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

C-24 Citizenship Act Committee Hearings – 7 May

Shorter hearing given voting in the house which made the statements and Q&As shorter.

Supporting the Government’s approach were the Ahmadiyya Muslim Community Canada, National Forum for Civic Action, and James Bissett, a retired immigration official who comments on immigration and related issues.

Predictably, supporting the opposition were the two academics, Elke Winter and Patti Tamara Lenard of University of Ottawa, with the most neutral advocacy coming from Pre-PR (Permanent Residents) Time counts, focussing on the Government’s proposed elimination of counting time in Canada for students, live-in caregivers, and refugees towards the residency period to become citizens.

Starting with Ahmadiyya Muslim Community Canada, one of the preferred Muslim groups of the governments (along with the Ismailis). After noting the pride members of his community have in Canada, Asif Khan emphasized that Islamic teachings require “absolute love and loyalty” to one’s country of residence. It was essential for the Government to have powers to deter aggression and protect against extremism. He supported the proposed approach to revocation, and argued that more attention and measures should be applied to those who used investment or trade opportunities to enter Canada and spread their “hateful ideologies.” He did express concern over increasing the number of applicants that would be required to take language and knowledge tests.

National Forum for Civic Action argued for even tougher citizenship requirements. Bikram prefaced his comments by saying that he was going to be “politically incorrect.” Canada’s approach placed original Canadians at a disadvantage, and the Government’s approach was half-hearted. Proficiency in English or French, not just adequate knowledge, should be required. Stop family reunification, seniors are “forced to come here” and are unhappy. Permanent Residents on welfare should lose status. Revocation should be broadened to include domestic abuse and should also apply to second generation immigrants and those elected to public office in other countries. Ministerial discretion on humanitarian and compassionate grounds should be ended.

James Bissett, in a somewhat rambling presentation, stressed his support for a longer residency period. He would have preferred five years but proposal goes in right direction. He supports the revocation provisions and (erroneously) stated that this is in line with most EU countries, and citing UK granting the Home Secretary considerable power in this regard. He dismissed that the provisions would create second class citizens as there was an inherent different between those born in Canada, whose citizenship is granted automatically, and those who choose to become naturalized and take the oath.

Opposing the bill, Elke Winter noted that immigration was fundamental to Canadian nation building, that Canadian Immigration was largely economically driven, and that multiculturalism and citizenship were huge factors in increasing belonging. Some elements of C-24 undermine success in integration by making citizenship as the end-point of integration, rather than part of the journey. The bill makes it harder for the less educated, socially and economically disadvantaged, including many women. Higher fees are an additional barrier. For the highly skilled and mobile, the longer and tougher residency requirements may result in this group becoming as “utilitarian as the selection process”, and adopt a more instrumental approach to citizenship. More flexibility over physical residency is required. She opposes the proposed revocation measures and fears that it will increase the suspicion of dual nationals.

Patti Lenard started off by correcting Bissett on revocation, noting that only UK had taken this approach. US and Australia had rejected it, most EU countries either didn’t apply revocation or were changing their approach. While 75 percent of dual nationals were naturalized Canadians, there was also a significant number of dual nationals by birth (i.e., they didn’t make a choice as Bissett asserted). The fundamental problem with revocation is that it made a group of Canadians more vulnerable to the coercive powers of the state, with Ministerial discretion in too many cases, creating the perception, absent a role for the Courts, of possible Ministerial abuse. UK illustrated the risks of what she called a “fundamentally corrupting power.”

Pre-PR Time Counts strongly opposed the elimination of credit for time as a temporary resident counting towards citizenship. Taisia Shcherbakova and Maria Smirnoff argued that Temporary Foreign Workers and equivalent were not newcomers to Canada but had already largely integrated into Canada. The change perversely would give preference to those without any Canadian experience. They noted that this change would place Canada at a disadvantage compared to Australia and the UK, and argued for similar credit of one year for every year of temporary residence (current legislation only provides for 50 percent credit).

Questioning by MPs  largely buttressed party positions, but there were some interesting moments.

In response to CPC/Menangakis, Bissett clarified that while he supported longer residency periods, there was a need for flexibility, as it may create problems for people who have to travel a lot on business.

NDP/Sitsabaiesan rather cleverly did a quick poll of  all witnesses on credit for time as temporary residents. All supported providing credit, notwithstanding their very different perspectives on citizenship. Liberal/McCallum picked up on that point, noting that Minister Alexander had refused to change approach when asked at the beginning of the hearings.

Will add links to briefs as they become available.