No deal expected on ‘irregular’ border crossings when Justin Trudeau hosts Joe Biden

Of note:

The Liberal government does not expect to resolve concerns about the northward flow of refugees at unofficial Canada-U.S. border crossings when President Joe Biden visits Canada in March, says Immigration Minister Sean Fraser.

Biden’s visit to Ottawa, his first official trip to Canada since becoming president, will likely be in the first half of March, although no date has been set for the bilateral meeting, sources say.

Prime Minister Justin Trudeau and Biden met recently in Mexico and at several international summits, as well as virtually since the Democratic president’s 2021 inauguration, and the two leaders set out a so-called “road map” in 2021 to guide bilateral actions in areas of co-operation.

But that road map of priorities does not expressly include any revision of a 2004 agreement called the Safe Third Country Agreement, even though the agreement itself requires continual review.

The agreement applies to refugee claimants entering at official border crossings and requires them to make asylum claims in the first “safe country” they arrive in. However, it doesn’t apply to those who sneak across or arrive at unofficial or “irregular” crossings, such as Roxham Road, near Saint-Bernard-de-Lacolle at the Quebec-New York border.

Those asylum-seekers are permitted to remain in Canada and file refugee claims. As a result, during the Trump administration’s crackdown on illegal immigrants south of the border, a flood of refugee claimants poured into Canada via irregular crossings. Asylum-seekers also try to enter the U.S. irregularly from Canada.

Canada has been trying, unsuccessfully, to get the U.S. to expand the agreement to all border crossings, which would close the loophole and end the incentive to use irregular crossings.

Quebec Immigration Minister Christine Fréchette told La Presse she hoped the issue would be resolved during the Biden visit, calling it is “essential” to “correct” the agreement to stem the flow of irregular migrants into Quebec.

Fraser downplayed any prospect of a resolution soon.

“There’s not necessarily a giant point of disagreement that we need to overcome” in talks with the U.S., Fraser said.

He said only that there is an “opportunity to potentially advance” the discussions, adding there are “regulatory” and “legislative” issues to resolve, which he declined to identify.

“There’s a mutual expectation that there can be open and frank and confidential conversations between parties, but there are regulatory processes as well that will have to take some time to play out before changes can be made official,” Fraser said.

Meanwhile, migrant and refugee advocates have challenged the constitutionality of the Safe Third Country Agreement at the Supreme Court of Canada, saying it violates the constitutional rights of those seeking asylum by turning them back to the U.S., where critics say they face detention if not outright deportation to unsafe countries of origin. The high court has reserved judgment.

Source: No deal expected on ‘irregular’ border crossings when Justin Trudeau hosts Joe Biden

A family’s death trying to cross the U.S. border hasn’t deterred others — and more are taking the risk

Interesting flow in the other direction, as well as the details revealed in court documents:

Almost a year after a family from India froze to death near the international border in southern Manitoba, similar cases of people walking over to the U.S. are on the rise — but they involve people from a different country.

Since the tragic deaths of the Patel family in January 2022, monthly incidents on the other side of Manitoba’s international border have risen from eight to 30 in November, the most recent month for which complete data is available from U.S. Customs and Border Protection. That’s similar to the number seen before the COVID-19 pandemic.

The deaths of three-year-old Dharmik Patel; his 11-year-old sister, Vihangi Patel; and their parents, 37-year-old Vaishali Patel and 39-year-old Jagdish Patel put a spotlight on human smuggling operations involving Indian migrants using Canada as a stopover before illegally crossing south. 

But a growing proportion of people caught walking over the border are now coming from Mexico. In November, Mexicans made up almost three-quarters of incidents in the Grand Forks sector.

The number of Mexicans crossing into Canada to seek asylum has also spiked recently, as many flee their homes in search of jobs and safety. But statistics show most applicants from that country are rejected.

While flying to Canada just to walk back down into the U.S. is a long trip, some say it’s becoming more common for several reasons.

And in two recent cases involving Mexican migrants walking into North Dakota, authorities discovered the alleged smugglers before their trips were complete. Court documents revealed how those journeys mirrored the Patels’ — and the ways they turned out differently.

Fewer hurdles, more desperation

One advocate said the increase in Mexicans crossing the northern border of the U.S. may be partly due to increased security measures along the country’s southern boundary and a harsher detention system for those caught trying to cross in recent years.

“The Mexican border with the U.S. has been militarized for decades now…. I’m not surprised that people will try other ways to arrive [in] the U.S.,” said Maru Mora Villalpando, a community organizer and founder of La Resistencia, a grassroots organization that works with detained migrants in Washington state.

Those changes made it harder to cross certain parts of the southern border, she said, forcing people to instead travel through dangerous parts of the desert — or try their luck up north.

The increase in northern crossings may also be partly due to Canada lifting a visa requirementfor Mexican travellers in 2016, said Kathryn Siemer, acting patrol agent in charge of Pembina Border Patrol station in North Dakota.

“I think we’re still seeing some of the repercussions of that, where it’s easier to fly into Canada and then cross into the United States as opposed to trying to come north through the Mexico border,” Siemer said.

Matthew Dearth, a Grand Forks lawyer representing an alleged smuggler charged in connection with one of the most recent cases in North Dakota, said more people are getting desperate enough — as the U.S. government fails to act on immigration reform — to risk potentially severe criminal penalties for their vision of a better future.

“They’re going to do whatever they can do to try to get into the United States. Because they have family members here. They have opportunity here. It’s safe,” said Dearth, who’s originally from Winnipeg.

A call for help

Dearth’s client is charged in connection with a suspected smuggling trip that met its end after the man’s van got stuck in the snow in Cavalier, a North Dakota city just south of the international border, on the way to pick up a group of migrants, a U.S. court document filed in mid-November alleged.

Dearth’s client and the other man charged in the case then walked about a half hour in the early morning of Nov. 17, 2022, before they met up with the migrants, according to the affidavit filed on Nov. 18, 2022, in the United States District Court in North Dakota.

Much like when the Patel family tried to cross the border, freezing temperatures, snow and wind made it a difficult journey.

There were also two young children — in this case aged four and nine — among the group, according to the affidavit written by a Border Patrol officer involved in the case. But this time, someone decided to call for help.

In this remote part of the country, that’s not always possible, said Border Patrol agent Siemer. Cell phone towers are few and far between, and tall snow drifts can make it easy to get lost in the dark.

“If you’re out here for more than 20 minutes, and whoever you thought might be coming to pick you up isn’t there because they got stuck or didn’t show up, you are on your own and it’s very dangerous,” she said.

Following that call for help in November, a deputy arrived and found nine people dressed in heavy winter clothing. They asked officers to bring them to a hotel — which raised suspicions around smuggling. The group later admitted they were in the country illegally, the affidavit alleged.

None of the allegations against Dearth’s client, who is a U.S. citizen, or his co-accused have been proven in court. The Georgia man pleaded not guilty to conspiring to smuggle people across the border, which carries a maximum penalty of a decade in prison.

Financial woes

Dearth said there’s a general misconception that border smuggling is only carried out by organized crime groups looking to rake in cash.

Sometimes it’s done by people who made the crossing themselves and are trying to help friends or family make a better life. Other times, people are “down on their luck” and need the money, he said.

The affidavit claims Dearth’s client told authorities he worked in construction with his co-accused, and that’s how he first got the offer to make extra money smuggling people into the U.S. 

While he first turned it down, the affidavit alleged he changed his mind after a divorce and financial struggles.

The affidavit also claims the man said he and his co-accused smuggled four other groups over the same border in September and October and dropped them off at pre-arranged spots along the interstate highway. 

He said he typically made between $500 and $1,000 per person, and his co-accused was the one who made the arrangements, the affidavit alleged.

A cemetery meeting

In a case last month, two smugglers pleaded guilty after one of them hid in a ditch when Border Patrol agents pulled over their pickup truck full of migrants around a cemetery near Neche, another North Dakota community by the international border.

The Park Center Cemetery is surrounded by pine trees and visible for miles when the weather co-operates. It had recently been the site of other “illegal entry activity” when agents saw a truck approach the U.S. side of the border under cover of darkness early on Dec. 2, 2022, according to an affidavit filed Dec. 5, 2022, in the United States District Court in North Dakota.

The desolate site is miles away from any farms or houses on the U.S. side, and nearby creeks — some frozen, some still running — wind through farmers’ fields.

Agents said in the affidavit on that night, they watched another vehicle pull up on the Canadian side, and a group got out and walked toward the cemetery, then got into the truck.

When agents pulled the truck over, one of the people inside — Juan Pablo Huerta-Ramos, later charged as a smuggler — got out and ran. He was later found hiding in a nearby ditch filled with grass and snow, the affidavit said.

All nine people in the truck, including smugglers Huerta-Ramos and Martin Loyo-Estrada, later admitted to being Mexican citizens illegally in the U.S.

A broken leg, a family in Winnipeg

In an interview after his arrest, Loyo-Estrada said he’d lived in California for about nine years and had been a landscaper until a broken leg left him unable to work. A friend from Mexico then connected him with someone who offered him work smuggling people over the border.

Loyo-Estrada said that unknown person called him several times to give him directions during his trip from Los Angeles to Cavalier, which also included using Uber rides and hotels as he made stops in Minneapolis and Grand Forks. 

The few details investigators revealed about the Patels’ journey after arriving in Canada include similar elements — staying in several hotels and using a ride-sharing service to get around the Greater Toronto Area.

Loyo-Estrada said he was supposed to get paid $1,000 for each group of migrants he worked with and be reimbursed for his travel costs.

Huerta-Ramos told agents he was also living in California and had travelled from Los Angeles to North Dakota to smuggle over his wife and daughter, who were supposed to be in Winnipeg. He said his wife gave him a phone number for someone named Antonio, who he agreed to pay $2,000 to help get his family across.

He said he met two of Antonio’s associates in front of the Fargo airport and went with them to a Mexican restaurant, where he got a call from Antonio telling him his family was already in California — and asking if he’d help smuggle a different group across the border anyway. 

Both men pleaded guilty to conspiring to transport illegal aliens and re-entering the U.S. without permission after previously being deported.

A year later, questions remain

While a year has passed since the deaths of Dharmik, Vihangi, Vaishali and Jagdish Patel, many details about their journey are still unknown.

Investigators haven’t publicly released details about who they believe sheltered and shuttled the Patels around the Greater Toronto Area before they travelled to Manitoba to cross the border.

And it’s still unclear, even to police, what happened after Jan. 15, 2022, when the family left their Toronto-area hotel, up until their bodies were discovered four days later.

It is clear, however, that they were sent on a dangerous journey — and it’s the kind of story migrant advocate Mora Villalpando hears too often, as many who can’t wait for changes in the U.S. immigration system are forced to take risks to get there.

“What it tells us is that the U.S. is just increasing the danger for people that are trying to come,” she said.

“When you intentionally for decades created a funnel to a dangerous path through the desert, it means you don’t care about human beings.”

Source: A family’s death trying to cross the U.S. border hasn’t deterred others — and more are taking the risk

Safe Third Country Agreement is ‘working’ despite surge in irregular crossings: minister

Of note (not sure its perceived as working by the public):

Public Safety Minister Marco Mendicino says the Canada-U.S. Safe Third Country Agreement (STCA) is “working,” despite the massive increase in migrants using unofficial border crossings last year compared to previous years.

Mendicino told CTV’s Question Period host Vassy Kapelos, in an interview airing Sunday, Canadian officials and their American counterparts continue to work together to modernize the agreement. Still, he insists the system is functioning.

“To be clear, that agreement remains in place and it is working,” he said. “The RCMP are doing the job of intercepting those who are coming into the country, which obviously underscores the integrity of our borders and the investments, which are backstopped by the federal government.”

The STCA was first signed 20 years ago, and there have been talks of modernizing it since 2018, with some changes made in 2019. Under the STCA, people seeking refugee status in either Canada or the U.S. must make their claim in the first country they enter.

The loophole that the agreement applies only to official land border crossings means asylum seekers who manage to enter a country via an unofficial crossing — such as Roxham Road along the Quebec-New York border — are not returned.

According to Immigration, Refugees and Citizenship Canada, the number of RCMP interceptions and asylum claims at unofficial border crossings between Canada and the U.S. hit a six-year high in 2022. There was a drastic drop in the numbers as of spring 2020 and throughout 2021 because of the COVID-19 pandemic and its impact on the border.

“I’m cautiously optimistic that we’re going to be able to land it,” he said. “In the meantime, we’ll continue to make historic investments and work with provincial and territorial partners, so that asylum seekers who have a basis on which to make those claims in Canada are able to do so, but do so in a safe and orderly way.”

“It’s important that we recognize that we have an immigration system that works, and that fosters safe and orderly flow both when it comes to asylum seekers, as well as economic immigrants,” he also said.

Conservative Leader Poilievre Poilievre said this week that the Liberal government should renegotiate the agreement “in order to close Roxham Road,” adding he understands why people try to use it, because the Canadian immigration system is “now so slow and so broken.” He blamed the Immigration, Refugees and Citizenship Canada application backlog, and said the prime minister should “renegotiate the deal with the Americans, and speed up the processing of immigration generally.”

Source: Safe Third Country Agreement is ‘working’ despite surge in irregular crossings: minister

Axworthy and Rock: The Safe Third Country Agreement is unsafe – and unconstitutional

Reflections of former ministers (easier when no longer in government) but will see what the Supreme Court rules:

Former ministers As Canadians, we take pride in our well-deserved reputation as a caring society that offers a humane and generous response to those seeking asylum. Yet last week, the Supreme Court of Canada heard arguments that since 2004, Canadians have been complicit in the mistreatment of refugees arriving at our border from the United States.

At the heart of this issue is the 2004 Canada-U.S. Safe Third Country Agreement (STCA), which requires that refugee claimants seek protection in the first country in which they arrive, be it Canada or the United States. On a practical level, this means that a person seeking asylum from a country other than Canada or the U.S. cannot seek protection in Canada if they have already landed in the U.S., and vice-versa. For the past 18 years, the STCA has operated on the premise that both countries are “safe” for refugees.

In July, 2020, a federal court judge determined that the STCA is unconstitutional and that Canada’s treatment of STCA returnees violates those provisions of our Charter of Rights and Freedoms that guarantee liberty and security of the person. The Federal Court of Appeal took a different view and upheld the STCA. Hence, the matter is now before our highest court for a final decision.

The problem here is not the agreement itself. In fact, similar arrangements have succeeded when all participating countries truly offer safety to asylum seekers. Instead, the problem is that the fundamental premise of the STCA no longer holds true. Put simply, the United States is not safe for many refugees. As a result, there are two distinct reasons why, in our respectful view, the Supreme Court should strike down the STCA.

First, while it is not the Court’s role to judge another country’s legal system, this case asks the Court to ensure that people who seek protection in Canada are not sent back to unjustifiable risk and real harm. Yet in returning people to foreseeable consequences in the U.S. – namely, detention in deplorable conditions and a serious risk of return to persecution – that is exactly what is occurring.

In the evidence before the Court, there are numerous examples of asylum seekers who were jailed in the U.S. after being turned away from Canada. They include a family with toddlers who were forbidden from sleeping with their parents; people kept for long periods in solitary confinement; and a 50-year-old woman forced to bathe naked in full view of security personnel.

Those who we send back to be detained in the U.S. face enormous barriers in claiming protection, leading some to be deported and persecuted in their home country. For example, the evidence in the case before the Court includes testimony from a Sri Lankan man who was turned away from Canada and then detained for a year and a half in the U.S. He was then deported and faced the exact persecution he feared – detention, interrogation and beatings by Sri Lankan authorities.

Second, our government has not been respecting the limits created by our own domestic laws. Canadian law implementing the STCA requires that our government monitor circumstances in the U.S. and only continue its designation as “safe” when it truly is. Here, the Court will hear the argument that Canada has neither adequately monitored what’s happening in the U.S. nor responded effectively to what it has seen. Given these circumstances, the Court will be asked to intervene.

Although Donald Trump is no longer in power, the reality for too many refugee claimants in the U.S. remains terrifying. We are by now all too familiar with last year’s images of U.S. border patrol agents on horseback chasing down Haitian migrants. And four years after the implementation of a disastrous policy at the U.S.-Mexico border that separated children from their parents, many are yet to be reunited. Immigration detention conditions in the U.S. remain deplorable, with staggeringly high rates of sexual assault and racially motivated attacks. Is Canada not properly monitoring these developments, or have we grown complacent in turning a blind eye to them? In either case, the STCA can no longer be allowed to stand.

It is important to note that even if the STCA is declared invalid, asylum seekers will still have to establish that they qualify for refugee status under international law. But they will no longer be automatically deemed ineligible for that status merely because they crossed into Canada from the United States.

It is said that the measure of a society is how it treats those on its margins. When vulnerable asylum seekers arrive at our border, they deserve to be treated lawfully and with dignity. We can no longer assume that if we send them back to the U.S., they will be safe. Indeed, the evidence establishes the contrary. It is time for us to abandon the STCA, an agreement no longer worthy of its name.

Lloyd Axworthy is chair of the World Refugee and Migration Council and a former Canadian foreign minister. Allan Rock is president emeritus of the University of Ottawa, and former Canadian ambassador to the United Nations.

Source: The Safe Third Country Agreement is unsafe – and unconstitutional

Raj: Ottawa should scrap the logistical and political nightmare that is the Safe Third Country Agreement

Interesting that while the government defends the STCA, a “senior” IRCC official is quoted as saying “in our estimation, it might not change that much, because what would happen is you wouldn’t have a Roxham Road, the people could cross at the ports of entry and they might therefore go to different ports of entry.”

Politically, of course, it appears to undermine the assertion that immigration is managed and controlled, a point that the Conservatives have hammered in the past before IRCC backlogs became a top issue:

It challenges our conception of who we are as a country, questions the values core to the Liberal Party of Canada and yet, Thursday, the federal government is expected to be at the Supreme Court defending a longstanding agreement with the United States that it should have ditched years ago.

The Safe Third Country Agreement (STCA) aims to reduce the number of refugees crossing into Canada from the United States. By blocking access to asylum seekers at official ports of entries, however, it encourages them to use a back door, known to most of us as Roxham Road. That loophole is becoming untenable politically, especially in Quebec, and it’s causing logistical nightmares and year-long delays in refugee processing that even the government’s own immigration department suggests could be alleviated if the deal was scrapped.

Under the STCA, asylum seekers arriving by land at official crossings are turned away and handed back to U.S. authorities, where they often end up in detention in questionable conditions — unless they fall in specific exemption categories (e.g. if they have family in Canada, are an unaccompanied minor, or face the death penalty in the U.S.).

That’s at the core of the case before the Supreme Court. Does handing asylum seekers back to the United States — where they are detained, reportedly in freezing conditions without proper food, where they have fewer chances of being accepted as a refugee, and can face persecution when returned to their homeland — breach the Canadian Charter of Rights and Freedoms? 

Refugee advocates say yes. The government says no. In fact, Ottawa has been unsuccessfully trying to get Washington to expand the STCA all across the border to address Canada’s current asylum crisis — a miniature one the Biden administration must envy.

The STCA came into effect in 2004, but it wasn’t until Donald Trump became president of the United States in 2017 and started deporting undocumented immigrants that people began to pay much attention. 

Eight days into Trump’s presidency, Prime Minister Justin Trudeau tweeted: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.”

It was on-brand for Trudeau and the Liberals who were elected two years earlier on a promise to bring in tens of thousands of Syrian refugees fleeing persecution.

The welcome mat was laid out at Roxham Road. This illegal border crossing is really a ditch at the Quebec-New York border that’s now surrounded by infrastructure to handle the thousands of people arriving there each month. It’s a well-publicized route to enter the country quickly and have your case heard (not so quickly) with the tiny wrinkle that you must break the law (in a consequence-free manner) to cross into Canada.

There are no statistics for RCMP interceptions of asylum claimants on the government’s website prior to 2017. But that year, the numbers in Quebec jumped from 245 in January to 1,916 in December. In total, 18,836 persons were apprehended crossing the border irregularly into Quebec. That yearly trend continued up until the COVID-19 pandemic shut down Roxham Road and the Canada-U.S. border in 2020 and asylum seekers were told to wait to make their claims. In December 2021, the numbers were back up and so far this year, 23,196 irregular migrants have been intercepted at the Quebec border — more than any other year. Perhaps, it’s pent-up demand from the pandemic, or perhaps it’s just the new normal settling in.

It’s no wonder Quebec politicians are alarmed. Coupled with Premier François Legault’s focus on identity politics and concerns over the survival of the French language, provincial politicians fervently denounced the situation on the election trail, demanding the road be closed.

Parti Québécois Leader Paul St-Pierre Plamondon, for example, suggested the federal government left Roxham Road open purposefully to “destabilize” Quebec society. 

Ottawa is uninterested in closing Roxham Road. It argues blocking access would lead asylum seekers to more dangerous crossings and could line the pockets of organized crime. Making it an official crossing would have the same impact — and is unlikely since the U.S. would have to agree to place agents there. (Imposing the STCA on the entire border would also lead migrants to find underground routes, but I digress.)

Instead, an official in Public Safety Minister Marco Mendicino’s office said the situation is “difficult, but it’s also not unmanageable.”

Right now, the system is breaking down. It gives the appearance of queue-jumping (it’s not), but does reward for circumventing the law. It’s also costing Ottawa hundreds of millions of dollars — so far more than $761 million in accommodation, security, health and transportation costs. It’s squeezing Quebec’s resources too, and a lack of personnel is forcing asylum seekers to wait nearly a year or more before obtaining a work permit and many years before having their cases heard. 

In court, the federal government has argued scrapping the STCA would lead to a flood of asylum claims at Canada’s official ports of entry. 

But a senior official from Immigration and Citizenship, speaking to the Star Wednesday, said that while Ottawa is contingency planning in case that happens, “in our estimation, it might not change that much, because what would happen is you wouldn’t have a Roxham Road, the people could cross at the ports of entry and they might therefore go to different ports of entry.”

In fact, suspending the STCA might relieve the bottleneck at the Quebec crossing and spread the burden of supporting asylum seekers across provinces.

“It might help a bit,” the official said, noting that bringing Roxham Road migrants who intended to go to Ontario to that province had helped them get their interviews faster.

Of course, scrapping the deal won’t solve everything. “The numbers are such that even if they were spread across the country, it would still lead to some problems,” the official noted.

Canadians have shown themselves ready to do more to respond to refugee crises around the world. But the system must be seen to be fair. People must be processed quickly, and given the tools to help them support themselves.

In the meantime, if the government’s own department doesn’t believe there is pent-up demand beyond what we’re already seeing, why is the Liberal government insisting on defending the status quo?

Source: Ottawa should scrap the logistical and political nightmare that is the Safe Third Country Agreement

Quebec’s Roxham Road on track to see record number of asylum seekers — but they face delays and despair in post-pandemic Canada

As do many others…

In Pascal’s Canadian dream, he becomes a doctor.

He’s only been in the country a month. He has a long way to go. But consider how long he’s been running, and how far he came to get here.

He left his home in Cap-Haïtien, on the north coast of Haiti, for the Dominican Republic, which occupies the eastern half of the island of Hispanola, right next to Cuba.

From there, he travelled with others in a car to Brazil. From Brazil, west to Peru, then north, through Ecuador, Colombia and Panama, where they were set upon by thieves who stole pretty much everything — except for the money that Pascal had hidden in a hollowed-out deodorant container.

This money allowed him to continue his northward journey, through Costa Rica, Nicaragua, Honduras, Guatemala, Mexico and the United States, said 39-year-old Pascal, who requested that his last name not be published for security and privacy reasons.

On May 21, he arrived at the Canada-U.S. border, where more than 13,000 people so far this year have been arrested by Royal Canadian Mounted Police as they take their first hesitant steps along a dirt path at the end of Roxham Road onto Canadian soil.

Technically a dead-end street, Roxham Road is a sleepy country route watched by high-tech border surveillance cameras. The passage that starts in New York state and continues into Hemmingford, Que., stands as the worst-kept secret of those seeking refuge from despots, disasters and all manner of dire circumstances, including North American immigration laws.

Thanks to the lifting of COVID-19 restrictions on border crossings, the return of air travel and a general increase in the numbers of people seeking asylum, 2022 is on track to become a record year for the controversial crossing point.

The federal government, which screens newcomers to determine their eligibility to make a refugee claim, is now straining to keep pace with the flow.

The result is delay and despair: a months-long wait during which asylum seekers receive social assistance payments but are denied a temporary work permit in a country struggling to meet its labour needs.

“They want to work,” said Stéphanie Valois, president of the Quebec Association of Immigration Lawyers. “They’ve got nothing — no money, no furniture. They’ve got nothing and they need it.”

This could also be a decisive and pivotal moment for a haphazard arrangement that allows refugee claimants to cross at Roxham Road, make their asylum claim while already on Canadian soil, and thus bypass the terms of the Canada-U.S. Safe Third Country Agreement, which obliges asylum seekers to make their claim in the first country they reach.

The Quebec government, facing a fall re-election, wants Ottawa to plug the hole in the nearly 9,000-kilometre Canada-U.S. border, saying that it has neither the resources nor capacity to deal with the flow of migrants.

Meanwhile, the Supreme Court of Canada has agreed to hear a constitutional challenge to the Safe Third Country Agreement which, if successful, could allow asylum seekers to make a claim at any official Canadian border crossing — spreading Quebec’s burden more equitably across the country.

“We have an obligation to examine the cases of people who seek protection here,” says Wendy Ayotte, founder of Bridges not Borders, a support group for asylum seekers.

“Of course it is correct to say that it isn’t a fair distribution of people entering irregularly into Canada. Obviously it’s not fairly distributed across the country, but surely the response … is to call for the end of the (Safe Third Country Agreement) and then people can go anywhere.”

The Star met Pascal, a community organizer who said he was beaten and threatened by members of a local Haitian political party, at Maison d’Haïti, a Montreal community centre where he had come, immigration documents in hand, to consult Peggy Larose, a social worker.

From her cramped office behind the reception desk and the centre’s coffee bar, Larose helps Haitian refugee claimants complete their myriad forms and find housing, food and jobs, all while listening to the thoughts that weigh heavily on their minds.

“They are long stories and difficult stories. There are stories that rip you apart, that make you want to scream and cry out,” she said, recounting the plight of one couple who told her how their young daughter had been struck and killed by a truck while they travelled through Mexico, and was buried where she died.

Evidence of the great distances and hardships that people endure to get to Canada lies in the high grass on either side of Roxham Road.

The two halves of an identification card for a 25-year-old woman who stayed at a homeless shelter in Portland, Maine; part of a bright yellow Bancolombia bank card; the four ripped quarters of a blue plastic pass issued to a Nigerian man upon his admission to to a U.S. Immigration and Customs Enforcement processing centre in Tacoma, Wash.

Relics, secrets or the shame from past lives that people hope to leave behind.

Last Sunday, a group of seven people — three men and four women — boarded American Airlines Flight 1280 from Phoenix to New York, paying $378.60 (U.S.) each for the second-to-last leg of their journey to Canada. Their tickets were recovered floating in the water of a stream that runs alongside Roxham Road.

The next day, Monday, a woman named Jakelina boarded an Adirondack Trailways bus in New York City at 6:30 p.m., arrived in Plattsburgh, N.Y., at 1:20 a.m. on Tuesday and made her way toward Roxham Road, discarding the receipt for the $77.25 trip moments before starting a new life in a new country.

Roxham Road owes its popularity among those fleeing their homeland to the immigration policies of former U.S. president Donald Trump.

In January 2017, Trump signed an executive order banning Syrian refugees and blocking citizens of seven majority-Muslim countries from entering the United States — the so-called Muslim ban.

Later that year, 58,000 Haitians living in the U.S. learned of Trump’s plan to let their “Temporary Protected Status” expire, depriving them of protections under the special programs for migrants from countries deemed unsafe or which had suffered humanitarian emergencies, as Haiti did during the 2010 earthquake.

These policies prompted a flight to Canada with little modern precedent as asylum seekers took advantage of a loophole in the Safe Third Country Agreement that allowed them to avoid being forcibly returned to the U.S. by crossing into Canada at a spot between official border posts — something known as an “irregular border crossing.”

In 2017, 18,836 people were intercepted by the RCMP crossing irregularly into Canada in the province of Quebec, compared to 1,018 who were intercepted in Ontario and 718 in British Columbia, 14 in Saskatchewan and six in Alberta.

The phenomenon — and the provincial ratio — continued in 2018 and 2019 but dropped sharply with the arrival of COVID and the closure of the Canada-U.S. border.

“If you crossed at Roxham Road, you were given a notice by the Canadian government known as a ‘direct back’ notice, which means that we’re not willing to hear your claim right now, we’re going to send you back to the U.S. and at some later date when we think the time is good we will allow you to return to pursue your claim,” says Janet Dench, executive director of the Canadian Council for Refugees.

She says that some of those who wanted to make refugee claims in Canada were subsequently detained in U.S. immigration detention centres and, in at least a few instances, were deported to their country of origin.

When the Canada-U.S. border reopened in November 2021 asylum seekers returned almost immediately to Roxham Road.

Compared to October 2021, when there were 96 RCMP interceptions, 832 people were picked up after crossing in November and 2,778 in December. That monthly tally has remained steady through to May 2022 — the last month for which statistics are available — when 3,449 people entered through the Quebec crossing.

In response to questions from the Star, a spokesperson for Immigration, Refugees and Citizenship Canada said that federal officials “continuously monitor conditions and developments in other countries to inform our planning.”

The government declined to speak about the possible reasons for the increased volume of people crossing the border, though others attribute it to the newfound freedom of movement that people around the world are experiencing after lengthy pandemic lockdowns

“I think it’s just normal that — like everyone else — people are starting to move again. These are people who were blocked in their home countries or in transit on their way to Canada,” says Valois, who practises immigration law in Montreal.

“Looking at the bigger picture, there are many more people entering the United States each day and there is also an increase in the number of asylum seekers who arrive in the U.S., so the percentage of those who make it to Canada is really small.”

Not so small that they escaped the attention of Quebec Premier François Legault.

In mid-May, Legault, who casts himself as a fiscally conservative nationalist whose policies are guided by common sense, complained about the “unacceptable” number of people crossing the border into the province and the strain it was placing on the province’s resources.

“We are the only province that has a wide-open road named Roxham, and the federal government, which is responsible for controlling the borders, is not doing its job,” he said.

Legault added that there is a long delay in making an initial eligibility assessment to determine whether there are sufficient grounds for a refugee-claim hearing. During this time, the province is obliged by law to provide health-care services and financial assistance to asylum seekers, he complained.

“A good number of these people aren’t real refugees,” the Quebec premier said in a news conference. “A refugee is someone who faces physical risk in their country, but the majority are not refugees and eventually, when their case is analyzed, they are refused and returned to their country.”

Data from the Immigration and Refugee Board of Canada from February 2017 to March 2022 on refugee claims made by irregular border crossers such as those who enter Canada through Roxham Road would appear to contradict Legault’s claim.

Of more than 63,000 claims, nearly 28,000 were accepted and 19,000 rejected while some 6,000 were abandoned or withdrawn. More than 11,000 claims are waiting to be heard.

But government statistics show that refugee claims made by individuals from the two largest source countries of irregular border crossers — Nigeria and Haiti — find their demands for protection from Canada rejected more often than they are accepted.

Marjorie Villefranche, Maison d’Haïti’s general manager, says Haitians are compelled to come to Canada not so much due to the widespread poverty in the country but because of the violence and insecurity in their native land.

“They say, ‘If I remain here, I will die. I will die with my children.’ What family would accept to stay and die?” she asked. “Anyone would try to do whatever they can to save their lives and to save the lives of their children.”

Villefranche says that it was “exaggerated” to claim that a wealthy country such as Canada could be overloaded by an influx of 20,000 or 30,000 refugee claimants, as the Quebec government claims.

“I think that, as a rich country it’s the least we can do to receive a certain number of refugees,” she says. “There are even poor countries that receive a million or two million refugees across their borders.”

Post-pandemic, Canada is nevertheless struggling to keep up with the flow of asylum seekers.

Upon arrival on Canadian soil, people undergo an initial interview where border agents record their identities, take fingerprints and make biometric recordings. Once their file is created, they are able to receive health care and social assistance.

But it is not until a more thorough admissibility investigation is conducted that a refugee claimant is eligible to receive a temporary work permit.

Dench, from the Canadian Council for Refugees, says a delay that was once limited to several days has now stretched to a months-long wait because officials conduct more extensive security checks that include the exchange of biometric data with other countries.

“They are so keen to exclude people from the refugee determination system that they make a system that is unworkable and starts accumulating these huge backlogs,” she says.

In response to the Star’s questions about delays, a spokesperson for the Canada Border Services Agency said the time required to complete an eligibility check depends on the complexity of the case, the availability of information and the amount of research required.

Legault, the Quebec premier, put this delay at 14 months. Pascal, the Haitian asylum seeker who arrived in May, says he was told he would have to wait until March 2023 before he would receive an eligibility ruling — meaning he will not legally be able to work for 10 months.

Valois, the immigration lawyer, said the delay in receiving an admissibility hearing was “relatively new” and “really problematic.”

“The client wants to work. They want to get moving. They want to have a hearing. They want to be heard. The delay is not to their advantage.”

In an post-pandemic economy that is experiencing desperate labour shortages, the delay in approving work permits for people ready and willing to work is not to the country’s advantage either.

“It’s so ridiculous when you see that so many employers are wanting to employ people and yet the federal government is keeping people in this kind of limbo state because they can’t even get them through the first part of the process,” says Dench.

Another young Haitian couple arrived in Canada in April after a seven-month period in the U.S. during which they were held in detention and the man was forced to wear an ankle bracelet to track his movements.

He wants to find work as a driver, eventually. She said she would like to train to become a caregiver in a hospital — a line of work that, by some estimates, up to 2,000 asylum seekers in Quebec took up during the COVID-19 pandemic, when the needs were greatest.

The couple did not want to provide their names, nor would they discuss the reasons they had for seeking refugee protection from Canada.

But they were happy to share the details of their first Canadian victory — finding an apartment of their own that will allow them to finally leave the downtown Montreal shelter that they and hundreds of other refugee claimants call home.

It’s a studio apartment. It will cost them $850 a month, not including utilities. That will leave them less than $300 a month to eat, to support themselves as well as the baby boy due to enter the world this fall.

Source: Quebec’s Roxham Road on track to see record number of asylum seekers — but they face delays and despair in post-pandemic Canada

There are legitimate concerns regarding the undue burden on Quebec given that over 99 percent of irregular arrivals occur there (2022 to date):

The federal government is starting to relocate asylum seekers who have crossed irregularly into Quebec from the United States, following a rise in the number of would-be refugees at the border.

Immigration, Refugees and Citizenship Canada says that as of June 30, officials have started to transfer a “small number” of asylum seekers to Ottawa and Niagara Falls to help reduce the pressure on Quebec. The department didn’t give details.

More than 13,250 refugee claimants were intercepted outside official points of entry in Quebec by border agents between January and May, mostly at Roxham Road — a rural road leading from the U.S. into the province.

That is more than double the number of people who crossed irregularly into Quebec during the same period in 2019, before the entry points into Canada were closed because of the COVID-19 pandemic. Roxham Road was reopened to would-be refugees in November 2021.

Premier François Legault has asked the federal government to shut down Roxham Road because of the pressure the rise in asylum seekers is putting on Quebec’s ability to care for the newcomers.

The Canada Border Services Agency says it has increased its capacity to temporarily house asylum seekers at the Roxham Road crossing, to 477 people from 297.

Source: Ottawa starting to transfer ‘small number’ of asylum seekers to Ontario from Quebec

Safe places [Safe Third Country Agreement Supreme Court case]

Bit unbalanced in terms of experts interviewed. Would be useful to have a dissenting view for contrast as there is room for debate on the SFCA:

The Safe Third Country Agreement with our Southern neighbour that compels would-be refugees to cross into Canada at unofficial border crossings was bound to end up before our Supreme Court at some point. Last month, the top court finally granted leave to review its constitutionality. The Federal Court initially ruled in 2020 that the agreement violated refugee claimants’ Charter rights by deporting those who arrived from the U.S. and had filed a claim in Canada in contravention of the STCA. The declaration of invalidity was suspended to give the government time to take action, and then the Federal Court of Appeal overturned the decision.

There are several key questions the Supreme Court must address now, says Janet Dench, executive director for the Canadian Council for Refugees, who brought the challenge along with several asylum claimants. She calls the Federal Court of Appeal ruling “disturbing,” having “left us with a sense that there is no real recourse for violations of refugees’ rights.”

She also expresses concern that a broader application of the Federal Court of Appeal’s ruling could affect other Section 15 Charter claims.

Indeed, part of the Council’s case hinges on the failure of the U.S. to adequately protect people fleeing gender-based persecution, which it says was exacerbated under former President Donald Trump’s administration. The Federal Court rendered its judgment based on Section 7 arguments, and did not consider Section 15 claims. Having overturned the Section 7 argument, the Federal Court of Appeal also did not need to look at Section 15.

Another issue is that the Federal Court of Appeal held that the plaintiffs were wrong to challenge the designation of the U.S. as a safe third country. Instead, it’s up to cabinet to regularly review the designation, and therefore it is cabinet’s decision that must be challenged.

“If this decision and analysis was to stand, then lawyers would constantly be asking what they are challenging,” says Dench. “Are they challenging that a regulation was put into force that disadvantages or violates certain people’s rights, or should they be challenging the fact that regulation hasn’t subsequently been set aside,” says Dench.

Jamie Chai Yun Liew, professor at the University of Ottawa, who has previously represented the Canadian Council for Refugees but is not involved in this matter, notes that the focus of the Federal Court decision was on the impact of the decision-making by those at the border implementing the STCA.

“There was a lot of social science, affidavit and first instance evidence presented to the court of the experiences of migrants who have been turned away at the border and their experiences,” Liew says. “One of the things that the [Federal Court] focused on was the immediate detention of people who were turned away at the border, and the risk of them not even having their refugee claim assessed at all by either country.”

Liew notes that the Federal Court of Appeal focused instead on “safety valves” that allowed for claimants to access a different assessment or protection before the decision leading to the harm that the applicants described, including federal review of the STCA.

“During the discovery process, the government was very resistant in sharing any information about the internal political system of how the Safe Third Country was reviewed, so there’s very little evidence on that,” Liew adds. “What evidence there is, publicly, doesn’t show that the government has done a very deep review of these kinds of things, despite increasing evidence that the United States is a hostile place for refugees, especially during the Trump administration.”

Despite the evidence of harms, Liew notes, the government’s unwillingness to come forward with information during the discovery process means the Supreme Court will be limited in its ability to examine what actually happened.

“It will be interesting to see how those on the bench absorb the evidence and what angles they take,” Liew says.

Liew hopes that the court ensures that Charter rights aren’t being trampled under the pretext that the so-called “safety valves” are available to refugee claimants. She notes that past ruling on immigration by the Supreme Court have raised questions around alternative remedies. On paper there are mechanisms, such as pre-removal risk assessments, whereby a person can apply to remain in Canada if they are at risk of physical harm in the event they get deported to their country. In reality, however, people have difficulty accessing these measures.

Audrey Macklin, professor and the Rebecca Cook Chair in Human Rights Law at the University of Toronto, says that Canada can neither directly violate the Charter rights of those seeing refugee protection, or indirectly, by returning them to a country that will violate fundamental human rights.

“We’re talking about arbitrary detention, separation of families, detention of children, substantive doctrines that deny women fleeing gender persecution, and so on,” says Macklin. “Procedurally, there is also an issue about the failure of the Canadian government to regularly monitor the United States for compliance with those fundamental human rights obligations.”

Macklin adds that the STCA is predicated on the notion that the U.S. is safe for people to seek refugee protection. Even if it was not when the agreement was signed and implemented, circumstances can change. The problem is that Canada has no procedure to scrutinize whether the U.S. continued to be a safe country, she says.

What’s more, Canada routinely evaluates the safety of other countries as part of refugee determination itself. It would hardly be an overstep for Canada to do the same with the U.S. Besides, there are provisions in the STCA allowing either country to suspend it for two six-month periods, or to terminate it with one year’s notice. “There’s nothing untoward about Canada doing that,” says Macklin.

Liew doesn’t think the court will strike down the whole Immigration and Refugee Protection Act. It’s not the legislation that is problematic so much as the Safe Third Country Agreement, which flows from provisions in the Act.

“My suspicion would be that they would suspend or ask the government to terminate the agreement that flows from the provision, and it wouldn’t be striking a provision from the legislation per se,” Liew says. “Or they could give the government that six-month window, as the Federal Court did, to get their act together and either review it or amend it, and that might be a way for the government to save face.”

Or the Supreme Court might find the violation so glaring that it suspends it right away, she says. But its history with immigration decisions shows a pattern of moving more cautiously.

Dench notes that because the situation in the United States can change from year to year, there isn’t an expectation that the Supreme Court will make findings of fact. Instead, it could provide a pathway for these kinds of matters to be brought to the courts for evaluation.

Dench also disputes that the situation in the U.S. is solely attributable to Trump’s policies. Since he left office, it’s not like there’s been a complete reversal of his border policies.

“We don’t expect an impartial analysis to say that all of the existing problems have been solved,” Dench says.

Ultimately, says Liew, the agreement has failed to live up to its promise. It hasn’t stopped people from coming to the border, though it has made it harder to do so safely. There are countless stories of claimants who lost fingers from frostbite at irregular crossings or at the quasi-official crossing facility at Roxham Road in Quebec.

Therefore, she would advise the government “to look at how people can access our official ports of entry and process them in a way that is humane and fits with our international law obligations.”

Macklin notes that the STCA was struck at the behest of Canada, given that we only have one border. And though it is a mechanism to put breaks on the flow of people who can reach Canada and make refugee claims, she also disputes the notion that it is intended to combat “asylum shopping.”

“In absolute and relative terms, the number of asylum seekers that Canada receives is trivial,” says Macklin. “If you were seeking refugee protection and you had a child with you, and you knew that the United States would rip you away from your child, do we call it asylum shopping because you say I can get to Canada, please let me do that?”

Source: Safe places

Canada has right to turn back asylum-seekers at U.S. land border points, appeals court rules

Looks like a defeat for the more “anecdotal” approach of focussing on individual cases rather than the broader administrative oversight issue:

In a setback for refugee advocates, the Federal Court of Appeal has rejected the argument that it is unconstitutional for Canada to turn back refugees at the U.S. land border and prevent them from seeking asylum in this country.

The court sided with the federal government Thursday in overturning a lower court decision that had called into question the future of the Safe Third Country Agreement (STCA), amid arguments that the United States cannot be considered a safe country for asylum seekers.

The decision will have devastating effects on would-be refugee claimants, their advocates say.

“The real consequences of this decision rest with those refugee claimants who are being returned to U.S. detention facilities after being turned back and facing harm both in jail and in the U.S. asylum process,” said Amanda Aziz of the Canadian Association of Refugee Lawyers.

“What is lost in this decision are the people who will continue to face real and severe harm because of the ongoing operation of the STCA.”

Under the bilateral pact, Canada and the U.S. each recognize the other country as a safe place to seek protection.

That means Canada can turn back potential refugees who arrive at land ports of entry along the Canada-U. S. border on the basis they should pursue their claims in the States, the country where they first arrived.

The agreement, which took effect in 2004, was originally touted by officials in both countries as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane — critiques that grew louder during the Trump administration.

In July, the Federal Court found it unconstitutional to ban would-be claimants from attempting to enter either country at official border crossings, saying the impacts of the policy “shock the conscience.”

Justice Ann Marie McDonald had given Ottawa six months to respond and fix the policy to make sure it complies with the Canadian charter before declaring the accord invalid. That deadline was later extended at the request of the government while the appeal was being heard.

However, in its decision released Thursday, Canada’s appeal court said lawyers for asylum seekers and their supporters focused on the wrong issues in challenging the law’s constitutionality.

It said there are proper checks and balances in the legislative scheme to ensure Canadian laws and the charter are upheld, and it’s within the government’s authority to make regulations designating a country as safe for refugees.

Instead of using individual refugees’ experiences to show the bilateral pact itself violated their Charter rights, said the appeal court, lawyers for the litigants should have made a case of how existing administrative oversight has failed to safeguard their rights.

“The legislative scheme as a whole, assuming it is operated properly, is designed to protect fundamental human rights, including charter rights,” wrote Justice David Stratas in a unanimous decision on behalf of the three-member panel.

“Based on the record before us, to the extent that detrimental effects are being suffered by persons being returned to the United States, the legislative scheme as a whole is not to blame.”

The federal government welcomed the decision.

“Canada remains firmly committed to upholding a fair and compassionate refugee protection system and the STCA remains a comprehensive means for the compassionate, fair, and orderly handling of asylum claims at the Canada-U.S. land border,” said Immigration Minister Marco Mendicino and Public Safety Minister Bill Blair in a joint statement.

In its ruling, the appeal court said Parliament created a mechanism to monitor the designated country’s compliance on an ongoing basis.

Although the law doesn’t specify what continuing review means, who should conduct it and what should be examined in a review, a policy was developed for the assessment based on a wide variety of governmental and non-governmental sources.

The court said immigration officers also have a number of powers and discretions to make exemptions to accept claims by individuals who would otherwise be ineligible to cross into Canada and seek asylum under the Safe Third Country Agreement.

As well, refugee claimants have access to the Federal Court if they believe the circumstances of their removal warrant the court’s intervention.

“In this case, there was no evidence that could support a finding that the treatment of returnees to the United States at the Canada-United States border ‘shocks the conscience,’” said the appeal court.

“There is evidence of individual cases of substandard treatment but nothing that rises to the very high level required by the ‘shocks the conscience’ standard.”

In 2007, three advocacy groups — the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches — took Ottawa to federal court and successfully had the U.S. declared unsafe for refugees.

However, the decision was later overturned on appeal, largely on the grounds that the groups failed to find a lead individual litigant who was directly impacted by the policy.

In 2017, those groups returned to the court with a group of asylum seekers whose access to Canadian asylum was denied under the Safe Third Country Agreement to support their arguments.

This appeal court said some of the evidence, although voluminous, is piecemeal and individualized and, thus, is problematic for drawing system-wide inferences concerning the situation in the U.S.

“The value of evidence is not measured by the pound,” Justice Stratas wrote. “The evidence of the particular treatment of ten individuals — all selected by the claimants — cannot itself provide a basis for making system-wide inferences.”

Citing a previous court case that found psychological suffering inherent in the plight of refugees fleeing persecution, Stratas wrote: “One must ask whether sending refugee claimants back to the United States actually increased psychological suffering above this inherent level.”

Janet Dench of the Canadian Council for Refugees said the court’s findings were disappointing.

“The court heard the evidence of the very horrific experiences of people who were sent back to the U.S. The conditions in detention were found to be completely unacceptable by the federal court judge. Those experiences were not engaged by this court,” said Dench.

“Those experiences, the rights abuses and their suffering don’t seem to be heard in this (appeal) court.”

Source: Canada has right to turn back asylum-seekers at U.S. land border points, appeals court rules

Canada has turned back 4,400 asylum seekers in 5 years

Of note. A bit less than the 55,000 or so that crossed the border:

Canada has turned away at least 4,400 asylum seekers at the U.S. border since 2016 — including some who were hoping to find refuge here at the height of the global pandemic — according to newly released government figures.

Nearly half of those trying to enter Canada over that five-year period made the attempt in the year after U.S. President Donald Trump took office, according to figures released in response to a parliamentary request from NDP MP Jenny Kwan.

Under the Safe Third Country Agreement (STCA), which has been in effect since 2004, Canada and the U.S. consider each other to be “safe countries” for refugees and require them to make their claims in the country they arrive in first.

The agreement has long faced criticism and legal challenges from refugee advocacy groups, who say the agreement is an inhumane way to limit the number of people Canada accepts as refugees. They say the U.S. is not a safe country for all refugees and that the dangers they face have increased under the Trump administration.

The federal government is appealing a Federal Court ruling earlier this year that found the STCA infringed Charter rights.

The figures provided to Kwan show there was a spike in the number of asylum seekers turned back at the border after Trump was elected in 2016 and took office in 2017.

In 2016 there were 742 people turned back at the border. That figure jumped to 1,992 in 2017. There were 744 denied entry in 2018 and 663 in 2019.

Between Jan. 1 and Sept. 23 this year — a period which captures the height of the first wave of COVID-19 — 259 people were turned back at the border.

‘Even more precarious’

Kwan called that “really disturbing.”

“In the face of a pandemic, things are even more precarious for people who need to get to safety and Canada actually did not hesitate to turn people back,” she said.Kwan said the Trump administration imposed detention and deportation policies that violated international human rights and provoked widespread fear among refugees. By turning away asylum seekers, Canada is “complicit” in the violation of their rights, she said.

Kwan said Canada should immediately suspend the STCA and work to negotiate a new agreement with U.S. president-elect Joe Biden that addresses human rights issues. But she said the “aggressive and intense” detention policies could linger.

“I think even with the Biden administration, that policy may still continue to exist, and even if the Biden administration wants to make changes, it’s not going to happen overnight,” she said.

Mary-Liz Power, a spokesperson for Public Safety Minister Bill Blair, said the government appealed the Federal Court ruling because it believes there were errors in key findings of fact and law.

She said the decision mistakenly suggests that all asylum claimants who are ineligible under the STCA and turned back to the U.S. are automatically detained as a penalty. She also noted that the U.S. remains a party to the UN Refugee Convention.

Refugee pact ‘fair, compassionate’: Blair spokesperson

“The STCA, which has served Canada well for 16 years, ensures that those whose lives are in danger are able to claim asylum at the very first opportunity in a safe country,” she said.

“We are in continuous discussions with the U.S. government on issues related to our shared border. We believe that the STCA remains a comprehensive vehicle for the fair, compassionate and orderly handling of asylum claims in our two countries.”

As for the spike in numbers in 2017, Power said that 2017-2018 recorded the highest number of globally displaced individuals since the Second World War.

Justin Mohammed, human rights law and policy campaigner for Amnesty International Canada, said a number of factors could have driven that sharp increase, including global patterns and Trump’s policies.

He said Canada should be fulfilling its international obligations under international refugee law at all times — even during a pandemic, when safety concerns are heightened.

Mohammed pointed to exemptions made for students, family reunification and other immigration classes that allow people to arrive in Canada despite travel restrictions.

“Why are refugees being excluded from that? They’re able to quarantine or be required to have a quarantine plan just like anyone else … so why is there not the ability to be able to provide protection?” he said.

Partial picture

Janet Dench, executive director of the Canadian Council for Refugees, said the 2020 figures represent only a partial picture of the people turned back to the U.S. because of added restrictions after the border closed March 20.

At that time, refugee claimants were denied entry on public health grounds whether they arrived at an official point of entry or at another crossing — such as Roxham Road in Quebec — where the STCA does not normally apply.

Despite assurances the Canadian government says it received from the U.S. that refugee claimants directed back would not be subject to enforcement such as detention or removal, Dench said refugee advocates in Canada know of at least two people who were detained in the U.S. after being directed back.

Conservative immigration critic Raquel Dancho said the Liberal record on administering the refugee and asylum system was one of “mismanagement, years-long backlogs and failure,” even before the pandemic.

“Conservatives have long been calling on the government to close illegal border crossings and work with their American counterparts to close the longstanding loopholes in the Safe Third Country Agreement so that refugee and asylum seekers have a fair, compassionate and effective pathway to come to Canada,” she said in a statement.

Source: Canada has turned back 4,400 asylum seekers in 5 years

Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’


Canada would face “an influx of refugee claimants” and other “ripple effects” in the absence of a bilateral pact that stops would-be asylum seekers from making a claim here via the U.S., the federal government is warning.

This country will suffer “irreparable harm,” especially amid a global pandemic, if the Federal Court of Appeal does not suspend an earlier lower-court order that struck down the Safe Third Country Agreement, Ottawa argues.

In July, the Federal Court ruled the accord unconstitutional because the United States routinely detained asylum seekers in poor conditions. It gave Ottawa six months — until Jan. 22 — to fix the policy and make sure it complies with the Canadian Charter of Rights and Freedoms before the pact becomes invalid.

On Friday, the appeal court will hear a motion by the federal government to extend the deadline until a full appeal can be heard on a later date.

“An influx of refugee claimants will impair the sustainability of the systems that support refugee claimants while their claims are pending. Provincial and municipal governments are struggling to provide housing and social services,” the government says in its submissions.

“This unpredictability is significantly heightened by the global pandemic. Should the reopening of the border between Canada and the USA coincide with the end of the suspension period, a surge of asylum claims at the border is anticipated.”

Critics have argued the U.S. asylum system is cruel and inhumane, especially since President Donald Trump came into power in 2016 on an anti-immigrant agenda, building a wall to shut out illegal immigrants from the south and separating migrant children from their families. These critics said the Canadian government’s request should be dismissed because infringements of refugees’ rights outweigh any alleged public interest in maintaining the status quo.

“While the court gave Parliament six months to remedy the law, the government has squandered that opportunity in favour of an appeal,” said Justin Mohammed of Amnesty International Canada, one of three litigants who launched and won the constitutional challenge.

“We are hopeful that the Federal Court of Appeal will affirm the deadline, so that no refugee protection claimant will be handed over by Canada to face the horrors of U.S. immigration detention past January 2021.”

Under the bilateral agreement, Canada and the U.S. each recognize the other country as a safe place to seek protection. It lets Canada turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border, on the basis that they should pursue their claims in U.S., the country where they first arrived.

In its submissions, the federal government says the agreement, in place since 2004, is in line with international refugee law to ensure claimants have access to a fair asylum process in an “orderly and efficient manner.” There are exemptions and mechanisms in place to avoid returning would-be asylum seekers to risks and danger.

While the U.S. asylum detention system may be unacceptable, it says the Canadian charter does not apply to foreign laws and processes.

“Failure to grant this stay will result in irreparable harm to the public interest, the functioning of the border, the sustainability of the Canadian asylum system and the services and resources that support claimants in Canada,” the government says.

According to Ottawa, all levels of governments are already struggling to provide services to the 56,515 asylum seekers who skirted the safe third country restrictions by crossing “irregularly” into Canada between official land ports of entry from 2017 to 2019.

“An additional influx would further strain those already stretched systems and resources,” the government cautions, adding that the surge will create further “negative ripple effects and backlogs” in the overall immigration and refugee protection scheme.

“There is a strong public interest in affording Canada control of its borders to regulate the flow of persons and goods and to ensure the orderly processing of claims between Canada and the USA.”

However, the respondents, also including the Canadian Council for Refugees and the Canadian Council of Churches, argued that the lower court’s finding is already “tantamount” to a determination that the Canada-U.S. agreement is not in the public interest.

They said the government’s assertions of irreparable harm to the asylum system and services for claimants in Canada are based not on evidence but on a series of speculative claims by officials at the immigration department and Public Safety Canada.

The pandemic has actually made the conditions worse for asylum seekers, they argue. As of Oct. 6, the U.S. Immigration and Customs Enforcement reported 6,387 confirmed COVID-19 cases in custody, including eight COVID-19-related deaths of detainees.

“The appellants’ suggestion that COVID-19 makes it more difficult to predict ‘asylum intake volumes’ is misleading. While the pandemic is unprecedented, its effect on ‘asylum intake volumes’ is clear: it is dramatically suppressing the number of new refugee claims,” said the respondents in their submissions.

“It is simply harder and more dangerous to travel during the pandemic, and travel to Canada is far more restricted.”

The NDP’s immigration critic Jenny Kwan agrees.

“By appealing the court ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” said Kwan, who is also the MP for Vancouver East.

“Instead of accepting the court’s ruling and terminating the agreement, they have chosen to double down on turning back asylum seekers to a country that has a policy of separating children from their parents without any way of reuniting them,” she added. “It’s a heartless and shameful act. It’s un-Canadian.”

Source: Federal government asks court to keep Canada-U.S. pact to prevent ‘influx of refugee claimants’