue to take in refugees who make legitimate claims through regular channels, such as the refugees from Syria.

The immigration system is not humanitarian; it is economic. In Canada, we bring in almost 1 per cent of our population each year so that our economy and population will continue to grow. Mr. Trump encourages nativist, anti-immigrant sentiment. If Americans listen to him, their country will eventually start losing people − with or without unauthorized migrants − surrendering a key geopolitical advantage, since the Chinese and Russian populations will both start to decline in a few years. (In Russia, it may already have begun.)

Some people argue for policies − enhanced parental leave, subsidized daycare, even cash payments − that will encourage couples to have more children, while limiting immigration. Such policies are very expensive and research shows they don’t work. Women in developed countries today for the most part don’t have children because the state, or God, or their kinfolk, or domineering husbands want them to. Parenting for most couples is an act of personal fulfilment. And they are quickly fulfilled.

The Trudeau government should not have placed these new rules in an omnibus budget bill. And those rules may not survive a judicial challenge. But the goal is sound, even if it was opportunistic. Governments have a duty to control their borders. Failure undermines confidence in the immigration system. And closing the door to immigrants is demographic suicide.

Source:     Liberals’ immigration plan is sound policy delivered poorly John Ibbitson April 11, 2019     
Urback, in contrast, focusses on the “crass political” calculations, and is largely silent on the merits or not of the change:

The Liberal caucus would have had a collective aneurysm just few months ago if a senior political opponent had talked about “asylum-shopping” when referring to refugees who cross illegally into Canada. The implication, they’d cry, is that those risking their lives to seek refuge in Canada are simply economic migrants — not families desperate to find a safe place to call home.

The reality, of course, is that while many migrants might genuinely see Canada as the only safe place for them in North America — and perhaps that’s true — many who have crossed into Canada at unofficial entry points have not met the criteria for refugee protection, for various reasons. Slightly more than half of finalized refugee claims from these applicants were rejected in the last quarter of 2018.

The situation is hardly straightforward; Canada has been forced to balance its humanitarian commitment to refugee resettlement with the practical limitations of a system unprepared for the recent wave of migrants.

The system has been under enormous strain, with asylum-seekers waiting up to two years for just a hearing. And the integrity of the process itself has been under intense pressure, based partly on the impression that migrants crossing into Canada illegally are using a “loophole” in the Safe Third Country agreement to qualify for a hearing, when they otherwise would have just been sent back to the U.S.

The situation is thus a fraught and messy one, which unquestionably makes it deserving of criticism and careful analysis. Yet that is something the Liberals have been fiercely intolerant of the past three and a half years.

Back in July, Immigration Minister Ahmed Hussen called the Ontario government’s concerns about so-called queue-jumping “un-Canadian.” During an end-of-year interview, Prime Minister Justin Trudeau said the Conservatives were trying to stoke fears over refugee claimants. In late January, the prime minister responded to a town hall question about Canada’s migration policies with a diatribe lamenting “the politics of division.”

And yet now, a few months later, Border Security Minister Bill Blair has defended the government’s sudden overhaul of asylum laws as a measure to prevent “asylum-shopping.” This language, apparently, is now tolerable.

Buried in this year’s omnibus budget implementation bill is a series of amendments to the Immigration and Refugee Protection Act that essentially disqualify asylum-seekers who have made a claim for refugee protection in any other country. Once the bill receives royal assent, an asylum-seeker can be deported without a hearing, which would seem to violate the Charter as affirmed by Singh v. Canada, where the Supreme Court determined that Charter rights extend to everyone physically on Canadian soil.

Many Canadians will nevertheless welcome the Liberals’ unexpected about-face on asylum-seekers. Two-thirds of respondents to an Angus Reid poll published back in August thought the border situation had reached a crisis point. More than half said that Canada was too generous toward asylum-seekers who cross into Canada illegally. A more recent Ipsos poll found that 47 per cent of respondents believe most migrants aren’t actual refugees — they just want to come to Canada for its economic benefits. Perhaps Blair has that summary on his desk.

What’s noteworthy about the timing of the planned changes is that the number of asylum-seekers crossing into Canada at unofficial points of entry is actually on the decline. In 2018, 1,517 people were intercepted by the RCMP crossing into Canada during the month of January. A year later, that number dropped to 888 for the same month. In 2018, 1,565 people crossed illegally into Canada in February. A year later, for the same month, the total was 808. Numbers haven’t been that low since June 2017.

This is all to say — as if there was any doubt — that the Trudeau government’s decision to enact sweeping changes to Canada’s asylum provisions is just a crass political move; it will come into force months before an election, when illegal border crossing is actually on the decline, and right onside with public opinion in favour of toughening up asylum laws.

Tabling a stand-alone bill on changes to the Immigration and Refugee Protection Act — as one would reasonably expect of policy changes of such enormous importance as Canada’s treatment of vulnerable people fleeing persecution — would take too long, and be subject to debate and revisions and multiple readings and so forth.

By using an omnibus bill (something the Liberals vowed they would never do), these changes can go into effect right away, eliminating a potentially defining wedge issue. Sure, it is potentially unconstitutional, but that can and will be sorted out later.

Three and a half years is not a long time to go from “Sunny Ways” and 25,000 Syrian refugees to deportations without hearings and unconstitutional amendments. This is type of realpolitik (on the backs of refugees, of all people) is the sort of soulless strategizing we’re supposed to expect of the other guys — the ones who talk about “queue-jumpers” and Canadian values and shopping around for places to seek asylum. But without the sun lighting the way, it’s hard to tell everyone apart.

Source: Changing Canada’s asylum laws is nothing but a crass political calculation by Trudeau: Robyn Urback

Budget 2019: New anti-racism strategy unveiled in budget

An ongoing shift from the previous government’ various cuts to the program. The details remain to be seen. The previous Canadian Action Plan Against Racism (post Durban summit) had largely ineffectual programming with the exception of the collection of hate crimes data:

The government is earmarking $45 million, including $17 million in 2019-20, for an “Anti-Racism Strategy” that will fund community projects that counter racial discrimination.

Sums of $15 million and $13 million will be dedicated to the new strategy in upcoming years, out of Canadian Heritage, the 2019 federal budget shows.

“Around the world, ultranationalist movements have emerged. In Canada, those groups are unfairly targeting new Canadians, racialized individuals and religious minorities—threatening the peace, security and civility of the communities we call home,” reads the budget document, which was unveiled by Finance Minister Bill Morneau Tuesday in the House of Commons.

Anti-racism strategy funding will go toward educational projects and creating programs that help create employment opportunities for visible minority groups. In the budget, the government says that racialized men are 24 per cent more likely to be unemployed than men in non-racialized groups, while visible minority women are 48 per cent more likely to be unemployed than non-racialized men.

The government says it will release details about specific initiatives later.

In last year’s budget, the government dedicated $23 million over two years for cross-country consultations about a national anti-racism approach, as well as to boost funds for the multiculturalism program to address discrimination against Indigenous Peoples and women and girls.

The anti-racism strategy is one of 15 measures in the budget that is part of a “need for federal actions aimed at addressing systemic barriers faced by visible minority communities,” according to the document. Other measures dedicated to benefit racialized communities in this year’s budget include putting $283.1 million over two years towards ensuring that refugees and other claimants have access to temporary health coverage, as well as a dedicated $25 million over five years to projects that celebrate Black Canadian communities.

Source: Budget 2019: New anti-racism strategy unveiled in budget