Frontier Justice

by Andy Lamey

  In the United States, border screenings for refugees are part of a larger system known as expedited removal. It allows border guards to turn away people who do not make refugee claims with even less formality than those who do ask for asylum. After expedited removal was brought in, Immigration officials in California were surprised to find that the new arrangement seemed to result in more border crossing attempts. People who were subject to instant turnarounds, it turned out, made more attempts at entry than people deported under the old system, which involved a judicial hearing. Immigration officials concluded that being denied entry due to a hearing was a stronger deterrent against trying again than being summarily rejected at a border post or airport. As one government report put it, “It appears that an order issued by an immigration inspector does not have the psychological force of an order issued by an Immigration Judge. What is gained in expediting by the new statutory process may be lost in increased recidivism.” Until we know the relationship between border screenings and repeated refugee claims, it seems premature to conclude that screenings will necessarily bring significant savings.

  None of this, however, is to deny that there are shortcomings either with Canada’s approach to asylum or the Singh-inspired model I have defended. To see those shortcomings, though, we have to look in places that advocates of low immigration rarely do.

  Romero House is a refugee shelter in downtown Toronto. Its storefront office faces out onto an old industrial neighbourhood that now has a multicultural feel, Eastern European delis and Asian restaurants mixed in with movie-art dealers and hockey supply stores. Visitors to Romero House are greeted by its director, Mary Jo Leddy, who has a gravity-defying bouffant of grey hair. Leddy, a former nun in her sixties, has been at Romero House since she more or less fell into working there in 1992. (“I was on the board of a Catholic newspaper. We were looking for a new editor and we found someone we liked. She said she had a job at a shelter. I said I’d take her job at the shelter.”) Today Leddy and a changing group of volunteers live with refugee claimants in a network of four houses Romero operates, where more than two thousand people have stayed over the years.

  Leddy wrote a PhD dissertation on the philosophy of Hannah Arendt. As an illustration of the enduring value of Arendt’s work, Leddy describes a hearing she once attended with a successful refugee claimant who was seeking landed immigrant status.

  “I have some rights here in Canada,” the refugee said at one point.

  “No, you don’t,” the Immigration officer replied. “You don’t have any rights until I give them to you.”

  In such moments Arendt’s diagnoses of human rights are vividly brought to Leddy’s mind. “Human rights, she was saying, are an empty concept, unless they are enforced through public institutions,” Leddy says. “I see this every day, as I go to Immigration offices and refugee hearings.”

  Leddy is an admirer of the Singh decision, which she calls “an incredible piece of [law] that should stand as a model for the world.” Yet Leddy also says she has seen a great falling-away from Singh and what it represents. “We have made administrative decisions that effectively shut the door … in a very Canadian way, quietly, all on paper.”

  Leddy points to the Canada-U.S. Safe Third Country Agreement, which allows Canada to turn back refugee claimants who arrive at a land border crossing and have their claims heard in the United States instead. The agreement does not apply at airports, where it was thought it would be impossible to enforce (someone who arrived by air could destroy all her documents in the airport, effectively hiding the fact that he had arrived via the United States). The agreement was widely taken to account for the immediate drop in the number of refugee claims filed in Canada; they fell from 25,500 in 2004 to 19,740 the next year. But since then the total has climbed, reaching 28,340 in 2007, although it is impossible to know how many more claims might have been made had the deal not been signed.

  A shortcoming of the third-country agreement is personified by Gustavo Neme, a Colombian refugee who now works for Romero House as an administrator. With his neatly pressed white shirt, short black hair and outgoing personality, Neme could be the maître d’ at an expensive restaurant. In reality, he is the former director of the Bogotá parks system, a government position that brought him to the attention of the Revolutionary Armed Forces of Colombia, a Far Left rebel group known by its Spanish acronym, FARC.

  FARC controls large portions of the Colombian countryside and has pockets of support within various Bogotá neighbourhoods. It has for years targeted members of the Colombian middle class for extortion. Neme believes they singled him out because of his job: “Sometimes they think, you’re working for the government you’re working against them, so … you can become a target. That happened with me. So I have a couple [threats] happen with me, against my life.”

  Neme fled to another part of Colombia, only to realize it was not safe before fleeing again, this time to the United States. His first asylum hearing occurred in the wake of September 11, during which time the American government widened its definition of a terrorist. Under the so-called material support doctrine, anyone who provides money to terrorist groups is also considered a terrorist, and so ineligible to make a refugee claim. The law made no distinction for money extracted through extortion, with the result that thousands of Colombians were classified as terrorists, even though they themselves are victims of terror.

  Neme spent four years trying to make his case to American Immigration officials, only to be repeatedly denied. “The two hearings I had in the States, it was bad. I feel like I was the most biggest terrorist in that country. They treat me so bad I was ready to tell them, ‘I don’t care. I don’t want to be in your country. Just forget it, I would like find another country.’ ” In 2004 Neme moved to Canada, where he was finally accepted as a refugee. “The treatment was much better,” he notes. “The judges and everything, the systems, they have big differences.”

  Mary Jo Leddy says that before the Third Country deal was signed, many of the refugees she dealt with were middle-class Colombians like Neme. They are still targeted by rebel groups in their home country. Yet they are no longer eligible to make refugee claims in Canada and are sent back to the United States instead, no matter how unreasonable the procedure they can expect to face there. In 2008 the situation of Colombians seeking asylum in the United States improved when the government changed the law to permit exemptions for people in Neme’s situation. Exemptions, however, have been granted in a halting and piecemeal fashion, such that the material support doctrine still sees asylum seekers undergo extended detention, separation from their loved ones and other deprivations.

  In addition to posing special problems for Colombians and several other nationalities, the American asylum system has other drawbacks—such as the lack of legal aid for people making refugee claims—that have caused Canadian refugee advocates to call for the Safe Third Country deal to be scrapped. As Leddy describes the deal, “There’s somebody clawing at the door in desperation, and we have slammed it in their face.”

  In 2005 the same Barbara Jackman who argued Singh worked with three other lawyers to file a legal challenge to the Safe Third Country Agreement. In 2007 a Canadian judge accepted their arguments and issued a 126-page decision that noted a wide range of areas in which American asylum procedures fell short of human rights standards. The judge’s criticism of the material support doctrine, in particular, was scathing. He called it “a significant departure from both international law and Canadian law. The absence of the defence of duress turns child soldiers, those forced (often at gunpoint) to support terrorist groups, and those coerced to pay revolutionary taxes, into terrorists in the U.S. system and subject to refoulement.” The judge’s decision was so favourable to Jackman’s legal team that they could not believe the scope of their victory. “We are somewhat surprised,” one of Jackman’s colleagues admitted. “This is a vindication of the rights of refugees that we haven’t seen around the world in a while.”


  But the victory was short-lived. The Canadian government appealed, resulting in a second decision that could not have been more different from the first. Whereas the original judge had addressed the material support issue and other questions on their merits, the appeal judge focused on technicalities. One of them was whether Canada had considered American asylum practices in good faith before signing the deal. The main issue, in other words, was not U.S. policies, but whether Canada had taken reasonable steps to look into them when it signed the agreement.

  Here the appeal court noted that before the Safe Third Country Agreement went into effect, the Canadian government had received testimony from the Canadian representative of the United Nations High Commissioner for Refugees, Jahanshah Assadi, who said, “We consider the U.S. to be a safe country.” In the view of the appeal court, that was enough to show that the Canadian government had met the good faith test when it signed the Third Country deal. “Given the position of the UNHCR, the main supervisory body in relation to refugee protection, it cannot be suggested that the [Canadian government] was not acting in good faith, when it designated the United States as a country that complies with its Convention obligations.”

  A point that was overlooked during the trial was that UNHCR is often criticized for being too dependent on the goodwill of the American government. Critics point to a shift UNHCR has undergone since the end of the Cold War, transforming from an agency that focuses strictly on refugees to one that attempts to help anyone affected by humanitarian crises, whether or not they are refugees. This expanded mandate required more extensive fundraising efforts to address crises in regions such as the Balkans and East Africa. Yet these same crises also saw UNHCR fail to live up to its new mandate, causing its donors to actually slash their funding. The result is that in recent years UNHCR has become heavily dependent on a small handful of governments, particularly the United States, which has long been its biggest donor. As Gil Loescher of Oxford University and two co-authors have written, “While the scale of US support has enabled UNHCR to carry out many of its programs, American dominance has enabled Washington to determine many policy and personnel decisions within UNHCR.” According to Loescher and other critics, UNHCR goes to excessive lengths “safeguarding the confidence of donor governments” such as the United States.

  Such an arrangement calls into question the reasonableness of letting UNHCR testimony regarding the safe third country be decisive. At a minimum, the Canadian government should have also been expected to give weight to the views of Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches—three NGOs directly involved in the legal challenge—as well as Human Rights First, Immigration Equality, the World Organization for Human Rights USA and the American Civil Liberties Union, all of which submitted affidavits on the Canadian NGOs’ behalf. In his testimony, Assadi presented no evidence to defend U.S. policy from the many criticisms levelled against it by these and other groups. Yet despite his testimony’s shortcomings, it was taken to show that Canada had done due diligence before signing the agreement.

  The result of the Safe Third Country Agreement is that Canada has taken a major step backwards in the protection it offers refugees. Colombians have been denied a much-needed avenue of escape. Moreover, while 85 percent of asylum claimants in Canada have legal representation, the percentage is much lower in the United States. Even non-Colombians, therefore, are sent through an inferior system when they are turned back at the Canadian border. These limitations infringe on the rights of people seeking asylum in Canada. The deal, as we have seen, makes an exception for people who arrive by air, and so does not completely destroy Canada’s refugee rights framework. But it does violence to that framework nonetheless.

  Canada’s agreement with the United States is one reason why it is important to distinguish between the Singh decision and Canada’s approach as a whole. If the Singh decision is inspiring, Canada’s system as a whole is not. As we’ve seen, interdiction measures against refugees are employed everywhere from the Windward Passage to the northwest coast of Australia. And the Singh decision, it bears noting, has not prevented Canada’s enthusiastic participation in this sad international trend.

  This fact is often brought home to Howard Adelman of York University who specializes in refugee issues and who regularly travels to East African and other international crisis zones. “I haven’t studied this, so I must admit, it’s impressionistic,” Adelman says, “but Canada probably has one of the best systems of interdiction at airports abroad.”

  Adelman points to events he has witnessed many times while standing in line in airports in the developing world: “I travel all the time, especially to Africa, and I can’t tell you how many times I’ve seen people pulled out of the line. [Immigration or airline officials] have various clever devices. They ask you where you live. Your telephone number is a good clue. And if the telephone doesn’t correlate with where you live very quickly, or your postal zones, or things like that—and these guys really know their numbers—they catch you.”

  We can imagine how this arrangement would have worked had it been in place in Zaire in 1997, when Francine Peyti was trying to get to Canada on a fake Dutch passport. Standing in line to board a plane at the Kinshasa airport, Peyti would have been asked where she lived in the Netherlands and what her phone number there was. If she had even thought to make up a number, the officials questioning her could have simply dialled it and seen that it was not hers. Peyti would thus have been unable to escape Zaire, where she had been shot at and been the victim of attempted rape. That Zaire was a dangerous place for someone like Peyti would be of no concern to the airline personnel involved, whose chief concern is to avoid a fine for bringing in travellers who don’t have the right documents.

  That Canada conducts its own forms of interdiction highlights the fact that whether the right at issue in Singh will be enforced crucially depends on whether the asylum-seeker involved has reached Canada. The scope of this limitation becomes apparent when we recall how much interdiction is now done at sea. Singh would have no relevance to someone intercepted on the high seas before reaching the shores of Nova Scotia or British Columbia. Singh, therefore, does not represent an adequate solution to all the problems refugees now face.

  It is difficult to think of what a fully adequate solution might be to the problem of human rights enforcement at sea. When Japanese ships harpoon whales off the coast of Antarctica, members of Greenpeace sail after them to record and denounce their every move. There may be no solution to interdiction at sea short of human rights groups adopting a similar approach in regard to the U.S. Coast Guard. Either that, or international trade deals should be made to include human rights clauses, as rights advocated have long pushed for. But so far as current reality is concerned, Arendt’s criticism of human rights remains nowhere more powerful than in regard to the high seas.

  In addition to the Safe Third Country Agreement and interdiction, Canada’s refugee system has a third problem. As it happens, it is one emphasized by low-immigration advocates, but is one human rights advocates should take seriously as well. It concerns deportation. The number of people actually removed from Canada has long trailed behind the number of deportation orders. In 2008, for example, there were 66,000 people slated for removal (a group that includes not only rejected refugee claimants but tourists, students and other temporary residents who overstay their visas); the whereabouts of 41,000 of them were unknown.

  Canada’s experience is not unique. Many other countries also fail to follow through on deportation orders. Officials in both Paris and London have estimated that when failed asylum claimants are not detained, they disappear 70 percent of the time. In London alone, failed asylum claimants and their families are thought to make up a significant portion of a total underground population estimated at 100,000. If Western states have a border-control problem, therefore, it is due not to an inability to control who enters their territory, but to who exits. Or as Howard Adelman puts it,
“The big problem that no one has solved is not the problem of intake, because that works more or less effectively and fairly with all kinds of little problems in management. The real problem is no country knows how to deport people effectively.”

  Some rights advocates might ask whether a failure to carry out deportations is really so bad. If some people are able to stay in Canada after their paperwork expires, who really is hurt? The answer is, refugees. The fact that many people are not removed after arrival has been a major incentive to the creation of no-entry policies for asylum-seekers. As Matthew Gibney puts it, “The restrictiveness of the liberal state’s policy towards asylum seekers can be seen as flowing from the liberalism (intentional or otherwise) of its policy towards foreigners [illegally] inside the state. Inclusion and exclusion are two sides of the same liberal coin.” Given the diminished likelihood that failed claimants will eventually be deported, not admitting them in the first place is now seen as the only way to prevent their long-term residency.

  Many states today turn away genuine refugees, so we should hope that they improve their asylum programs before addressing their deportation problem. Nevertheless, over the long term no-entry policies are unlikely to disappear without swift deportation becoming a more likely outcome for people who are fairly found not to be refugees. In that regard, it is encouraging to note that Canada has recently increased the number of deportations it carries out. Deportation, however, remains a neglected spending area, and more resources still need to be devoted to it in Canada and elsewhere.