On June 28, 2002, 51 years after the United Nations adopted the Convention on the Status of Refugees, the governments of Canada and the United States announced that they had negotiated the first draft of an agreement that would limit the rights protected in the Refugee Convention. According to this new agreement, refugee claimants who seek Canada’s protection at the U.S.- Canada border would be turned away and forced to make their claim in the United States instead.
The Agreement is based on the prin- ciple that the determination of refugee status should rest with the first of the two countries to receive the asylum-seeker. Supporters contend that the Refugee Convention does not require a signatory to hear any particular refugee claim, but does required a signatory to avoid send- ing refugees back to persecution. The reality, however, is that differences between the U.S. and Canadian refugee systems can result in refugees who are returned to the United States ultimately being returned to countries where they face persecution. There is therefore the very real question of whether Canada, in sending claimants back to the United States, risks violating its Convention obli- gations not to send refugees back to per- secution. The implementation of the Agreement would have significant nega- tive implications for the approximately 14,000 asylum-seekers who come to Canada via the United States.
The Canadian Council for Refugees (CCR) is opposed to an agreement that would deny asylum-seekers access to Canada’s refugee determination system, and has, because of the exclusionary nature of the Agreement, dubbed it the None Is Too Many Agreement (echoing the answer given by a Canadian official when asked how many Jewish refugees Canada would accept during World War II"”œnone is too many”).
Since 1989, Canadian law has per- mitted the refusal of refugee claimants on ”œsafe third country” grounds, but the provision had never been used. In the mid-1990s the U.S. and Canadian governments drafted an agreement similar to the one currently on the table, but negotiations were abandoned before it could be finalized.
In recent times, a series of events has made the environment in Canada more receptive to such an agreement. The aftermath of September 11 has seen an increased sensitivity to terror- ism and security. The general public has somehow linked immigration and refugees with terrorism, and increas- ingly supports the idea of a ”œfortress North America.” Moreover, the num- ber of people seeking asylum in Canada has increased in recent years, reaching 44,718 in 2001. While num- bers have decreased significantly in recent months (early estimates suggest that there will be approximately 31,000 claims made in 2002), government officials worry that the refugee deter- mination system, which has the resources to process about 30,000 claims annually, will be unable to cope if arrivals are not reduced.
Rather than explore options for addressing the increased numbers with non-governmental partners, the govern- ment has apparently chosen to counter the refugee crisis with the Safe Third Country Agreement. Despite the tremendous groundwork necessary to prepare for the June 28 implementation of the new Immigration and Refugee Protection Act, the Canadian government was determined to make headway on this new initiative at the same time. Thus, in late June 2002, high-ranking officials of both countries initialled the first draft of the Agreement.
In the preamble to the draft Agreement, both governments re- affirm their commitment to refugee pro- tection as outlined in the 1951 Geneva Convention [the Refugee Convention], the 1967 Protocol and the Convention against Torture. They also speak of the ”œgenerous” systems of refugee protection offered by both countries and their shared commitment to the ”œnotion that cooperation and burden-sharing with respect to refugee status claimants can be enhanced.” The preamble is couched in rhetoric about ”œstrengthening the integrity of that institution [the interna- tional protection of refugees] and the public support on which it depends” and ”œpromoting the orderly handling of asylum applications,” providing ”œaccess to a full and fair refugee status determi- nation procedure as a means to guaran- tee that the protections of the Convention, the Protocol and the Torture Convention are effectively afforded.” The main thesis of the Agreement stipulates that officials in the country of last presence (the country the refugee claimant exited immediately prior to making a refugee status claim at a land border port of entry) shall exam- ine the refugee status of a claimant who arrives at a land border-crossing.
The 10 articles that constitute the draft Agreement define terms and set parameters for the persons to whom the Agreement applies, identifying exceptions who would be allowed to make a claim in the receiving country, such as persons who have a family member with established status or unaccompa- nied minors. The Agreement covers the treatment of persons in transit, giving each country the discretion to examine any claim it wishes, if deemed in the public interest.
The final articles of the Agreement address its operationalization and pro- vide parameters for its suspension and termination. Article 9, however, is an extremely ill-placed article which addresses resettlement, and requires each country to endeavour to assist the other ”œin the resettlement of persons determined to require protection in appropriate circumstances.” Translated, this means that Canada might resettle persons whom the United States decides need resettlement but does not neces- sarily want to resettle in the United States"and vice versa.
The placement of this very vague arti- cle in the text of this Agreement is an anomaly, and raises serious questions about the rationale behind its inclusion. It gives the strong impression of represent- ing a trade-off, particularly since the Minister of Citizenship and Immigration mentioned at a press conference on June 28 that, as part of the deal, Canada was accepting 200 refugees a year from the United States. This part of the Agreement has not been publicly disclosed (a lack of transparency that is itself disturbing), but it appears that Canada is agreeing to give up its sovereignty in allowing the United States to identify persons to be resettled in Canada.
The new ”œNone Is Too Many” Agreement is seen by the govern- ment as a critical ingredient in the man- agement of the Canadian refugee system. Refugee rights organizations have a differ- ent view, however, and have opposed this Agreement for several reasons. The CCR’s opposition is based on the belief that it will reduce access to the Canadian deter- mination system for many asylum-seek- ers who would not necessarily be recog- nized by the U.S. system. While the Canadian and U.S. refugee systems are similar, there are significant differences" differences that would result in some refugees being accepted in one country but not the other. As long as such differ- ences between the two systems do exist, it is incompatible with each country’s inter- national obligation to refuse to hear claimants simply on the grounds that a claim could be made in the other country. These differences prevent the United States from being a ”œsafe” third country. The danger of categorizing any country as totally safe for all individuals is well documented in refugee protection literature. This Agreement makes the assump- tion that the United States is a safe coun- try for all asylum-seekers. Professionals working with refugees are convinced that the differences between the two sys- tems will often work to the detriment of many of the asylum-seekers who may be turned away at Canadian border points without a hearing. Differences between the two systems that work to the detri- ment of asylum-seekers in the United
Detention. The United States detains based on nationality as well as on racial and group profiling (a special policy adopted at the end of 2001 denies detained Haitians the possibility of release).
Gender-based persecution. Women fleeing domestic violence are more likely to be recognized by the Canadian system.
Detention of children. While the detention of children is a last resort in Canada, the United States detained over 4,000 children in juvenile and adult jails, shelters and detention facili- ties in 2001.
The United States has not yet ratified the Convention on the Rights of the Child.
As a general rule, asylum-seek- ers cannot make a claim after having spent one year in the United States.
The situation for refugees in the United States seems to be about to worsen. Plans are underway to place the U.S. Immigration authorities with- in the new department of Homeland Security. Rules for the Board of Immigration Appeals are also being changed in an effort to clear the back- log"according to the Lawyers Committee for Human Rights (LCHR), proposed changes would allow only 15 minutes per hearing. Now is cer- tainly not the time to be aligning Canadian structures with a deteriorat- ing U.S. system.
Other factors that are cause for concern involve the practical aspects of implementing the Agreement, which will prove a bureaucratic night- mare following on the heels of the recent overhaul of the Immigration Act. It will be difficult to determine which claimants are entitled to claim in which country. Valuable resources will be diverted to determining whether exceptions are met, and systems will have to be developed for accommodat- ing claimants while the exceptions are being investigated.
Finally, the tightening of the bor- der will not necessarily result in reduced numbers of claimants, as des- perate asylum-seekers will seek alterna- tive ways of entering Canada. A similar policy in Europe has seen overwhelm- ing increases in smuggling and in organized crime. As the ”œNone Is Too Many” Agreement is implemented, the current orderly process will become a fond memory, as the use of smugglers and the attendant increase in organized crime result from the need to seek new options.
The number of persons seeking asy- lum in European countries has risen significantly over the past two decades. In an attempt to stem the flow of refugees to a particular country, the notion of a ”œsafe third country” evolved, and the Dublin Convention of 1990 was introduced. This convention determined the state responsible for examining applications for asylum lodged in one of the member states of the European Union. The Convention states that ”œany member state shall retain the right, pur- suant to its national laws, to send an applicant for asylum to a third state, in compliance with the provisions of the Geneva Convention, as amended by the New York Protocol.” In 1995, the European Council on Refugees and Exiles (ECRE) explored the impact of the concept in a paper entitled ”œSafe Third Countries"Myths and Realities.” The following paragraph quotes extensively from that paper.
In Europe, the notion of a ”œSafe Third Country” was justified by the claim that the measures would address several refugee-related problems affect- ing European authorities. These includ- ed the problem of refugees in orbit; the obligation not to return refugees to per- secution; the need for a mechanism for burden-sharing; so-called bogus refugees; and ”œasylum-shopping.”
The ECRE report methodically reviews the results of five years of the implementation of the agreement and states that ”œthere is cause for concern,” as the concept has, paradoxically, worsened many of the problems which it was devised to address.
The safe third country measures were intended to reduce the incidence of refugees in orbit by guaranteeing that every request for asylum would be fully examined by one of the contract- ing states. In fact, the number of refugees of indeterminate legal status has increased. Asylum-seekers have responded to the new rules with des- perate attempts to get rid of evidence of passage through other countries. Smuggling of refugees, often in horrif- ic conditions, has increased.
While the Refugee Convention prohibits the return of a refugee to the fron- tiers of territories where her life or free- dom would be threatened, the imple- mentation of the safe third country con- cept in Europe has compromised this principle. ”œBy not ensuring that asylum seekers can gain access to the territory and to a fair refugee determination pro- cedure in the receiving country, sending States risk, directly or indirectly, violat- ing the principle of non-refoulement and thereby abrogating a fundamental principle recognized in customary inter- national law.” The differences between the Canadian and American systems make this outcome equally likely in our case, and steps must be taken to ensure that asylum-seekers are not sent back to the U.S. if they are not likely to receive a fair hearing.
In Europe, the burden-sharing pro- cedure was found to be a ”œburden- adding” system, as the same asylum- seeker goes through admissibility proce- dures in one or more countries until he ultimately finds a country willing to enter into the substance of his case. While the Canada-U.S. agreement involves only two states, the bureaucra- cy involved in determining exactly which claimants are entitled to claim in Canada will a diversion of resources away from determining whether claimant need protection, to determin- ing whether claimants meet the excep- tions in the Agreement. And while the refugee is re-traumatized by the process of waiting to see if she/he is indeed an exception, other psychological costs are accrued.
Finally, the ECRE report addresses the concept of the Agreement prevent- ing ”œasylum-shopping,” as it would take away choice from the claimant and only one country could examine a claim. The notion of taking the choice away from the asylum-seeker contravenes the UNHCR Executive Committee’s conclusions, which ”œclearly state that the intentions of the asylum seeker as regards the country in which he wishes to request asylum should, as far as possible, be taken into account.” Furthermore, the Executive Committee states that asylum ”œshould not be refused solely on the grounds that it could be sought from another state.”
If our government remains committed to rushing through an agreement, asylum-seekers should, at the very least, have the chance to choose the country in which they make their claim. Asylum-seekers should have access to a hearing in at least one of the two countries, and the more generous eligibility screen should apply (claimants should have access to determination in the receiving country if they would be ineligible in the country of last presence).
The principle of family reunification should transcend any such agreement, and the claimant’s right to counsel should be enshrined. Persons being returned to either country should not be detained unless they represent a danger to security or to the public, and children should be detained only as a last resort. Discretionary power should be used to allow the following persons to be admitted to Canada for determination: claimants who have less chance of being accepted in the other country, including those with a gender-based claim; survivors of torture; people who would be detained if returned to the other country; claimants with particular physical or psychological health needs; people with no means of support in either country; people who have ties to the country, including linguistic ties, that will assist with integration; people who would not be allowed to make a claim in the other country. The system should be respectful and accountable to the persons it serves. Applicants must be treated in accordance with human rights standards and international principles of refugee protec- tion by the receiving country. After taking a decision (as per the ECRE) to return an asylum-seek- er to another state, the sending state should inform the applicant"in a language he or she under- stands"of the decision, provide the applicant with an opportunity to appeal the decision to an independent body and a document stating that the application for asylum had not been examined on its merits but was rejected solely on third-country grounds.
Finally, a system is only as good as its evaluation process. Monitoring systems must be built into any agreement, and the general public and the refugee protection community should regulary receive statistics indicating how the system is working.