Citizenship and Immigration Committee on Feb. 8th, 2007

[The Chair, Conservative, Norman Doyle]

Good morning, and welcome.

I want to welcome the witnesses to our committee today, as we continue our study of refugee issues. I want to welcome, from Harvard Law School, Deborah Anker, clinical professor of law in the immigration and refugee program; Efrat Arbel, research assistant to Ms. Anker; and Francisco Rico-Martinez, co-director, FCJ Refugee Centre. Welcome to you.

I would imagine you have an opening statement.

We have from 11 until 12:45, at which time we will suspend to deal with other business. But right now I will pass it over to you, and you can make an opening statement if you feel so inclined.

[Deborah Anker, Clinical Professor of Law, Immigration and Refugee Program, Harvard Law School]

Thank you so much for giving me the opportunity to come here today. I very much appreciate it.

I'm Deborah Anker, clinical professor of law at Harvard Law School and the director of the Harvard immigration and refugee clinical program. I want to speak to you today about the safe third country agreement and comment as well on some aspects of the U.S. asylum system.

The safe third country agreement was entered into between Canada and the U.S. It went into effect on December 29, 2004. It was entered into effect in order to supposedly gain more control over the U.S.-Canada border. Under the safe third country agreement—I'll refer to it as the STCA—Canada and the United States recognize each other as safe third countries for refugee claimants, and each country is permitted to return to the other country individuals who have travelled through that country, with few exceptions.

I'm going to summarize a report that was issued a year ago, as well as give some updated information. The report was issued by our clinical program, the immigration and refugee clinical program at Harvard Law School, as well as the international human rights clinical program and the Harvard Law Student Advocates for Human Rights. )

The report, which is entitled Bordering on Failure: The U.S.-Canada Safe Third Country Agreement Fifteen Months After Implementation, was based on a series of fact-finding missions that we conducted to three ports of entry along the U.S.-Canada border, as well as telephone interviews, cases and petitions, and legal scholarship and commentary.

I served as one of the faculty advisers to that study, and I also went on one of the fact-finding missions.

The report provides information and preliminary analysis of the impact of the STCA. Although since the report has been issued there is additional information that is consistent with this report, there's still only limited official information available regarding implementation of the STCA.

The report concluded that 15 months after implementation, the STCA not only failed to accomplish its stated goal of securing the border, but indeed made the border less secure, endangering the lives of refugee claimants and threatening the security of the United States and Canada. I'll go into detail here of the four principal conclusions.

First, the safe third country agreement endangers refugee applicants by denying them access to fundamental protections. Statistics collected from non-governmental organizations along the U.S.-Canada border demonstrate that the STCA has caused a significant decline in the number of refugee claimants legally crossing from the United States to Canada, disproportionately affecting the Colombian refugee community. Although both governments claim to offer generous systems of refugee protection, several aspects of the U.S. asylum system violate international legal standards. For example, in the United States, we have a one-year filing deadline, so that an individual has to apply for asylum within one year of entering the United States or he or she is barred. If he or she is barred, he or she is only eligible for a form of protection called “withholding of removal”, requiring the applicant to meet a higher standard of proof.

Indeed, this is very present in my mind. Yesterday we filed an application for a stay and motion to reopen in a very compelling case of a Colombian refugee who had been denied asylum because of the one-year filing deadline and was told that he did not meet the higher standard on withholding of removal. He was picked up by immigration officials. He's on his way to be returned to Colombia. We're trying to stay that. He wanted to come to Canada to apply here at the border but was told that he would not be able to, which in fact is the case under the safe third country agreement.

There is no doubt in my mind that he is virtually dead on arrival, should he return to Colombia, because of very courageous political activities he was involved in, opposing the FARC and other guerrillas in that country.

Also, in the U.S., there's routine detention—he's detained—and in some instances inhumane treatment of detained asylum seekers.

After the STCA went into effect, the number of, for example, Colombian refugees who entered Canada from the United States declined by approximately 82%.

While the acceptance rate in Canada was 81% in 2003 and 2004 and 79% in 2005, the acceptance rate in the United States in fiscal year 2004 was 45% for those who applied affirmatively and 28% for those appearing before an immigration judge.

The safe third country agreement also makes the border more hazardous for refugee claimants by threatening the existence of NGOs along the U.S.-Canada border. Prior to STCA implementation, NGOs along the border worked jointly with immigration officers to move applicants through the inspection and application process. As the number of refugee claimants being processed and sheltered by NGOs has decreased since the STCA went into effect, directors of refugee shelters have started considering alternate functions for their shelters. If NGOs close their doors, the border will become increasingly dangerous for refugees, who will have fewer and fewer places to turn for information, food, and shelter.

The STCA also encourages individuals who would normally have entered Canada’s refugee determination system to illegally cross the border or remain without status in the United States. Refugee claimants who are stranded in the United States are frequently statutorily barred from applying for asylum, as I've explained, and even those who are eligible for asylum have strong incentives not to regularize their status. For example, asylum applicants in the United States cannot receive work authorization for a period of six months after they apply for asylum. They cannot receive benefits or government-sponsored legal representation while awaiting determination of their claim. The lack of legal representation is an extremely dire issue in the U.S. There are no federally funded moneys available for representation of asylum-seekers, and indeed federally funded legal service moneys have been prohibited to be distributed to any organizations that are involved in representation of asylum-seekers. There are very few organizations available for legal representation, and legal representation makes a huge difference in the success of claims.

Individuals do not have any status and do not have any rights while they're awaiting determination of their claims, which sometimes can be months, if not years. Often, individuals are wary of entering into what is at times a dysfunctional and arbitrary system. I'm an expert in U.S. refugee law. I've been doing it for 20 years. If you ask me some basic questions about where the law stands on some critical issues related to gender persecution, even political opinion, how to establish a causal connection, I would have a very difficult time giving you a clear answer because so much of the law is up in the air, so it's very hard to describe to refugee claimants themselves.

I'd say these problems have been particularly exacerbated in the last two years, when legislation has been passed that now allows denial where applicants make any kind of inconsistent statement and allows immigration judges to deny applicants on the basis of a demeanour assessment. This is obviously problematic, but also inconsistent with UNHCR standards, and it puts potentially a greater emphasis on applicants proving that the motive of their persecutor is to persecute them because of a protected ground. There have been exorbitant corroboration requirements placed on applicants that are very difficult, even for people who are represented to me, let alone people who are unrepresented and in detention.

I know I'm going over my time here, but I did want to really emphasize something to end my remarks.

For decades Canada has served as a model whose example raised the standards of refugee protection worldwide, and especially in the United States. In 1986 the people of Canada became the only nation to be awarded the Nansen medal, presented annually by the UN High Commissioner for Refugees to a person or group for outstanding service in supporting refugee causes.

During the 1980s—and I tested this, as someone who lived through that period and became a refugee scholar then—Canada served as an important safety valve for central American refugees, who, as U.S. policy-makers and courts later acknowledged, faced discrimination under the U.S. asylum system. Canada's example inspired major reforms in the U.S. system and even changes in U.S. policy towards central America, contributing to the end of civil wars in some countries of the region.

In 1993, Canada became the first nation to issue guidelines recognizing the eligibility of female refugees for status and the right of female refugees to fair and equal treatment. The publication of the Canadian guidelines prompted the U.S. to issue similar gender guidelines two years later in 1995. The world, especially the U.S., desperately needs Canadian leadership.

Now, despite the glaring disparities in burden-sharing between developed and developing countries—developing countries host 71% of the world's refugees—Canada has adopted the STCA and chosen to turn away one-third of the claimants who arrive at its border. Although beyond the scope of this particular talk, the implications of these kinds of agreements reach beyond the borders of the United States, as interdiction policies stretch to Mexico, to other parts of the Americas, and throughout the world.

The STCA is only one piece in a puzzle, where refugees are trapped in their countries of origin, unable to flee, and are denied fundamental rights. We are coming very close to the moment we came to in 1951, when the world ratified the refugee convention with a tremendous sense of guilt about what had happened in Germany regarding the Holocaust, involving so many people, because the countries of the world would not admit refugees. As a result, the world community came together to adopt the refugee convention to provide that protection.

These kinds of measures are bringing us back to ground zero in a sense. I think if we don't stop it—and we really need your leadership—history will tell and be harsh on us.

Thank you very much.

[The Chair, Conservative, Norman Doyle]

Thank you, Ms. Anker, for that very interesting and informative presentation.

I think Mr. Rico-Martinez has a presentation as well.

[Francisco Rico-Martinez, Co-Director, FCJ Refugee Centre, As an Individual]

Good morning, and thank you very much for the invitation. It's always a pleasure to be in front of the standing committee, and particularly so on this issue.

I am going to avoid talking about theories or technicalities. We are front-line workers who work with refugees every day. We are privy to exhaustive and distressing evidence, both statistical and anecdotal, that the safe third country agreement between the United States and Canada is a disaster for the access of refugees to Canada.

As an example, in 2006, 20% of the claims made were made at the U.S.-Canada border, against 35% of the claims made in 2004; that's a reduction of 15% of the claims, which means that the border is closing for a lot of particular groups. In 2006, 71 % of ineligible claims were because of the safe third country agreement. This reason didn't exist before 2004; 71% of the ineligible claims are due to the safe third country agreement, which gives you another number on reduction of access.

I oppose, and we oppose as an organization, the agreement. As we monitor the agreement through the people we serve, it's confirmed in practical terms in the suffering of the people we serve. We are appalled by the reality of implementation—how difficult it is for people fleeing persecution to understand that the agreement goes against the vein of Canadian human logic. As you can see, my repulsion to the agreement is very deep, but I will try to put it clearly and logically to you in very concrete examples.

The first example is that we don't have any review mechanism for the safe third country agreement. What is happening is that we manage to find something that is really urgent, and you or the cabinet or the minister of immigration— someone—has to pay attention to that. We don't have any kind of mechanism to do it in a particular way. That's the first concern we have—how we can address the concerns we have, because there is no mechanism.

The lack of public and accessible clarity regarding the agreement is our second biggest concern. There is no available information on the agreement accessible to the people in need. CIC and CBSA have made some efforts to provide that information, but they provide it at the website; most of the time refugees coming into Canada don't have access to that information. In other words, there is an absence of mechanisms to inform them before they reach the border. This lack of information is behind the general confusion throughout the refugee communities about the agreement. The rumours that the U.S.-Canada border is closed are still flourishing. After years of implementation, the people still believe that the door is closed, that Canada has closed the door. That's because of lack of information.

Where do potential claimants in the United States go for information on how the agreement and the exceptions pertain to them? Where? They can go to the NGOs sometimes, the American NGOs, but not everybody there has the information to provide. They are not experts on the safe third country agreement. When the claimants are at the border in front of the Canadian authorities, it is too late to be informed that they don't meet the exceptions. If the claimant doesn't meet the exceptions, the person is sent back to the United States under serious threat, as you have heard, of being detained, and sometimes just to be put on fast-track removal procedures. Then the person is gone.

How exactly do the criteria, according to our experience, work at the ports of entry? We have heard and we have seen in several cases involving the issue that the notice said they are rejected because there is insufficient disclosure of the reasons for rejection. Sometimes the people receive notice saying there is insufficient information. At other times the explanations they receive are so vague that you don't have anything to use in challenging the information.

The problem is there is nothing you can find in the agreement that allows for a review of that important decision. There is no appeal process and no meaningful access to judicial review. There is not a mechanism for a person to review that decision made by immigration workers at the border in Canada who send the person back. There is no time to do anything else, because the person is on their way back to the United States.

More urgently, human lives are demonstrably put at risk by this policy. Individuals are endangered in a climate of increased irregular border crossings and increased vulnerability to trafficking and dangerous smuggling practices. We know CBSA and the RCMP say they don't have data about these things. Well, of course not. They are illegal things, so there is no data to confirm them. But if you go to my office every day, you will see people arriving. They just crossed the border undetected, and they have sometimes paid up to $10,000 to find a way to come to Canada.

A look at who is eligible or who is not under the exemptions of this agreement seems thoroughly arbitrary to me. It is unjust and very discriminatory against particular groups of people. For everybody in Canada, including the standing committee, it is unacceptable for you to accept those criteria.

This is unfair, and you have a say in it. This is not logical. The only group of people who are sustaining this as the way to go is the cabinet of Canada. This is a heritage that the Conservative Party received, and I don't believe you deserve it.

Why are only the countries under the deportation moratorium exempted? Why is the source country list not considered as an exception, for instance? Why are Mexicans allowed to come to our border and make a claim, yet Colombians are sent back? How do you explain that a Mexican is a yes and a Colombian is a no? I do not understand. Please help me to understand this illogical framework.

Can you help us to stop this nonsense, please? Can you help us to stop the discrimination based on origin, on where you come from? You are allowed to make a claim, but if you are coming from this particular country, you are out. Can you help us to stop these policies that put people at risk? Can you help us to stop the border of Canada from becoming like the southern border of the United States with Mexico, where the smugglers have the reins and are the kings of the whole border?

At our office every week we receive several phone calls from people who are living in desperate situations in the United States, due to their lack of status. Some of them have left their country due to persecution and there is no option to go back to their country, but there is no option for them to have legal status in the United States.

Believe me, the tone of voice denotes desperation, and the questions are always the same: “How can I go to Canada? How can we go to Canada?” Our first role as an organization is to try to calm them down, to ask them to try to trust a voice on the phone, a voice that is going to provide information about the agreement, that is going to ask questions about situations in order that we can provide the best advice we can give. But what can we say to someone when they call from Florida, Atlanta, or wherever, and we have to tell them that we're sorry, but there's no space in Canada for them because they don't meet the exceptions?

The sarcasm of the ineligible claimants is very appealing in the answers we receive over the phone. You will see how logic is not involved in this. They say, “Are you telling me that if I do not meet any of the exceptions and I go to the border, I will be refused because the United States is a safe third country, but if I manage to fly from the United States to any city in Canada or if I manage to arrive at any Canadian port, even though I have been living in the United States, I, the same person, will be eligible to make a claim and the United States is not a safe country any longer?” How do you respond to that?

In our office during the last year, at least five cases per month have contacted the office by phone, and we have seen these people in Canada later on. Some 62% of the claims are made inland. In 2004, before the safe third country agreement was implemented, only 45% of the claims were made inland, so we have had an increase. That clearly documents that some of these people have crossed the border undocumented.

The other question they ask us is, “Are you telling me that if I do not have relatives in Canada, I will not be eligible because the United States is a safe country, but if I somehow manage to produce a relative in Canada, I can go to the border, and even though I have been living in the United States, I, the same person, will be eligible to make a claim and the United States is not a safe country any longer?” “What does that have to do with what happened to me back home?”, they ask. “What does that have to do with my seeking protection?” Do you know that at the border the exception based on families is the second highest used, at 31%. These people are producing relatives in Canada.

The other question is, “Are you telling me that if a member of my family managed to cross the border undetected and made an inland refugee claim later on, the rest of the family could go to the border, and even though they have been living in the United States, these same persons will be eligible to make a claim that the United States is not a safe third country for them any longer?” We have at least one case like that in our office. They were accepted by the IRB even though they were already refused by the asylum system in the United States. Now the whole family, thanks to the courage of their mother, is waiting for their permanent residence status in Canada.

“Are you telling me that if I already was determined to be ineligible by the Canadian authorities at the border but if I waited for six months in the United States and I crossed the border undetected, even though I have been living in the United States, I, the same person, would be able to make a claim for PRA and the United States is not a safe country any longer? How come?”

“If I were to enter Canada undetected without waiting for the six months to pass, I would be found ineligible even inside Canada and my claim wouldn't be accepted. I would be ineligible for PRA because I didn't wait for the six months, and I would be deported back to my country of origin, facing persecution, without any evaluation by the U.S. or by Canada of whether I have a well-founded fear of prosecution or not.” We have at least four cases like that in Canada right now—one in Montreal, one in Winnipeg, and two in Toronto.

As you can see, the safe third country agreement breaks with Canada's historical international reputation for solidarity, in our opinion, in the most illogical way possible. It contravenes even the Canadian common sense of our moral and legal duties under international law. And let me say that the safe third country agreement particularly breaks with our Canadian commitment to increasing the protection of women against abuse and violence.

Please ask Immigration Canada how this safe third country agreement protects women, how the safe third country agreement increases the possibilities of women to access protection, and how this agreement increases the access of women to Canada. It doesn't.

In fact, the statistics on refugee claims for 2005 are totally clear. The land border claims show how male claims at 54% outnumber female claims. That has been the way the agreement has been going in the last two years.

I am asking the standing committee today to help us and to stop returning people to a country that may return them to persecution, without hearing what happened to that person. I am asking for more access for refugee women. If the United States returns an ineligible person to persecution, that, any way you put it, amounts to our returning them ourselves to persecution.

The Arar case set a clear precedent in this regard. The Arar report says loudly and clearly that it is wrong to send people to persecution. Do not allow this just because the claimants are not Canadian citizens.

Thank you very much.

[The Chair, Conservative, Norman Doyle]

Thank you.

I would like just one little clarification. Are you saying that our Canadian officials are saying to a person at the Canada-U.S. border, “You cannot make application here, you have to go to the United States and do it”, because the U.S. happens to be a safe third country? Is that the crux of it?

[Francisco Rico-Martinez]

No, but it is the borderline of the agreement.

[The Chair, Conservative, Norman Doyle]

Is that part of it, that our Canadian officials at the border will say, “You can make your claim in the U.S.”, because it operates under a safe third country agreement?

[Francisco Rico-Martinez]

Yes. And the question—

[The Chair, Conservative, Norman Doyle]

It all seems so complicated, and hopefully—

[Francisco Rico-Martinez]

No, no, what I was reading here are the answers to the questions that we receive. When you say to people, “You don't meet the definition”, and you explain, “This is the agreement. This is— ” Do you know what I mean? The people, depending on their situation, start telling us.

[The Chair, Conservative, Norman Doyle]

Yes, but what I pointed out there a moment ago—that's part of it, isn't it?

[Francisco Rico-Martinez]

Yes.

[The Chair, Conservative, Norman Doyle]

It's part of it. Of course, there's a whole lot more to it. It's very complicated, and hopefully—

[Francisco Rico-Martinez]

Yes.

[The Chair, Conservative, Norman Doyle]

—we can get our analyst to try to put something together, to sift through an awful lot of what you're saying there, because, quite frankly, I find it complicated as well.

[Deborah Anker]

Can I just—?

[The Chair, Conservative, Norman Doyle]

Yes, sure.

[Deborah Anker]

That is what the agreement is: Refugee claimants get turned back at the Canadian border and have to apply in the U.S.

[The Chair, Conservative, Norman Doyle]

Yes, that's a big part of it.

[Deborah Anker]

That's what the agreement is, and then there are some exceptions, yes.

[The Chair, Conservative, Norman Doyle]

Yes.

Okay, let's see if our committee members can flush out a little bit more information for us.

I'll go to our seven-minute rounds. First of all, it's Mr. Alghabra.

Thank you very much, Mr. Rico-Martinez. It was very interesting, indeed.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Good morning to all of you. Thank you for coming.

First, I want to say that the global crisis of refugees is really an indictment to the whole world, and it's a tragedy. I think Canadians acknowledge and accept their role in helping resolve this issue. I don't think they see it as an exercise in feeling good. It's a recognition of the importance of affording or providing refuge for people who are genuinely seeking help from persecution and looking for an opportunity to start a life.

There's no doubt that there are a lot of tragic cases and examples. It's always very difficult when you're dealing with the human dimension to try to be pragmatic. It's very difficult. You try, as government, as parliamentarians, as judges, as lawyers, to work with the human dimension, at the same time trying to be practical and pragmatic.

I accept a lot of the points you're raising, and we're trying to distill this issue. There were reasons for signing that agreement. There was some logic, but now we're hearing your feedback, and you are highlighting some flaws.

This is a very difficult thing for us to try to deal with, if I may speak on behalf of the committee. I'm trying to understand. First we learned there was a reduction of 55% of claimants in 2005, I think, after the agreement was signed.

Professor Anker, what do you think? Is that because of the agreement, or were there other reasons for the significant reduction in applicants?

[Deborah Anker]

That's because of the agreement. I think a small proportion of that is because in general refugees are not getting out of their countries of origin, but that decrease is largely attributable to the agreement, yes.

[Omar Alghabra, Liberal, Mississauga—Erindale, ON]

There are some exceptions in the agreements, and the number I have is that there were about 4,000 applicants in 2005; 3,000 of them were qualified for those exceptions. So do you think the percentage is high because it really covered legitimate cases or do you think it's because the only people who applied were people who thought they'd qualify and the others just didn't apply?

[Deborah Anker]

I think mostly people who were qualified are under the exception. This doesn't have to do with substantive merits of their refugee claim, but only people who feel they are qualified under the exception are applying, and that's the information that I think NGOs are trying to communicate to people.

For example, the person I was describing, this Colombian who can be removed any day from the United States, got information that he should not try to apply in Canada because he did not meet any of the exceptions, and indeed he doesn't.