Posted on March 21, 2019

Canada, U.S. in Talks to Close Loophole in Border Pact on Asylum Seekers

Globe and Mail, March 18, 2019

Canada is in talks with the United States to close a loophole that has allowed more than 40,000 asylum seekers to cross the border at unauthorized points of entry, with Ottawa proposing changes that would effectively allow officials to turn away future asylum seekers.

Currently, the Safe Third Country Agreement (STCA) means most asylum seekers are turned away at authorized border crossings, but not at unofficial points of entry. The change Ottawa has proposed would allow Canadian officials to escort asylum seekers who enter at an unauthorized entry point to a designated crossing area, where they would be refused entry into Canada. The change would apply to the entire land border.

In an interview with The Globe and Mail, Border Security Minister Bill Blair said the STCA works effectively at authorized border crossings but needs to be modified.

“The agreement remains in effect and … is a good model, but there are unfortunately vulnerabilities within that agreement that if someone who presents at any other place other than a regular point of entry, the provisions of safe third country do not apply, so that’s part of the discussion that’s taking place,” Mr. Blair said.

The minister was in New York last week and Washington the week before discussing border security, including the STCA, with members of Congress and officials from U.S. Customs and Border Protection and the Department of Homeland Security.

The STCA requires Canada and the United States to refuse entry to asylum seekers who arrive at official ports of entry along the shared border, as both countries are considered safe for refugees. But since the agreement applies only to those who arrive at official ports of entry, asylum seekers can avoid being immediately turned away by crossing between border posts, requiring Canada to process most of their claims.

Most of those using the loophole have entered through a single unauthorized point of entry near Saint-Bernard-de-Lacolle, Que., located at the end of Roxham Road in New York State.

Mr. Blair said the STCA could be amended to allow Canadian officials to take asylum seekers who cross in Lacolle to an official border crossing nearby. There, the agreement could be applied, allowing Canada to refuse entry to the asylum seekers who were already in the United States.

“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 explained.

Asked whether this proposed measure would be transferable to other parts of the border in the case of a surge in asylum seekers outside Lacolle, Mr. Blair’s office said a change in the STCA would apply to the whole border.

Refugee lawyer Lorne Waldman said Mr. Blair’s proposed change to the STCA would not breach international law, as the United Nations Convention on Refugees allows for safe-third-country pacts. Rather, he said the question is whether sending asylum claimants back to the United States would violate their Charter right to life, liberty and security because of the risk they could be detained or persecuted under the Trump administration’s immigration policies.

Mr. Waldman said the government should consider improving Canada’s backlogged refugee protection system before amending the STCA.

“Before we start reforming the system and making changes that take away people’s rights … let’s see if we can make the system work more efficiently,” Mr. Waldman said.

Mr. Waldman said a more efficient system would ensure rejected refugee claimants are removed from Canada faster and, as a result, deter illegitimate asylum seekers from entering Canada.

Last July, Mr. Blair was put in charge of managing the surge in asylum seekers at the border when he was appointed as the Liberal government’s first minister of border security. The former Toronto police chief took over the file from Immigration Minister Ahmed Hussen, who provided few details to the public on the state of talks about the STCA while he oversaw the matter.

Mr. Hussen accused the Conservatives earlier this year of wanting to “militarize” the border with the United States in an attempt to stop the surge in asylum seekers, adding fuel to an already intense immigration debate between the Liberals and Conservatives. Tory immigration critic Michelle Rempel responded to Mr. Hussen by accusing him of “fear mongering,” saying her party has never suggested militarizing the border.

The Conservatives have repeatedly called on the government to close the loophole in the STCA, while the NDP has urged the Liberals to suspend the pact so asylum seekers in the United States can claim refugee status at official Canadian land border posts.

NDP immigration critic Jenny Kwan said Mr. Blair’s proposal to move asylum seekers who cross in Lacolle to an official border post, where they would ultimately be sent back to the United States, demonstrates the Liberals’ intention to “shut down the border.”

“All that is going to do is push people further into dangerous situations in trying to get to safety,” Ms. Kwan said. “The United States has created conditions that are not safe for asylum seekers.”