Evidence of meeting #33 for Citizenship and Immigration in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was safe.
A recording is available from Parliament.
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
So he never applied.
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
As lawmakers, we're trying to be as humanitarian and as compassionate as possible and at the same time be accountable to Canadians to ensure that we are as effective and as reasonable as possible.
Do you think this agreement should be abolished or should be modified? And if it should be modified, what types of exceptions or modifications would you propose?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
Why don't we each answer?
Co-Director, FCJ Refugee Centre, As an Individual
Before the agreement, we had a very organized system whereby the person went and made a claim at the border. Everybody went to identify to the Canadian authorities. You had a procedure. The process went to the Immigration and Refugee Board, the person was determined to be a refugee or not, and it resulted in their removal or their staying in Canada.
But the key thing here is that people were encouraged to go and present themselves to the authorities right at the border. Now, with the agreement, we have said to everybody, if you don't meet the exceptions, don't go to the border because you will be sent back. So they find their own way to cross the border undetected—I don't want to use the term “illegal”, but “undetected”—and they make a claim later on. So you have a period of time when people are not presenting themselves to the Canadian authorities, and they are in the hands, sometimes, of smugglers and the illegal activities around the borders when you put a barrier to them.
Our goal is to scrap the safe third country agreement because it doesn't meet any goal in terms of generating access to refugees and it is based on criteria that don't have anything to do with the genuineness or not of the refugee claim. If you feel persecution back in Colombia, what does that have to do with having an uncle in Canada? It doesn't have anything to do with it, and in that case what we are trying to do is to select people for reasons of familiarity, or family reasons or whatever, that don't have anything to do with the refugee designation we have. Therefore, we are suggesting the way to create access is to abolish the agreement as soon as possible and let people come to the border, present themselves to the authorities, and the authorities can fingerprint them. Let the people come into Canada, with medical exams, whatever. That is the way we were doing it for years and years before the agreement.
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
Let me answer also.
Under the agreement there has to be determination by Canada that the U.S. is a safe third country, that it is a safe place for asylum seekers. For many asylum seekers, that is not the case. Critically, I think, the information upon which Canada based its determination that the U.S. was safe was information from 2002. Major new developments have happened in the U.S. in the last five years, and I would say that most of the current problems in our asylum system have been precipitated by those developments.
There is no mechanism now. Canada has not taken its responsibility to evaluate again that assessment of whether the United States is a safe third country.
There's an article that just came out this morning, I think in the New York Times. It was a report by the U.S. Commission on International Religious Freedom. It's a U.S. congressional commission that came out with a report evaluating various aspects of the U.S. asylum determination system, and they were expressing enormous concern that none of their recommendations has been followed. So I would just alert you to that in terms of today's New York Times.
Liberal
Omar Alghabra Liberal Mississauga—Erindale, ON
I just want to know if you're suggesting scrapping it or evaluating it.
Conservative
The Chair Conservative Norman Doyle
We're getting to almost 10 minutes now.
Okay, go ahead.
I think Mr. Alghabra asked if you're looking at it in terms of scrapping it or—
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
I think the assessment has to be looked at.
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
It has to be re-looked at, sorry.
Bloc
Meili Faille Bloc Vaudreuil—Soulanges, QC
Thank you, Mr. Chairman.
I want to welcome you all.
I think you could very well be ironic today and tell us that you had warned us. As I read through the notes and the testimony of the various people who appeared before this Committee in 2002, it is very clear that what you told us in 2002, 2003, 2004, 2005 and 2006 did indeed happen. It is unfortunate.
The safe third country agreement rested on the premise that Canada and the United States offered sufficient protection. But your report documents weaknesses in the refugee determination system of the United States.
Could you tell us about the areas of concerns and the discussions that are taking place presently in the United States with regards to the refugee determination system?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
The major areas of concern I have about the U.S. system are, first, as I mentioned, the one-year filing deadline. Under U.S. law you are barred from applying for asylum if you do not do so within one year of entering the United States. The only kind of protection you're formally eligible for is called “withholding of removal”.
We, in violation, I believe, of international standards—and this has been the conclusion of almost every scholar in the field—require the person to meet a higher burden of proof to get that form of withholding of removal. To get in the U.S. what is equivalent to refugee status in Canada is not allowed unless the person applies within one year, and then they have to meet a “clear probability” standard of proof. That is something that has been instituted in the last few years. It's a major problem.
Somebody who is barred from asylum cannot bring his or her family with him to the United States, or cannot regularize their status in the United States. I can't emphasize how critical that is to people. People seek refugee status but cannot bring a child to the United States, cannot bring a spouse to the United States, cannot regularize the status of a spouse or a child who is there. It is excruciating; it is impossible; it is in violation of basic rights under the Convention on the Rights of the Child for that kind of family reunification to be disallowed.
I should say, under the U.S. system there are also, in practice, very high corroboration requirements demanded of asylum seekers, even of those who are asked to apply for asylum. People typically submit applications that are very thick. They are asked to corroborate events in their home country that are often very difficult to corroborate. As a practical matter, that's what happens. The REAL ID Act, which was enacted in 2005, underscored those requirements, unfortunately, and in practice have made it much more difficult.
So there's the one-year filing deadline.
There's a major detention policy in the U.S., for example, for somebody who was turned away at the border. Many of the people who are turned away at the border are going to end up in detention in the U.S. Once you're in detention in the U.S., your access to counsel, which is very limited even if you're not in detention, because of the number of lawyers who are able to do this work and are available, and because there's no right to legal representation.... In detention your access to counsel is extremely limited. You don't have access to this kind of documentation. Detention of asylum seekers has been found inherently problematic by the United Nations High Commissioner for Refugees, and especially for asylum seekers.
So detention is a huge problem—and the bar based on one year's presence in the United States.
Also, since 2002 the United States has virtually dismantled its administrative appellate process. In 2002, we had regulations that decreased the number of people on our appellate refugee board by 50% and required those members of the board of immigration appeals to approve decisions of immigration judges in the vast majority of cases.
There's now no effective administrative review of denied asylum claims. All of the claims where people are represented are going into federal courts. The federal courts—and I would refer you to some of this material—in the United States have been shrill, far shriller than I am being here, in their critique of what they're seeing of immigration judges' decisions and the quality of justice that exists now for asylum seekers.
I would say the other major problem in the U.S. is the lack of a right to legal representation. There are no publicly funded legal services programs for refugees and asylum seekers. It's very limited. There's a 400% greater chance of succeeding in your claim if you're represented, but there's no legal right to representation.
I would say those are some of the major problems.
Conservative
Bloc
Meili Faille Bloc Vaudreuil—Soulanges, QC
In terms of the procedure as such, when a refugee is being examined, is it a more adversarial proceeding in the United States?
Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School
There is a non-adversarial stage, but people are going to be barred from that if they have not applied within one year of entering the United States. Anybody who is apprehended at the border after being refused in Canada is going to be denied that forum as well. So effectively almost everybody who is denied access to Canada is going to be only allowed an opportunity to apply in an adversarial proceeding.
NDP
Bill Siksay NDP Burnaby—Douglas, BC
Thank you, Mr. Chair.
I want to thank all of the witnesses this morning for your testimony. It's been very helpful. I want to say that my party's original position on this agreement—that it shouldn't go forward—has been confirmed by what you have to say. Nothing has changed my mind about it. I think we're realizing some of our worst fears about what the agreement would mean to our refugee protection work. I certainly still feel that this is an agreement that we should be abrogating without delay.
I have a very specific question that comes out of the United Nations High Commissioner's monitoring report on the safe third country that we received back in June. One of the major issues that was noted in there—and maybe, Mr. Rico-Martinez, you could respond to this—was the UNHCR noted particular concern regarding the direct-back policy. This was the situation that when someone arrived at the border, made a claim, and Canadian officials couldn't deal with them, they were sent back to the U.S. with a time for an appointment to come back to Canada to make their claim, and sometimes they don't make it back because they're detained in the U.S. when they're sent back. There was an undertaking that the policy would end this past summer. I'm just wondering if it's your experience that that has indeed been the case, or if the direct-backs are still happening.
Co-Director, FCJ Refugee Centre, As an Individual
I am glad to say that the direct-backs have stopped. Basically the authorities now make efforts to try to accommodate the person who shows up at the border and don't send the person back, for the reasons you just mentioned. We have always had some problems with that situation because sometimes the persons are detained for no particular reason of security to the public or anything. It's just because there is not an interpreter at that particular time. Do you know what I mean?
At every border that we are aware of, and particularly at the main borders of Ontario and Quebec, they are not doing the direct-backs any longer.