Audrey Macklin is a professor and chair in human rights law and director of the Center for Criminology and Sociolegal Studies at the University of Toronto.
Images of traumatized children huddling under foil blankets in cages in the United States have horrified the world. Most of these children are fleeing an ongoing human rights crisis in Central America. The inhumanity of U.S. policy toward asylum seekers has prompted a heated debate in Canada. Under the Canada-U.S. Safe Third Country Agreement, asylum seekers entering Canada at an official port of entry at the U.S. border are turned back on the grounds that the United States is a safe country for asylum seekers. Yet each passing day makes a cruel mockery of that claim.
Shortly after President Trump’s election, increasing numbers of asylum seekers passing through the United States began walking across the border to seek refugee protection in Canada. This sudden rise in irregular crossings coincided with the escalation of xenophobic rhetoric, anti-migrant and anti-Muslim policies, and specific measures targeting asylum seekers in the United States.
In 2017, about 25,000 people crossed irregularly into Canada from the United States seeking asylum. About 8,000 have crossed so far this year. Before 2004, a person seeking asylum in Canada could ask for refugee protection upon arrival at any port of entry — whether it was at the Canada-U.S. border, an airport, a marine port or even at one of many inland Canadian immigration offices. Then Canada persuaded the U.S. to enter the Safe Third Country Agreement.
The agreement has had the anticipated effect of increasing the number of asylum seekers in the United States. Since the premise of the policy is that both countries are safe places to seek and obtain asylum, either party can suspend or revoke the agreement if the other party is not (or is no longer) a safe country to seek or obtain asylum.
It’s clear that the United States is no longer a safe country for asylum seekers. Attorney General Jeff Sessions has declared that people escaping gang violence or domestic abuse should generally not qualify for protection under asylum law. His “zero tolerance” policy calls for everyone crossing the U.S. border anywhere other than at official ports of entry, including asylum seekers, to be prosecuted.
Canada does not prosecute asylum seekers for illegal entry. Canada does not have a policy of separating children from parents. In fact, the Canadian government is moving away from detaining migrant families at all. Canada also recognizes domestic violence or gang-based violence as a potential basis for refugee status.
It’s not that Canada is uniquely softhearted or generous; rather, it is observing international law. The U.N. convention on refugees prohibits penalizing refugees for unlawful entry, because the drafters understood that desperate people sometimes take desperate measures. Prosecuting asylum seekers for illegal entry before determining whether they are indeed refugees violates this convention.
A country in which the attorney general disqualifies classes of refugees from protection, and which subjects asylum seekers (including children) to violations of basic human rights, is not a safe country for refugees. The people crossing irregularly might not have personally experienced the full brunt of all the recent anti-refugee measures, but they can see the writing on Trump’s yet-to-be-built wall.
Irregular border crossings into Canada would end tomorrow if Canada suspended or revoked the Safe Third Country Agreement in light of the changed circumstances in the United States. Asylum seekers could then present themselves at an official port of entry to request refugee protection.
It is the right thing to do, but Ottawa appears to lack the political courage to act. Perhaps it is more concerned about protecting the free movement of Canadian goods to the United States than about protecting refugees. But when one state knowingly deflects asylum seekers into another country that does not, will not or cannot protect refugees, that first state becomes complicit in persecution. It is as true of Canada at Roxham Road as it is of the United States at Nogales.