Glorious and Free

Making Canada a model nation for the treatment of refugees

From the October 2011 magazine
Illustration by Doug Panton

This past spring, the world sat transfixed as pro-democracy movements swept through the Middle East. Witnessing the bravery of protesters who took to the streets and demanded political reform was inspiring, but for the tens of thousands of North Africans who sought to escape the chaos by fleeing to Europe, the Arab Awakening produced a bleak outcome. To stem the tide of migrants from Tunisia, many of whom crossed the Mediterranean by boat, Italy announced in April that it would institute tougher border control measures; 650 Tunisians were deported in the first few weeks of the operation, and Italy stopped granting temporary visas to newcomers. The Tunisians, many of whom had risked their lives to leave, were not asked whether they feared persecution in their homeland, a factor that distinguishes asylum seekers from other migrants. Amnesty International was quick to criticize Italy’s actions, pointing out the many ways the country had violated “international, regional, and domestic human rights and refugee law.” To anyone familiar with recent Italian history, the episode had an air of déjà vu. Although the country’s constitution includes the right to asylum, in 2009 Italian authorities intercepted numerous boats carrying thousands of African migrants and sent them back to Libya, their point of departure, without determining whether those on board had legitimate claims for asylum.

Italy hardly stands alone in its treatment of refugees. Many nations have grown increasingly intolerant of asylum seekers, those who make it to a safe country and file refugee claims. Yet even as opportunities for asylum dwindle, the demand for that protection persists. More than 837,000 claims were filed around the world in 2010, by people running from violence in nations such as Iraq, Somalia, and Afghanistan. The world urgently needs a country to set an example by upholding the rights of these migrants. Given current trends, it won’t likely be the United States, Australia, or any European state. Canada, however, has distinctive legal and cultural conventions that could enable it to develop a new, more humane asylum system. So how might we extend justice to refugees, and live up to what is highest and best in our traditions of law and belonging?

The modern institution of asylum arose after World War II, when European nations had to contend with millions of people displaced by the conflict and redrawn borders; hundreds of thousands remained trapped in camps for years. International efforts to solve the problem resulted in the 1951 Convention and Protocol Relating to the Status of Refugees, which committed signatory states to recognize that refugees have the right of “non-refoulement,” that is, to not be returned to a place of danger.

Today, however, they are routinely refouled by countries that have vowed not to do so. The 9/11 terrorist attacks escalated the poor treatment of immigrants and refugees, but the most exclusionary actions predate 2001. For decades, the American response to Haitians trying to reach Florida in rickety boats has been to send the US Coast Guard to intercept them at sea and send them back. In 1981, when the government instituted this interdiction policy, over concerns about border security, it promised to conduct shipboard interviews to identify refugees. Yet Amnesty International and other NGOs have noted copious problems with the interview procedures, and that’s if the Coast Guard even bothers to perform them. Some 1,850 Haitians were interdicted in 2005; nine were interviewed, and only one was eventually recognized as a refugee. Of the tens of thousands who have been returned to Haiti, hundreds if not thousands have likely been legitimate refugees.

Other countries have followed suit. Australia has engaged in the widespread detention of refugees since the 1990s. In 2001, when a Norwegian freighter rescued more than 400 asylum seekers (predominantly Afghans) from another vessel sinking south of Indonesia, Australia prevented the freighter from entering its waters. (After being sent to an Australian-sponsored detention centre on Nauru, a Pacific micro-state, most of the asylum seekers were resettled in New Zealand and, eventually, Australia.) Meanwhile, the United Kingdom reformed its asylum system on six occasions between 1993 and 2006, each time making it more restrictive. According to the UK charity Asylum Aid, British refugee cases are now judged according to a standard of proof “which is not only impossible to obtain in circumstances of flight, but contrary to international law.”

A 2008 survey of the world’s worst places for refugees listed the European Union alongside Bangladesh and Iraq. According to the US Committee for Refugees and Immigrants, which conducted the study, “European countries have crafted policies that essentially deny access by making it as difficult as possible to enter their territory. Countries on Europe’s periphery had the harshest policies, protecting their wealthy neighbours to the north and west, often for money.” Indeed, it is increasingly common to hear of asylum seekers being trapped in European airports for months. In one case, a Palestinian man named Ibrahim Zijad spent almost seven months in the transit zone of Prague’s airport, living off meal tickets provided by a Czech airline and washing himself in public restrooms, before finally receiving asylum in Germany.

Ironically, the countries that can best afford to admit refugees are the least likely to do so. In 2010, the United Nations High Commissioner for Refugees estimated the global refugee population at more than 10 million. That year, 358,800 asylum claims were made in industrialized countries. Of those, Canada received 23,200, low for us. The overwhelming majority of refugees lived in the developing world: Kenya was home to over 400,000, while Pakistan, Iran, and Syria each had refugee populations of more than one million.

One of the primary reasons Western states are reluctant to liberalize their policies is an apprehension about granting asylum to people who are not refugees but are trying to pass themselves off as such. Particular countries have been known to produce large numbers of doubtful claims, as was the case with Bulgaria and Romania after the fall of the Berlin Wall. Another rationale for tougher measures is protection of the welfare state. Relaxed policies, the view holds, would overwhelm a receiving country’s ability to provide such services as health care and education. Furthermore, asylum seekers are often seen as a threat to national identity and social cohesion. Fostering such xenophobic views has become the stock-in-trade of politicians like France’s Jean-Marie Le Pen, Patrick Buchanan of the US, and Australia’s Pauline Hanson. These fringe figures rarely lead governments, but their populist appeal has been noted by mainstream parties, who have adopted their own anti-immigrant and anti-refugee policies. It was no coincidence that Australia turned away the migrants on the Norwegian freighter shortly after Hanson’s One Nation party mounted its first insurgency in the polls. And because the displaced can’t vote, they pose little risk to politicians who make a show of getting tough on asylum policy, even when doing so has a disastrous impact on genuine refugees.

One serious negative effect of the collapse of Western asylum is that it has emboldened governments in the developing world to enact their own anti-refugee measures. In the early 1990s, for example, the American interdiction policy became the subject of a legal challenge, brought forward by a group of lawyers and law students representing Haitians who had been denied entry to the US; ultimately, the Supreme Court ruled that the policy was legal, which spurred other nations to toughen their own laws. The government of Thailand said the American policy demonstrated that the principle of asylum was a “Machiavellian device designed to satisfy and calm the conscience” of Western governments. Soon after, it expelled thousands of Burmese and Cambodian refugees.

An even more dramatic shift occurred in Tanzania in 1995, when roughly 40,000 Burundians tried to enter the country. Once one of the most welcoming African states for refugees, Tanzania responded by closing the border to prevent half of the Burundians from entering, and announced plans to expel all refugees living in the country. Speaking at a conference six months after the border closure, Tanzania’s foreign minister singled out the American interdiction program as a precedent that had inspired his government. According to a report of the minister’s speech, “He said that it was a double standard to expect weaker countries to live up to their humanitarian obligations when major powers did not do so whenever their own national rights and interests were at stake.” As Arafat Jamal, a former refugee analyst with the UN, has noted, “Nations that absorb the most refugees in Africa will often cite the EU or US tightening their policies as a rationale for them to tighten their own policies.” Modelling a better example to governments in the developing world, where refugees number in the millions, would give a state a form of moral suasion most Western countries lack. It is also in every nation’s interest to see better treatment of refugees in poor countries, which would reduce the strain on Western peacekeeping efforts and asylum systems, as well as inhibit the instability and extremism that often accompany refugee crises.

The final reason to improve asylum policy is self-interest. People who have fled repressive regimes have made significant contributions to American intellectual and cultural life, as evinced by such figures as the political theorist Hannah Arendt (from Hitler’s Germany) and the economist George Borjas (Cuba). In Canada, our two previous Governors-General, Adrienne Clarkson and MichaÃ«lle Jean, arrived here as child refugees. Developing a more humane policy would be a boon for any state far-sighted enough to do so. And in Canada’s case, it would continue our tradition of being what Jean has called “a country of so many possibilities.”

Canada’s record, however, is far from spotless: we engage in our own form of interdiction, albeit one conducted at foreign airports rather than on the high seas, by trying to prevent the departure of anyone on their way here to seek asylum. But a close inspection of Canada’s asylum policies reveals intimations of a better alternative.

Canada’s multiculturalism policy goes hand in hand with being a country of immigration. As in the US and Australia, being open to newcomers is part of how we understand ourselves. By comparison, countries such as the UK and France admit migrants but do not view their integration as a feature of the national identity. An even stronger contrast can be seen in Japan, which resists accepting immigrants as full members of its society. Not surprisingly, the country has the world’s most unwelcoming asylum system.

During Japanese refugee hearings, applicants must meet an unusually high standard of proof: they are asked, for instance, to present documents such as arrest records—as if the governments out to kill them would be only too happy to help with their asylum paperwork. Their lawyers are only permitted to attend hearings at the discretion of the hearing officer, and a negative decision can be delivered without any rationale. No wonder obtaining asylum in Japan is a rare event. The US recognized 19,766 asylum claims in 2005, compared with Japan’s 145—and that year’s level was unusually high for Japan. Between 1993 and 2002, the country recognized an average of 27 asylum claims per year; between 1994 and 1997, it accepted just one a year.

Japan serves as an extreme example. But in other countries with a descent-based model of belonging, refugees also receive a hostile reception, no matter how well founded their claims. Israel, for example, whose law of return makes it welcoming to Jewish migrants, has a poor record regarding Arab and African asylum seekers. Germany has also historically had a low acceptance rate, an outcome due in large part to its tight model of citizenship, which sees the country as the homeland of people of German descent.

Canada is the anti-Japan. Where countries in continental Europe had an average acceptance rate of approximately 24 percent from 2004 to 2008, Canada’s rate during the same period averaged around 40 percent (and was even higher in the past). For all that has been written and said about multiculturalism, its life-and-death benefit for some of the world’s most vulnerable people is one of its least appreciated features. Canada also initiated an important innovation in refugee rights, one that, if broadened and extended, would significantly increase the probability of refugees receiving a fair hearing.

The 1985 Supreme Court decision Singh v. Minister of Employment and Immigration represents a historic breakthrough. It found that people seeking asylum in Canada have constitutional rights—protections they do not possess in most other countries. In particular, it recognized that claimants have the right to an oral hearing. Another strength of Singh is that the court ruled that even if people were recognized as convention refugees, Canada didn’t have to keep them here. Indeed, while the decision upholds the rights of those seeking asylum, it also recognizes our prerogative to enforce our borders, because it doesn’t stipulate where a refugee hearing must take place. Canada could, for example, relocate an applicant to the US, Sweden, or New Zealand—any country other than the one he or she is fleeing—provided the receiving country gives the person a hearing. This brings us to the final innovative aspect of Singh: it presents a template for enforcing other refugee rights beyond Canada’s borders.

To fortify this decision, I would argue for two additional rights: the first is the right to representation at hearings by a lawyer, with counsel provided for free to those who need it. The second is protection from arbitrary detention. The mass internment of asylum seekers as practised in Australia treats refugees like criminals; prior to reforms made in 2005, there were cases of people being detained for over five years. (Canada also detains refugees, but in a more selective and moderate fashion.) Anyone held for more than a few days should be entitled to some form of judicial review, to ensure a legitimate reason for the continued confinement exists.

That these rights could be exercised both within and outside Canada is crucial. Consider safe third country agreements, which permit nations that receive asylum seekers to turn them back at the border to have their cases heard in safe countries they passed through on their flights from persecution. In 2004, Canada and the US implemented such an agreement, which applies to asylum seekers who arrive at Canadian land borders; they now must return to the US to have their cases heard there instead of in Canada.

The circumstances under which such relocations are made raise concerns. Here in Canada, about 85 percent of refugee applicants receive some form of legal aid—another factor, beyond multiculturalism, that makes our acceptance rate higher than the global average. No guaranteed legal aid for asylum seekers exists in the US. While lawyers do take on cases pro bono, many people end up going through the system with no representation. Harvard University law professor Deborah Anker estimates that refugee claimants who don’t have lawyers are four to six times less likely to be accepted than those who do.

Canada’s third country agreement is like most, in that it allows officials to adopt an out of sight, out of mind attitude toward the asylum seekers they turn away. A reformed agreement would attach conditions to ensure that any third country would uphold the same procedural safeguards. In Canada, asylum seekers would have the same three fundamental rights—to an oral hearing, legal aid, and a judicial review of detention decisions—whether their case was heard here or elsewhere. Each right would follow a relocated asylum seeker to wherever he or she was transferred, even if the destination country did not ordinarily supply refugee claimants with such protections.

A system of rights built on the Canadian approach would achieve its greatest chance of success, paradoxically, if it were combined with stronger provisions for deportation. In many Western countries, such orders are not always followed through. In 2007, for example, Canada slated 63,000 people (not only failed refugee claimants, but also those who overstay tourist and other visas) for deportation, but the whereabouts of 41,000 of them was unknown.

This is in part why so many countries implement such harsh no-entry policies. As Matthew Gibney, an asylum scholar at the University of Oxford has put it, “Inclusion and exclusion are two sides of the same coin.” Because of the perception that failed refugee claimants may not be deported, not admitting them in the first place is often seen as the only way to prevent their long-term residency. Between 2002 and 2007, Canada increased the number of deportations it carried out every year, from 8,683 to 12,636, but here, as elsewhere, there is room for improvement. Other challenges remain, including the treatment of asylum seekers intercepted at sea. To exercise their rights, they need to make it to a new country; many nations go to considerable lengths to ensure migrants never reach their shores.

Canadian laws and legal ideas have a long history of being emulated by other countries. Australia implemented a Canadian-inspired multiculturalism program in 1973, while in 1992 Israel inserted into its Basic Laws a provision similar to the notwithstanding clause in our Charter of Rights, which permits Parliament to temporarily override some rights. Canada leads other nations in producing laws that become subject to “legal transplantation.” According to University of Virginia law professor Frederick Schauer, “Canadian ideas and Canadian constitutionalists have been particularly influential, especially as compared with the United States. One reason for this is that Canada, unlike the United States, is seen as reflecting an emerging international consensus rather than existing as an outlier.” Schauer wrote that in 2000, before the George W. Bush administration and its many extreme legal measures—from the Patriot Act to legalized torture—reduced the United States’ global standing as a supporter of human rights. For Canada, modelling best asylum practices to the world would merely continue its ongoing tradition of international legal innovation.

Canada has, haltingly, begun bringing this new approach to asylum seekers’ rights into being. The current government, however, seems committed to marching in the opposite direction. Last year, immigration minister Jason Kenney and public safety minister Vic Toews announced plans for a new asylum policy that Amnesty International has characterized as containing “blatant, egregious Charter violations.” The primary concern is a mass detention scheme that would see designated groups of asylum seekers held for up to one year with no chance of judicial review. The government’s measures may prove so extreme that the Supreme Court will strike them down, much as Singh overturned the unjust practices of a previous generation. But whatever the outcome of these misguided proposed reforms, Canada’s current system has long contained the foundations of a better way—a foundation, one hopes, that will remain.

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