How can Canada respond to irregular migrants?

Sonal Marwah Featured, News

The arrival of recent irregular migrants to Canada in context 

Frightened people are showing up in border towns in Manitoba, Québec, and British Columbia. They have braved freezing temperatures to venture across snowy fields or uncharted brush. Some arrive with severe cases of frostbite or other injuries and end up in hospitals.

A potential crisis?

The number of irregular migrants (persons whose arrival is not in accordance with the immigration laws of the destination country) crossing the border from the United States into Canada has been increasing in recent months, as shown by data from Immigration, Refugees and Citizenship Canada. In January-February 2017, 1,134 people were apprehended. The total for all of 2016 was 2,464.

Why are these migrants not going to official border points to request asylum in Canada? Because, whether or not they have had or will have access to asylum in the United States, they will be returned there. Under the 2004 Canada-U.S. Safe Third Country Agreement (STCA), “refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement.” The United States is the one country designated a safe third country by Canada. Exceptions exist for unaccompanied minors and people with family in Canada.

The STCA applies to refugee claimants “who are seeking entry to Canada from the United States at Canada-United States land border crossings, by train, [and] at airports.” The STCA is enforced at airports if “a person seeking refugee protection in Canada who has been determined not to be a refugee in the United States, has been ordered deported from the United States and is in transit through Canada for removal from the United States.”

Mexican migrants wanting to claim asylum in Canada face further difficulties.

In 2012, the Canadian government introduced the concept of Designated Countries of Origin (DCO) in Bill C-31. DCO are countries “that do not normally produce refugees, but do respect human rights and offer state protection.” The implication is that citizens of these countries who apply for asylum must be “bogus” claimants. Claimants from supposedly “safe” countries who reach Canada have fewer procedural rights and a shorter period in which to submit their asylum claims than claimants from countries not on the DCO list.

The DCO list of 46 countries includes the United States and most countries in the European Union. In 2013 Mexico was added and has been kept on the list even though it is reeling from escalating criminal violence, which has resulted in large-scale displacement (an estimated 287,000 in 2015).

Mexicans have been fleeing this violence and some are coming to Canada. It has been reported that the Canada Border Services Agency (CBSA) detained more Mexican migrants in the first two months of this year than they did in the entire previous year. Some attribute the increase to Canada’s lifting its visa requirement for Mexican citizens last December, but this change did not create the desire or need for asylum. Rather, lifting this requirement allows Mexican migrants who want to apply for asylum in Canada a safe and dignified process to follow.

The first official contact these new arrivals have is with the Royal Canadian Mounted Police, who arrest them, but do not document those who file an inland refugee claim. The CBSA and the Immigration department track asylum claims differently. At this point it is hard to establish the extent to which recent irregular arrivals will add to the total number of inland refugee claims being filed in Canada or increase the overall refugee intake. The process to determine refugee status for inland refugee claims takes well over a year.

Why leave the United States?

Some people are fleeing in response to U.S. President Trump’s immigration Executive Orders targeting migrants and asylum seekers, even though both orders have been suspended by judges. The second Executive Order, passed March 16, placed a 90-day ban on visas for people from six Muslim-majority countries and a 120-day ban on all refugees, including Syrians (who were subjected to an indefinite ban in the first Executive Order).

Critics say that the Executive Orders violate international law, including refugee law; generate anti-refugee and anti-Muslim sentiments; include country-based discrimination; and will lead to mass detentions and expedited removals of some groups without due process.

President Trump’s vow to crack down and expedite deportations of undocumented migrants is another important factor, affecting especially Mexicans, the largest undocumented group (estimates put the figure at 5.8 million people). Trump also intends to cut federal funding to sanctuary cities (places in which non-status migrants have access to city services, regardless of immigration status and without fear of being turned over to border enforcement officers), making life in the United States more difficult and precarious for those without legal status.

Canada’s reaction

The RCMP has been adjusting its resources to track irregular migrants crossing the Canada-U.S. border, anticipating an increase in numbers as the weather improves. The Canadian government is prepared to partially restore the visa requirement on Mexicans if the number of asylum seekers surpasses 3,500 within any 12-month period.

But Canada should go beyond reactions and take the opportunity to advance proactive policies to prevent the trickle of migrants from growing into a new humanitarian crisis.

Proactive policies Canada could consider

Relating to the STCA

Refugee advocates, lawyers, academics, medical charities, and faith groups in Canada are calling for the suspension of, or a pause in Canadian participation in, the STCA, although Immigration Minister Ahmed Hussen has said that Canada has no such plans.

If the STCA were suspended, people who want to make a refugee claim in Canada would be able to do so in an orderly and safe manner. This would not only benefit asylum seekers, but would allow the Canadian government to control and manage its borders more effectively.

If the STCA remains in effect, the Canadian government must effectively monitor the U.S. situation to determine if the United States is indeed “safe” for refugees.

Relating to a cap on Mexican asylum claims

The cap of 3,500 asylum claims from Mexico in a 12-month period is clearly arbitrary and discriminatory. International principles of refugee protection require that each asylum claim be reviewed on its own merit.

U.S. targeting of undocumented migrants, when combined with Canada’s cap on asylum claims from Mexico, makes the North America region increasingly inaccessible to asylum seekers. The consequences of such restrictive migration policies will have a high human cost. Recent tragedies in the Mediterranean show that closing borders and limiting legal avenues for would-be asylum seekers does not automatically lead to less migration. Instead people on the move are forced to face more dangerous journeys that put them at greater risk.

Relating to Mexico’s inclusion on the DCO list

Legal and advocacy communities have repeatedly called for Mexico to be taken off the DCO list, citing the heightened dangers faced in Mexico by a variety of groups, including women experiencing domestic violence and LGBTQ individuals and those living with HIV. Not only do they face violence, illness, and persecution, but they lack real access to the justice system.

Such a policy change can be taken unilaterally by the Immigration Minister, who has sole discretion to designate a country as “safe.”

Next steps?

In today’s interdependent world, the protection of forcibly displaced persons is a collective responsibility and a concern of everyone. The problems are complex and solutions must be seen in social, political, and economic contexts. Formulating agreeable multilateral responses and putting them into action are taking considerable time. In the meantime, we must not leave individuals and families to be caught in the politics and suspended in limbo. Responding effectively to asylum claims is not only a matter of generosity or altruism, but a well-established legal obligation under international law.

Canada must work to prevent the re-victimization of irregular migrants and asylum seekers entering Canada from the United States. It cannot allow people to be sent back to the United States to face unsafe conditions there or expedited deportations to other unsafe countries.

Given the current political circumstances in the United States, the scale of the global refugee situation, and the tragedies that have befallen refugees attempting to enter Europe in the absence of adequate legal avenues to claim asylum, the time seems right for Canada to reconsider the implications of the STCA, the cap on Mexican asylum seekers and Mexico’s inclusion on the DCO list. The implementation of relevant proactive and preventive policies will help to ensure that they are in line with the principles and obligations of the refugee protection regime.

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