Canadian court correctly finds the U.S. is unsafe for refugees

Sean Rehaag and Sharry Aiken on the court decision. To date, haven’t seen any media commentary from those more to the right on the court decision and the CPC Immigration Critic Peter Kent has also been silent. Sharp contrast to all the earlier commentary and criticism:

This week, Canada’s Federal Court ruled that the Canada-U.S. Safe Third Country Agreement (STCA) is unconstitutional.

Under the agreement, refugee claimants entering Canada at land ports-of-entry can be returned directly to the United States without being allowed to make a refugee claim in Canada. The agreement was a quid pro quo for concessions offered to the U.S. after 9/11, including a “smart border” accord, enhanced information-sharing and joint border enforcement.

Advocates for refugees have long argued that the STCA violates international refugee law and Canadian constitutional law. Differences between the refugee determination systems in Canada and the U.S., as well as differences in the rights enjoyed by refugee claimants in both countries, mean that some people who would be recognized as refugees in Canada would be denied protection south of the border.

In other words, the U.S. is not “safe” for at least some refugees.

Trump’s election worsened situation

These arguments took on an especially urgent tone after Donald Trump’s election as American president in November 2016.

The Trump administration has implemented many racist, xenophobic and anti-refugee policies to dissuade people from seeking asylum in the U.S. For example: Harsh detention practices (including detention of young children), family separation, restrictions on the refugee definition (such as excluding people facing gender-based violence), militarization of the border and of course attempting to build a wall along the U.S.-Mexico border.

This prompted a growing chorus of voices — from law professors to human rights organizations and political parties — to call on Canada to suspend or withdraw from the STCA.

Their arguments are persuasive. How can a country be considered safe for refugees if it locks up refugee kids in cages or refuses refugee protection to women facing gender-based violence?

Closing the loophole

Unfortunately, these voices have been ignored. Instead, worried about critiques from the right about weakness on border control, the federal government under Prime Minister Justin Trudeau contemplated trying to get the U.S. to extend the agreement to the entire border — not just official land ports of entry.

The U.S., however, has little incentive to expand the agreement, which would block even more asylum-seekers from leaving the United States for Canada, and there has been little movement on this front.

This inaction left the matter to the courts. Lawyers for refugee and human rights organizations, as well as refugee claimants, went to Federal Court, arguing that the STCA is unconstitutional.

Federal Court Justice Ann Marie McDonald agreed with them.

Her decision focused narrowly on what happens to refugee claimants who are turned away under the STCA.

And what happens is atrocious. Refugee claimants are handed over to American officials who detain them for weeks. Conditions of detention are inhumane. Solitary confinement is common. Access to lawyers is restricted, which makes it harder to secure refugee protection.

Worse still, these are intentional policies aimed at making the experience of seeking asylum in the U.S. so traumatic that others will be discouraged from making the same journey.

As Justice McDonald held:

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty …. penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational conventions upon which it was built.”

No safety for refugees

In other words, U.S. immigration detention practices violate international refugee law and undermine the basic premise of the STCA that both countries are safe for refugees.

So there we have it. A Canadian court has determined that American detention practices are “grossly disproportionate” and “shock the conscience,” and that Canada cannot be complicit by sending refugee claimants to the U.S. to face these practices without violating constitutional rights to life, liberty and security of the person.

The question now is what comes next.

The Federal Court suspended its declaration of constitutional invalidity for six months to allow Canadian Parliament to respond.

The government could appeal the decision. If that happens, the STCA will be tangled up in the courts for years — during which time more asylum-seekers like Nedira Mustefa, one of the applicants in the case, will find themselves in solitary confinement in U.S. detention centres. Mustefa told the court she felt “scared, alone and confused,” with no sense of when she would be released, during her time in American detention.

Alternatively, the Canadian government can send a clear signal that it cares about constitutional and international law, heed Justice McDonald’s findings and take steps to immediately suspend the STCA.

The detention practices that she focuses on in her decision are only one among many ways in which the U.S. has attacked refugee rights. These attacks are mounting. The Trump administration recently proposed reforms that would gut what remains of the American asylum system. Every day that the STCA remains in effect, Canada continues to be complicit in these attacks.

Enough is enough. The STCA must be suspended.

Source: Canadian court correctly finds the U.S. is unsafe for refugees

Experts surprised immigration didn’t play more prominent role in federal leaders’ debate

I was less surprised than those listed, as the parties have (correctly) calculated that making immigration a major issue has electoral risks in ridings with large numbers of immigrants and visible minorities (905, BC’s lower mainland, and elsewhere), as Kurland and Smith note.

The same could be said for the campaign in general, although immigration issues get more play in ethnic media as my weekly analyses for shows.

Apart of course from the PPC:

Excluding an early question that provoked a barrage of attacks against People’s Party Leader Maxime Bernier, Monday night’s leaders debate featured few questions about immigration — and none about refugees, specifically.

This left some migration experts feeling surprised and disappointed that immigration issues — which have been the source of heated political exchanges in Canada over the past two years — didn’t play more prominently in the debate.

“There was no substance on immigration policy, on Canada’s refugee policy, on Canada’s role in the world on these issues,” said Queen’s University law professor Sharry Aiken.

“I was disappointed that there wasn’t much there.”

Aiken says that the section of the debate dedicated to “polarization, human rights and immigration” focused almost entirely on Quebec’s contentious Bill 21, the religious symbols ban that bars religious head coverings in some sections of the public service, and that immigration issues were overshadowed by the discussion about discrimination.

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

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

Aiken believes discussing Bill 21 is very important, but she thinks debate moderators could have been better at focusing their questions on specific issues, such as the recent challenges faced by Canada’s asylum system.

The standout moment for Aiken on immigration was Bernier’s claim that Canada takes in more immigrants than any other western nation.

Aikeen says this claim is untrue. Citing a recent report from the World Economic Forum, she says Australia has a higher ratio of immigrants — 28 per cent of its population compared to Canada at 21 per cent.

She also questions Bernier’s math about letting in more economic immigrants. Bernier has claimed Canada should reduce immigration levels to 150,000 a year, while at the same time taking in more economic immigrants.

But in 2017, Canada accepted roughly 159,000 economic immigrants, she said. If Bernier’s immigration policy was implemented, Canada would actually see an overall reduction in economic immigration.

Meanwhile, Sean Rehaag, director of York University’s Centre for Refugee Studies, was also surprised by the fact that “a debate where immigration was expected to play a major role” had so few questions about immigration.

He noted that neither the influx of irregular border crossings that began in April 2017 nor the Safe Third Country Agreement between Canada and the United States figured prominently in the debate.

This is also one of the issues where the parties have distinct policy options when it comes to how Canada should handle its asylum system.

No ‘political capital’ to be gained on immigration

Others were less surprised that immigration wasn’t a bigger topic for party leaders.

Richard Kurland, a Vancouver-based immigration lawyer, thinks the lack of attention on immigration means political parties have decided that no “political capital” can be gained from this issue.

“It was a good move on the part of all the parties not to go there,” Kurland said.

Craig Damian Smith, director of the Global Migration Lab at the Munk School of Global Affairs and Public Policy in Toronto, agrees that it was wise for the leaders not to focus on immigration, particularly the divisive issues around refugee resettlement and how to handle irregular migration at unofficial ports of entry.

Scheer claims asylum seekers are ‘skipping the line’

Like Kurland, Smith thinks the party leaders have realized that immigration isn’t an issue where voters can be won or lost.

This doesn’t mean immigration isn’t important, Smith said. It just means that when it comes time to vote on Oct. 21, he believes most Canadians will be focused on issues like health care, education and the economy.

Smith also pointed out what he saw as a significant moment in the debate — that is, when Conservative Leader Andrew Scheer lashed out at Bernier for his past comments about immigrants, saying Bernier had changed from someone who used to believe in an immigration system that was fair, orderly and compassionate to someone who bases his policies on the number of likes and retweets he gets on social media from the “darkest parts of Twitter.”

According to Smith, this “well-rehearsed” line shows that the Conservatives now realize Canadians, on average, support the country’s current approach to immigration.

Smith still thinks that who wins the election could have big consequences on the future of immigration in Canada — especially for refugees — but in Monday’s debate, at least, it looked like everyone other than Bernier agreed immigration is important to Canada’s future.

“Even when they had the section on polarization, human rights and immigration, they all took that opportunity to steer it towards other issues, either to attack one another or to bolster their own position on other issues,” he said.

“It’s a good thing, or it’s at least a good sign, that they decided to steer the debate away from [immigration] because it means that that’s not going to be an issue that Canadians are going to vote on.”

Source: Experts surprised immigration didn’t play more prominent role in federal leaders’ debate

A growing source of Canadian asylum-seekers: US citizens whose parents were born elsewhere

Sean Rehaag, who has done some good work analyzing trends of decision making by IRB adjudicators, looks at the recent rise in the number of asylum seekers from the US:

Jokes about moving to Canada became common among progressives in the United States during Donald Trump’s presidential bid. When he won, a spike in U.S. citizens seeking information about how to relocate crashed Canada’s immigration website.

I’m a scholar of Canadian immigration law and will soon become the director of the Centre for Refugee Studies at York University in Toronto. My friends and colleagues in the United States, who still make those jokes, are often surprised when I fill them in on how U.S. immigration patterns in Canada have changed during the Trump administration.

Overall, the number of U.S. citizens who have immigrated to Canada for any reason rose from 7,522 in 2015 to 9,100 in 2017. In contrast with this modest 21% increase, the number of U.S. citizens applying for refugee protection during the same two years spiked by more than 1,000%. It grew from 69 in 2015 to as much as 869 in 2017.

The more than 1,500 U.S citizens who have sought a safe haven in Canada are mainly the children of people fearing deportation due to a change of their immigration status after spending years in the United States. Even with the recent increase, they still account for a small share of total applicants for refugee protection in Canada – only 1% in 2018, for example. Nonetheless, the dramatic growth in the number of refugee claims by U.S. citizens illustrates some of the differences between Canadian and U.S. immigration policies.

Long history

People from the U.S. have been seeking asylum in Canada since at least the 18th century.

Fearing mistreatment in the newly established United States, and drawn by offers of free land, as many as 100,000 British Loyalists fled to what is now Canada during and after the American Revolution.

Many enslaved people seeking liberty via the Underground Railroad, prior to the Civil War, headed to Canada. Around 20,000 to 40,000 made lives for themselves there.

In the 1960s and 1970s, some 100,000 young U.S. men, many with wives and children, came to Canada during the Vietnam War to avoid being drafted into military service – or in some cases after deserting. Canada enacted a law that let these “draft dodgers” immigrate with lawful status. Even though President Jimmy Carter issued a blanket pardon for them when he took office, about half remained in Canada.

More recently, dozens of U.S. soldiers who had voluntarily enlisted in the military and served in the wars in Iraq and Afghanistan sought asylum in Canada to avoid jail time when they deserted because they came to object to those wars. This time, the Canadian government denied most of their refugee claims, saying that they could have possibly qualified for conscientious objector status back home. However, the Canadian public expressed substantial support for these war resisters.

Change of status

The more recent wave of asylum applicants is related to changes in U.S. immigration policy.

Before Trump took office, the U.S. had granted hundreds of thousands of immigrants without papers from Sudan, Nicaragua, Haiti, El Salvador and other countries temporary protected status. These policies protected formerly undocumented immigrants from deportation and let them work legally.

The Trump administration has tried to end temporary protected status for eligible immigrants of many nationalities, despite evidence that many of their countries remained dangerous or their economies were still too unstable for them to return.

For example, the Inter-American Commission on Human Rights, an autonomous agency of the Organization of American States, asserts that Nicaragua operates as “police state” with government-sponsored repression that is resulting in hundreds of deaths and thousands of injuries. The UN Refugee Agency estimates that 62,000 Nicaraguans have fled to neighboring countries in the past year.

For now, the fate of about 300,000 of these immigrants from multiple countries awaits resolution in the courts.

A big share of the families with U.S. citizen-children seeking asylum in Canada today are immigrants from Haiti and other countries who fear losing their temporary protected status. Some people with this status from Nicaragua and Honduras have had it since 1999. Qualifying Sudanese immigrants have been shielded from deportation since 1997. The U.S. granted 59,000 Haitians temporary protected status in 2010, following a big earthquake.

Canada will probably deny the refugee claims of the U.S. citizen children because the system requires applicants to prove a well-founded fear of persecution in their country of origin. In this case, that would be the United States rather than, say, Haiti, Sudan or El Salvador.

But parents who obtain refugee protection in Canada will be able to obtain permanent residence for their children as well, putting them on the path to citizenship in Canada. Many likely will succeed with their claims. Canada approved about half of the refugee claims made in 2018after migrants crossed the U.S. border.

Indeed, some of the families with U.S. citizen children seeking asylum in Canada may figure that they are more likely to succeed in Canada than in the U.S. For example, Canadian refugee law is more permissive than U.S. asylum law for people fleeing gender-based violence or gang violence – both common types of claims for Central American asylum-seekers.

Different policies

Canadian and U.S. immigration policies have always been distinct but the contrast is becoming more stark.

Trump campaigned on an anti-immigrant agenda, while Canadian Prime Minister Justin Trudeau promised voters he would increase the number of resettled Syrian refugees welcomed in Canada. On the same day that Trump first decreed a Muslim travel ban, Trudeau famously tweeted out his hospitality: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith.”

Under Trudeau’s leadership, the Canadian government has decided to boost the number of immigrants it grants permanent resident status yearly, from 286,000 in 2017 to 340,00 in 2020.

The U.S., with a population that is nearly nine times bigger than its northern neighbor, grants permanent resident status to 1.1 million newcomers. The Trump administration is trying to overhaul the nation’s immigration policy in ways that could cut that number considerably and it has slashed refugee admissions. In April 2019, Trump addressed the rising number of asylum-seekers arriving at the U.S.-Mexico border. “We can’t take you anymore,” he said. “Our country is full.”

As long as these sorts of divergences persist, I believe that immigrants who have been living in the United States for years, some with children who are U.S. citizens, will keep coming to Canada seeking asylum.

Source: A growing source of Canadian asylum-seekers: US citizens whose parents were born elsewhere

Closing the Canada-U.S. asylum border agreement loophole? Not so fast

Sean Rehaag of Osgoode Law School on the STCA and discussions regarding expanding it to cover non-official points of entry:

According to media reports, Bill Blair, Canada’s minister of border security, is attempting to close a loophole in the Canada-U.S. Safe Third Country Agreement (STCA).

The agreement allows Canada to send asylum-seekers back to the United States without hearing their refugee claims (and allows the U.S. the same option for those going in the other direction). The loophole is that the STCA only applies to asylum-seekers who present themselves at official land ports-of-entry.

Since President Donald Trump was elected, around 40,000 asylum seekers have used this loophole by crossing into Canada from the U.S. at places other than official ports-of-entry. They are not trying to sneak into Canada undetected. Rather, they cross the border irregularly to avoid being turned away under the STCA and then approach Canadian authorities to make refugee claims.

The number of irregular border-crossers has declined recently, with fewer than 1,000 in January 2019. What’s more, while the overall number of refugee claims made in Canada has been higher than usual in the past two years, it is not far off historical norms.

Nonetheless, the additional 40,000 refugee claims have produced pressures on the refugee determination system and on provincial social programs. There has also been political pushback, with calls from the Conservative party for the government to stem the flow.

However, closing the STCA loophole is a complicated proposition.

Blair reportedly wants irregular border-crossers to be taken to official ports-of-entry and processed as if they had presented themselves there directly. In other words, the STCA would apply both at official ports-of-entry and elsewhere.

To make this work, the U.S. would need to agree, which is the first complication.

More asylum-seekers come to Canada

The purpose of the STCA from a Canadian perspective was to force the U.S. to take responsibility for asylum-seekers who travel to Canada via the United States. Canada had long wanted the STCA because the flow of asylum-seekers is asymmetrical. Far more asylum-seekers come to Canada from the U.S. than the reverse.

For the same reason, the United States has long refused to agree to the STCA. That only changed after 9-11, when Canada offered the U.S. greater border security integration in exchange for the STCA.

Canada now wants to expand the STCA, so the question is: What will Canada have to give the U.S. to get them to agree?

One might expect quite a lot, given that Trump has shown little interest in taking steps that would result in thousands of asylum-seekers who would otherwise go to Canada remaining in the U.S.

The need for a quid pro quo raises a second complication. The STCA is being challenged in Canadian courts by human rights organizations who say that the U.S. is not safe for refugees and that the STCA violates the Canadian Charter of Rights and Freedoms.

Given the anti-refugee policies of the Trump administration, there is a good chance that courts will strike down the STCA. By negotiating expansions to the STCA without waiting to see whether the regime is upheld, there is a real risk that anything Canada gives to the U.S. in exchange will be for naught.

A third complication: Even if Canada gets the U.S. to agree to expand the STCA, and even if the regime is upheld by the courts, the impact of any expansion is likely to be both counterproductive and dangerous.

A dangerous incentive

If asylum-seekers who are intercepted at irregular border crossings are returned to the U.S., this will create a strong incentive for such asylum-seekers to cross the border without being intercepted.

Currently, irregular border crossings are manageable and organized. Most occur in a single, well-monitored location in Québec. That crossing is not dangerous. Border officials and RCMP are present. Irregular border-crossers immediately enter into immigration and refugee processing, which includes health, criminality and security screening.

Other countries that have tried to stem flows of asylum-seekers by closing off safe and manageable routes have had a common experience. The flows do not stop but are instead diverted into more remote and hence more dangerous routes. Organized crime gets involved, bringing increased security risks and violence. The inevitable result is lost lives and decreased border security.

In the end, the political pressure on the government to be seen doing something on this file may outweigh these policy considerations. But politics lead to a fourth complication.

During the last federal election campaign, Justin Trudeau distinguished himself from former prime minister Stephen Harper partly through a more compassionate response to the Syrian refugee crisis and the death of Alan Kurdi — himself a tragic victim of cat-and-mouse games between smugglers and governments seeking to keep refugees at bay.

Shortly after Trump’s inauguration, Prime Minister Trudeau further sought the moral high ground when, in response to the president’s anti-refugee policies, he famously tweeted Canadians will welcome those fleeing persecution.

There is no way to close the STCA loophole without the Liberal party turning its back on those progressive values, on the eve of a federal election campaign.

In this context, attempting to expand the STCA may not only be bad policy, it may also be bad politics.

Source: Closing the Canada-U.S. asylum border agreement loophole? Not so fast

Getting refugee decisions appealed in court ‘the luck of the draw,’ study shows

Sean Rehaag continues his important work in revealing inconsistencies in decision-making depending on the federal court judge hearing the application. Virtually all reviews of decision-making processes highlight how perspectives and biases (and Kahneman’s ‘automatic thinking’) can lead to such results:

It is a crapshoot whether refugee claimants can get a second chance from the Federal Court to review and appeal a decision that potentially determines their life and death, according to a new study.

“Outcomes in Federal Court applications for judicial review of refugee determinations depended all too often on the luck of the draw — on which judge decided the case,” said York University law professor Sean Rehaag, author of the report released by the Social Sciences Research Network this month.

“Refugee claimants whose applications for judicial review are denied continue to have good reason to wonder whether this was because of the facts of their case and the law, or whether they simply lost the luck of the draw.”

Both failed refugees and the federal government can appeal a refugee board decision to the court but must first get a nod — or leave — from a judge before the case can proceed to a full hearing. If the first judge denies leave, the appeal will not be heard. Sometimes, the court is the last resort before a failed refugee claimant is deported from Canada to face potential risks back home.

Federal Court Chief Justice Paul Crampton acknowledged Rehaag’s study raises some important questions.

“There is a very real fairness dimension to the wide variation in the rates at which individual judges grant leave,” Crampton told the Star in a statement. “This is so despite the element of subjectivity in making judicial determinations, especially on judicial review, where the standard that the court is called upon to apply in most cases is whether the decision under review was ‘unreasonable.’”

Based on 33,920 Federal Court leave applications involving refugees, the study found only 16.8 per cent of the requests were granted to proceed to an appeal hearing and just 7.8 per cent of them were ultimately successful in getting an asylum decision stayed and having the cases reopened.

The study is the sequel to one conducted by Rehaag in 2012 when he found individual judges varied tremendously in their grant rates for leave and judicial reviews.

Since the release of the first study, Crampton has raised awareness of the issue among judges and even considered amending rules to include a list of factors for judges to weigh in applying the existing leave test, but decided it would be better to include this in legislation.

“Given the important principle that individual judges must decide cases before them on the merits, completely independently of any influence by other persons, the court has continued to wrestle with how to reduce the variation in leave grant rates,” Crampton said.

According to the study, from 2008 to 2011, some judges only allowed 1.5 per cent of the appeal requests they handled to proceed to a full hearing while others approved more than 30 per cent of those requests. One judge, Justice Douglas Campbell, actually granted leave to 95.9 per cent of his cases.

Wide gaps were also identified in the outcomes of the appeals, with some rejecting almost every appeal before them and others reopening 33.8 per cent of the cases and sending them back for a new assessment.

However, despite the court’s effort to address the issue, the gaps among judges’ approval rates persisted after 2012.

From 2013 to 2016, the leave grant rates varied from 5.3 per cent by Justice Judith Snider on the low end to 49.2 per cent by Justice Elizabeth Heneghan on the high end. Appellants, who got leave to proceed to a full hearing, had a 1.8 per cent success rate if they appeared before Justice Richard Boivin but a 22.8 per cent chance to succeed in reopening their cases if they were before Justice Leonard Mandamin.

The report recommends the court allow all appeals a full hearing or at least have two judges to decide on leave to counterbalance any potential bias.

Source: Getting refugee decisions appealed in court ‘the luck of the draw,’ study shows

It’s time to abolish the inhumane Canada-U.S. deal on asylum-seekers: Sean Rehaag

Although I am a great admirer of the work Rehaag has done with his analysis of IRB decisions and decision makers (see Refugee approval rates reflect subjectivity of decision-makers, prof says – Montreal – CBC News), his article proposing abolishing the STCA would lead to a further sharp increase in the number of asylum seekers (already controversial), further overwhelm the IRB (already overwhelmed) and undermine overall support for immigration in this country.

Evidence-based policies need to consider the operational aspects, as well as the trade-offs between overall immigration levels and classes:

The Canadian government reportedly wants the United States to close a loophole in what’s known as the Safe Third Country Agreement (STCA).

The agreement allows Canada to send asylum-seekers back to the U.S. if they come to the border. But the deal only applies at official ports-of-entry, and not when asylum-seekers cross the border elsewhere — the loophole that Canada apparently wants eliminated.

Expanding the STCA to cover irregular crossings would mean that thousands of asylum-seekers would be sent back to the U.S. after making their way to the Canadian border in the wake of worsening conditions there under President Donald Trump.

The current American administration, however, is unlikely to tweak the agreement. Trump doesn’t like refugees. He has imposed travel bans on refugees selected for resettlement; attempted to block entry to asylum-seekers arriving in a “caravan” at the southern U.S. border; he’s scorned an agreement to transfer 1,250 refugees from Australian detention facilities to the U.S. as “the worst deal ever.”

The STCA has barred thousands of asylum-seekers from Canada. Prior to its implementation, approximately 10,000 asylum-seekers entered Canada via the United States each year. Some 200 went in the other direction. In this context, Trump is unlikely to expand the STCA. If anything, he’d want to cancel it outright to decrease the number of refugees in the U.S.

The STCA’s 9-11 history

It’s worth recalling the history of the STCA. Canada had long pushed for the STCA because of the lopsided flow of asylum-seekers, but the U.S. refused for years. After the 9-11 attacks, when border security was of utmost concern, Canada essentially pulled a fast one by offering enhanced information-sharing and common border security measures in exchange for the STCA.

However, Canada would have agreed to these measures regardless because disruption to the cross-border flows of goods and services hurts Canada’s economy. In essence, Canada got the STCA for nothing.

In the Trumpian world view, this is another “worst deal ever,” and it fits into his claim that “very smooth” Canada has “taken advantage” of the U.S. for years.

If the United States isn’t likely to agree to expand the STCA, what is going on here?

Simple. This is crass political theatre.

‘Beating up on refugees’

The ruling Liberals are facing attacks by the opposition Conservatives who have returned to beating up on refugees as a show of “toughness.” In response to growing numbers of asylum-seekers irregularly crossing the Canada-U.S. border, the Liberals must be seen to be taking action, even if that action is futile.

Still, something meaningful needs to be done.

One could debate whether the agreement was ever good policy. There’s a Constitutional challenge under way about whether it’s even lawful. But, regardless, it’s clearly not working now.

The more asylum-seekers resort to irregular crossings to circumvent the STCA, the more these sites are normalized as unofficial crossings. The longer this goes on, the less effective the STCA will be at deterring future asylum-seekers from coming to Canada via the U.S.

At the same time, if specific unofficial crossings are blocked off, asylum-seekers will simply move to other, more dangerous crossings. Every country that has built barriers has seen asylum-seekers driven to increasingly desperate and dangerous measures.

Alan Kurdi — the child whose death en route to seeking asylum in the European Union sparked Canada’s most recent refugee resettlement program — and the thousands of migrants who have died trying to evade ever-increasing surveillance at the U.S.-Mexico border are stark examples of this tragic phenomenon.

In other words, if Canada blocks places like Roxham Road on the Québec/New York state border, refugees will cross remote fields in Manitoba during snowstorms. Asylum-seekers take these kinds of risks on a daily basis around the world.

If expanding the agreement is not viable, if erecting barriers is terrible policy, and if the status quo is not working — what can be done?

Also simple.

Do away with the STCA

It’s time for Canada to suspend the STCA. Asylum-seekers should be able to make refugee claims at regular ports-of-entry. At the same time, the government should calibrate funding and staffing levels for the Immigration and Refugee Board to the number of claims in the system.

This would ensure that people who meet the refugee definition are recognized in a timely manner and put on the path to successful settlement, while those who do not need Canada’s protection can quickly be removed. And it’s worth a reminder: Most are likely to meet the legal test to stay.

Suspending the STCA is not a radical proposal. Asylum-seekers made claims at the Canada-U.S. border for decades pre-STCA and the system worked fine.

Suspending the STCA will not harm Canada’s relationship with the U.S., or the ongoing NAFTA negotiations. The Americans would happily discard the STCA.

Suspending the STCA is also politically viable. It will not end Conservative opposition attacks. But rather than defending inaction on so-called “illegal” border crossings, the Liberals can instead punch back and say that they respect international refugee law.

They can ask whether the Conservatives want Canada to deport refugees — and how that squares with the lessons that Canada was supposed to have learned from the days of none is too many, when Canada had one of the worst records among Western countries of providing refuge for European Jews fleeing the Holocaust. They can ask whether the Conservatives care about the tragic deaths of Alan Kurdi and thousands of other desperate asylum-seekers around the world.

Most importantly, by suspending the STCA, Canada can show that there is an alternative to the xenophobic extreme-right policies taking parts of the world by storm.

Instead of building walls, we can adopt evidence-based policies that comply with international law and that make our country a better place for everyone. And we can show that the sky will not fall if Canada hosts a few thousand more people who face persecution, torture and even death.

If not now, when?

via It’s time to abolish the inhumane Canada-U.S. deal on asylum-seekers

Refugee approval rates reflect subjectivity of decision-makers, prof says

Rehaag does good serious analysis, demonstrating the challenge of ensuring consistency among a diverse group of decision-makers. The replacement of political appointees by public servants appears to have reduced somewhat the previously wide variation among decision-makers:

The rate at which refugee claims are accepted by Canada’s Immigration and Refugee Board varies widely depending on who hears the case, according to a professor who obtained data from the federal government.

Sean Rehaag is an associate professor at Osgoode Hall Law School at York University in Toronto, who specializes in immigration and refugee law and human rights. Through an access to information request, he was able to obtain IRB decisions for refugee claims filed in 2016.

‘Some board members are just more likely to believe claimants than other board members.’ Sean Rehaag, university professor

He found a wide variability in acceptance rates, from as low as a quarter of cases heard to a high of 96 per cent.

“I do think that who we appoint as decision-makers really matters,” said Rehaag, specifying it is important to “appoint people who have a solid understanding of refugee law and who are not predisposed to denying claims.”

Rehaag’s work may provide insight into how the 7,000 asylum seekers who have crossed the border on foot at Roxham Road in Hemmingford, Que., will be handled over the next few months as they begin to appear in front of the IRB to test their refugee claims.

Some of that variability in deciding cases is due to the fact that different board members can specialize in different regions of the world.

“It makes perfect sense that if you are mostly hearing cases today from, let’s say, Syria, you are going to have a much higher grant rate than if you were mostly hearing cases from Western European countries, because Syria is much less safe,” said Rehaag.

But even when specializations are taken into account, said Rehaag, there’s still a lot of variation.

“My view is that the variation that remains reflects subjectivity in decision-making,” he said.

Variance to be expected, IRB says

In a statement, IRB spokesperson Line-Alice Guibert-Wolff said variance in acceptance rates from one member to another is to be expected.

“Members render decisions based on the evidence and argumentation presented (or not presented) and each refugee protection claim is unique, and must be determined on its individual merit,” she wrote, adding that there are many factors that impact a decision.

While consistency in its decision-making is the goal, Guibert-Wolff said that, in a quasi-judicial setting where each case is determined on its own merits, based on the evidence presented, consistency is not always possible.

However, the variance in acceptance rates is subject to a periodic review.

New system better than old one

The process for people seeking asylum in Canada changed in 2012, affecting how cases were heard and who heard them. Under the old system, decision-makers were political appointees, but under the reformed system, the decision-makers are public servants who are appointed instead.

As a result, Rehaag noticed a change in how many cases are accepted.

“There used to be decision-makers who denied every single case that they heard over several years. Those were political appointees and that no longer happens,” he said. “There is still subjectivity in decision-making, but it’s not as bad as it was before.

“To me, though, the biggest challenge that the Immigration and Refugee Board is facing right now is a resourcing question,” said Rehaag.

Procedural protections

One way to change the variation rate is to create procedural protections, similar to the criminal justice system.

For example, many asylum seekers are denied access to appeal, which Rehaag said would never happen in a criminal law context.

In 2016, 33 per cent of appeals were granted, a rate Rehaag characterizes as “remarkably high.”

Some claimants, especially those who came to Canada through the United States, are denied access to appeal and are ineligible for automatic stays of removal pending judicial review at the Federal Court.

That means once they’ve gotten a negative decision, they are forced to leave Canada quickly.

IRB spokesperson Guibert-Wolff said the majority of refugee claimants can appeal to the refugee appeal division, except if they fall under a few categories listed.

He said the government must properly fund the IRB so that there are not only enough decision-makers, but administrators, managers and support staff for the system to work smoothly.

Source: Refugee approval rates reflect subjectivity of decision-makers, prof says – Montreal – CBC News

Why are so many Hungarians deported? A look at Canada’s ‘Unwelcome Index’ 

The Globe continues to impress me with some of its serious evidence-based reporting (e.g., unfounded sexual assault cases by police department) with this being another good example of reporting by obtaining and analyzing data and explaining what it means:

The U.S. government’s determined efforts to restrict immigration and the number of refugees entering the country has invited comparisons with Canada, heralded by some (including The Economist) as a last bastion of openness among Western countries. But Canada has its own apparatus for ejecting the unwelcome; the Canada Border Services Agency is charged with removing people who don’t meet entry requirements.

To understand who Canada deports, and why, The Globe and Mail requested data from CBSA showing total removals by year, broken out by citizenship, the destination to which the person was sent and justifications for these removals. The data shows Canada removed Hungarian citizens in disproportionate numbers over the past few years. The story of those thousands of unwelcome people contrasts with international perceptions of Canada’s warm embrace of foreigners.

The unwelcome

The CBSA ejects thousands of people annually. However, the data doesn’t reveal much about why those people were removed: By far the most common official justification was “non-compliance,” a sweeping category. Fewer than 10 per cent of removals cited criminality, the second most common justification.

A clearer picture emerges when one examines the citizenship of removed persons: Hungarians topped the removals list during the five-year period from 2012 to 2016.

It is perhaps unsurprising to discover large numbers of Americans and Chinese on the list: Both countries rank among the world’s most populous, and the United States and Canada share the world’s longest border between two countries. Mexico has been a major source of immigrants, and also refugee claimants: The government of prime minister Stephen Harper responded in the late 2000s by imposing new visa requirements on Mexican visitors; removals surged.

Hungary is less populous than those countries, and distant to boot. What gives?

Hungary stands out even more when one compares numbers of removals with numbers of people of the same citizenship accepted as permanent residents. The result is a crude sort of “Unwelcome Index.” Between 2011 and 2015, more than three removal orders were issued for every Hungarian granted permanent-resident status.

Backstory of an exodus

Most Hungarians removed during this period were Roma, explained Sean Rehaag, an associate professor at Osgoode Hall Law School in Toronto who specializes in immigration law. Studying a random sample of 96 decisions of the Immigration and Refugee Board between 2008 and 2012 involving Hungarian claimants, Mr. Rehaag and his colleagues found 85 per cent involved Roma.

Roma comprise Hungary’s largest ethnic minority. There, they encounter “discrimination and exclusion on a regular basis” concerning education, employment, housing, health and much else, according to a 2014 report by Harvard University’s François-Xavier Bagnoud Center for Health and Human Rights. The late 2000s witnessed the rise of right-wing political parties and paramilitaries, accompanied by increasing rhetoric, rallies and attacks directed at Roma. Many Roma sought asylum abroad; thousands arrived in Canada after it lifted visa requirements on Hungarians in 2008.

Gina Csanyi-Robah, a teacher and human-rights activist with Hungarian Roma roots met many applicants in her capacity as executive director of the Roma Community Centre in Toronto, and also at Toronto schools. They fled Hungary because they were “scared that their home was going to be burned down,” Ms. Csanyi-Robah said. “Tired of their children getting beaten up at school and put into segregated classes. Tired of being subjected to verbal, psychological, physical violence when they left their homes.”

 Source: Why are so many Hungarians deported? A look at Canada’s ‘Unwelcome Index’ – The Globe and Mail

2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees

This is really an impressive analysis  suggesting (no surprise) that individual decision-makers are not as objective and consistent as desired (as Kahneman and others have demonstrated in different contexts). All Canadian government tribunals should conduct this kind of analysis to improve consistency in decision making:

The following note and the accompanying data are provided by Sean Rehaag, Associate Professor, Osgoode Hall Law School.

8 March 2017

Data obtained from the Immigration and Refugee Board (IRB) through an Access to Information Request reveals vast disparities in refugee claim recognition rates across decision-makers in 2016. This is consistent with similar findings from prior years for Canada’s previous and new refugee determination systems.

Refugee claims referred to the IRB after 15 December 2012 are subject to the new system, whereas claims referred to the IRB prior to that date are legacy cases that are decided under the old system. Legacy and new system cases are not only decided under different rules, but are also decided by different cohorts of decision-makers. Because of these important differences, the data on RPD decision-making for 2016 is separated into legacy cases and new system cases.

In 2016, some Refugee Protection Division (RPD) decision-makers granted refugee status in most of the cases they heard, including R. Tiwari (95.9%, 74 new system cases), I. Singh (92.5%, 53 new system cases) and K. Genjaga (91.8%, 85 new system cases). Others granted refugee protection much less frequently, including B. Lloyd (23.8%, 63 new system cases), R. Gibson (26.0%, 77 new system cases) and M. Beatty (29.8%, 57 new system cases).

Some of the recognition rate variation may be due to specialization in particular types of cases. For example, some decision-makers specialize in geographic regions with especially high or low refugee claim recognition rates. For further possible explanations for variations in recognition rates, please see an IRB explanatory note, which was provided with a response to an earlier Access to Information Request:

Although some of the recognition rate variation can be explained by factors related to specialization, the tables below suggest that country of origin specialization alone fails to fully account for the variations. The tables show substantial variance for some decision-makers between the recognition rates that would be predicted based on the average recognition rates for the countries of origins in the cases they decided, and their actual recognition rates. For instance, in new system cases B. Lloyd (predicted 57.4%; actual 23.8%), R. Gibson (predicted 53.9%; actual 26.0%) and J. Daubney (predicted 59.7%; actual 32.3%) had much lower recognition rates than predicted, whereas R. Tiwari (predicted 62.6%, actual 95.9%), J. Eberhard (predicted 56.5%; actual 87.4%) and J. Bousfield (predicted 63.6%; actual: 89.3%) had much higher recognition rates than predicted.

This year’s data also includes information about outcomes on appeals at the IRB’s Refugee Appeal Division (RAD). As with RPD decision-making, outcomes at the RAD appear to vary greatly depending on who serves as the decision-maker. For example, in RAD cases decided on the merits, claimants were much more likely to succeed in their appeals before S.S. Kular (56.5%, 46 cases), R. Dhir (50.5%, 32 cases) or L.F. Agostinho (46.6%, 58 cases) than before L. Favreau (5.3%, 94 cases), Stephen Gallagher (17.1%, 35 cases) or D.E. Sokolyk (20.6%, 63 cases). Remarkably, claimants were more than 10 times as likely to succeed on appeals with S.S. Kular than with L. Favreau.

A few implications of this year’s data are worth highlighting:

  • Some countries that are designated as “safe” in Canada’s refugee determination system produced many positive refugee determinations in 2016. Consider for example, Hungary, which had a 66.9% recognition rate, and which produced 184 successful refugee decisions (involving 529 individual claimants) in the new system in 2016. It is difficult to understand how such countries can reasonably be designated as “safe” or what could justify limitations on procedural rights (e.g. expedited processes, limitations on pre-removal risk assessments) that come with such designations. For further analysis, see:
  • The persistence of unexplained variations in recognition rates across adjudicators in the new refugee determination system, combined with the devastating potential impact of false negative refugee decisions (i.e. refugees being returned to face persecution), make robust oversight mechanisms essential. Unfortunately, many refugee claimants continue to be denied access to the appeal at the Immigration and Refugee Board and are ineligible for automatic stays on removal pending judicial review at the Federal Court. This includes large numbers of claimants who transited to Canada via the United States – even though one’s route to Canada has little to do with whether one has a well-founded fear of persecution. For further analysis, see:
  • While substantial variation in recognition rates persist, it should be noted that no new system decision-makers in 2016 who made 20 or more decisions denied every single claim they heard. This is in contrast to the old refugee determination system (S. Roy in 2013: 0.0%, 23 decisions; D. McSweeney in 2011: 0.0%, 127 decisions; D. McBean in 2010: 0.0%, 62 decisions; D. McBean in 2009: 0.0%, 72 decisions). It is worth considering whether this change relates to the professionalization of refugee decision-making and the shift to civil servant decision-makers (rather than political appointees as was the case under the old system).
  • The overall success rates on RAD appeals are remarkably high. Indeed, appeals brought by claimants and decided on the merits were granted in almost one third of cases (33.1%). On the one hand, the fact that the RAD is correcting large numbers of claims that were wrongly denied at the RPD emphasizes the importance of this form of oversight. On the other hand, however, it also suggests that there is room for improvement in initial decision-making at the RPD.

For a discussion of the methodology used to obtain the data and to calculate the statistics, as well as an analysis of the implications of similar data for a previous year, see Sean Rehaag, “Troubling Patterns in Canadian Refugee Adjudication” (2008) 39 Ottawa Law Review 335. This article is available via links here:

Source: 2016 Refugee Claim Data and IRB Member Recognition Rates | Canadian Council for Refugees

Asylum outcomes vary widely among refugee judges, study finds

Good reporting by Nicholas Keung.

The IRB should not be so dismissive of the analysis and may benefit from reading Daniel Kahneman’s Thinking Fast and Slow for similar examples where cognitive bias has resulted in different decisions. No system is completely immune:

Despite recent reforms to the refugee system, whether an asylum claim is approved or denied has remained the luck of the draw, according to a new report.

Based on Immigration and Refugee Board data, Osgoode Hall law professor Sean Rehaag looked at all 7,818 asylum decisions made in 2015 by 92 board members under the new system. He found their decisions vary widely on claims from the same country.

The former Conservative government made these new decision-makers government employees — replacing the old political appointees — with the hope of making the system free from political influence based on the adjudicators’ political affiliation.

“It’s striking that the refugee determination system is making life-and-death decisions and the outcomes of the claims vary depending on who is making the decision,” Rehaag said of his findings in the report to be released Wednesday.

In 2015, a total of 8,268 new claims were processed; 279 were withdrawn and 160 were deemed abandoned with claimants absent from their hearings. Of the 7,818 decisions rendered, 65 per cent of the claims were granted and 35 per cent were denied.

While some decision-makers rarely granted refugee status, Rehaag said others accepted most of the cases they heard.

Member Gloria Moreno, for example, had a grant rate of 27.3 per cent out of 22 decisions, the lowest of all adjudicators, followed by David Young, who only accepted 32.9 per cent in 79 decisions.

At the other end of the spectrum, 98.5 of James Waters’ 65 decisions were positive, with Maria Vega in a close second at 92.9 per cent.

Although some of the differences may be due to the members’ specialization in particular types of cases such as geographic regions with especially high or low refugee claim recognition rates, Rehaag compared decisions by different adjudicators on claims from the same country and found the variations unjustified.

Rehaag said his findings speak to the importance of allowing universal access for failed claimants to appeal to the refugee appeal tribunal.

The IRB, however, said outcomes of decisions vary because decision makers render impartial decisions in accordance with the law based on the evidence presented.

“It’s important to note that there are no ‘expected recognition rates’ at the board . . . each case is unique and determined on the basis of its individual merit,” said IRB spokesperson Anna Pape, adding that failed refugees are entitled to have decisions reviewed by the Federal Court of Canada.

The Liberal government has dropped its constitutional challenge to the designated-country-of-origin regime established by its Tory predecessor, intended to deny appeals by claimants from countries presumed to be safe and capable of protecting their nationals.