Scheer’s Vow To Close Border Crossing Loophole Is 'Specious': Refugee Law Expert

Zi-Ann Lum

OTTAWA — Andrew Scheer’s promise to close a “loophole” in the Safe Third Country Agreement is “specious,” according to a refugee law expert.

The Conservative leader made the announcement Wednesday at the Canada-U.S. border crossing at Roxham Road in Saint-Bernard-de-Lacolle, Que. It was one policy item he proposed to “restore public confidence in Canada’s immigration system.”

The agreement applies at official ports of entry and requires prospective refugee claimants who want to come to Canada to return to the first safe country in which they arrived to start the process there. 

Sharry Aiken, a refugee law expert and associate professor at Queen’s University, told HuffPost Canada that “it’s not really possible to close the loophole unilaterally.” The agreement, she said, was predicated on the fact that Canada-U.S. border is large and mostly unpatrolled. 

“Even if we had an agreement that applied across the entire land border, how would it be enforced?” Aiken asked, adding that the pact would have to be renegotiated with the United States. “So it’s a bit specious to suggest that the loophole can be readily closed.”

Liberals proposed the idea of applying the agreement to the entire border last year. In its election platform, however, the party only pledged to “continue to work” with the U.S. government to modernize it.

The NDP have repeatedly called for the the suspension of the agreement, while Greens want the 15-year-old agreement terminated.

Conservative Leader Andrew Scheer campaigns for the upcoming election in Mississauga, Ont., on Oct. 8, 2019.

Since U.S. President Donald Trump signed his executive order on immigration in 2017 and proposed removing asylum protections for most Central American migrants, Canada has seen an increase in the number of irregular border crossers arriving between official Canada-U.S. ports of entry.

Nearly 50,000 people have crossed into Canada at Roxham Road since 2017, according to CBC News. Irregular border crossers are often warned of arrest before they enter Canada.

It is legal for anyone to make an asylum claim after they enter Canada.

Scheer said he would be open to renegotiating the Safe Third Country Agreement with the U.S., but offered no details when asked to elaborate on how a Conservative government would close the loophole.

“I believe it’s in both countries’ mutual benefit to have this situation resolved on a bilateral basis,” he said.

Scheer also proposed to hire an additional 250 Canada Border Services Agency (CBSA) enforcement officers, and pledged to deploy more Immigration and Refugee Board judges to the “hot spots of illegal border crossers” to expedite processing times for claims.

That policy pledge would require law reform because the Immigration and Refugee Board is an independent quasi-judicial tribunal, Aiken said.

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Irregular border crosses tend to move to metropolitan areas after crossing the border, where Immigration and Refugee Board offices and hearing rooms are typically located.

“I don’t understand the rationale for suggesting that the board should move its offices to the border,” Aiken said. “It’s not as though refugee claims are adjudicated on a sidewalk.”

Asylum seekers are greeted by frontline CBSA officers and face Canadian Security Intelligence Service checks when they enter the country. This first step in the immigration process helps determine an individual’s admissibility before cases are put to an Immigration and Refugee Board judge.

An auditor general report published in May concluded that more resources are needed to clear Canada’s two-year backlog of asylum claims.

“We found that Canada’s refugee system is unable to process claims within the two-month target set by the government. In fact, backlogs and wait times are worse now than when the system was last reformed in 2012, to address these very same issues,” the report read.

It blamed a rigid system ill-equipped to respond to spikes in the number of claims as one reason for why a bulk of cases haven’t been processed expeditiously. A reliance on paper files was another.

Scheer evokes name of notorious gang during announcement

The Liberal government included measures in an omnibus budget bill earlier this year to introduce new rules to prevent “asylum shopping.” 

Under the legal changes, migrants who’ve made similar claims in “safe” countries, including Australia, New Zealand, the United Kingdom, and the United States, would be ineligible for asylum in Canada.

On Wednesday, the Conservative leader pledged to prioritize migrants from the “world’s most dangerous countries”— and evoked the name of a notorious Central American gang. “We will also closely monitor those considered to be a threat for criminality, especially MS-13 gang members,” Scheer said.

A line of asylum seekers who identified themselves as from Haiti wait to enter into Canada from Roxham Road in Champlain, N.Y. on Aug. 7, 2017. 

MS-13, also known as La Mara Salvatrucha is a Central American gang. Founded in Los Angeles in the 1980s by Salvadorans who fled El Salvador’s civil conflict and violence, the gang has grown into a transnational organized crime syndicate.

Decades of MS-13-linked violent attacks and gruesome murders have brought the gang notoriety. Trump notably referred to them as a “savage gang” in his State of the Union address earlier this year, and has frequently evoked MS-13 to curry support for hardline immigration policies.

Asked why he brought up MS-13 during his announcement, Scheer cited “reports of people who have entered into Canada with criminal records or who have been identified as being members of criminal organizations.”

Aiken called Scheer’s MS-13 name drop a “scare-mongering and scurrilous” claim that “converts immigration policy into a hot-button election question” and distracts Canadians from actual issues. More refugee board jobs need to be created and filled to help process claims, she said.

“There isn’t a security problem in relation to immigration. That’s just fabricated.”

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Under federal law, there are multiple provisions that can prevent a person from entering or staying in the country. These include human and international rights violations, health, serious and organized “criminality,” and misrepresentation.

Figures tabled in the House of Commons in June stated 866 irregular migrants have been removed from Canada since 2017.

According to the Immigration and Refugee Board, 315 admissibility hearings have been received for those believed to be inadmissible under law. That figure is 0.006 per cent of total refugee claims made by irregular border crossers since February 2017.

The CBSA did not respond to HuffPost Canada before publication, requesting statistics for how many irregular border crossers have been flagged for links to MS-13.