A couple of weeks ago I suggested that we should close a loophole in out border security/refugee determination system by ending the Safe Third Country Agreement (SCTA) because, it seemed to me, and others, that it was actually encouraging would-be refugees to cross the Canada/USA border illegally in order to circumvent our laws.
Now, in an article in iPolitics, Howard Anglin, executive director of the Canadian Constitution Foundation, a registered charity dedicated to defending and promoting constitutional rights and freedoms and former Chief of Staff to the federal minister of Citizenship and Immigration (Jason Kenney) and deputy chief of staff to Prime Minister Stephen Harper, explains some of the origins of the STCA.
After explaining the origins of modern refugee policy in 1947 and ’51, he says that “The STCA is based on the principle that people fleeing persecution should seek protection in the first safe country in which they come to rest, and not engage in forum-shopping among foreign countries. Echoing the observation of the French delegate back in 1951, Manley explained that “it’s not a matter of shopping for the country that you want; it’s a matter of escaping the oppression that you face.” Requiring asylum seekers to make their claims where they first land would mean that Canada could focus on “the real problem that exists in the world, of giving shelter to some of those who seek, because of political or other forms of oppression, to come to a safe country,” as opposed to expending resources on people who have already found themselves in the relative safety of the United States and who should avail themselves of the asylum system there … [and] … The logic of 1951 and 2002 still applies today. Alarmist interpretations of President Donald Trump’s Twitter feed notwithstanding, the United States remains a free country with an independent federal judiciary that enforces the provisions of the 1951 Convention. President Trump’s executive orders have not changed that. His orders concern travellers to the United States from specified conflict zones; they do not alter or affect the processing of refugee claims by people already in the country.” That’s all true and I agree with all of it.
Next Mr Anglin looks at what went wrong and who is to blame for some of it: “Despite the clear intent of the 1951 Convention,” he says, “I don’t entirely blame the Trudeau government for failing to act more decisively. During half a century of relative immunity from irregular migration flows, the Canadian refugee system — an assemblage of players including the lobbyists at the Canadian Council of Refugees, the lawyers of the refugee bar, a national network of settlement organizations, congeries of anarchical activists and agitators, policy advisors at the Departments of Public Safety and Immigration, and the federal judiciary — has moved so far from the underlying principles of the 1951 Convention that common sense solutions like escorting border crossers back to the United States (as that scrupulous French delegate sought assurances France would be able to do) are now considered impossible, if they are even considered at all. The clear text of Article 31 has become a legal palimpsest, hardly visible under decades of bureaucratic overwriting and judicial overreaching … [but] … even with one hand tied by the courts and the other by the public service, a government still has a voice. Here, Trudeau can be fairly blamed, because he has chosen to use his voice to encourage unnecessary and irregular migration. It is hard to believe it’s a coincidence that, as the Canadian Press reported last week, asylum claims in Canada began increasing not with the election of Donald Trump but with the election of Trudeau’s Liberal government a year earlier. And after his January 28, 2017 tweet, with its hashtag “#WelcomeToCanada” — which was widely interpreted as offering sanctuary to anyone who could make it to Canada — who could blame potential migrants from taking him at his word? If the hundreds of border crossers who have braved the Canadian winter (“Just the worst time of the year for a journey … The ways deep and the weather sharp”) swell into tens of thousands when the snow melts, Trudeau’s indulgent and unnecessary tweet will be his Merkel moment.“
“Migrant flows,” he says, “are sensitive to signals, and especially signals backstopped by action. People don’t travel halfway around the world, or decide to leave the safety of the United States, on a whim. They research, they listen to those who have make the journey before. Sometimes they pay organized smugglers. Always they weigh the costs and benefits of different routes and destinations. Countries perceived as offering generous benefits or having lax refugee laws are particularly vulnerable to forum-shopping migrants. There is a reason North Africans and Afghans arrive in Greece and ask for directions to Germany, and it is the same reason that — again, according to the Canadian Press — people are now landing in the United States with visas issued by the U.S. embassy in Saudi Arabia and hiring taxis to take them to the Quebec border.” (I have not double checked Mr Anglin’s sources, I trust him to accurately and fairly cite his sources, the Canadian Press, in this case.)
So far I still agree with Mr Anglin’s reasoning, but I also still agree with scrapping the Safe Third Country Agreement. Howard Anglin has a different idea: if, he says, Prime Minister Justin Trudeau really “wants to send a real signal to would-be border crossers, Trudeau needs to go still further and publicly declare his intention to negotiate an expansion of the STCA to cover those crossing the border illegally … [and] … That message should be reinforced by enforcing a Harper-era anti-human smuggling law that allows the government to detain migrants until their refugee claims can be finally heard when there is evidence that they entered Canada irregularly using the services of a paid third party … [and. further] … The government also should publicize every rejected asylum claim, ensuring that the news is fed into the informal communications channels that migrants use in the United States and abroad. Possibly the best money Immigration Canada ever spent was $3,000 to erect billboards in eastern Hungary in 2012, telling would-be asylum seekers that Canada’s new refugee laws meant failed claimants would be returned home quickly, and to publicize the returns of those whose claims were rejected. Within a year, what had been the highest per capita flow of asylum claims from any single country to Canada had stopped … [because] … Signs, like signals, apparently make a difference. Stories beamed around the world and shared on social media of border crossers being arrested, of rejected claims, and of swift removals from Canada back to their countries of origin (not just to the United States) would go some way to countering those photos of the RCMP helping migrants with their luggage, as though our national police force had been reduced to complaisant border bellhops.“
I have one problem with Mr Anglin’s suggestion: it depends on Prime Minister Trudeau actually wanting “to send a real signal to would-be border crossers.” I don’t think he does. I think this goes back to one image that flooded the world’s news media in 2015 … a tiny boy lying dead on a beach in Europe, a symbol of the multiple, usually self-inflicted, tragedies that beset South West Asia, the Middle East, and Africa. I think that Justin Trudeau and his campaign team, like most Canadians, like me, in fact,* said, “Oh, my god. Someone must … we must do something.” It wasn’t cynical, it was a real, honest, heartfelt reaction to a tragedy.
The government of the day (Stephen Harper’s Conservative government) reacted cautiously, slowly, tentatively, responsibly … the Liberals, on the other hand, reacted swiftly and decisively: promising to take in 25,000 refugees as soon as they were elected … I suspect it, that one, honest, decisive, heartfelt response, may have earned them over 1,000,000 votes, many from first time voters … they only won the election by 1.3 million votes. I believe that Team Trudeau still believes that we can and should accept more and more refugees; thus I doubt he wants to send any message at all, except “welcome to Canada,” to migrants.
Still, Howard Anglin’s suggestion makes a lot of sense because, as he says: “When deciding how to think of the recent border crossings and those to come, we should put ourselves back in that room in Geneva in 1951, at the drafting table next to the fractious French and British delegates. Had someone interrupted them to ask what would happen if a “refugee” crossed from the United States to Canada, the question hardly would have made sense. The idea that the 1951 Convention would apply to someone who had made it across the Atlantic Ocean to the safety of America would have been absurd to the point of incomprehensibility. Most Canadians instinctively understand that, and the government should begin remaking its refugee policy starting from that presumption.” Most Canadians might, indeed, “instinctively understand that” but I’m not convinced that many Liberals do … they understand that, for now, being generous towards refugees is good politics.
* I was horrified, too, but my reaction was to propose that we, using the defence budget, amongst other resources, should try to strengthen Jordan’s capacity to provide refuge in the Middle East.