Barutciski: Canada’s overly inclusive definition of ‘immigrant’ threatens to upset the apple cart 

2023/08/29 Leave a comment

Fully agree with need to include temporary residents in the annual levels plan but no need for the government to await an amendment to IRPA: in the interim, the government could decide to do so on its own volition if inclined to do so and be more transparent about actual levels of immigration.

Likely inertia will prevail, nothing will be done by the government and no amendment to IRPA will come before Parliament. Happy to be proven wrong…:

That Canadians have been debating aspects of immigration policy this summer is, on its own, unusual. After years of record-setting admission numbers, systemic problems such as the generalized housing shortage and the surge of homeless asylum seekers have prompted debates about whether the number of admissions is too high – though admirably, Canada’s traditional widespread openness and commitment to immigration remains unquestioned. But what’s also unusual is the way we are talking about immigrants, because official and media sources have presented the yearly number of immigrants to the country in a way that hasn’t been as clear and upfront as possible about recent changes in immigration policy.

In the past, the term “immigrant” was generally used to designate permanent residents who had been admitted to the country. As a consequence, Canadians had grown accustomed over the past few decades to hearing that their country was admitting roughly 200,000 to 400,000 immigrants a year. In March, however, then-immigration minister Sean Fraser announced that Canada had brought in a million new immigrants in the previous year. While the sudden huge increase was largely unexplained, careful observers figured it out: the new statistics included temporary residents, such as international students, along with the usual permanent resident numbers.

This has stemmed from an explosion in the granting of temporary resident permits since the Liberals came to power in 2015. The Liberals were also still able to issue a large number of permanent-resident permits during the COVID-19 pandemic, when the borders were closed, by relying on the selection of temporary residents who were already in Canada. This approach is becoming the new way of selecting many of the country’s permanent residents.

In other words, temporary migrants already have become a significant part of the country’s immigration policy; the data has just caught up with that reality. The problem is that nobody has actually explained this major change to the host population. The implications need to be discussed openly and honestly, and it is impossible to do so if the relevant information is not made public.

According to s. 94 of the Immigration and Refugee Protection Act, the immigration minister is supposed to provide Parliament with a report that explains many details focusing on the permanent residents who are admitted every year. This provision is now incomplete given this shift in reporting basic statistics. Parliamentarians should amend the legislation so that Canadians can be properly informed not only about permanent residents, but also temporary residents.

All opposition parties should push for this amendment. The Liberals have somewhat downplayed their role in the evolving language, maintaining that temporary permits depend on demand from employers and postsecondary institutions. Yet the federal government ultimately controls the authorization and issuance of visas. If employers looking for cheap labour and cash-strapped educational institutions really are able to guide the country’s immigration policy based on their own narrow interests, that would disregard the implications for the rest of the country.

There seems to be an ideological dimension to the shift, and it has been implemented in a way that goes beyond the traditional consensus amongst Canadians. When she was foreign affairs minister, Chrystia Freeland illustrated this vision when she rushed to Toronto’s Pearson Airport in 2019 to greet the newly arrived asylum seeker Rahaf Mohammed. Her characterization of the Saudi teenager that day as a “brave new Canadian” was technically premature if we go by the country’s Citizenship Act. Some have similarly started to refer to asylum seekers as “newcomers,” even though in most cases, their ultimate status and right to remain in Canada is unknown. This generous use of inclusive terminology regarding community membership is not understood by average Canadians, and threatens to upset the informal agreement that positively informs our politics: that immigration enriches Canada.

All these changes to Canada’s immigration policy may represent potentially interesting new ideas, but they need to be clearly presented and debated to keep the public on board. Marc Miller, who took over for Mr. Fraser as Immigration Minister in July, would be wise to proceed cautiously and reassure Canadians that their country is not being transformed too quickly by the improvised and ad hoc application of new concepts. The place of temporary permits in the overall immigration scheme provides one important example where recent developments need to be properly scrutinized. An amendment to Canada’s immigration legislation is needed to make sure this happens.

Michael Barutciski is a faculty member of York University’s Glendon College. He teaches law and policy with a focus on migration issues.

Source: Canada’s overly inclusive definition of ‘immigrant’ threatens to upset the apple cart

Filed under Immigration Tagged with , ,

Barutciski: Quebec’s caution about immigration is a lesson for all of Canada

2023/06/21 Leave a comment

I wouldn’t necessarily characterize as this driven by ideology as much as misplaced emphasis on demographics and overall GDP growth, along with siloed approaches that ignore the impacts of high levels of permanent and temporary immigration across all levels of government. And if driven by ideology, it is more by economic ideology than anything else.

But the demographic impact on lower levels in Quebec compared to the rest of Canada is significant, as it is with respect to Indigenous peoples:

Plans to boost immigration levels in Canada are raising questions. The recent suggestion that Canada will become a country of 100 million inhabitants created controversy particularly in Quebec. Large increases in permanent and temporary residents at a time when there is a housing shortage suggests federal policy is increasingly influenced by ideology, in contrast to past pragmatic approaches.

Although temporary permits increased under the Harper government, they exploded under the Trudeau government. Quebec’s new French language commissioner recently pointed out the impact of large numbers of foreign students in Montreal, a city worried that the use of French is being replaced by a generic North American culture and its English language. As a key actor in the historic compromise that established the federation, Quebec’s concerns should be taken seriously by any Canadian committed to successful immigration outcomes.

Although Prime Minister Justin Trudeau has stated that the 100 million is not governmental policy, it is impossible to ignore the context. Immigration is simply a more sensitive issue outside the English-speaking world. European countries such as Germany and France are open to immigration, but they handle language and culture prudently because of their stronger sense of identity. For example, nobody in Hamburg would accept basic demographic shifts that result in the local population being born largely outside of Germany, let alone brag about this development as a symbol of openness to diversity. While inclusive Torontonians have been doing this for years, it is clear that Quebec’s sensibilities are closer to continental Europe’s than to the rest of Canada.

The modern version of the ambitious 100-million project has been debated for more than a decade. It was notably proposed as a geopolitical project that focused on the multi-faceted benefits of a larger demographic base. The idea was then appropriated by the Toronto-based advocacy group known as the Century Initiative. This influential group focused on economic liberalization and transformed the goal into a more one-dimensional project responding to issues such as labour supply.

Yet two important constituencies were absent from the early stages of the Century Initiative’s deliberations: Quebec and Indigenous peoples. Their concerns about demographic submersion were ignored. This was the “diversity is our strength” approach within a Toronto-centric worldview that emphasized certain economic benefits while excluding other perspectives.

Congruence with the agenda of progressive ideologues was just a matter of time. As soon as Trudeau came to power in late 2015, some cabinet members pushed for a massive increase in immigration. In the burgeoning atmosphere of identity politics, anyone opposed to increased immigration could be accused of racism. Trudeau’s first minister of immigration, John McCallum, proved to be a moderate voice to the extent that the increases in overall immigrant numbers under his watch were a fraction of what was advocated by some other cabinet ministers. He even expressed reservations, acknowledging the risk that newcomers would converge on the country’s largest urban centres, thereby creating the impression of saturation which could in turn undermine public support for future increases.

Yet Trudeau’s ideological instincts tend to align more with establishment thinking in Toronto than in Quebec City. A clash with Quebec was inevitable given that it has more difficulty attracting immigrants who can integrate within its distinct francophone society. While steady increases may be possible, as recently suggested by Premier François Legault, demographic submersion is a real threat if the rest of Canada enjoys population growth that largely outpaces other G7 members.

The underlying tension results from English-speaking Canada’s overconfident multicultural policy, which allows the short-term welcoming of massive numbers of immigrants while dismissing potentially destabilizing effects of long-term demographic shifts. Just as for Quebec, this may prove to be an existential issue for Indigenous people who risk carrying even less weight in overall population numbers and accompanying political representation.

Any national party genuinely committed to unity should consider these challenges if the vast country is to remain pro-immigration. With regard to Quebec’s hesitations, it would help national cohesion to understand the challenges faced by francophone jurisdictions that are competing with the Anglosphere for immigrants from around the world. Condescension in relation to the specific integration difficulties experienced by Quebec is misplaced.

After all, no country has ever transformed its demographic base in such a way that the numerically dominant ethnic group voluntarily cedes its leading position to migrants invited from culturally diverse places. Canadians could be reassured that the transformation is not driven by ideology if the unique nature of this societal experiment were to be acknowledged and openly debated.

Michael Barutciski is coordinator of Canadian Studies at Toronto’s Glendon College, York University. He spent the spring in both Quebec and Germany comparing migration policies.

Source: Barutciski: Quebec’s caution about immigration is a lesson for all of …

Filed under Immigration, Multiculturalism Tagged with , ,

The safe-third-country amendment paves a balanced road to refugee protection, The deaths in the St. Lawrence River show that border ‘control’ is a fallacy

2023/04/05 Leave a comment

Two contrasting perspectives, Michael Barutciski of York University, praising the agreement as being balanced, Christina arguing that it will result in significant hardship, human smuggling and deaths.

I find Barutciski more realistic and his arguments more convincing.

Starting with Barutciski:

After years of controversy, the Trudeau government is putting an end to the unofficial crossings at Roxham Road, which were undermining public confidence in border integrity. While all migrants must be treated with dignity, we should also recognize that effective protection is about balancing the rights of asylum seekers with legitimate state concerns. Prime Minister Justin Trudeau appears aware, at last, that asylum is a two-way street and that the situation was leading to a backlash. He announced last week with U.S. President Joe Biden that the Safe Third Country Agreement (STCA) will extend across the entire Canada-U.S. border. This can lead to a balanced overall policy if there is a genuine commitment to a comprehensive regional approach.

Although commentators insisted the U.S. would never agree to remove the loophole in the STCA that allowed the Roxham Road situation, the timing was right for a renegotiation. The Biden administration is leading a collaborative strategy to establish orderly migration in the Americas, and the recent scandalous revelations that U.S. officials were encouraging irregular migrants to cross at Roxham Road provided Ottawa with the additional impetus to take a broader, hemispheric approach to migration.

Even before these revelations, the application of the STCA was undermining public trust. It left the impression that the government was unable to control the border; illegal entry at Roxham Road became so easy that it was almost an invitation for undocumented migrants to try their chances at obtaining asylum in Canada. It also gave the appearance of an incoherent system favouring irregular migrants over those who present themselves at official crossings. The latter were generally turned back to the U.S. in accordance with the STCA, which stipulates that they should seek protection in the first “safe” country they enter. No protection principle could justify such a double standard, one that treated asylum seekers differently based on which part of the land border they used to enter.

The additional protocol announced recently follows the most rational option: By extending the STCA to the entire border, it guarantees that collaboration between the U.S. and Canada is not limited to official crossings. Neither country is obliged to return migrants, although they now have the formal structures to proceed this way if they so choose. The dissuasion element will make irregular migration more complicated, so the logic is that fewer migrants will choose this path. Refugee advocates and their academic allies have countered by claiming that migrants will now start to cross at more remote places, implying border control is futile. This is essentially an argument for open borders.

By amending the STCA, Ottawa has backtracked from its previous position that the 1951 Refugee Convention automatically grants every asylum seeker at Roxham Road the right to a hearing. Indeed, the word “asylum” was deliberately omitted from the convention’s 46 articles, and following a failed endeavour to adopt an asylum treaty in 1977, no further attempts have been made to codify a legally binding right to seek asylum. Just as international treaty law does not stipulate such a right, the Supreme Court’s landmark Singhdecision never determined that every asylum seeker automatically has the right to a hearing once they set foot in Canada.

Yet the government’s previous position played well to activists and academics who continue to prefer the status quo, which has an understandable appeal if the issue is simply about handling irregular migration at the border in a somewhat predictable and semi-orderly manner. However, this view remains tone-deaf to the symbolic impact of the RCMP’s credibility-sapping participation in border theatre: Until recently, border agents tried to dissuade migrants from entering illegally by yelling out that they will be arrested, even though everyone knew they would be immediately released to pursue their asylum claims in Canada.

Last month’s diplomatic development should stop this situation from continuing. It appears to be a simple version of a quid pro quo arrangement previously suggested to advance negotiations: Washington has agreed to amend the STCA, while Ottawa has committed to resettling at least 15,000 asylum seekers from Latin America. But as migration flows stabilize, the Canadian contribution should expand well beyond 15,000 resettled refugees. By tending to humanitarian needs, Canada’s labour shortages could also be addressed by new legal pathways for migrants, who have much to contribute to the economy.

Instead of the current undignified status quo that forces migrants to enter illegally at Roxham Road, ambitious collaboration could bring us closer to a humane model for orderly migration not just between Canada and the U.S., but around the world. The crucial question is whether there will be a long-term commitment.

Michael Barutciski is co-ordinator of Canadian Studies at York University’s Glendon College. He was previously director of the diplomacy program at the University of Canterbury Law School and fellow in law at Oxford University’s Refugee Studies Centre.

Source: The safe-third-country amendment paves a balanced road to refugee protection

Following with Clark-Kazak:

The recent deaths of eight people at the Canada-U.S. border are the tragic but predictable consequences of policies that fail to account for the realities of global migration.

Last week, police reported that eight bodies – including an infant and two-year-old child – were found in the St. Lawrence River near the Kanien’kehá:ka community of Akwesasne. Six adults holding Indian and Romanian citizenship, along with two Canadian children of the Romanian couple, were reportedlytrying to cross irregularly into the United States. Casey Oakes, an Akwesasne resident, is still missing.

What may surprise Canadians is that the victims appeared to be heading from Canada into the United States. But the issue of irregular migration has long cut both ways – and recently changes by both parties only make matters worse.

This tragedy occurred less than a week after U.S. President Joe Biden and Canadian Prime Minister Justin Trudeau announced changes to the Safe Third Country Agreement. While most of the media and political attention has focused primarily on the resulting closure of the irregular border crossing at Roxham Road in Quebec, the deal also requires, with limited exceptions, anyone claiming asylum after arriving by land to make their refugee claim in the first country they reach, either the U.S. or Canada.

The Canadian government’s primary objective appears to be to limit the overall number of refugee claims in Canada. The deal allows Canada to turn back refugee claimants at official land ports of entry, and to deport people who cross irregularly from the U.S. and subsequently make an asylum claim.

While they are small in number compared with the 2.4 million encounters by U.S. Customs and Border Protection on the country’s southern border with Mexico in 2022, Mr. Biden faced domestic political pressure to address the increasing numbers of people crossing irregularly into the U.S. from Canada. These irregular crossings, typically motivated by family and community networks and employment opportunities in the U.S., required the Americans and Canadians to publicly co-operate on the issue.

Many migrant fatalities over the past year have involved people crossing north to south. In January, 2022, the Patel family from India died while attempting to enter from Manitoba. Fritznel Richard, a Haitian man, died trying to reach his family in the U.S. from Quebec in December, 2022. In February, 2023, Jose Leos Cervantes, from Mexico, died shortly after crossing into New York State in sub-zero temperatures. These deaths occurred because there was no option like Roxham Road to allow for relatively safe, irregular passage from Canada to the U.S.

However, the resulting STCA amendment actually reduces overall immigrationpathways, thereby increasing the chances of irregular crossings and death.

Research shows that the securitization and militarization of borders has only driven up human smuggling and risky journeys on the land and sea borders of the European Union and at the U.S.-Mexico border, which the International Organization for Migration deemed “the deadliest land crossing in the world.”

While rich countries in Europe and North America benefit from globalization and the free movement of capital, many also attempt to close their borders – administratively and physically – to people seeking safety, security and a better life. These are not evidence-based policies. They are political measures to try to reassure domestic constituencies that they are “in control.”

But controlling borders – especially one as long and geographically complex as the Canada-U.S. border – is an impossible proposition. For as long as desperation remains the driver, irregular border crossings will continue, in both directions, no matter the risk.

Last month, in keeping with its decades-long patterns, Washington budgeted US$25-billion for border control, immigration detention and deportation. But despite such spending, the U.S. is estimated to have the largest undocumented population in the world, at more than 10 million. These people are often then driven into precarious employment that can lead to exploitation.

These resources would be better invested in clearing massive immigration backlogs – another problem Canada shares with the U.S. – and in creating more legal pathways to residency and citizenship. Funding could also be redirected to supporting communities along the border that are negatively affected by increased securitization and surveillance, but are otherwise neglected and marginalized. The Kanien’kehá:ka community of Akwesasne, for instance, has to contend with colonially imposed complications associated with its territory straddling Ontario, Quebec and New York State, which makes access to services (including health care) a challenge.

By following the U.S.’s lead on migration and border policies, Canada is making a costly mistake – in terms of how it is failing to invest in solutions that address the root causes of irregular migration, but also in terms of the impact their short-sighted policy making will have on human lives.

Christina Clark-Kazak is an associate professor at the University of Ottawa.

Source: The safe-third-country amendment paves a balanced road to refugee protection, The deaths in the St. Lawrence River show that border ‘control’ is a fallacy

Filed under Immigration Tagged with , , ,

The U.S. isn’t rushing to deal with Canada’s Roxham Road migrant problem

2023/02/17 Leave a comment

Realpolitik, no incentive for USA and off-loading some of their “problems” makes meaningful and successful negotiations unlikely, although Michael Barutciski argues that it can be done (Is a diplomatic solution possible for Roxham Road?:

On the day that Quebec Immigration Minister Christine Fréchette celebrated the mass relocation of Roxham Road migrants to Ontario, her boss, Premier François Legault, told reporters he couldn’t understand why the U.S. wasn’t willing to take border-crossers back.

He met U.S. Ambassador David Cohen on Tuesday, and then said he doesn’t know why the U.S. won’t change a border agreement so people who enter Canada at Roxham Road, an unofficial crossing between Quebec and New York State, can be returned to the U.S.

“I said to him, I don’t understand why it is taking so long to settle with the United States.”

Mr. Legault is an intelligent politician, so he must be deliberately playing dumb.

He knows the relief that government leaders feel when their intractable problem becomes someone else’s. Ms. Fréchette said the Quebec government was “very happy” that 372 of the 380 people who crossed into Canada at Roxham Road since Saturday had been relocated outside Quebec.

Surely Mr. Legault must have a clue as to why the U.S. government isn’t rushing to solve Canada’s Roxham Road issue.

The U.S. position is not an accident. It has for decades resisted doing what Canada wants it to do on this file.

To be clear, Quebec is right to want some of the migrants, many of whom will seek asylum, to be relocated. The RCMP intercepted 39,171 people entering Canada at Roxham Road in 2022, and the province, and especially Montreal, complained their capacity to settle people was strained. The border is Canada’s responsibility, not just Montreal’s, or Quebec’s.

And certainly, it would be easier on all levels of government in Canada if the United States just took all those people back. But it has resisted.

Politicians shouldn’t act as though getting the U.S. to change should be a snap. Justin Trudeau’s government has hinted a deal might be coming, but we might want to see it before we believe it. You’d have to think there would be some serious quid pro quo. It isn’t the Americans’ border problem.

There was a period in the pandemic when the U.S. did accept people back, in theory temporarily, when both countries closed their borders. Not many people tried to cross at Roxham Road. But the U.S. ended that arrangement in November, 2021. People started crossing there again.

There was a long history before that. At one time, asylum-seekers could simply show up at any official border crossing and claim refugee status in Canada. But as the numbers grew in the 1990s, Ottawa tried and fail to make a deal. The U.S. declined. It was only after the 9/11 attacks, in a broad border pact, that the U.S. accepted a Safe Third Country Agreement that allowed Canada to return asylum-seekers who arrived via the U.S. to make their claim there.

But it only applied at official border posts, and for a pretty simple reason: The United States wanted it that way. It didn’t want the trouble of accepting people who might show up anywhere along the long border with Canada.

The agreement was always opposed by refugee advocates, but from the start there was also a concern that it would encourage people to cross the border in illicit places. Jason Kenney has said he tried to convince the U.S. to change it when he was immigration minister in Stephen Harper’s Conservative government, to no avail.

Fast forward to now, when Roxham Road has become a well-travelled route, and the U.S. still isn’t itching to change it. And we shouldn’t be surprised, when the hottest political issue in the U.S. is illegal entries across the Mexican border, that the U.S. is not racing to stop 40,000 people from leaving.

If the U.S. did apply the Safe Third Country Agreement outside official border crossings, it would shut down Roxham Road, but more people would cross at the many other locations along the boundary.

Taking them all back would require more work and more patrols along the Canadian border when the U.S. devotes its resources to the Mexican boundary. The U.S. Border Patrol has 2,073 agents along the northern boundary, compared to 16,070 agents at the southern border – whose patrols logged more than a million “encounters” with border crossers in 2022.

And U.S. President Joe Biden couldn’t expect to be celebrated for making a deal with Canada that prevents tens of thousands of asylum-seekers from leaving the U.S. New York City Mayor Eric Adams, a Democrat like Mr. Biden, has been giving asylum-seekers bus tickets to get to Roxham Road. No one should be surprised the U.S. isn’t jumping to “solve” this Canadian problem.

Source: The U.S. isn’t rushing to deal with Canada’s Roxham Road migrant problem

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Barutciski: The Roxham Road legal confusion is back

2022/06/03 Leave a comment

A somewhat tortured series of arguments, coloured by a bit of Trudeau and Liberal derangement syndrome, that undermines the case to address Roxham Road irregular arrivals.

It also ignores that USA agreement would be required to amend the STCA and that unilateral actions would be subject to court challenges (as is the STCA itself).

However, fundamental he is right in that Roxham Road undermines Canadian confidence that immigration is being managed and reasonably controlled. Like other perceived “queue jumping” and loopholes such as birth tourism, the Roxham Road exemption from return to the USA raises questions about fairness between those who arrive at official border crossings and those who do not.

Roxham Road accounts for over 99 percent of all irregular arrivals (January-April 2022) given its ease and thus either making Roxham Road an official point of entry, pending fixing the SFCA loophole, would result is a large reduction in the number of irregular arrivals.

And of course, all political parties virtue signal to their supporters and potential supporters, as it is easier that addressing the substantive issues at stake (sigh…):

After a relatively quiet period, Roxham Road is back in the news. Refugee claimants have been entering Canada through this unofficial border crossing between rural Quebec and upstate New York at record rates since the Trudeau government lifted the pandemic-related entry ban. From his public statements, it appears Prime Minister Trudeau believes these migrants have rights in Canada if they try to enter irregularly at Roxham Road, but not if they follow the rules and present themselves at an official Port of Entry. He also has an imprecise understanding of the exact nature of Canada’s legal obligations.

It is no wonder part of the population is perplexed and losing confidence in the system. No protection principle could justify treating refugee claimants differently based on which part of the land border they use to enter. While it is unfortunate that an uncritical media and various attention-seeking politicians are unable to properly explain the Roxham problem, it is much more worrisome that the prime minister seemingly does not know the laws applicable in the country he governs.

Laws apply immediately at the border 

Given the apparent confusion, it is worth pointing out that a person who arrives at a land Port of Entry is already considered to be in Canada and the authorities are bound by both international and domestic legal obligations. The Canadian government does not apply a type of legal fiction that pretends there is a special “international zone” at the border in which people are not considered to be in Canada until they are officially authorized to enter.

As soon as migrants come into contact with the authorities, both the Geneva Refugee Convention and the Canadian Charter of Rights and Freedoms can protect them. If entry is not authorized, then they are returned to the US. As the Canadian system is based on the rule of law, refugee claimants can contest the decision to return. Indeed, several claimants have partnered with advocacy groups to argue that the US is unsafe for them. Their case will soon be heard by the Supreme Court of Canada.

The above legal situation is the same whether it occurs at an official Port of Entry or at an unofficial crossing staffed by the RCMP, such as the one at Roxham Road. The Canada-US Safe Third Country Agreement (STCA), which entered into force in 2004, simply declares both countries to be safe for refugee claimants and introduces formal cooperation on responsibility-sharing between them. It does not change the application of either the Refugee Convention or the Charter, although the substantive rights are affected by the designation of the US as a “safe third country.”

Likewise, the fact that the signatories decided the STCA would apply only at official Ports of Entry (i.e., not at Roxham Road) does not change the legal regime. It does, however, provide migrants with a huge incentive to enter irregularly through Roxham Road rather than the nearby Port of Entry at St-Bernard-de-Lacolle. Indeed, it indicates Canada and the US do not have formalized return arrangements for refugee claimants trying to cross the border in between Ports of Entry.

This loophole is what distinguishes the STCA from a similar agreement between European Union (EU) member states, known as the Dublin Regulation, which also tries to tackle the “asylum shopping” problem. The Dublin Regulation does not contain a loophole based on a migrant’s mode of entry, so EU members are supposed to send refugee claimants who entered their territory irregularly back to the first EU country that they entered. These so-called “Dublin transfers” can be complicated if someone enters irregularly via the Mediterranean only to be processed by the authorities in a northern European member state.

The above summary contextualizes the Roxham controversy. Given that the situation involves sensitive issues related to territorial sovereignty and border control, any serious leader should be able to explain this context to the public. The prime minister’s statements, unfortunately, suggest he has a superficial understanding of the situation. Speaking about Roxham Road to a group at the University of Manitoba, Prime Minister Trudeau said “Canada has obligations under international treaties to give asylum seekers a hearing.” Yet he somehow also believes these supposed obligations do not apply at the nearby Port of Entry.

The only rational explanation for this position could be that he is under the mistaken impression that a person arriving at the Port of Entry is not actually in Canada and therefore not covered by international and domestic legal obligations. From an analytical perspective, the striking aspect of the Roxham controversy is that the prime minister does not seem to grasp the legal dimensions but he insists they are guiding his government’s policy, as he recently explained to the House of Commons.

In other words, Prime Minister Trudeau does not seem to understand that while the Refugee Convention and the Charter apply to everyone who arrives at Canada’s border, the legal protection they provide depends on each person’s circumstances. He does not grasp the basic consequences of Canada having declared the US to be safe for refugee claimants and how this creates specific circumstances influencing the extent of the protection granted by international and domestic law. However, the prime minister does have a keen sense of political symbolism and a desire to project a humanitarian image.

Is there a right to a hearing? 

Does the Refugee Convention oblige Canada to provide a refugee hearing to anyone who arrives at Roxham Road, as claimed by the Trudeau government? Nowhere in this 1951 treaty is anything mentioned about refugee status procedures. The word “asylum” is not even mentioned in any of its 46 articles. The most relevant obligation is found in article 33, which stipulates that refugees cannot be returned to a country where their “life or freedom would be threatened.”

This basic guarantee is not the same as a right of asylum in that it allows some flexibility as long as refugee claimants’ lives are not endangered. Unless the Supreme Court of Canada determines the US is not safe, there is no violation if refugee claimants arriving at the Quebec border are returned to upstate New York.

The harsh reality is that the Refugee Convention’s limited protection does not oblige Canada to provide a hearing to every refugee claimant who shows up at the border. It also allows claimants to be returned to safe countries, which is why the adoption of the STCA was possible in the first place.

Does the Canadian Charter of Rights and Freedoms oblige the government to provide a hearing to anyone who arrives at Roxham Road? The landmark 1985 Singh case established that the Charter applies to anyone on Canadian soil, but that does not mean its protection necessarily guarantees refugee claimants an automatic right to a hearing. Nowhere in the judgment is it mentioned that there is a general right to a hearing. Rather, the specific circumstances of the case are underlined in order to establish a potential Charter violation because the Sikh claimants risked being returned directly to India where they feared persecution. The Charter’s protection of “life, liberty and security” (section 7) was at stake, so the old refugee status determination procedure was considered insufficient and the Supreme Court ruled they were entitled to a hearing.

Refugee claimants at Roxham Road are arriving from the US. Stopping and returning them at the border will not result in a potential Charter violation because the US is deemed safe, so the reasoning behind Singh does not apply. Journalists who accept uncritically the prime minister’s position misunderstand why the Court in Singh granted a hearing. There cannot be a Charter violation if someone is sent to a safe place.

The federal Immigration and Refugee Protection Act also provides that, when a refugee claimant arrives at the land border, there is an initial determination to establish whether the person can make a claim (section 100). The various grounds for ineligibility are outlined in the following section 101 of the Act. Unsurprisingly, these include diverse security-related reasons. They also include a conspicuous clause rendering claimants ineligible when they come “directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence.” This is the legislative provision that allows return to the US and enables the adoption of a responsibility-sharing agreement with the US. As outlined above, laws apply immediately at the border given that there is no fictitious “international zone” or no-man’s-land where the authorities can act in a legal vacuum.

Even a quick reading of Canada’s main legislation dealing specifically with refugee claims makes clear that an automatic right to a refugee hearing was never intended or established by Parliament.

The predominance of image politics 

The inclusion of a major loophole in the STCA so that it does not apply at unofficial crossings such as Roxham Road is the result of an administrative choice that is not required by the legal regime. Rather than explain to Canadians the reasons why such a loophole incentivizing irregular entry was included in the treaty with the US, the Trudeau government has focused on signalling a supposedly virtuous policy and promoting a humanitarian brand. Observers who sympathize with this apparent openness at Roxham Road are missing the underlying political cynicism.

While its legal reasoning is neither rigorous nor nuanced, the Trudeau government seems careful in relation to public messaging and branding. The immigration minister’s mandate letter includes a commitment “to modernize” the STCA and the prime minister recently repeated this goal in the House of Commons, yet nobody has ever explained what this actually means.

The policy options are essentially limited to either one of two approaches: a stricter border control approach that involves tightening entry at Roxham Road, or a soft open borders approach allowing refugee claimants to enter openly through the front door at St-Bernard-de-Lacolle. The latter option does not involve any negotiations with the US because the STCA can be unilaterally suspended or terminated. Therefore, “modernizing” the STCA must logically mean removing the loophole and clarifying that all refugee claimants will be returned to the US regardless of which part of the land border they use to enter Canada. However, clearly saying so goes against the Trudeau brand because it can be interpreted as anti-refugee.

Similarly, despite the prime minister’s confusion about legal rules, a closer look reveals that government lawyers have always argued before the courts that migrants can be returned to the US because it is a “safe third country” where rights are respected (under both the Trump and Biden administrations). So far, the government has not said this too loudly outside the courtroom because it clashes with its branding efforts and preferred pro-refugee image.

The problem is that political marketing has contributed to the polarization of views regarding Roxham Road. Moreover, the resulting ideological battle is misleading. It has become a false symbol dividing Canadians into supposedly pro-refugee or anti-refugee camps. It obscures that Canadian policy regarding uninvited refugee claimants (to be distinguished from resettled refugees) has always been anchored to the basic concept of interdiction with strict visa issuance policies and airline sanctions for undocumented travellers. Despite the rhetoric, governments of all stripes have done everything possible to prevent potential refugee claimants from reaching Canadian shores. It is not by chance that many migrants from poor countries obtained US visas to fly to New York City before taking a bus/taxi to Roxham Road. They would never have received Canadian visas.

Academics and advocates have opposed any idea of responsibility-sharing with the US since the late 1980s because they do not believe US standards are good enough. Prime Minister Trudeau sees these influential groups as part of his political constituency and is trying to be sensitive to their particular concerns. This is apparent in the careful use of progressive language and terminology that reflects the latest trends in refugee studies. The risk is that superficial image-based approaches to refugee policy take precedence over substantive or nuanced hard discussions about the dilemmas inherent in managing borders while respecting human rights.

Conclusion 

To sum up, Prime Minister Trudeau’s explanation of his incoherent border policy concerning refugee claimants misunderstands how international and domestic law applies. It also promotes an unprincipled double standard that favours refugee claimants who enter irregularly over those who present themselves at a Port of Entry.

Prime Minister Trudeau also provides a practical argument to defend his incoherent border policy: he claims it is not actually possible to prevent entry in between land Ports of Entry. If Roxham Road is closed, the prime minister insists refugee claimants will simply enter elsewhere. This is the same disingenuous argument the prime minister used during the first three years of the Trump administration. If closing borders is ineffective, why did his government adopt in 2020 a special Order in Council that prevented entry at Roxham Road during the pandemic? Roxham is making headlines again because refugee claims immediately shot up as soon as the Order was lifted a few months ago.

This general futility-based argument on border control has widespread support in academia, even though it is based on an unproven hypothesis. It is presently being used by activists to denounce the British government’s new controversial approach to dissuade irregular migrants from crossing the English Channel, as well as to criticize the Biden administration’s intention of lifting its own pandemic-related entry ban at the Mexico border.

Just as no government claims that tax evasion can be completely stopped through tough law enforcement, no government is claiming that irregular migration will stop with the adoption of greater border control measures. The issue is rather about risk mitigation and not making illegal entry so easy that it becomes almost an invitation for potential migrants to travel to Canada’s borders in order to access the country’s lengthy and generous refugee status determination procedure.

However, an ideological dimension has dominated both sides of the debate. For the Trudeau government, it has become symbolically important to avoid the appearance of militarizing the border. The various US responses to the plight of desperate migrants on the Mexican border over recent years have understandably antagonized anyone with liberal views regarding migration. It is nevertheless dangerous to suggest to Canadians that their country’s land borders cannot be controlled: while the entry of desperate irregular migrants involves a morally complicated problem, public anxiety about gun and drug smuggling is clear.

Despite Prime Minister Trudeau’s unhelpful attempts at explaining government policy and available options at Roxham Road, Canadians have an interest in rejecting superficial image-based approaches to refugee policy in a post-pandemic context that will see increased international mobility. The government could improve public trust by eliminating the incoherence in the way refugee claims are handled at Roxham Road, while also being more precise and upfront about its actual position. It is time our leaders’ role in elevating the public discourse overrides the fondness for political marketing.

Source: The Roxham Road legal confusion is back

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Barutciski: Roxham Road — Canadians deserve honest talk about this country’s asylum policy

2022/03/09 Leave a comment

Needed on both sides of the spectrum:

Despite international travel restrictions, the number of asylum seekers entering Canada through the unofficial Roxham Road border crossing between Quebec and upstate New York has reached winter-month record levels. Recent statistics indicate 2,367 migrants entered during a month of January that was particularly cold. Almost 3,000 entered in December. At this rate, the RCMP will intercept a record number of asylum seekers on the land border this year.

We have not heard about these irregular migrants in recent years for a simple reason: after insisting during the first three years of the Trump administration that it was impossible to block the border, the Trudeau government simply invoked public health safety and prevented them from entering at the start of the pandemic. The special Order in Council preventing entry at Roxham Road was lifted last November and, unsurprisingly, the number of asylum claims immediately shot up.

We are back to the controversial double standard that created controversy and contributed to record levels of asylum claims from 2017 to 2019. If migrants arrive at the Lacolle port of entry, border officials invoke the Safe Third Country Agreement with the United States to prevent them from entering to claim asylum. However, if the migrants go a couple of kilometres to the west at Roxham Road, the RCMP allows them to enter because of a loophole in the agreement. There is, however, no protection principle that could justify treating asylum seekers differently based on which part of the land border they use to enter.

Instead of explaining the problem in a transparent way so that pro-immigration Canadians could grasp the dilemma, the Trudeau government focused on signalling a supposedly virtuous policy and promoting a humanitarian brand. Observers who sympathized with this apparent openness are missing the underlying political cynicism. Canadian asylum policy has always been anchored to the basic concept of interdiction with strict visa issuance policies and airline sanctions for undocumented travellers. Despite the rhetoric, governments of all stripes have done everything possible to prevent asylum seekers from reaching our shores. It is not by chance that many migrants from poor countries obtained U.S. visas to fly to New York City before taking the bus/taxi to Roxham Road. They would never have received Canadian visas. Seen in this light, the recent decision to grant visas quickly to Ukrainians will eventually be seen as another double standard.

The ideological battle regarding Roxham Road is therefore misleading to the extent it has become a symbol dividing Canadians into supposedly pro-refugee or anti-refugee camps. Part of this context is that activists have opposed any idea of an agreement with the U.S. since the late 1980s (when enabling legislation was initially proposed) because they do not believe U.S. standards are good enough.

Despite its branding efforts, a closer look reveals the Trudeau government has always argued before the courts that migrants can be returned to the U.S. because it is a “safe third country” where rights are respected (under both the Trump and Biden administrations). So far it has not said this too loudly outside the courtroom because it clashes with a pro-refugee image.

Similarly, the Trudeau government does not explain what is meant by the commitment “to modernize” the agreement with the U.S. that is included in the immigration minister’s mandate letter. This would logically mean removing the loophole, but clearly saying so goes against brand.

Although unfashionable on campuses, there is nothing wrong with communicating to the public that border control is a legitimate state function. It explains why the federal government has always preferred to select and resettle refugees from overseas rather than deal with asylum claimants who arrive irregularly and undocumented. An honest discussion acknowledges potential problems with such uninvited asylum claims. The challenge is reconciling the need to control borders with a humane and fair approach to asylum.

Canada is not the only country facing asylum dilemmas. Even prior to the Ukrainian outflow, the number of asylum seekers increased over the last few months in the European Union. Likewise, the problem at the Mexican border is getting worse despite a new administration in Washington that does not want to appear anti-refugee. In a post-pandemic context that will see increased international mobility, Canadians have an interest in rejecting superficial image-based approaches to asylum policy. The government could improve public trust by eliminating the incoherence in the way asylum claims are handled at Roxham Road and being more upfront about our actual position. It is time our leaders’ role in elevating the public discourse overrides the fondness for political marketing.

Michael Barutciski is a faculty member of York University’s Glendon College and associate editor of Global Brief magazine. He has taught refugee law and directed public policy programs in several countries.

Source: Barutciski: Roxham Road — Canadians deserve honest talk about this country’s asylum policy

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Can immigrants be told where they must live in Canada?

2016/08/25 Leave a comment

Interesting arguments by Michael Barutciski. While location incentives are one thing, not sure that creating a new type of temporary foreign worker with a location condition is feasible from an operational perspective.

Curious to see what kind of response this generates from other commentators:

Can the government legally require some immigrants to settle in small towns and rural areas?

We do not have the answer for the simple reason that our courts have not been asked to deal with this question and how it is affected by the relevant Charter subsection. If it is determined that such a limitation is indeed a violation of mobility rights, then it would have to pass what is known as the Oakes test.

The federal government would have to show there is a pressing and substantial objective in settling some immigrants in small towns and rural areas. Mr. McCallum’s statements so far suggest he is taking an economic perspective that emphasizes business concerns about labour shortages in remote areas. Courts would likely consider this a justifiable purpose.

Similarly, the actual restrictions imposed on these newcomers would have to limit their mobility rights as little as is reasonably possible. Courts would have to be convinced that the benefits of the measure outweigh the seriousness of the infringement.

The fact that the limitation would be temporary (for the duration of the immigrant visa, for example) would help the government’s case. And by structuring the immigrant-selection criteria in a way that grants more points for applicants willing to work in small towns or rural areas, it could also be presented as one option among many available to potential immigrants, who could otherwise apply under the regular economic stream. In other words, the limitation accepted voluntarily by some immigrants would be balanced by the fact that their choice would give them a better chance of obtaining permanent resident status.

Along with clarifying the constitutional question around mobility rights, the policy could play an important role in reinforcing the notion that immigration is not only about the personal well-being and advancement of foreign applicants, but also about the needs of the receiving country.

This latter point is crucial in securing public support for any increase in admissions envisioned by Mr. McCallum. Canadians will naturally be more supportive if they believe new arrivals are helping their huge country with its specific challenges involving underpopulated regions and demographic distribution.

Two of Canada’s main competitors for skilled immigrants, Australia and New Zealand, provide incentives to encourage immigrants to find employment outside large urban centres. If such an approach with bonus points in the selection criteria is not possible in Canada given its constitutional protections, then a new category of temporary workers (who would not be covered by the Charter’s mobility clause) could be created that would include geographic conditions and that would benefit from a more direct pathway to permanent resident status once the conditions were fulfilled.

Canada would be well served if Mr. McCallum were to champion the idea that some control on where immigrants settle is reasonable, in order to secure public support for immigration to this geographically challenging country.

Source: Can immigrants be told where they must live in Canada? – The Globe and Mail

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