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

2019/10/11 Leave a comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Promise would require new legislation

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

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

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

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

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

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

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

Scheer claims asylum seekers are ‘skipping the line’

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

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

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

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

Ex-minister under Hussein made refugee claim in Canada

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

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

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

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

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

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Canada’s Safe 3rd Country Agreement With The U.S. Draws Criticism

2019/08/08 Leave a comment

NPR coverage:

Sitting relaxed at the kitchen table of her new home in a comfortable Toronto suburb, Kinda Bazerbashi recalls how differently she felt when her family lived in Houston.

Originally from Syria, she had lived in the United Arab Emirates, then arrived in the United States with her family on temporary visas and applied for asylum in 2012. Through a series of rejections and appeals, she says, they lived their lives in a legal limbo that made it hard to work, plan or travel to see scattered relatives.

“You are just like in jail, in a nice life,” she says. “There are cars. There is supermarket, but you feel, inside, you are in jail.”

By the time President Trump was elected, only a temporary protected status at the discretion of the White House kept her family from being deported back to Syria. Concerned about the president’s positions on immigration, she and her husband, Anas Almoustafa, looked to an alternative.

“From the TV,” says Almoustafa, “they [were] saying a lot of immigrants, they go to Canada.”

In March 2017, the family did what they had seen on TV and what more than 46,000 people have done since the 2016 election. They walked across the border from the U.S. to Canada, away from official entry points, and applied for asylum.

“People are crossing that way because of the safe third country agreement,” says Maureen Silcoff, president of the Canadian Association of Refugee Lawyers.

Signed in 2002, the agreement operates from the assumption that both the U.S. and Canada offer protections, so people fleeing their homes should apply for asylum in either country they arrive in first.

That kind of deal has gained renewed attention as the Trump administration presses Mexico and Guatemala to take in asylum-seekers traveling through those countries to the U.S. As America’s policies push more migrants to head across its northern border, Canadians and rights groups have challenged the agreement with the U.S.

Under the accord, people leaving the U.S. cannot apply for asylum in Canada at an official crossing point, or vice versa. Except for a few limited cases, such as if they have close family in Canada, they will be turned back to the U.S.

However, what some call a “loophole” in the agreement allows people to apply for asylum in Canada if they can arrive in the country.

“People feel hopeless about their chances of receiving protection in the United States,” Silcoff says. “That essentially drives them to cross between ports of entry.”

Most have traversed one country road on the border of upstate New York and the province of Quebec. Royal Canadian Mounted Police wait on the other side of this unofficial path to apprehend them.

The total number of migrant interceptions since 2016 still pales in comparison to 100,000 on the U.S.-Mexico border this March alone. Numbers have also trended downward this year over last. But Canadian pollster Shachi Kurl of the Angus Reid Institute says the border situation took on an outsize political importance because Canadians were unaccustomed to these types of arrivals.

“Just literally walking across an undefended border was starting to create a deep sense of unease and concern not just in right-wing voters, but it was really an issue that crossed the political spectrum,” she says.

Canada’s opposition Conservative Party has picked up this theme in its campaign to unseat Prime Minister Justin Trudeau’s Liberal government in federal elections this fall. In a speech in May, Conservative leader Andrew Scheer called the numbers of irregular crossings “almost hard to believe,” protesting that some migrants are able to “exploit loopholes and skip the line.”

Trudeau’s government has made a number of changes in the last two years to try to reduce the number of arrivals. The Canadian government sent representatives abroad to discourage people considering traveling to the border and to temper perceptions of the welcome they would receive.

Trudeau also created a new Cabinet-level border security minister, a position filled by former Toronto police chief Bill Blair. Earlier this year, Blair met with then-U.S. Homeland Security Secretary Kirstjen Nielsen about expanding the safe third country agreement so Canada could turn border-crossers back to the U.S. His office declined an interview with NPR but said the two countries have not begun official negotiations.

However, even as the U.S. pushes for similar agreements with Mexico and Guatemala to give migrants heading for the U.S. border asylum in their countries, groups like Amnesty International Canada are urging Canada to withdraw from its asylum deal.

Arguing that the U.S. does not offer equal protections for immigrants, Amnesty Canada director Alex Neve says Canada should allow people to make asylum claims at all official border crossings.

“At a time when refugees and migrants, a very vulnerable group, face this full-out attack on their rights from the U.S. government, Canada shouldn’t be turning its back on them,” Neve tells NPR.

Amnesty has joined with other organizations in a lawsuit to overturn the agreement. Hearings will begin in September.

Silcoff, the attorney, pointed out that U.S. policy changes that have, for example, closed eligibility for asylum to victims of domestic violence, whereas she noted, “They have a good chance because of our laws of receiving protection in Canada.”

Despite their rejection in the U.S., Baserbashi’s family was approved for asylum in Canada last year.

“This is the final step we hope and final move — absolutely it’s [the] final move — because we get approved, thanks God!” she says.

Her family would receive a different reception if they arrived today. The Canadian government passed one more measure this summer, tucked into a large budget bill. The provision bars people from applying for asylum in Canada if they applied previously in the United States or a handful of other countries with which Canada shares biometric data.

Those who have applied elsewhere will now enter an alternative administrative process that Silcoff says offers fewer protections.

A spokesperson for Minister Blair’s office said in an email to NPR that the change was meant to “deter people from making multiple asylum claims in different countries,” but added, “Nobody will be removed without a chance to be heard.”

Source: Canada’s Safe 3rd Country Agreement With The U.S. Draws Criticism

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Refugee advocates ‘shocked and dismayed’ over asylum changes in budget bill

2019/04/11 Leave a comment

Well, of course they would be. That being said, it does represent another example of abuse of omnibus bills given the intended impact of this change and the ongoing shift in the government’s position which should be subject to thorough parliamentary and other discussion.

Will be interesting to see how the current and expected court challenges turn out:

Lawyers and advocates who work directly with refugees say they are dismayed by proposed changes to asylum laws included in the Liberals’ new budget bill, calling them a devastating attack on refugee rights in Canada.

The Trudeau government is proposing to prevent asylum seekers from making refugee claims in Canada if they have made similar claims in certain other countries, including the United States.

Border Security Minister Bill Blair said the measure aims to prevent “asylum-shopping.”

“I can tell you we’ve been working very hard over the past several months to significantly reduce the number of people who are crossing our borders irregularly,” Blair told reporters Tuesday. “There’s a right way to come to the country to seek asylum and/or to seek to immigrate to this country, and we’re trying to encourage people to use the appropriate channels and to disincentivize people from doing it improperly.”

The proposed changes blindsided refugee advocates and lawyers, who say they would strip human-rights protections from vulnerable refugee claimants.

“In terms of the effect on refugees, the effect is really immeasurable, because we’re now giving refugee claimants a degraded process to go through,” said Maureen Silcoff, the chair of the Canadian Association of Refugee Lawyers’ litigation committee.

The new provision in the Immigration and Refugee Protection Act — which was tucked into the 392-page omnibus budget bill tabled Monday evening — introduces a new ground of ineligibility for refugee protection. If an asylum-seeker has previously opened a claim for refugee protection in another country, his or her claim would be ineligible for consideration — as would claims by people who already have made unsuccessful claims here, been deemed inadmissible because of their criminal records, or been granted refugee protection elsewhere.

The provision is based on the belief that Canada’s refugee system is similar enough to that of the U.S. that anyone rejected there is likely to be rejected here as well.

Under Canada’s “Safe Third Country Agreement” with the U.S., would-be refugees who arrive at official border crossings from the United States and try to claim asylum will be turned back to the U.S. But the agreement doesn’t apply to people already on Canadian soil when they make their claims.

This has led to over 40,000 asylum-seekers crossing into Canada “irregularly” through unofficial paths along the Canada-U.S. border since early 2017, coinciding with U.S. government efforts to expel people who had been given temporary permission to stay in the United States.

A case for a Charter challenge?

Under the new provisions introduced Monday, asylum-seekers deemed ineligible to make claims in Canada will not necessarily be deported to their homelands. They will still undergo pre-removal risk assessments to determine if it is safe to send them back to their countries of origin.

But this takes away their legal right to have their refugee claims heard by an independent tribunal or a court — something that could be subject to a Charter challenge.

A 1985 Supreme Court ruling, known as the Singh decision after the group of Sikh refugee claimants involved in the case, ruled that asylum-seekers have the right to full oral hearings of their refugee claims. The decision is considered one of the most significant in Canadian refugee law and was instrumental in the formation of the Immigration and Refugee Board — the arm’s-length agency that hears refugee claims in Canada.

Janet Dench, executive director of the Canadian Council for Refugees, said she suspects refugee lawyers are already starting to look closely the legalities of the government’s proposed changes.

“For sure there are serious Charter issues that may be raised,” she said.

‘Shock and dismay’

The pre-removal risk assessment, to which asylum-seekers in Canada will retain access, can include a hearing, but Dench said it’s not the same and, in practice, is usually more like an interview. The hearing is not automatic.

Dench said she and her members, which include over 100 Canadian organizations that work directly with refugees and immigrants, were “in a state of shock and dismay and great disappointment” over the proposed changes.

“This is really a devastating attack on refugee rights,” she said. “We’ve been urging the government to drop the existing ineligibility provisions, which already leave some people without the protection that they need from Canada. This is going a huge step further in creating another whole category of people who will be denied access to the refugee determination system on an arbitrary basis.”

That the changes were included as part of an omnibus budget implementation bill is even more upsetting to the refugee advocates.

‘Undemocratic’

Substantial changes to immigration laws like the ones being proposed ought to be given a more thorough treatment in Parliament rather than being rushed in a budget bill, Silcoff said.

“CARL (the Canadian Association of Refugee Lawyers) believes that human rights have no place in a budget bill. It’s undemocratic.”

NDP immigration critic Jenny Kwan echoed these concerns, calling the proposed changes “unconscionable” and the fact they were introduced in a budget bill “shocking.”

“These are standalone bills and they should be dealt with as such, and to try and bury in the budget bill is absolutely contrary to what (Prime Minister Justin) Trudeau himself promised in the 2015 election.”

The Conservative party has frequently demanded that the Liberal government keep people from getting into the country to make asylum claims. Conservative immigration critic Michelle Rempel said the changes indicate that Trudeau has “effectively admitted that he has failed to manage our border.”

Source: https://www.cbc.ca/news/politics/refugee-asylum-federal-budget-1.5091397

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Asylum seekers should make claims through ‘appropriate’ channels: Canadian envoy to U.S.

2019/04/04 Leave a comment

One further detail that I hadn’t noticed before – Canada has been pressing this for more than one year (so not just short-term pre-election positioning):

Canada’s ambassador to the United States says “legitimate refugee claimants” should make their claims through an “appropriate” process rather than crossing from the U.S. between official points of entry.

David MacNaughton said the U.S. moving to begin the process to renegotiate the Safe Third Country Agreement is an encouraging sign. Ottawa wants the pact changed to close a loophole in order to allow Canada to quickly turn away most asylum seekers coming from the United States who enter from unauthorized points.

Asked to square this request with the federal government’s position that refugees are welcome in Canada, Mr. MacNaughton said asylum seekers should use an “established” process.

“We’re open to immigration. We’re also open to legitimate refugee claimants who go through the process that is established,” Mr. MacNaughton said Tuesday in the U.S. Capitol after a lunch meeting with legislators on trade. “What we’re trying to do is make sure that those who are wanting to claim refugee status do so in the way in which it’s appropriate.”

More than 40,000 asylum seekers have entered Canada through unofficial points of entry since U.S. President Donald Trump launched his crackdown on illegal immigration two years ago. The flood of claimants is bogging down the refugee protection system in Canada.

Under the current pact, most refugee claimants who come to Canada from the United States through official points of entry – such as border stations – are immediately sent back to the United States, as it is considered a safe country for refugees under the treaty. But the agreement does not apply between such points of entry, so those who cross between border stations have the right to make a refugee claim.

Mr. MacNaughton said he is encouraged that the United States is starting to move on renegotiation. But he said he did not know whether the United States would agree to the rewrite Canada wants.

“We have had no firm indication as to what they’re prepared to do or not do,” he said. “It’s a positive thing that it’s gone to State [Department] to give a negotiating mandate because that hasn’t been the case for the last however long we’ve been asking for this to happen.”

Canada has been pressing the United States to renegotiate for more than a year. The U.S. Department of Homeland Security is now working with State Department officials on a formal request to reopen the deal, The Globe and Mail reported on Monday. An assistant secretary would have to authorize the request for talks to start.

Border Security Minister Bill Blair has proposed a change to the agreement that would see Canadian border officials take such asylum seekers to an official crossing, where they would be denied immediate entry. But that plan would have to clear legal hurdles articulated by the Supreme Court that guarantee a hearing to any refugee claimant setting foot in Canada.

Janet Dench, executive director of the Canadian Council for Refugees, said a renegotiation could backfire on Canada. She said Canada risks drawing Mr. Trump’s attention to the 2004 border agreement, which could lead the United States to propose changes to the agreement that Ottawa doesn’t want.

“This agreement was negotiated to favour Canadian interests and at Canadian request,” Ms. Dench said. “And so in asking to renegotiate the agreement, the Canadian government must be aware that the U.S. government may … actually want to negotiate it so that fewer refugees are sent back to the U.S. or that the U.S. would think maybe we should actually withdraw ourselves from this agreement.”

The CCR, along with Amnesty International and the Canadian Council of Churches, launched a Federal Court challenge to the agreement in 2017, arguing against Canada’s position that the United States is a safe country for refugees under the Trump administration. A decision has not yet been issued by the court.

The NDP has called on the Liberals to suspend the pact so asylum seekers in the United States can claim refugee status at official Canadian land border posts.

Conservative immigration critic Michelle Rempel urged the Liberal government to act immediately to stop the flow of asylum seekers between official points of entry along the border, saying she doesn’t buy its assertion that Canada can’t make the appropriate changes without agreement from the United States. She accused the Liberals of putting forward ideas without a plan to practically implement them.

“We’re six months out to an election and after trying to make electoral hay out of calling Canadians who raise questions about this fear mongerers and un-Canadian and thinly veiled accusations of racism, I think that this is now about electoral calculus rather than action,” Ms. Rempel said.

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Canada, U.S. move to redraft border treaty to cut flow of asylum seekers

2019/04/02 Leave a comment

More movement than I would have thought possible with a possible clever fix of taking seekers to a regular border crossing where they could be deported under the STCA.

Should the USA agree (far from certain), will be interesting to see how it would work in practice (a regular shuttle from Roxham Road until the flow decreases?).

And hanging over all of this is the court challenge to the STCA:

Canada and the United States are a step closer to redrawing the Safe Third Country Agreement covering asylum seekers, as Ottawa looks to stem the flow of refugee claimants crossing between authorized points of entry.

The U.S. Department of Homeland Security (DHS) has sent a formal request to the State Department – which handles international treaties – to renegotiate the STCA with Canada, a source in the U.S. administration said. The source was granted anonymity because they are not authorized to speak publicly on the matter.

Ottawa wants the pact changed to close a loophole, which would allow Canada to immediately deport most asylum seekers coming from the United States.

Canadian officials would take such asylum seekers to an official crossing, where they would be denied immediate entry. But that plan would have to clear legal hurdles articulated by the Supreme Court that guarantee a hearing to any refugee claimant setting foot in Canada.

More than 40,000 asylum seekers have entered Canada at unauthorized points of entry since U.S. President Donald Trump launched his crackdown on illegal immigration two years ago. The flood of claimants is bogging down the refugee protection system in Canada.

Under the current pact, most refugee claimants who come to Canada from the United States at official points of entry – such as border stations – are immediately sent back to the United States. But the pact does not apply between such points of entry, so those who cross between border stations have the right to make a refugee claim. Canada wants this changed so most people coming from the United States – at any point along the border – can be immediately deported. The idea behind the treaty is that refugees do not face a risk of persecution in the United States, so it is safe for them to apply for asylum there – no need to continue on to Canada.

The U.S. government source said DHS officials are working with their counterparts at the State Department on the request to start negotiations – formally called a C-175. Under that process, a high-ranking State Department official, usually an assistant secretary, must approve the request. An approval would allow talks to begin, but would not determine the outcome.

The State Department would not comment on the development. “We do not discuss internal and inter-agency deliberations, nor do we discuss specific documents or communications that are involved in such deliberations,” spokesman Noel Clay wrote in an e-mail.

Border Security Minister Bill Blair wrote to DHS Secretary Kirstjen Nielsen last September to ask her to start talks on changing the border agreement. Mr. Blair’s office said the letter mentioned his mandate from Prime Minister Justin Trudeau to manage the surge in asylum seekers at the border.

In a statement this week, Mr. Blair’s spokesman said Canada and the United States have not yet entered into formal negotiations on the STCA.

“However, since his appointment, Minister Blair has met with numerous stakeholders including U.S. members of Congress, Customs and Border Protection and Department of Homeland Security officials to discuss modernizing the STCA as soon as possible,” Ryan Cotter said.

Mr. Blair visited Washington this month to press his case. He met with three Republican legislators active on border-control matters – senators John Cornyn and Ron Johnson, and Representative Mike Rogers – as well as Matthew Reynolds, the U.S. representative for the United Nations High Commissioner for Refugees, and Kirsten Hillman, Canada’s deputy ambassador to the United States.

Mr. Rogers, the top Republican on the House Homeland Security Committee, would not discuss Canada’s requested change to the treaty.

“I don’t have a comment right now,” he said outside his Capitol Hill office Wednesday.

One Canadian official, who was granted anonymity because they are not authorized to speak publicly, said between 60 and 70 per cent of the asylum seekers crossing the border between points of entry appear to have gone to the United States specifically for that purpose: They arrive in the United States on a visitor’s visa, with no intention of seeking asylum there, then immediately head to the border.

Speaking to The Globe and Mail this month, Mr. Blair said Canada is proposing a change to the STCA that would allow Canadian officials to escort asylum seekers who enter at unauthorized entry points to a designated crossing area. There, the border agreement could be applied, allowing Canadian officials to refuse entry to the asylum seekers. The change would apply to the entire border.

Mr. Blair explained how it would work in Saint-Bernard-de-Lacolle, Que., the unauthorized point of entry at the end of Roxham Road in New York State, where most irregular asylum seekers have entered Canada.

“If, for example, there was an agreement of the United States to accept back those people that are crossing at the end of Roxham Road, then Canadian officials who are already there dealing with those people as they come across could theoretically take them back to a regular point of entry … and give effect to those regulations at that place,” Mr. Blair said on March 15.

The legal community is divided over whether the proposal would violate the Supreme Court’s landmark 1985 Singh decision, which found that all refugee claimants on Canadian soil are entitled to an oral hearing.

Errol Mendes, a constitutional law professor at the University of Ottawa, says the Singh decision would apply to asylum claimants who cross into Canada between official points of entry and express fear of persecution.

“The only way you can get around it is if they don’t claim that they’re seeking asylum, but once they do, the Singh case covers it,” Prof. Mendes said. “This is really tricky.”

However, refugee lawyer Lorne Waldman has a different interpretation of how the Singh decision would apply to Mr. Blair’s proposal.

“There doesn’t have to be a hearing … [because it’s assumed] the U.S. is going to give them a fair hearing,” Mr. Waldman said.

He added that while it may be legal to send refugee claimants back to the United States at the moment, a continuing Federal Court challenge may change that. In 2017, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches launched a legal challenge to change the designation of the United States as a safe country for refugees. The groups argue that the rights of refugees have been stripped under the Trump administration. The Federal Court will take at least another year to issue a decision, Mr. Waldman said.

Craig Damian Smith, an immigration expert at the University of Toronto, said the political calculus for Mr. Trudeau is clear: He wants to shore up Liberal support in Quebec and in the 905 suburbs around Toronto, where anti-refugee sentiment boiled over into protests against asylum seekers arriving from the United States last summer. While tightening the STCA will cause some advocates for refugees to sour on the Prime Minister, there are not enough of them to matter electorally.

Still, the government’s proposed changes to the deal would clash with Canada’s image as a country that welcomes asylum seekers.

“The optics of that – pushing people back across the border, when right now we see friendly RCMP greeting people – what are they going to look like when they start chasing people down? That’s not good,” said Mr. Smith, associate director of the Global Migration Lab at the Munk School of Global Affairs and Public Policy.

It’s not clear exactly when Canadian officials first reached out to their U.S. counterparts to discuss reopening talks on the STCA. Mike MacDonald, an associate assistant deputy minister at the Immigration Department, told a parliamentary committee in May, 2018, that Canada had been in talks with the United States for “several months.”

Immigration Minister Ahmed Hussen and Public Safety Minister Ralph Goodale met with Ms. Nielsen last year to talk about the matter. Mr. Blair was the first minister to write to Ms. Nielsen last September, shortly after he was appointed the government’s first Minister of Border Security and took over the irregular asylum seekers file from Mr. Hussen.

Source: Canada, U.S. move to redraft border treaty to cut flow of asylum seekers

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

2019/03/27 Leave a comment

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

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

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

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

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

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

However, closing the STCA loophole is a complicated proposition.

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

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

More asylum-seekers come to Canada

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

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

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

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

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

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

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

A dangerous incentive

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

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

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

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

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

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

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

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

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

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Chris Selley: Look who’s talking tough on border security now

2019/03/22 Leave a comment

We will see if the US administration is really willing to accept such a change to the STCA given their overall anti-immigration rhetoric and policies. Why would the US do this favour for Canada as there is nothing in it for them?

But Selley’s observations of the change in tone and focus are valid:

The federal Liberals have always bristled at the suggestion that tens of thousands of “irregular” border crossers from the United States might constitute a problem. The system, they insist, works just fine. “This process is working to keep us safe,” Prime Minister Justin Trudeau told The Canadian Press before Christmas, and he accused the Conservatives of deliberately trying to frighten Canadians into believing otherwise. “It’s always easier to try and scare people than to allay fears in a time of anxiety,” he said. In January, Immigration Minister Ahmed Hussen accused the Conservatives of planning “to militarize the border,” which is certainly not an example of trying to scare people rather than allaying their fears.

One of the ideas the Conservatives have long supported is “closing the loophole” in the Safe Third Country Agreement (STCA) that allows “irregular” arrivals — those who cross between official border posts — to claim asylum. (There’s no point blaming them: If they tried to arrive “regularly,” they would be turned back.) The idea has long been dismissed as unworkable, if not unconstitutional.

But wouldn’t you know it, in an interview with The Globe and Mail this week, Border Security Minister Bill Blair said he was in negotiations with Washington on precisely this point.

“If, for example, there was an agreement of the United States to accept back those people that are crossing at the end of Roxham Road (in Champlain, N.Y.), then Canadian officials … could theoretically take them back to a regular point of entry … and give effect to (the STCA) regulations at that place,” Blair said — i.e., would-be asylum-seekers actually apprehended crossing the border would be sent back.

It’s not clear why the Americans would agree to this: If thousands of non-citizens want to decamp and take their chances in Canada’s refugee determination system, one suspects President Donald Trump would be most inclined to let them. But it’s intriguing enough the Canadian government now wants to be seen pursuing the idea.

“Closing the loophole” might be difficult to negotiate, but unlike everything else the Liberals have tried, it would almost certainly accomplish the goal they can never quite admit to having: To keep these people away. The most resourceful and desperate migrants would try to sneak across the border and claim asylum inland, once it couldn’t be proven how they arrived — a dangerous and potentially deadly undertaking and an invitation to human smugglers, Liberals would argue if they were in opposition. But that’s infinitely more complex an undertaking than packing your suitcases, bundling up the kids and clambering over the border into a waiting RCMP car. The vast majority of people would be dissuaded.

It’s clear enough heading into the election campaign that the Liberals want to be seen fighting irregular border crossers rather than managing them as the legitimate asylum-seekers they always insisted they were.

The federal budget’s section on border security, meanwhile, is altogether extraordinary. It claims that “elevated numbers of asylum seekers, including those that have crossed into Canada irregularly, have challenged the fairness and effectiveness of Canada’s asylum system.” It proposes to target “individuals who cross Canadian borders irregularly and try to exploit Canada’s immigration system.” It moots “legislative amendments … to better manage, discourage and prevent irregular migration.”

This is the same government that has sworn blind no one is jumping any queue, that everyone is entitled to equal treatment under the system no matter whence they arrive, that the system is working perfectly — all repudiated in a single paragraph.

It adds up to a $1.18 billion commitment over five years. And the proposals are vague enough that Finance Minister Bill Morneau doesn’t seem to understand what they entail: “If someone comes across the border (and) claims asylum, we want to make sure we process that quickly so they either are moved back to where they came from, if it’s inappropriate, or in the case where they are legitimately seeking asylum, we deal with them in a compassionate and rapid way,” he told reporters on Tuesday. That’s baffling. How do you decide what’s an “appropriate” or “legitimate” claim without adjudicating the damn thing?

Nevertheless, it’s clear enough heading into the election campaign that the Liberals want to be seen fighting irregular border crossers rather than managing them as the legitimate asylum-seekers they always insisted they were. The way to do the latter would be to spend scads more money hiring scads more people than they already have to adjudicate asylum claims as normal — only much, much quicker. That was what refugee advocates argued for nearly 20 years ago, when hundreds of people headed north for fear of a post-9/11 immigration crackdown. Refugee advocates lost the argument; the STCA, ratified under Jean Chrétien’s Liberal government, put an end to the northbound queues at border crossings; and most everyone in Canada instantly forgot those people ever existed.

A significant political headache had been expertly healed. It’s both telling and appropriate, as Trudeau’s government rapidly abandons its touchy-feely schtick, that the Liberals would land again on a “get tough” approach at the border.

Source: Chris Selley: Look who’s talking tough on border security now

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