Canada V. US: Their Different Stances on Refugees

What is the current refuge policy in Canada?

Canada’s refugee policy is set out in the Immigration Refugee Protection Act (IRPA) and the associated Regulations. The Federal Court decisions, as well as the Federal Court of Appeal and the Supreme Court of Canada, also adjudicate and interpret the law. At this moment, the land border with the United States is closed except for emergencies. Individuals can still make refugee claims at an airport if they come directly to Canada. Previously, Canada and the United States had entered into an agreement called the Canada-US Safe Third Country Agreement (STCA).  This Agreement required that the refugee claimant make their claim in the first safe country they entered unless they met one of the exceptions under the Agreement, notably, having a close family member in Canada. However, the Federal Court on  22 July 2020 ruled that the STCA violated the Canadian Charter of Rights and Freedoms, therefore The Court gave the Canadian government 6 months to remedy the situation. The Government of Canada has Appealed the decision.

How much does this differ to your neighbour, the US?

There are many differences between the treatment of refugees in Canada and the United States. This is especially the case under the Trump administration. Both countries are bound by the 1951 Geneva Convention on Refugees, however, both countries have big differences in how they treat refugees. For example, Canada is a world leader in protecting women, but the US does not recognise spousal abuse as grounds for protection. The US also rejects cases if there was any association with a “terrorist” organisation, even if this was forced. Canada recognises duress and accepts claimants who are forced at risk of their life to work with terrorists or militant groups. The US separates children from their parents to punish refugee claimants. The Americans are returning refugees to the countries that they fear persecution without hearing their claims.

Advocates for refugees have long argued that the STCA violates international refugee law and Canadian constitutional law. What are your thoughts on this?

I concur with the recent Federal Court decision. Back in 2007 a Federal Court judge also declared the STCA unconstitutional. However, the Federal Court of Appeal overturned that decision. Lawyers and refugee advocates have long argued that the treatment of refugees in the US was unfair and illegal. The deportation of refugee claimants to countries where they have a genuine fear of torture and death was deeply troubling. The treatment of refugee claimants and the conditions of their detention was also very harsh.

Differences between the refugee determination systems in Canada and the US, as well as differences in the rights enjoyed by refugee claimants in both countries, mean that some people who would be recognised as refugees in Canada would be denied protection south of the border. What issues does this present for you and the cases you see?

I have had cases where the individual was rejected in the United States and the Immigration and Refugee Board Member accepted them based on the same evidence. However, at the present time under Trump, the treatment of refugees and Immigrants is appalling. Under Barak Obama things were much better. We will have to wait until the American Presidential election is over in November  2020 to see if there is a new US administration.

What changes would you like to see in this area?

In my opinion, the STCA should be scrapped until the United States meets the accepted legal standards for protecting refugees.

A Canadian court has determined that American detention practices are “grossly disproportionate[1]” and that Canada cannot be complicit by sending refugee claimants to the US to face these practices without violating constitutional rights. What are your thoughts on this and what do you predict will happen next? What should change for the better?

There was clear evidence that the treatment of asylum seekers in the US was “grossly disproportionate” and violated sections 7 and 15 of the Charter. This put refugee claimants who were returned by Canada to the US and then deported or “refouled” to their home countries where they were at risk of torture and other inhumane treatment. The Federal Court heard evidence that 70 refugee claimants had been murdered after being deported back to El Salvador. Unfortunately, this was not an isolated incident. The Federal Court also heard evidence of extremely harsh conditions in the US Immigration detention system.

How has the pandemic impacted immigration and how will this thus impact refugees or those seeking citizenship?

On 14 August 2020 the Minister of Citizenship and Immigration announced a special program for refugee claimants who were working in front-line positions in the fight against COVID-19. They would be eligible to apply for Permanent Residence in Canada if they met certain conditions. This is an excellent program that recognises the important role that “frontline workers” have and the risks they face in serving Canadians. Otherwise, Citizenship and Immigration and the Immigration and Refugee Board have been in a near lockdown mode since the COVID-19 quarantine started. It will take some time for the system to re-boot and of course the economy to recover. Those that have been able to make it to Canada have to quarantine for two weeks.  Collectively the impact has been severe and I do not expect that things will get back to normal until 2021.

Edward C. Corrigan
Barrister & Solicitor
Certified Specialist in Citizenship and Immigration
and Refugee Protection
383 Richmond Street, Suite 902
London, Ontario, Canada
N6A 3C4

(tel) 519-439-4015

www.edcorrigan.ca

Ed Corrigan holds a B.A. in History and a Master’s Degree in Political Science from the University of Western Ontario. Ed also has a Law Degree from the University of Windsor and was called to the Ontario Bar in 1992. On the 29th June 2004, the Law Society of Ontario (formerly the Law Society of Upper Canada) certified Ed Corrigan as a specialist in Citizenship and Immigration law and Immigration and Refugee Protection. He is one of only 15 lawyers in Ontario with dual specialist certification. He has more than 30 cases reported on CanLII. He also served as the Associate Editor for Immigration Law Reporter (2007-2011) and as the Associate Editor of ImmQuest (2007-2011). Ed has published numerous articles on Immigration and Refugee law in professional legal publications. He has served as a member of the Middlesex Law Association Board of Trustees between 2010 and 2015 holding the positions of Secretary, and Chair of the Bench and Bar, Library and Continuing Professional Development Committees.  From 2000-2003 he served as a Councilor on the City of London, Ontario, Canada municipal City Council. He is joined by lawyers Harkamal Singh, Li Tien, paralegal Selvin Meija and articling student Ahmad  Barzak at Ed Corrigan Law Office. The office specialises in Citizenship, Immigration and refugee law. They can provide services in Arabic, Chinese (both Mandarin and Cantonese), Hindi, Punjabi, Spanish and Urdu. 

[1] https://theconversation.com/canadian-court-correctly-finds-the-u-s-is-unsafe-for-refugees-143239