The Roxham Road dilemma: What are Canada’s options in the border controversy?

2023/03/15 Leave a comment

Good in-depth overview:

Jose Moncada Urbina gets emotional when he hears people talking about shutting down Roxham Road, the famous rural route in Quebec that opens Canada’s door to asylum seekers.

Sitting in his cosy Mississauga home, the Nicaraguan man can’t help but reflect on his own journey, fleeing police violence and political persecution — and imagining how life would have been different for his family now if they had been denied that lifeline to safety.

“To think that other people won’t have the same opportunity and chance that my family and I had,” pauses the 47-year-old man, tearing up, “makes me upset.”

A spike in irregular migration and U.S. President Joe Biden’s upcoming visit to Ottawa have put both Roxham Road and the Safe Third Country Agreement, our bilateral border pact with the U.S., in the spotlight. Critics say neither are working, but what are the alternatives and will they just create new problems?

Although irregular migrants have been crossing for decades at Roxham Road, one of many entry points along the 8,890-kilometre porous land border with the United States, it gained prominence — and notoriety — with the surge of foot traffic spurred by the anti-immigration agenda when Donald Trump became U.S. president in 2017.

Ottawa’s asylum ban against these border crossers during the pandemic halted the flow, but the influx returned as soon as the ban was lifted in November 2021. Last year, the RCMP intercepted 39,540 people who crossed between Canadian ports of entry. In January alone, already some 5,000 entered Canada in the same manner.

Under the Safe Third Country Agreement, Canada and the U.S. each recognize the other country as a safe place to seek refuge. It dictates that migrants should pursue their claims in the country where they first arrived.

But the policy does not apply to the woods and dirt roads — and waterways — between official crossings, which some say is a “loophole” that makes the measure ineffective in pushing back the border and stopping migrants from seeking asylum in Canada.

Prime Minister Justin Trudeau plans to raise the issue with Biden, and Canadian Immigration Minister Sean Fraser met this week with his White House counterpart.

While the Parti Québécois and the NDP have called for the agreement to be suspended, the Progressive Conservatives want to close Roxham Road as the Liberal government continues its “renegotiation” of the treaty with Washington that started in 2018.

“Canada remains firmly committed to upholding a fair and compassionate refugee protection system that respects the rights of asylum seekers and safeguards the integrity of our border,” Bahoz Dara Aziz, Fraser’s spokesperson, told the Star.

“Irregular migration demands a focus on both the root causes in a migrant’s country of origin, as well as with the promotion of regular pathways and managed borders. This requires co-operation on the international stage, including with the United States on the Safe Third Country Agreement.”

Suspending it or “closing” Roxham Road could result in migrants using other irregular crossings, some of which place them in danger and affect local communities incapable of responding to the influx, said Aziz.

While no quick changes to the border treaty are expected, critics say it’s a root cause of irregular migration that Canada is seeing and something has to be done about it.

Ottawa could expand the rules to the entire border, which, in effect, would plug the opening at Roxham Road; cancel the agreement to allow migrants to orderly seek asylum at official crossings; or tweak the terms to adjust how wide or narrow the door should be open for refugees.

Each option, experts say, could have unintended consequences.

Extending asylum ban across the entire border

Irregular migration on the northern border has been a “less salient” issue for Washington, which saw immigration arrests from the southern border with Mexico top 2 million last year, said Susan Fratzke, senior policy analyst at Migration Policy Institute, a bipartisan think tank in Washington.

That explains the cold reception from the U.S. in response to Canada’s request. In a recent interview with the CBC, American ambassador to Canada, David L. Cohen, said changes to the Safe Third Country Agreement would do little to solve irregular migration.

Even if the White House is willing to renegotiate, Fratzke said it’s hard to predict if the number of irregular migrants to Canada will go up or down with the closure of Roxham Road because desperate migrants would find more perilous and surreptitious ways to come.

But expanding the asylum ban to the entire border could have an immediate political impact.

“It’s something that has a lot of appeal in terms of the messaging of it. This would send a message to people who are trying to cross that it is something that will no longer be as easy or as possible,” said Fratzke.

“Policymakers on both side of the border still need to be prepared for other incentives and unintended consequences it creates as regards to how people will behave. It certainly won’t in itself solve the problem.”

For decades, successive Canadian governments had pushed the U.S. to sign the pact because the flow of migrants at the Canada-U.S. border disproportionately came from the south to north as it was generally easier to first enter the U.S.

According to a U.S. House of Representatives hearing, in the year prior to the treaty taking effect in 2004, about 14,000 asylum seekers came through the U.S. to Canada but only about 200 went the other way.

The September 11 terrorist attacks in 2001 gave Ottawa a chance to push for the treaty, with Washington conceding to Canada’s lobby in exchange for more border security co-operation.

Fratzke said such bilateral treaties are built on signatories sharing similar asylum processes and immigration policies such as visa requirements.

The Dublin Regulation, a similar regime in Europe, was first established in 1990 but she said it is still rife with challenges with its implementation because systems and capacities of the member states are not always in sync.

“One of the reasons why you would implement something like a safe third country agreement is because the odds and conditions under which someone is being considered for asylum in one country are quite similar to those in another country,” said Fratzke.

“It’s fair to say that even within the context of the EU, where there is co-operation and alignment between countries’ asylum and migration systems, implementing an agreement based on safe third country principles has been difficult.”

And that’s a problem between Canada and the U.S., according to critics, who argue that the U.S. asylum system is cruel and inhumane, which makes it unsafe for refugees.

For it to work, both the Canadian and American governments must also do their equal part in preventing migrants from entering the other country, said University of Toronto law professor Audrey Macklin, who has studied the border agreement closely.

It did not help, for example, when the City of New York began providing free bus tickets to migrants heading north to claim asylum in Canada.

Before the border treaty was signed, said Macklin, experts and advocates testifying before Parliament had warned them about the anticipated disorderly irregular entries into the country, and that the rules would not deter people from coming.

Although the number of asylum claimants in Canada dropped by 23 per cent to 19,748 a year after the agreement was implemented in 2004, the decline was short-lived as migrants tried other ways to skirt the rules.

There were ebbs and flows through the years in response to global refugee crises and domestic policy changes such as visa requirements against certain refugee-producing countries. But it peaked at 64,030 in 2019 during the Trump era before the pandemic hit.

“It’s not just about extending the agreement so Canada can push people over the border. It would be asking the United States to develop an entire apparatus on its side,” said Macklin.

“How do you make people stop wanting to flee the country they’re in to get to a place that they think is better or safer? That’s the question. It’s not even in the United States’ control?”

Macklin points out that Canada could build a wall and invest billions of dollars in surveillance technology and hire border patrols but it costs far less to process asylum claims made by irregular migrants.

Scrapping Safe Third Country Agreement

When the Nicaragua government started using armed forces to crack down on protests against tax hikes and pension reductions in April 2018, it was the last straw for Moncada Urbina, a computer engineer, and his wife, Norma, a lawyer.

The couple joined peaceful demonstrations to condemn police violence and supported the young protesters trapped in university campuses by delivering them food, water and medical supplies.

As authorities began detaining and jailing dissidents and sympathizers, Moncada Urbina decided to seek refuge in Canada, where he has close relatives.

However, only he and his eldest daughter, Katherine, now 21, had a visa to Canada and they didn’t have time to apply for a travel document for his wife, Norma, 48, and their two other children, Allison, 16, and Daniel, 13.

Instead, with their American visas (except for Norma, who went into hiding), Moncada Urbina flew to Boston with the three teenagers and arrived at Roxham Road three days later, in September 2018.

“My children couldn’t cross at a port of entry without a visa. Roxham Road was our only option,” said Moncada Urbina, whose family was granted asylum in 2021, with his wife arriving this past November.

“If you shut down Roxham Road, people would pick more dangerous ways or use traffickers to come. It’s human nature for survival,” he said.

And that would be the last thing that Loly Rico would like to see happening.

The executive director of Toronto’s FCJ Refugee Centre said Canada has a more fair asylum system that processes cases faster and allows claimants to work while waiting for their hearings. With Biden’s administration continuing Trump’s policies, Rico said the push for irregular migrants to Canada won’t end anytime soon.

Scrapping the Safe Third Country Agreement would mean a return to the way things were managed before 2004, when asylum seekers could cross at any of the 100-plus land ports of entry in eight provinces.

Currently 99 per cent of irregular migrants cross through Roxham Road and in June the federal government started transferring them to Ontario and other provinces, housing them in hotels.

As of this month, 7,848 asylum claimants have been transferred to Ontario, including 702 to Ottawa, 1,028 to Windsor, 4,618 to Niagara Falls, and 1,500 to Cornwall. Since February, 113 have been transferred to Halifax, 38 to Fredericton and 25 to Moncton.

Between 2017 and 2021, Ottawa issued payments totalling $551.6M to cover housing costs of asylum seekers who arrived in the U.S. through irregular means: $374 million to Quebec, $144.1 million to Toronto, $17.1M to Ottawa, $8 million to Manitoba, $6 million to B.C., $2.2 million to Peel Region and $220,000 to Hamilton.

Abolishing the border agreement “is not going to open a flood gate but would distribute migrants more evenly across Canada,” said Rico, who with her late husband, Francisco Rico Martinez, fled El Salvador in 1990 under a program to grant asylum to those trapped in their own country that was spiked by the Harper government in 2012.

Toronto refugee lawyer Raoul Boulakia agreed.

“There’s no reason for irregular migration when you don’t have a safe third country agreement,” said Boulakia, who has seen migrants choosing to remain in the U.S. underground even if they would have met an exemption from the rules for asylum at a Canadian port of entry.

“By not having people go through irregular points of entry, we’re allowed to have a lot more flexibility to distribute where people are entering. People do have a higher likelihood of staying at where they arrive.”

In February, the Biden administration introduced new rules to deny asylum to migrants who show up at the southern border without first seeking protection in a country they passed through, said Boulakia, and that could help check the downstream of northbound migration.

Tweaking the terms of the border treaty

The Safe Third Country Agreement provides exceptions for some groups to make an asylum claim at Canada’s official crossings

  • Those with family members in the country;
  • Unaccompanied minors;
  • Someone with a valid visa and permit to enter Canada
  • People who have been charged with or convicted of an offence that could subject them to death penalty in the U.S. or in a third country.

University of British Columbia law professor Efrat Arbel said the border agreement allows either country to make exceptions unilaterally.

“We have at our fingertips the ability to create a larger scope of protections through these exceptions that will result in greater efficiency, in saving resources, and a more principled, more progressive, more rights protecting approach to managing our borders,” said Arbel, who teaches refugee and constitutional law.

Ottawa could exempt migrants fleeing gender-based persecution or those from countries where Canada has a moratorium for removals due to wars or human rights violations, she said.

But at the end of the day, it’s a zero sum game that would simply divert migrants from one way to another to reach a safe destination as the displaced population worldwide continues to grow, doubling in the last decade to more than 100 million people.

Roxham Road is a byproduct of the global response to the refugee crisis, said Arbel.

“Through the deliberate acts of the Canadian government, there is no other point of entry. And combined with the fact that Canada is so geographically removed from the world conflict zone, it becomes impossible or practically impossible for migrants who are seeking protection to access Canada any other way,” she explained.

“These are measures that prohibit refugees and asylum seekers from meaningfully accessing rights protection based on how they enter or where they enter from, and not the reason why they are seeking entry.”

Macklin said the concerns over irregular migration do appear to be more about border control and possibly racism than the actual number of arrivals. She pointed to Canadians’ response to Ottawa’s special immigration measures that, in just over a year, welcomed 178,000 Ukrainians fleeing the Russian war.

“Nobody is hysterical about the numbers, it seems to me,” said Macklin. “It’s not about numbers, right? It’s about whiteness. Look, we have made it our choice and therefore, it’s OK.”

Last October, the Supreme Court of Canada heard the appeal by asylum seekers and rights groups to declare the Safe Third Country Agreement unconstitutional. A decision is pending.

“Oddly enough, if the federal government loses the Supreme Court appeal, it will actually solve the problem for them,” Macklin said.

Source: The Roxham Road dilemma: What are Canada’s options in the border controversy?

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Experts say Scheer’s plan to close border loophole ‘doomed to failure’

2019/10/11 Leave a comment

More political positioning than realistic options for many of the reasons listed:

Conservative Party Leader Andrew Scheer says that, if elected, he would close the loophole in the Safe Third Country Agreement (STCA) that allows people to make refugee claims in Canada even if they enter the country at an unofficial border crossing.

The Conservatives also aren’t ruling out creating detention camps at the border to house irregular migrants while their claims are being processed.

Asked directly if detention camps were something a Conservative government would create at the border, the Conservatives said the Immigration and Refugee Protection Act provides criteria for detaining asylum seekers. This leaves the option of creating detention camps at the border open.

Scheer’s pledge, made Wednesday at Roxham Road in Quebec, came with few details on exactly how he would close the loophole.

Scheer said his “preferred option” would be to renegotiate the STCA with the U.S., but when pressed on what he would do if U.S. President Donald Trump refused to make a deal, Scheer was light on details.

“There are other options. There are other tools available to the government that we will also be exploring,” Scheer said.

The rising rhetoric around refugees is fuelling many falsehoods about whether these new arrivals pose a threat

One of these options is to declare the entire Canada-U.S. border an official port of entry. This way, people entering the country would be covered by the STCA and — if they do not qualify for an exemption under the agreement — would be sent back to the U.S.

Scheer suggested this is one of the options he’s looking at when he said “we can apply the principles of the Safe Third Country Agreement at other points along the border.”

But migration experts, border security officials and the government have questioned whether this is possible.

Sharry Aiken, a Queen’s University law professor, says any plan to scrap the loophole in the STCA without agreement from the U.S. is “doomed to failure.”

Meanwhile, she says expanding the agreement to cover the entire border is nonsensical because Canada does not have the resources to enforce this type of mass “securitization” of the border, nor is this type of strategy effective.

Aiken points to the U.S.-Mexico border as an example of why increased security does not mean fewer irregular migrants.

“As we can see in relation to what’s going on with respect to America’s efforts in relation to Mexico, they’re an abysmal failure,” she said. “People are still crossing, just at higher costs and at peril to their lives. People are dying all the time.”

A Conservative spokesperson later clarified Scheer’s comments on this issue. The Conservatives said it’s not their policy to expand official port of entry status to the entire border. Instead, they would “pursue a regulatory approach to ensure that the principles of the Safe Third Country Agreement are applied and people are not able to jump the queue.”

Promise would require new legislation

Since spring 2017, there has been a significant influx of asylum seekers in Canada, many of whom entered the country irregularly at unofficial border crossings.

The total number of asylum claims made in Canada in 2018 was 55,000, of which about one-third crossed the border irregularly. This was up from 23,500 total claims two years earlier.

In addition to pledging to close the loophole in the STCA, Scheer said he would move existing judges from the Immigration and Refugee Board (IRB) closer to the border and widely used unofficial crossings to speed up the processing time for claims and make crossing “illegally” less attractive.

But Aiken and others say Scheer could not do this without first introducing new legislation to change the IRB’s mandate. That’s because the IRB operates independently of the government, and administrative decisions are strictly the authority of the IRB’s chairperson, she said.

Raoul Boulakia, a Toronto-based immigration lawyer, says moving refugee judges to the border would also make it a lot harder for asylum seekers to access a lawyer — a right they are guaranteed under Canada’s Constitution.

Meanwhile, Craig Damian Smith, director of the Global Migration Lab at the Munk School of Global Affairs and Public Policy, said Scheer’s pledge lacks vital details.

For example, he wonders if Scheer would create detention camps at the border for asylum seekers who enter the country irregularly to be held while their claims are processed.

Scheer claims asylum seekers are ‘skipping the line’

Smith also questions the logistics of the move. The IRB isn’t just made up of judges, he said. There are translators, administrative staff, offices and other things needed in order for claims to be heard and judges to be able to do their jobs.

Smith says holding asylum seekers at the border while their claims are processed — no matter how quickly this is done — presents other problems, such as limiting their ability to work, pay taxes and receive health care.

The Conservative Party, meanwhile, says that if elected, it will amend existing immigration legislation and regulations to make sure IRB judges can be deployed to irregular crossing “hot spots.”

The money needed to relocate IRB judges will come from existing budgets, Conservatives say, adding that there are no plans to change current work-permit rules for people whose asylum claims are allowed to go forward.

Ex-minister under Hussein made refugee claim in Canada

Conservatives point out that immigration detention already takes place in Canada. However, there are currently no immigration detention centres at the border. Instead, would-be refugees who cannot prove their identity, are a flight risk or who could pose a security risk are detained at facilities in Montreal, Toronto and Vancouver.

Some asylum seekers are also held in long-term detention in provincial jails. According statistics from the Canada Border Services Agency, the average stay in immigration detention in 2017-18 was 14 days.

Under current rules, asylum seekers are allowed to move freely within Canada once their claims are made and so long as they are not detained. Unless laws are changed, Smith said, moving IRB judges to the border would not change this and likely will not speed up the hearing process.

Scheer has repeatedly said closing the STCA loophole would make Canada’s immigration system fairer, more orderly and more compassionate.

Source: Experts say Scheer’s plan to close border loophole ‘doomed to failure”

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Creation of ombud’s office urged to tackle immigration snafus

2016/05/10 Leave a comment

Not sure that adding another layer is necessarily the best approach compared to reviewing the overall processing system and making adjustments as necessary:

….These cases are problems critics say an ombudsman at the immigration department could easily fix, saving taxpayers money for reprocessing and potential litigation, and immigration applicants the agony of having their lives thrown into disarray.

“These are the majority of problems people have day-to-day that could be resolved if there is the will to cut through the red tape,” said Toronto immigration lawyer Raoul Boulakia.

“Immigration cases are expensive to litigate. In some cases, the court would not intervene and the process takes so long. Having an ombudsman’s office would be terrific.”

The idea of establishing a public complaints office at Immigration, Refugees and Citizenship Canada has been floating around for years but never got traction because of the lack of organized efforts among applicants and Ottawa’s short-sighted arrogance to cater to foreign nationals with no voting power.

However, with the new Liberal government’s emphasis on transparency and accountability, critics say an ombudsman could aptly look at these systemic challenges and find solutions.

While Immigration Minister John McCallum agreed that “obviously there is enormous room for improvement” for his department’s service delivery, he is noncommittal to the idea.

“That’s what a lot of my job is about. We are trying to reduce processing times and improve services. The idea of an ombudsman is an interesting idea, but it might be a little bit duplicating of what my office and I are trying to do, and it would add costs. Our objective is similar,” he told the Star.

“If having an ombudsman would assist that task, I would consider it … if it’s value-added. Right now, people can go to their MPs, the MPs might bring it to me and we work on it. We certainly spend a huge amount of time dealing with these problems and cases trying to get the best outcomes.”

The Public Service Alliance of Canada, the union that represents the 5,000 immigration department employees, said frontline services have suffered after 10 years of cuts — staffing was down by 5.3 per cent while workload increased — under the previous government. That led to minimum service and sometimes tainted decision-making, the union said.

“Our members are caught between a lack of resources and instructions. They are being told you have two minutes to respond to a phone call, basically. That’s not worthy of client service in our mind,” said Chris Aylward, national executive vice-president of the union.

“It is nice for the minister to say he’s all for increasing the service and service delivery, but in order to increase service delivery, you have to make sure the resources, tools and training are there.”

The union is all for the establishment of an impartial office if it serves both the clients and its members instead of creating an additional administrative burden and more work under existing resources, Aylward added.

Queen’s University professor Sharry Aiken, who specializes in migrant law and policy, said an ombudsman could best handle administrative issues that emerge in application processing as a result of “misunderstanding, poor representation and human error” that could easily be fixed.

Currently, members of parliament are overwhelmed by constituents’ requests for assistance on immigration files for relatives and friends looking for updates on applications, and immigration cases are inundating the court system and tribunals.

Aiken said the cost of setting up a well-equipped ombudsman’s office at the immigration department could easily be offset by the savings in resources in other jurisdictions and improved operational efficiency. Meanwhile, the courts and tribunals should still handle cases involving errors in law, she added.

“The office would need the authority and resources to deal with these cases and circumstances,” said Aiken, who co-chairs the Canadian Council for Refugees’ legal affairs team. She said the danger of setting up an ombud’s office without proper resources is it would get swamped and couldn’t investigate complaints in-depth.

Source: Creation of ombud’s office urged to tackle immigration snafus | Toronto Star

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