On October 21 2010, Vic Toews, Canada’s the Minister of Public Safety tabled Bill C49 officially titled “An Act to amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act and the Marine Transportation Security Act”. Immediately from the short title the political spin machine starts twisting; Preventing Human Smugglers from Abusing Canada’s Immigration System Act.
Not only does the title and the subsequent sensationalization take focus away from some of the serious issues with the bill, as documented on the Canadian Council for Refugees website, it also detracts from some blatant violations of Charter decisions and International Law contained within the bill. The implications this holds for Canada’s position internationally on human rights and refugee protection are serious.
On November 12th a number of prominent canadian refugee lawyers and leading academics assessed the bill with unanimous condemnation of its potentially chilling impact on the rights of asylum seekers in Canada. It was hosted by the Centre for Refugee Studies at York University, and can be found here: Panel Discussion It is well worth checking out.
Below is a comment I wrote for the University of Toronto Law School, International Human Rights Program’s Rights Review. It considers why the Government is seemingly so desperate to gain control of so called ‘illegal’ or ‘irregular’ asylum seekers.
Central to the conception of sovereign authority is the notion of control, specifically, the ability of ‘the sovereign’ to discern and actively exercise the powers of exclusion from the political community of citizenship; and the conferred benefits, rights, and protections. A commitment to human rights in principle is completely consistent with the notion of sovereignty, insofar as inclusion in the political community of citizenship forms the basis of ones ability to claim full rights as human. However, the existence of asylum seekers directly challenges the disjuncture between a country’s commitment to the protection of human rights enshrined in the Refugee Convention, and their provision by virtue of inclusion within the political community. By making a claim on the duty of protection from a state signatory to the Refugee Convention, asylum seekers forestall the state’s ability to exercise its power of exclusion as provisional rights-holders under the state’s jurisdiction. Pending an assessment of their claim to formal refugee status, asylum seekers are entitled to, importantly: non-discrimination (Art. 3), non-penalization for illegal entry and freedom from arbitrary detention (Art. 31), and non-refoulement among others.
The recent arrival of 490 Sri Lankan asylum seekers on the MV Sun Sea has made the Conservative government acutely aware of the tension between the right of refugee claimants to seek protection, and the Government’s desire to dictate the terms of asylum and control access to the accompanying benefits. The response, in the form of Bill C-49 in both content and framing, would seem to reflect an attempt to compensate for the lack of control that results from a commitment to the Refugee Convention. Cracking down on smugglers in an attempt to prevent ‘illegal’ entry through Canada’s borders tends to increase the associated risks to those most desperate and vulnerable while doing little to solve the underlying causes. Blunt, national level laws will inevitably fail to keep intelligent refugee migrants from negotiating existing borders. In this context the relevant question that arises, is, to what extent are we willing to tolerate infringements of human rights to enforce our borders? As Professor James Hathaway recently argued in an Op-Ed in the National Post, human smugglers play an essential role in provisioning refugees with the ability to illegally enter the country and seek asylum, as they are entitled to under the Convention.
Barring any realistic prospect of physically preventing human smuggling, the Government’s intent is seemingly one of penalizing refugee claimants for exercising agency, and successfully claiming their right to seek asylum. That it is essential to separate out a discrete category of refugee – those that fit the Convention definition and are legitimately in need of protection – to maintain the integrity of the immigration system more broadly, does not permit the movement of the metaphysical boundary of rights, by divesting asylum claimants of acquired rights under the Convention. Framing landed asylum claimants as ‘irregular’ to justify such policy, not only supposes the existence of a ‘regular’ way in which one might flee persecution, but reflects a desire by the government to control access to rights that international law inherently requires all states grant those able to claim them. In the face of an effective and nuanced status determination process, attempting to curtail the rights that accompany an asylum claim, turns the process on its head, making it about the power of the Government to exclude, and not about the protection of those facing persecution.