Many immigration detainees fight for their freedom with no lawyer. A new Ontario program aims to change that

Of note:

People detained for immigration violations will now have better access to free legal representation to fight for their release.

Legal Aid Ontario has launched a one-year pilot program to make sure anyone in immigration detention in the province can be represented by a lawyer at their detention reviews.

No advance application is necessary as lawyers with the Immigration Detention Representation Program will be present at the beginning of each detention hearing to offer assistance.

Numerous studies have underscored the importance of legal representation in improving a detainee’s chances of getting released. However, securing a lawyer has often been a problem for those held behind bars and unfamiliar with the system.

“For decades, immigration detainees have fallen through the cracks. For decades, people have languished in immigration detention for longer than they should have because of the lack of legal representation,” said Queen’s University immigration law professor Sharry Aiken.

“You’re locked up and have limited access to the outside world. You may not even have a functional cellphone if you have been detained directly off an airplane. You may not have a local number (of a lawyer).”

According to an audit commissioned by the Immigration and Refugee Board, counsel represented a detained person at only 38 per cent of hearings held in Ontario in 2017. That compares to the 70 and 76 per cent in the regions west and east of the province, respectively.

Canadian border officials can detain inadmissible foreign nationals such as undocumented residents and failed refugee claimants awaiting removal, or permanent residents convicted of serious crime if they believe the individuals are a flight risk or a danger to the public.

According to the latest government statistics for 2019-20, a total of 8,825 people — 5,265 in Ontario alone — were held for immigration violations; 68 per cent in immigration holding centres; 19 per cent in provincial jails; and 13 per cent in other facilities.

The detainees were held for a combined 115,559 days or 13.9 days on average. About three per cent, or 241 of them, were kept for more than 99 days.

COVID-19 outbreaks in jails have put institutional detention under the spotlight, prompting authorities to urge correctional services and the parole board to release some low-risk offenders in order to slow the spread of the virus. Earlier this month, some immigration detainees in Montreal staged a third hunger strike, seeking their release because of fears around the coronavirus.

“Legal Aid Ontario is committed to serving people in detention who need our help, and to ensuring that immigration detainees have access to fair and meaningful detention reviews,” said Aviva Basman, a manager at the Refugee Law Office, which administers the project.

“This pilot program is partly a response to the unprecedented nature of the pandemic and its impact on incarcerated people, who are subject to harsh and restrictive detention conditions. … It is also a response to historically low levels of representation in Ontario and the need to increase access to counsel for this population.”

In December, Legal Aid Ontario announced an increase to the number of hours available on legal aid certificates for lawyers to prepare for detention review hearings.

Counsel may now bill as much as three hours of preparation time for each detention-review hearing, in addition to the time spent in the hearing. Previously, only one hour of preparation time was available for the second and further hearings.

While news of the immigration-detention pilot program is welcomed, Aiken of Queen’s University said it is only “a half measure” given the one-year duration of the initiative.

“I’m pleased to see the project. There’s a need for this. But I am concerned it may not be sufficient,” said Aiken. “It doesn’t appear to have any sustainable source of funding within the legal aid program.”

Source: Many immigration detainees fight for their freedom with no lawyer. A new Ontario program aims to change that

‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

From the legal critics:

The Liberal government’s appeal of a recent “damning” Federal Court decision striking down Canada’s 16-year asylum agreement with the United States is disappointing and will likely end up before the Supreme Court, say lawyers and a Senator who once practiced refugee law.

Justice Ann Marie McDonald was “bang-on,” said Independent Senator Mobina Jaffer, when she found the Safe Third Country Agreement (STCA) violates Section 7 of the Canadian Charter of Rights, which guarantees everyone “the right to life, liberty and security of the person.” In July, Justice McDonald ruled the agreement, which halts people entering Canada at official border crossings because they must instead claim asylum in the U.S., is “over-broad” and the risks of detention and loss of security of the person is “grossly disproportionate” to the administrative benefit of the agreement.

The B.C. Senator said during her 20 years practicing refugee law—before the 16-year-old agreement was brought into force—she worked on many cases where refugees crossed the U.S. border seeking asylum. None in government can be “blind or deaf to what is happening in the United States,” she said, where reports continue of parents being separated from their children and placed in cages, according to Human Rights Watch, which has called the practice a human rights violation.

Sen. Jaffer took issue with the government’s argument that ending the agreement would cause an uptick in claims and put Canada’s refugee system at risk, saying that fear was likely pushing its appeal.

“This is a fairly new thing we are doing [with the agreement]. I find it almost insulting to say we will be overwhelmed with applications… so we don’t need to follow Section 7, that’s how I see it,” she said, highlighting the contradiction in Canada’s experience compared to other nations. Before the pandemic, she travelled to Lebanon and Turkey, which each house millions of refugees, while Canada has seen 58,255 irregular crossings from the U.S. since the beginning of 2017.

“I just think they are buying time to continue the same system because they know they don’t have a strong case,” Sen. Jaffer said.

The evidence presented to Justice McDonald was “damning,” said Jamie Liew, an associate professor at the University of Ottawa, and it was the most evidence presented that Sharry Aiken, an associate law professor at Queen’s University, had seen in 30 years practicing and teaching immigration and refugee law.

“It is curious to me that the government has chosen to ignore all this evidence and instead find that there is still grounds in this agreement to operate as usual… to operate as if the U.S. is acting as an honest partner in meeting its obligations under the Refugee Convention, which it clearly isn’t,” said Prof. Liew.

The appeal means that the STCA is in effect indefinitely now, and a decision is likely years off. The Federal Court of Appeal doesn’t have “a great track record in recognizing the rights of refugees,” explained Prof. Liew, and the applicants would likely appeal an unfavourable ruling.

She and her University of Ottawa colleague Errol Mendes, a professor of constitutional law, both said they think the case is destined for the Supreme Court.

“The issues at stake are so complex, it may require a final court determining some critical issues not only relevant to this case but many other cases that involve the Charter and in particular Section 7,” Prof. Mendes said by email.

Errors in judge’s findings, feds say

The government took a month to appeal the July 22 ruling, and Public Safety Minister Bill Blair (Scarborough Southwest, Ont.) explained in a statement Aug. 21 it was because there are “important legal principles to be determined in this case” and it’s necessary to appeal ”to ensure clarity on the legal framework governing asylum law.”

Asked for more clarity on the legal groundings of that appeal, Mr. Blair’s spokesperson, Craig MacBride, said by email that the government is appealing the ruling because it believes there are errors in some of the key findings of fact and law.

“The decision suggests all asylum claimants who are ineligible under the Safe Third Country Agreement and turned back to the U.S. are automatically detained as a penalty,” he said. “This is not the case. The U.S. remains a party to the UN Refugee Convention.”

Prof. Mendes said he expects the government to attack a “crucial” part of the court decision, in which Justice McDonald said that with the agreement, the risks of detention and loss of security of the person “are grossly disproportional to the administrative benefits of the STCA,” and that the impact on a refugee of being found ineligible is “out of sync” with the objective of the legislation, and responsibility sharing between the countries “cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions,” including solitary confinement.

The federal government may attack Justice McDonald’s assessment that the STCA’s main objective is in fact an administrative benefit of sharing responsibility for refugees, he suggested.

“Instead, they will claim that getting rid of it will destabilize the entire present refugee system in Canada, given that the present system with the STCA is already backlogged with those that are not caught by the STCA,” said Prof. Mendes, though he thinks this defence likely would not succeed. “The Court has said on the many cases that it would be undermining the Charter if all that [the] government had to do to violate Charter rights is to proclaim the administrative burdens that come from living up to them.”

Prof. Liew said she hopes the Supreme Court takes up the issue, especially the question of an “alternative remedy,” which she said is often a legal argument the government invokes when it comes to Charter challenges. In this case, she said the government argues there are other avenues open to refugee claimants, when in reality most aren’t aware of their rights and when turned back to the U.S. are immediately detained.

“Once a Charter right is infringed… can it be affected by what the government calls alternative remedies? I think that’s where I anticipate their argument will rest,” she said. “If you want to look at taking Charter right infringements seriously, we should be really looking at how it operates on the ground.”

The only Charter argument Prof. Mendes could imagine the government using is a point the government has already asserted: that the U.S. has a fair detention review system, which can allow for due process and release from detention.

The experience of one of the applicants in the case, Nedira Mustefa, directly challenged that claim. She was detained in the U.S. after trying to enter Canada and spent a week in solitary confinement, which Justice McDonald said meets the test that a foreign law would “shock the conscience.”

“So the government will argue theoretical fair detention review possibilities [versus] the ‘Trumpian era’ reality of harsh treatment of refugees and increased risk of deportation to countries where life, liberty, and security of the person is endangered,” said Prof. Mendes

“Here, the appeals court will have to factor into what I call real-time realities of the life of refugees in Trump’s America versus the theoretical due process safeguards under the STCA.”

That Justice McDonald declared the STCA invalid based on the treatment of a couple refugees could also be contested by the government, he added, but the Supreme Court has said in the past—in rulings on assisted dying or anti-prostitution laws—that if a process violates the Section 7 rights of even a few people, or a small number disproportionately, the law can still be struck down, he noted.

Political issues likely at play

Prof. Aiken called Mr. Blair’s rationale that legal principles are in play a “specious” argument, seeing the choice to appeal instead as a “very transparent commitment” to a Liberal political agenda to not only maintain, but extend, the STCA.

“It is a highly charged political issue and in my view it’s almost been served up as a kind of marker or proxy for a wider political discourse on refugees and border security in a way that completely distorts the impact and implications of this agreement,” she said.

“Every day it continues in effect is another day of refugee rights being violated.”

When the agreement was brought in following 9/11, Prof. Liew said it was in part to address backlogs at the Immigration and Refugee Board of Canada. There are more innovative ways to expedite that process and address policy problems than putting people at risk of returning to places where they could endure persecution or death, she said.

“I’m very perplexed, if we’re concerned about that policy rationale, why it has to be done with a heavy-handed manner in a way that’s totally ignorant to the dire situations that refugee claimants face in the U.S.,” she said, who stressed this is not a “temporary problem” unique to Trump’s America.

The Conservative Party supports the government’s decision to appeal, said immigration critic and MP Peter Kent (Thornhill, Ont.), but he expressed surprise it took so long. He said there are a number of “inconsistencies” in the ruling, which he also expects will ultimately make its way to the Supreme Court.

There are clearly issues with the agreement, said Mr. Kent, but those mainly lie in the “loophole” that those who don’t cross at official ports of entry don’t fall under the agreement.

Justice McDonald’s ruling is based on the specific experiences of three claimants, that he said are “exceptions to the broader context” of the agreement, which he called part of a “fair and compassionate and orderly” immigration system.

“There is the issue of those in the United States who fear and may have legitimate concerns that if they’re discovered in the United States, they will experience improper treatment, but the broader intent of the Safe Third Country Agreement addresses those like the overwhelming majority of illegal border crossers,” who he said had the economic means and visas to pass through the U.S. and enter the border improperly.

NDP MP Jenny Kwan (Vancouver East, B.C.), her party’s immigration critic, called the government’s decision “horrendous” and its rationale for appeal “nonsense.”

She said she sees it as the Liberals catering to a Conservative-leaning perspective on borders and a “backdoor way” to close them.

“Has our federal government completely set aside the need for Canada to do the right thing, abide by our international obligations, and to be on the right side of history? Is their politics and the gamesmanship in politics more important than the lives of people facing persecution?”

Source: ‘They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement

Immigrants urge government to deliver on promise to wipe out citizenship fee

Of note. Applications dipped to about 17,000 monthly in November and December 2019 from an average of close to 24,000 in previous months, perhaps in anticipation of fee elimination:

As the U.S. moves to hike the fee to become an American citizen, Canada plans to eliminate the cost entirely.

Yet nearly a year after the Liberals made an election campaign promise to waive the $630 fee, newcomers to Canada who are now feeling a financial pinch from the pandemic are still waiting for the government to deliver.

Faizan Malik says coming up with that amount for himself and his wife is a “big problem,” especially since he is working reduced hours and facing higher costs of living due to COVID-19. With a single income between them, and because they’re helping to support family members in his native Pakistan, he said it’s tough to put any savings aside.

“It’s kind of difficult for me to scramble that amount of money, and if it’s that difficult for me, I wonder how difficult it would be for a new immigrant or a family of four,” he said.

Malik, a Toronto-based supply chain specialist, says even if the Liberal government doesn’t waive the fee completely, he would welcome a reduction in the amount to make it more affordable.

“Right now I’m just holding my horses and waiting for the right time if something happens, otherwise it’s very difficult to file with the current fee,” he said.

Citizenship gives a person the right to vote and to obtain a passport, and provides a sense of belonging in Canadian society. Some employers, including the Canadian Armed Forces, require citizenship.

The processing fee is $530, which was increased from $100 by the previous Conservative government, plus a $100 “right of citizenship” fee.

The Liberals promised to waive the fee during the fall 2019 election campaign.

Fall campaign commitment

“Becoming a citizen allows new immigrants to fully participate in Canadian society, and the process of granting citizenship is a government service, not something that should be paid for with a user fee. To make citizenship more affordable, we will make the application process free for those who have fulfilled the requirements needed to obtain it,” reads the Liberal campaign platform.

Immigration, Refugees and Citizenship Minister Marco Mendicino was also instructed to follow through on that promise in his Dec. 13, 2019 mandate letter. The department will lose $400 million over four years if the fee is eliminated.

The minister’s spokesperson Kevin Lemkay says the Liberal government has made citizenship more accessible by cutting wait times and loosening the language, residency and other requirements to obtain citizenship.

“Our government places great value on Canadian citizenship and is committed to removing barriers and helping newcomers achieve citizenship faster while also protecting the integrity of the program,” he said.

Lemkay said the government remains committed to bringing forward a plan to eliminate the fees, but did not offer a time frame of when that would happen.

The planned move in Canada is in stark contrast to the U.S., where President Donald Trump is nearly doubling the cost of becoming a citizen by hiking the fee to $1,170 US from $640. That, and other immigration fee changes, are scheduled to come into effect in October.

Abhishek Rawat has been “waiting anxiously” for the Liberals to waive the fee, calling it “steep” for people like him with reduced incomes due to the pandemic. Rawat, a Toronto physicist, expects the promise has fallen through the cracks because the government is preoccupied with the pandemic.”I understand the government has due process to go through before they can eliminate the fees. On the other hand just last month they raised the fees for permanent residency applications. So they can move fast if they want,” he said.

‘In Canada’s interest’

Sharry Aiken, an associate professor of immigration law at Queen’s University, urged the government to move.

“It is in Canada’s interest to naturalize newcomers as fast and as efficiently as possible once they are otherwise eligible,” she said. “For many the presence of a fee is a barrier, and they will put off applying simply for financial reasons.”

Even though fees are reduced for children, a family of four would be required to pay $1,460, which Aiken says is prohibitive for many on tight budgets.

Andrew Griffith, author, former senior immigration official and fellow of the Canadian Global Affairs Institute, favours a reduced fee over an outright elimination. But since the government has made the commitment, he said it should follow through on it.

Griffith said it could be done quickly with a regulatory change.

The markedly different course that Canada is taking compared to the U.S. underscores the sharp contrast in immigration policies, he said.

“It’s part of the government’s efforts to have an overall message that immigration is good for the country; We want to increase the levels of immigration, they’ll make a contribution both in the short term and the longer term in terms of the demographics and we want you to feel part of the country,” he said.

Source: Immigrants urge government to deliver on promise to wipe out citizenship fee

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

Queen’s launching new program to train immigration and citizenship consultants

Interesting back and forth between the lawyers and academics quoted. Although I am not a great fan of consultants compared to lawyers, given the history of poor and, in some cases, fraudulent representation, the program is professionally designed given the people involved:

On Aug. 1, Queen’s University will launch a graduate diploma in immigration and citizenship law. The program will be the only English-language educational pathway to becoming a regulated immigration consultant.

Queen’s developed the program and won a competitive bid with immigration consulting’s national regulator and will be the sole accredited English provider of the program.

Ravi Jain, national chair of the Canadian Bar Association Immigration Law Section, says the program should not exist, arguing it lends credibility to an industry that has been marred by incompetence and misconduct since its inception.

“By continuing to facilitate immigration consultants to be engaged in the practice of immigration law, it does it does actual Queen’s law JD students a disservice,” says Jain, who is certified by the Law Society of Ontario as a specialist in immigration law and is partner at Green and Spiegel LLP, in Toronto.

“This program is a terrible idea. Graduates will claim that they have ‘gone to law school.’ The public will be even further confused. Most think that they are hiring lawyers when they hire immigration consultants,” says Jain. “Immigration consultants have a horrific history in Canada.”

Queen’s Law Dean Mark Walters says the problems known in the industry is one of the reasons his school launched the program.

“We all appreciate that at present, the profession of immigration consultant is not well regulated, and that there have been abuses in the system and concerns legitimately raised. And that’s, in fact, why we’re involved,” Walters says.

Associate Professor at Queen’s Law and expert in immigration and refugee law Sharry Aiken says the federal government decided long ago that there was a place in the immigration administrative process for consultants.

“It’s a profession that’s here to stay. And the key is to ensure that it’s properly regulated and that the people in that profession are professionals and trained as such,” she says. “It’s a massive system and non-lawyers can perform a really important role to ensuring that vulnerable people get proper advice and assistance as they work their way through elaborate administrative system.”

The program at Queen’s comes after the regulation of immigration consultants has gone through three different stages. In 2001, the Supreme Court of Canada case Law Society of British Columbia v. Mangat ruled it was not a breach of the Legal Profession Act for non-lawyer consultants to represent people in immigration hearings in B.C. Since then, the door has been open for the non-lawyer consultants to serve clients looking to relocate to Canada.

The first governing body — the Canadian Society of Immigration Consultants — eventually attracted a parliamentary review in 2010 due to lack of policing and professional and ethical standards. The Immigration Consultants of Canada Regulatory Council followed but problems persisted, and another parliamentary review took place in 2017. The Standing Committee on Citizenship and Immigration produced a report: “Starting Again: Improving Government Oversight of Immigration Consultants.” The report showed misconduct was still prevalent, with international students, live-in caregivers and temporary foreign workers being the most vulnerable to abuse. The committee’s witnesses repeatedly accused the ICCRC of failing to deal with unauthorized practitioners, known as ghost consultants.

The 2017 report produced the College of Immigration and Citizenship Consultants Act, which turned the ICCRC into a new self-regulatory College of Immigration and Citizenship Consultants — instituting a licensing regime, code of conduct, complaints and discipline committees and putting the board of directors under the guidance of the minister of immigration, refugees and citizenship.

While the argument in favour of including consultants in the immigration system involves the need to increase access to justice, Jain says that the immigration bar is uniquely accessible to the public they serve. Jain calls the access to justice argument “absolutely ridiculous.”

“I would ask the dean and others to point me to evidence that there are problems with respect to immigrants and refugees retaining lawyers,” Jain says. “The average income of an immigration lawyer is about $75,000. People go into it out of humanitarian instinct and there’s lots of pro bono work and low-bono work where there are very low fees. So, there’s no evidence of an access problem. None, whatsoever.”

He adds that the issue raises the question of why society deems immigrants and refugees, who are particularly vulnerable, to not need the help of a trained lawyer.

“Why should immigrants and refugees be told that they don’t need a proper lawyer? It’s only the marginalized and the racialized that are told that, in our society. It’s never the other areas of law. And so, I just find that argument to be highly problematic.”

Aiken says that many other areas of law also use paralegals and consultants play “a very important role in access to justice for vulnerable communities.” She adds that the new iteration of the regulatory body, past forms of which have been “plagued with structural deficits” has made positive changes, including an expanded regulatory authority to discipline members and other new enforcement powers.

Before setting up the Queen’s program, Aiken established a National Advisory Committee, which included members of the immigration bar including past chair of the Canadian Bar Association national section for Citizenship and Immigration Robin Seligman and Lobat Sadrehashemi past president of the Canadian Association of Refugee Lawyers.

Source: Queen’s launching new program to train immigration and citizenship consultants

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

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”

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

Supreme Court says migrants can bring detention challenge to judge

A reminder of legal constraints regarding immigration policy:

Refugee claimants have the right to challenge their prolonged incarceration before a Superior Court judge, the Supreme Court of Canada has ruled.

In a 6-1 decision released Friday, justices ruled in favour of Tusif Ur Rehman Chhina, a Pakistani national who challenged his prolonged detention in a maximum-security remand centre in Calgary. He was detained because he was deemed a security risk.

His case was reviewed regularly by an immigration tribunal, which repeatedly ordered him detained as a flight risk.

The majority of the justices found the tribunal process does not provide for a review that is “as broad and advantageous” as a hearing before a Superior Court.

Chhina had been stripped of his refugee status and ordered deported because he misrepresented his identity to Canadian officials and was involved in serious criminality, including possession of a prohibited weapon, forgery and fraud.

Chhina was removed from Canada in September, 2017 but his legal case carried on, to determine whether the current detention regime is constitutional.

He had argued his charter rights to liberty and freedom from arbitrary detention were violated.

Human rights groups praise ruling

The ruling focused on the legal principle of habeas corpus, which allows someone in custody to go before a judge to challenge a detention. The ruling sets aside an exception that compelled migrants without Canadian citizenship to challenge immigration detention only through immigration tribunals or a federal judicial review.

Human rights groups and refugee advocates welcomed the decision.

Amnesty International said Canada has an international legal obligation to guarantee immigration detainees are able to exercise the right to a Superior Court hearing.

“The right to liberty is a fundamental human right. This decision vindicates immigration detainees who have been denied their liberty for years on end with no meaningful way to challenge that injustice and regain their freedom,” said Amnesty International Canada’s secretary general Alex Neve. “They can now seek justice in superior courts and have their Charter rights protected and enforced.”

‘Devastating impacts’

The Canadian Council for Refugees said detainees don’t always get a fair hearing and incarcerating them can have serious repercussions.

“Detention often has devastating impacts, even when it is only for a short period, particularly for children, refugee claimants, trafficked persons and individuals suffering from mental health issues,” reads a statement.

Swathi Sekhar, lawyer for the advocacy group End Immigration Detention Network, said the high court delivered an “important tool” for migrants to challenge their detentions. In a habeas corpus application, the onus is on the government to prove the detention is lawful, but in a detention review the onus is usually on the migrant to prove they should be released.

“This is one more tool, but more importantly this is one more large step on the road to the abolition of immigration detention,” she said.

Risks for LGBT migrants

There were 11 interveners in the case.

One of them, Egale Canada, said migrants often suffer homophobic violence, while transgender migrants are often detained in facilities that don’t align with their gender identities.

“LGBT people who are detained for immigration purposes face life-threatening conditions and, prior to this ruling, there was no tangible way to challenge these conditions under the current system,” said Egale’s executive director Helen Kennedy.

The ruling may not affect a large number of detainees. According to the recent statistics, just 122 migrants were detained for longer than 99 days over the last quarter.

The decision comes as the federal government takes steps to improve the system in response to sharp criticism of harsh detention conditions and policies.

Scott Bardsley, a spokesman for Public Safety Minister Ralph Goodale, said the government has made improvements to infrastructure and mental and medical health services, while expanding alternatives to detention and the use of provincial jails and reducing the number of minors in detention.

The recently tabled Bill C-98 would create an expanded, independent oversight body to review the CBSA. Bardsley said the bill will allow migrants to file complaints before that body about detentions and the conduct of CBSA employees.

Source: Supreme Court says migrants can bring detention challenge to judge

Sharry Aiken and Stephanie Silverman make the case that A world without immigration detention is possible.

Gloomier future seen for Canadian immigration

IRCC analysts are asking many of the right questions:

With 35 per cent of male newcomers returning home and a growing middle class in developing countries less inclined to migrate, an internal government review is calling the future of Canadian immigration into question.

The report by Immigration Refugees and Citizenship Canada also points to the challenge of reconfiguring an immigrant-selection system in a rapidly changing labour market where a growing number of jobs are temporary and there’s “increasing mismatch” of available skills and the skills in demand.

“What changes, if any, does Canada want to make to its current ‘managed migration,’ ” asked the 23-page study, titled Medium-Term Policy: Balanced Immigration and stamped “for internal discussion only.” “To what extent is the current overall immigration level appropriate and/or necessary?”

With major changes made in the last decade under the former Conservative government, legal and immigration experts are calling on Immigration Minister John McCallum to have a “national conversation” on the future of Canadian immigration.

“Ottawa must take a step back to do a review of the whole immigration program and reach a national consensus in moving our country forward as a nation-building exercise rather than as an economic imperative,” said Debbie Douglas of the Ontario Council of Agencies Serving Immigrants.

“The Liberals have good political instincts and like to be seen as doing more on the immigration front. It’s the right time to take a look at what is working and what is not working in the system.”

The new government has already announced reviews of certain immigration programs involving temporary foreign workers and the Express Entry processing system, but critics say such reviews must be done in a holistic manner rather than a piecemeal fashion.

“This is the most thoughtful brief (on Canada immigration) I’ve seen in 10 years,” said Queen’s University immigration law professor Sharry Aiken. “It’s asking all the right questions that are useful starting points for a wide-ranging discussion of the future of our immigration system.”

The internal report, obtained by the Star, also devotes attention to the estimated 2.8 million Canadian citizens — 9 per cent of the population — who live abroad, including a million people in the United States, 300,000 in Hong Kong and 75,000 in the United Kingdom.

Some 35 per cent of male immigrants to Canada return home, many within the first year. Between 1996 and 2006, the annual exit rate for citizens born in Canada was 1.33 per cent compared to 4.5 per cent for naturalized citizens.

“There has been a rather negative view of these expatriate Canadians, as they have been regarded as evidence of ‘brain drain,’ Canada’s lack of competitiveness in retaining high-skilled professionals and business leaders, and our insufficient success in integrating new arrivals,” the report noted. “Canada could choose to take a more proactive stance with expatriates.”

Measures implemented by other countries include: extending voting right to expats, providing non-resident representation in the national legislature, facilitating business and research networks, doing outreach to communities abroad to promote ties as well as creating tax treaties with other countries to facilitate work abroad.

The report also points to the greater emphasis the former Tory government put on selecting economic immigrants based on in-demand occupations in a so-called “project economy” marked by limited length of employment based on the duration of a contract or project.

“This environment makes it a significant challenge to target occupations and industries that are priorities for addressing through immigration,” it said.

While the report forecast does mean potentially lower immigration to Canada in the longer term, University of Toronto professor Jeffrey Reitz said global migration is still driven by “inequality” from poor to rich countries.

Although Ottawa introduced the Express Entry system in 2015 to let employers pick prospective immigrants from a pool of candidates to ensure newcomers are quickly employed, Reitz said the uptake of candidates outside the country has been small.

“Anything that improves the employment situation contributes to immigrant retention, but there is an aspect of retention in the family class. When you lose your job and you have no family, you move. A support group gives people a reason to stay,” explained Reitz, the director of ethnic, immigration and pluralism studies at U of T.

Hence, the immigration report raised the question over the strict differentiation of “economic” and “social” immigration in the current system, which channels applicants into the skilled and nonskilled streams.

“Regardless of how their application was accepted, immigrants make many contributions to Canadian society; economic migrants make social contributions; social immigrants make economic contributions,” it said.

“Given the somewhat artificial distinction between social and economic immigration, there may be grounds for giving greater weight to ‘non-economic’ criteria and on criteria related to the success of subsequent generations.”

Ryerson University professor John Shields said recent immigrants are caught up in the same “new economy” faced by young Canadians entering the workforce.

“All immigrants including the refugee class contribute to the society economically. They pay dividends economically in five, ten years as integration is a long-term process that can take a lifetime,” said Shields, whose research focuses on labour markets and immigrants.

“Recent immigrants and young Canadians face a different kind of roadblock from those who are already established in Canada. The issue we need to deal with is creating higher quality employment in Canada and educate Canadian employers of the values of one’s work experience from somewhere else.”

Source: Gloomier future seen for Canadian immigration | Toronto Star

Creation of ombud’s office urged to tackle immigration snafus

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