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| Maureen Silcoff |
Based on statistics provided by the Immigration and Refugee Board for last year, almost two thirds of asylum-seekers who arrive in Canada irregularly are granted refugee status. But, under the revised Canada-U.S. Safe Third Country Agreement (STCA), the border is now effectively sealed and nearly all of these asylum-seekers will be turned back. With over 39,000 people crossing at Roxham Road in 2022, this means approximately 24,000 individuals who require Canada’s protection will be turned away each year going forward.
Notably, the acceptance rate for those who enter Canada at official ports of entry is almost identical to those who enter at Roxham Road or other irregular crossings.
Until March 25, 2023, when the new STCA took effect, irregular crossers would be permitted to enter Canada and likely would have access to the Immigration and Refugee Board, where they would have testified about their refugee experience and presented corroborative evidence in support of their claim.
A Ugandan person fleeing persecution because they are gay may have presented evidence about being assaulted and harassed by the police. They could have pointed to evidence that under Uganda’s new sweeping anti-gay laws, simply being gay puts them at risk of serious harm. Perhaps their partner would have testified. And chances are, the tribunal would have found them to be a refugee based on their well-founded fear of persecution should they return to Uganda.
The same applies to other refugee applicants who had crossed into Canada at Roxham Road, such as Afghan women facing gender-based persecution from the Taliban and Iranian women who participated in political protests.
But under the new STCA, they are barred from entering Canada regardless of the merits of their claim or their ability to get protection in the United States.
A Canada Border Services Agency officer will determine whether they meet an exception to the STCA, and if not, will return them to the United States. Not only will they be prevented from presenting their refugee application to the Immigration and Refugee Board, they face possible imprisonment in the United States. That system routinely jails asylum-seekers, particularly those who are in the removal stream, which is the system that encompasses asylum claim processing. They then face possible deportation to their country of origin, where they fear renewed persecution.
The Canadian government knows this. It knows that the mode of entry to Canada says nothing about the merits of a refugee claim. It knows the harsh and irreversible consequences of turning back asylum-seekers at the border. It knows that the U.S. detention system fails to comply with United Nations High Commission for Refugee standards for asylum-seekers.
Moreover, Canada knows that during the pandemic border closure, the United States jailed a significant number of asylum-seekers after Canada turned them away at the border without clear instructions on when and how they could return. One person was deported from the United States while waiting for the border to re-open. Another was pulled off the plane at JFK Airport after a pro bono U.S. lawyer obtained a last-minute injunction against their deportation. Still others were moved from their jail cells to await deportation from a pre-deportation facility not knowing minute to minute whether their name would be called and they would be transported to the airport.
This is the future for desperate individuals who are now barred from Canada.
In 2012, then Immigration Minister Jason Kenney introduced a series of restrictive amendments to the Immigration and Refugee Protection Act and implemented harsh policy changes for refugees.
The Federal Court found in Canadian Doctors For Refugee Care v. Canada (Attorney General), 2014 FC 651 that cuts to refugee healthcare violated equality rights under s. 15 and constituted cruel and unusual punishment under s. 12 of the Canadian Charter of Rights and Freedoms.
A short time later, the Federal Court determined in Y.Z.v. Canada (Citizenship and Immigration), 2015 FC 892 that an inferior refugee process for nationals of certain designated countries violated s. 15 of the Charter.
When the current government was elected in 2015, it promptly withdrew pending appeals started by the former government in both cases, a nod to Canada’s legal obligations for refugees. Are asylum-seekers less worthy of Canada’s protection in 2023? Or has the political firestorm about Roxham Road consumed Canada’s commitment to save the lives of those who arrive at our border?
Maureen Silcoff is a partner at Silcoff Shacter in Toronto and practises in the areas of refugee and immigration law. She was a member of the Immigration and Refugee Board for five years and is the past president of the Canadian Association of Refugee Lawyers.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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