Frontier Justice

by Andy Lamey

  A similar situation holds in Australia. It is unimaginable that criminals there would be placed in indefinite detention en masse. Yet this was the fate of asylum-seekers such as Mohammad Al Ghazzi, who committed no crime by seeking refuge in Australia. Against the backdrop of the situation in the United States, Australia and so many other countries, the key advantage of a portable-procedural approach becomes clear. It would narrow the gap between citizens’ and human rights. Asylum-seekers’ rights would be enforced the same way crucial citizens’ rights are: by being constitutionally enshrined and placed beyond the easy reach of politicians, who all too often tamper with the rights of refugees seeking asylum.

  Turning to the other corner of the asylum triangle, a portable-procedural model of rights is also clearly superior to the right-to-asylum approach. Recalling the rise and fall of the right to asylum in Germany, and noting how things might have gone differently if a portable-procedural approach had been in place instead, highlights two key advantages of the procedural approach.

  The first is that in a country that adopted it, the rights in question would not be as easily undermined by the restrictive policies of nearby states. As we saw, part of Germany’s problem was that other EU states had no-entry policies that contributed to Germany’s influx. In this way, the no-entry policies of Germany’s neighbours contributed to the undoing of the asylum clause. The portable-procedural model would clearly require co-ordination between states. But had it been in place in Germany, lawmakers there would not have been quite so at the mercy of their neighbours’ restrictive attitudes and policies. Rather they would have had greater flexibility to deal with the crisis as it was unfolding.

  A key feature of Germany’s crisis was that the asylum clause obliged officials to admit every asylum applicant to Germany’s determination system. This created an incentive for an ever-increasing number of weak claims. With the portable-procedural model, by contrast, lawmakers could relocate asylum applicants to a sufficiently rights-respecting third country, and thereby break the vicious circle of unfounded claims and ever-lengthening determination times within a particular state. By granting politicians a greater ability to defuse asylum crises as they are happening, the portable-procedural model is less likely to create crises that can be resolved only by abolishing constitutional safeguards for refugees. A portable-procedural model may therefore be better able to survive at least some situations of mass influx than the right to asylum proved to be.

  The portable-procedural model’s second advantage over the right to asylum is that it would change the nature of safe third country agreements. Such agreements are now a fact of life across the Western world. That they result in refugee applicants being relocated from one liberal state to another is not in itself objectionable. What is of concern is the circumstances under which such returns are made. Germany’s arrangement is typical in that its third-country agreements allow it to adopt an “out of sight, out of mind” attitude. If improper procedures were used or something went wrong after an asylum-seeker were returned to Poland or elsewhere, it was of no concern to German officials: Germany’s responsibility for returned asylum-seekers ended once they left Germany territory. This approach risks seeing a refugee returned to a third country that in turn sends her back to a situation of persecution, a phenomenon known as chain refoulement. Even when this extreme outcome does not occur, returned refugees and asylum-seekers can suffer other negative results, including becoming so-called refugees-in-orbit, shuffled from one country to another without ever having their claims heard.

  A portable-procedural model would reduce the likelihood of such negative outcomes occurring by attaching conditions to third-country agreements. They would now be better termed fair third country agreements, as the states in question would have to pledge to give asylum-seekers a fair hearing. States that adopted the portable-procedural model would be required to make sure that any third country to which they returned asylum-seekers would uphold the same procedural safeguards as the state from which they were being returned. Applied to the German case, an asylum-seeker would not lose the three rights outlined above upon being sent to Poland. Rather, those rights would “follow” him or her over the border. Even if Poland did not normally supply asylum-seekers with legal representation, it would be obliged to do so in the case of returnees. Where Germany’s crisis was ultimately resolved by a severe reduction in refugee protection within Germany, a portable-procedural model could potentially see future crises resolved by improving asylum procedures for at least some applicants in countries to which applicants were returned. States with which Germany signed third-country agreements would have legally committed to an absolute minimum standard of treatment for returned refugees. Should those standards not be met, it could potentially result in a legal challenge to the agreement in a German court.

  The re-imagined scenario I have just described leaves some important questions unaddressed. Who should administer the oral hearings to people knocked back to Poland from Germany? The Polish government? Agents of Germany acting abroad? The UN High Commissioner for Refugees? On the portable-procedural approach, there is no commitment in advance to any particular government or organization being involved. Just so long as the correct procedures are followed, any of the preceding three entities, or some entirely different one, would be acceptable. But more important than re-imagining every particular of the German situation is to highlight the twofold advantage of the portable-procedural approach over a right to asylum. It would not create the same incentive for false claims that Germany was faced with, as there would be no obligation to hear every asylum case within the borders of one country. And it would attach conditions to safe third country agreements of the kind Germany eventually introduced, and which now define the situation of refugees around the world.

  A portable-procedural model of human rights would achieve these goods without calling into question a country’s ability to police its borders. In addition to sending asylum-seekers to appropriate third countries, it would allow refugee-receiving countries to deny work permits to asylum-seekers. The current international trend is for states to be much too quick to deny asylum-seekers the right to work. (Many governments also seem not to realize that it is in their own interest to allow people to work while they are waiting to have an asylum claim decided, as doing so costs less than welfare.) Nevertheless, withholding the right to work may occasionally be among the measures that policy-makers need to use to discourage false claims. Nothing in the portable-procedural model rules it out.

  A third disincentive the portable approach allows is selective detention. The United Nations has stated that detaining asylum-seekers is “inherently undesirable,” particularly when asylum-seekers are housed with criminal offenders, a wrong that is only exacerbated when the asylum-seekers are children. But as the UN also points out, there are cases when adult detention can be justified. They include situations in which there is a need to verify a refugee’s identity, cases in which people have destroyed their travel documents, or to incarcerate a genuine terrorist or war criminal who has made an asylum claim. As is the case with withholding work permits, detention is currently overused by many countries, and often administered in a cruel and humiliating way. Yet given that detention can be justified in selective cases, it is worth noting its compatibility with the portable approach, on the crucial condition that detention decisions are subject to judicial review. By permitting these and other forms of immigration enforcement, the portable-procedural approach would leave intact a country’s right to control its borders. It thus represents a better reconciliation of national sovereignty with human rights than has been the case to date.

  The framework of rights advanced here does not address all the ways states currently mistreat refugees. In the United States, for example, people seeking asylum are forbidden both from receiving welfare and from seeking employment for six months after filing a refugee claim. This places them among the truly destitute. Yet this and other forms of hardship are not add
ressed by the portable-procedural model. Some critics may thus ask, in what sense can it be justified in the name of human rights?

  In response I would make two points. I am arguing for a model of refugee rights to be enforced at the level of constitutional law. Constitutional rights place limits on the measures elected officials can implement. The experience of Germany, however, suggests that one cannot always anticipate the consequences of constitutional rights for non-citizens. I have not argued for constitutionalizing additional rights beyond the three bedrock universal safeguards—the rights to an oral hearing, counsel and judicial review—in order to reduce the risk of creating a system with perverse incentives and unwanted consequences of the kind Germany experienced.

  It does not follow, though, that no other safeguards should be put in place for asylum-seekers. At the level of ordinary rather than constitutional law, they should normally enjoy a right to welfare, employment and many other entitlements. Meeting these and other needs through ordinary law would allow politicians more flexibility should a mass influx occur, and some ordinary entitlements need to be modified. Taking three core rights out of the hands of elected politicians in no way implies that refugees should be stripped of other legal rights at a non-constitutional level.

  Some critics might then reply by asking what is so special about the three rights singled out above. Why should a right to welfare not be regarded as equally worthy of constitutional protection? Perhaps I am wrong to focus on only three rights. But if that is the case, the portable-procedural model can be modified to take the overlooked right into account. It could be adapted so as to state that a refugee can be relocated to a third country where his or her right to welfare would also be respected alongside the three rights highlighted above. This type of criticism is thus not a rejection of the portable-procedural model so much as a possible grounds on which to modify it. I would welcome its expansion to include as many rights as are feasible for it to contain. I have focused on just three partly because it is difficult to say in advance what all the necessary constitutional rights might be. But guaranteeing the three rights at hand is a necessary condition of extending justice to asylum-seekers, whether or not it is a sufficient one.

  A model of asylum-seekers’ rights based on the principles I have outlined could be implemented in a variety of ways. In Canada the Supreme Court found that the Charter of Rights and Freedoms entitles asylum seekers to the right to an oral hearing. Human rights jurists in other countries could potentially initiate similar litigation bringing their constitutional rights instruments to bear on asylum law. Less likely but still possible is that when liberal states introduce new rights instruments or amend existing ones, procedural safeguards for refugees could be inserted. In situations where asylum seekers have no legal protections at a constitutional level, the portable-procedural model could inform the work of non-government organizations that lobby legislators on behalf of refugees. Non-government organizations could take the portable-procedural model as one of their goals to work toward at the level of ordinary of administrative law. Portable-procedural rights would serve as a standard by which to judge refugee protection regimes which fall short of this model. Even where it is not legalized, popularizing it would put paid to the widespread view that controlling the border requires not even hearing the claims of desperate men and women seeking asylum.

  A positive view of Singh is in keeping with how refugee advocates regard the decision. In Canada the decision’s anniversary, April 4, is marked by human rights groups as Refugee Rights Day. Some critics, however, regard Singh not as a great breakthrough but as a step backwards. Even before September 11, critics charged that Singh was an unjustified erosion of Canada’s sovereignty. It is worth examining those criticisms, not only to determine if they are correct but also to see if they highlight problems with the model I have argued for, which goes far beyond Singh.

  Singh is unpopular with advocates of reduced immigration. In the Canadian context the most prominent representative of this view is Daniel Stoffman, a distinguished journalist and author. For Stoffman and other advocates of low immigration, the problem with Canada’s Singh-based refugee policy is that it does justice neither to the claims of sovereignty nor to rights. Instead, they say, it offers the worst of both worlds. Canada’s border control is compromised in the name of a refugee system that does little to help actual refugees.

  Stoffman asks us to consider what a truly humanitarian refugee system would look like. To that end, he holds up Norway as an example. In 2001 the country gave $84 million to meet the needs of people living in refugee camps in the developing world—a remarkable amount for a country with a population of less than 4.5 million. This is in noticeable contrast to Canada, which donated only $51.2 million to the same cause, even though its population was seven times that of Norway’s. When it comes to people who make refugee claims inside the two countries, however, the relationship is reversed. Canada accepts the majority of claimants while Norway rejects all but a handful. As Stoffman puts it, “Norway’s acceptance rate for people who show up at its doorstep and ask for sanctuary within Norway itself is a minuscule two per cent, compared with Canada’s lofty 58-per-cent approval rate of in-Canada refugee claims.”

  Stoffman argues that Norway does the most good for the greatest number of deserving refugees, who are found in camps in the developing world. Canada, by contrast, focuses its resources on the much smaller group of people—amounting to forty-four thousand in 2001—who make refugee claims inside Canada. Stoffman notes that on an international level, only 15 percent of people who make refugee claims within Western countries are accepted. He takes this to show that the majority of claimants are really economic migrants trying to move from a poor country to a rich one. The primary effect of Canada’s high acceptance rate, therefore, is to create a “pull factor” that encourages non-refugees to make refugee claims. Hence Stoffman’s conclusion that Canada has things backwards. “We are spending too much on refugee claimants in Canada and not enough on the real refugees in the camps.”

  What would a better approach look like? Stoffman does not object to the court’s central conclusion in Singh, saying, “Anybody who claims their life is in danger is at the very least entitled to an oral hearing.” But Stoffman argues that Canada has gone further than Singh obliges it to. In the late 1980s, the Canadian government set up a refugee tribunal that hears refugee claims months after claimants have entered the country. Stoffman argues that such an approach is not the only way to implement oral hearings.

  “The issue is, what sort of an oral hearing?” Stoffman says. “The way that it’s been interpreted subsequently is that it’s a full-blown hearing that anybody, even from a non-refugee-producing country, even from a democratic country—even if his claim is transparently absurd—is entitled to a full-blown oral hearing.”

  Stoffman believes it would be better to screen out manifestly unfounded claims at the border. He points to the fact that Canada has received refugee claims from democratic countries such as Costa Rica, which hardly fits the profile of an oppressive state. Not only has Costa Rica long followed the rule of law, but in 1949 it became the first country in the world to abolish its military. Yet in 2002 and 2003, Costa Ricans made 3,357 refugee claims in Canada, which caused the Canadian government to impose a Costa Rican visa requirement (which reduced claims to a trickle). Stoffman argues that rather than let Costa Ricans and other unlikely refugees go through the full hearing process, it would be better to interview all refugee claimants when they first arrive.

  “At the border there would be a qualified refugee hearing officer who would weed out the transparently fraudulent cases,” Stoffman says. “The non-serious ones would be asked to leave, and the serious ones admitted to the system.” Many other critics have also endorsed border screenings, an approach that is now used in the United States and many European countries. Like Stoffman, these critics argue that it would create a “refugee dividend” that could be diverted to refugees in camps overs
eas.

  What are we to make of Stoffman’s criticisms? Much more than the particular experience of Canada is at stake. If Stoffman and other critics are correct, an approach to refugees that stresses the procedural rights they should enjoy upon arriving in the West is misguided from the start. It would be much more sensible to focus on turning away unfounded asylum claims and devote more energy to helping refugees in camps overseas, who are more deserving of our help. I believe that Stoffman’s argument is based on good intentions. Nevertheless, his analysis has serious problems, the first of which recalls Mark Twain’s quip that there are three kinds of mendacity: lies, damn lies and statistics.

  In regard to Norway’s acceptance rate, Stoffman’s 2 percent figure refers to the tiny group of refugee claimants who receive permanent residency. But Norway offers a second type of protection, involving what are known as temporary protection permits. These were introduced across Europe after the civil war in Yugoslavia, when European countries were reluctant to take in thousands of displaced Bosnians. For the purposes of classifying someone as a refugee, people who receive temporary protection are fleeing persecution just as real as that experienced by other refugees. This is why the United Nations and other observers usually include both groups when calculating how many people have received humanitarian protection in a particular country. And when the figures for both groups are combined for Norway, its total recognition rate climbs from 2 to 33 percent.