Asylum and the Rule of Law in Canada ~ keeping the asylum seeker out of earshot

Asylum and the Rule of Law in Canada ~ keeping the asylum seeker out of earshot

Hukum Sumber Hukum


The general trend of Supreme Court of Canada jurisprudence over the past twenty years has been towards an increasing regard for the rights and interests of asylum seekers and migrants. There have been, of course, notable setbacks as well. Nevertheless, the Court has proved willing to use both the Charter and ‘unwritten constitutional principles’ embedded in the rule of law to establish that asylum seekers are protected under the Charter, that international law is relevant to the interpretation of Canadian statutes and constitution, and that the refugee definition should be interpreted in a relatively liberal fashion.

With the expansion of asylum seekers’ legal entitlements at and inside the Canadian border, came the logical (if pernicious) reaction of the state. As the audibility of asylum seekers in Canadian law was amplified within Canadian territory, the government redoubled its efforts to keep asylum seekers out of legal earshot. The basic strategy is to make it impossible for prospective asylum seekers to travel lawfully to Canada. Familiar non-entre´e mechanisms include requiring visas from citizens of ‘refugee-producing’ countries and then denying visas to anyone deemed likely to make a refugee claim; imposing liability on air and marine carriers who transport undocumented or improperly documented migrants; and deputizing private transportation companies as delegates of Citizenship and Immigration Canada. Canada also posts visa officers at foreign airports to check passenger documentation on planes bound for Canada. Most recently, Canada charged a US humanitarian worker
with smuggling (an offence under IRPA that carries a maximum life sentence) for transporting twelve Haitian asylum seekers to the USA–Canada border. Far from engaging in a clandestine commercial smuggling operation, the woman was an NGO volunteer who had notified Canadian Border Services Agency of her arrival in order to facilitate of the asylum seekers. Although the charges were dropped after public outcry in Canada, the government pointedly refused to clarify the scope of the smuggling law, and appears intent on retaining the threat of smuggling charges as an intimidation tactic to deter those who, for humanitarian reasons, assist asylum seekers in reaching Canada.

One assumption driving non-entre´e policies is that Canadian legal protection does not stretch beyond Canada’s territorial border to reach asylum seekers. Thus, exercises of state power outside Canadian territory – whether at visa offices abroad or at Heathrow Airport – are de jure or de facto immune from judicial review. The legality of deflecting asylum seekers stranded on the high seas was challenged and found not to breach the Refugee Convention by the US Supreme Court in Sale v. Haitian Centers Council, Inc. It exposed a gaping escape hatch for states wishing to evade their obligations under the Refugee Convention: the state’s obligations begin at the frontier, but there is nothing in law to stop the state from preventing the asylum seeker from reaching the frontier. In other words, the rule of law is regarded as a national enterprise that does not extend beyond territorial borders, rather than as a global or transnational project that might limit the capacity of individual states to frustrate the ability of individuals to access the protection that those very states had undertaken to provide.

The efforts of states to evade legal accountability for deflecting asylum seekers has been largely successful. As long as asylum seekers remains outside the border (or the territorial waters) of the state, the legal system remains deaf to their entreaties. Given this background, the as yet unfinished narrative of the Canada-US Safe Third Country Agreement emerges as a remarkable exception.

Modelled on the Dublin Convention (now the Dublin II Regulation), the Canada-US Safe Third Country Agreement requires the first country of arrival to determine the asylum claim in accordance with the relevant domestic legislation. Canada-bound asylum seekers who arrive at the Canadian border via the USA are deflected back to the USA, and vice versa. The agreement contains a few exceptions, most notably for unaccompanied children and those with relatives in the destination country.

Governments cite various related rationales in support of safe third country agreements. First, these agreements are intended to prevent ‘asylum-shopping’, whereby asylum seekers attempt to exercise a measure of choice over the destination state. Secondly, they purport to encourage equitable sharing of the responsibility or burden of receiving refugees among states, rather than allowing a situation where a disproportionate number of asylum seekers lodge claims in states with relatively more generous benefits and acceptance rates. Thirdly, governments sometimes claim that such agreements enhance states’ ability to manage asylum processing in an ‘orderly’ fashion. A subtext lurking close to the surface is a belief that many or most asylum claims are fraudulent, and that genuine refugees would gratefully and immediately seek protection in the first country they reached. The analogy is sometimes made to a drowning man grabbing the first lifeboat that comes along.

The history of the Canada-US Safe Third Country Agreement reveals that Canada had been lobbying the USA for an agreement of this type since the mid-1990s. The reason was simple: around 30–40 per cent of asylum seekers in Canada entered via a land border with the USA. In 2004, the year before the Canada-US Safe Third Country Agreement entered into force, about 13,000 asylum seekers entered Canada from the USA. During the same period, around 200 asylum seekers entered the USA from Canada.

Consistent with other non-entre´e mechanisms, a safe third country agreement with the USA would advance Canada’s policy of reducing the number of people claiming asylum in Canada. Of course, the obverse of this proposition is that it would increase the number of people claiming asylum in the USA. This explains why Canada failed in its bid to secure an agreement with the USA in the late 1990s.

After 9/11, the political landscape changed and policing the border became a central policy focus for the USA. The USA and Canada entered into a thirty-point Smart Border Action Plan99 that involved coordinating, harmonizing and collaborating on various policies and practices governing the movement of goods and people across the Canada–USA border. As with many aspects of US–Canadian relations, the USA held a distinct advantage in securing terms that advanced its interests, given that the size of its population and economy dwarf those of Canada. Nevertheless, negotiations surrounding the Action Plan opened up an opportunity for Canada to revive the safe third country agreement, and Canada succeeded in including it in a package that was ostensibly motivated by security objectives.

International law that use in this reference :

- Susan Kneebone, 2009. REFUGEES ASYLUM SEEKERS AND THE RULE OF LAW Comparative Perspectives. Cambridge University Press: New York.
international law reference

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