CIMM Committee Report

Dissenting Report of the New Democratic Party

Preamble

Globally, there are 89.3 million forcibly displaced persons as a result of persecution, conflict, and human rights violations. 21.3 million are UN registered refugees. 53.2 million are internally displaced. 4.6 million are asylum seekers. The majority are in neighbouring countries relative to their country of origin.  The top five countries hosting the largest refugee populations are:  Türkiye, Colombia, Uganda, Pakistan and Germany.[1]

Due to Canada’s geographical position and given the global context, Canada is seeing an increase in asylum seekers in search of safety through our land borders with the United States.  Meanwhile, anti-refugee and anti-immigrant sentiment has risen globally since the Syrian refugee crisis.

In 2017, with the anti-immigrant rhetoric from the Trump administration, Canada saw a large volume of people crossing irregularly into Canada through the Canada-US land border in search of safety.  While the Covid-19 pandemic slowed the flow somewhat, with the reopening of the border in November 2021, the volume has once again picked up, especially in Quebec, through Roxham Road. 

Currently, the three provinces with the most RCMP interceptions are Quebec, British Columbia, and Manitoba.[2]

Introduction

On October 28, 2022, the House of Commons Standing Committee on Citizenship and Immigration (CIMM) decided to study the conditions faced by asylum-seekers using the irregular administrative path maintained by the Safe Third Country Agreement (STCA), and consider the safety, security and health of people and families of migrants, with particular attention to the Canada-United States border at Roxham Road.  

The committee heard from 27 witnesses. Witnesses who presented to CIMM overwhelmingly called for the Government of Canada to suspend the STCA.  Advocates, lawyers, and academics strongly believe that the STCA contravenes the Canadian Charter of Rights and Freedoms by putting the lives of asylum seekers at risk. This was also the opinion of the federal court in 2020.

In addition, numerous witnesses provided compelling testimony on how the STCA places asylum seekers in highly dangerous and precarious situations by denying them entry at official border crossings.  Furthermore, witnesses also disputed claims that removing the STCA would result in a large rise in individuals seeking asylum citing a lack of evidence. Many witnesses stated that removal of the agreement would more evenly distribute claims across the country in a more orderly fashion at official ports of entry.

Those who work directly with asylum seekers also raised serious concerns with recent increases in processing delays of refugee claimant identity documents and work permits. 

This dissenting opinion is necessary to ensure the recommendations proposed by expert witnesses are accurately reflected to the Government of Canada.  

A. Rationale to Suspend the Safe Third County Agreement

1. Safety Risks Faced by Asylum Seekers Through Irregular Migration Pathways

The Safe Third Country Agreement denies asylum seekers the ability to enter into Canada from the United States through official ports of entry. As a result, many resort to highly dangerous irregular migration pathways, risking life and limb in their desperate attempt to get to safety.  

In the wake of the anti-immigrant, anti-refugee sentiments of the Trump administration in 2017, there were many media reports of asylum seekers who feared persecution and violence if deported back to their country of origin, and who risked their lives to walk to Canada in freezing cold temperatures. Mr. Seidu Mohammed, a LGBTQ claimant from Ghana crossed the Canada–U.S. border in Manitoba in the dead of winter and lost most of his fingers to frostbite.[3]  His asylum claim in Canada was later determined to be valid by the Immigration Refugee Board.

The average acceptance rate for all admissible refugee claimants seeking protection in Canada of 66% is very similar to the acceptance rate of 61% for irregular, but admissible, asylum-seekers. [4] One-third of irregular refugee claimants who file for appeal on the merits of their claim are successful upon review by the Refugee Appeal Division of the IRB.[5] According to IRCC, 90% of irregular crossings in Canada occur at the Roxham Road border.[6]

Refugees deserve a humane and safe process to enter Canada where their lives are not endangered. Abdulla Daoud, Executive Director of the Refugee Centre explained that:

Basically, we're forcing asylum seekers to go onto terrain that's very dangerous. We've already established that these are legitimate claims and that what they're going through is very unfortunate. In order to regulate the matter and ensure that the government and community organizations can service them correctly we need to suspend it [the STCA].[7]

This sentiment was also echoed by Frantz André, Spokesperson and Coordinator, Comité d’action des personnes sans statut:

I think people would be much less afraid of migrating, knowing they are able to enter at a port of entry whose role it is to admit people with dignity. Taking a route where you are told that if you continue, you will be arrested, means enduring more stress and a form of aggression after being refouled by so many countries. That is why I strongly suggest that the safe third country agreement be eliminated.[8]

Marzieh Nezakat, Manager, Refugee Settlement and Integration Program, Multilingual Orientation Service Association for Immigrant Communities, also spoke of the need for a dignified claims process for asylum seekers through official ports of entry:

As a settlement agency that provides services, we would really support a dignified claim process for refugee claimants. We all know that when they try to cross irregularly, it is contrary to being dignified…

They would not really risk their lives going through the forests and putting themselves and their families in danger, as we see today. There has to be this certainty or reassurance to these people that if you cross regularly through the official ports of entry you are not going to be returned, you are not going to be deported [if you are found eligible], so do what is safer for you and your families and with a bit more dignity.[9]

2. Undermining the Premise that The United States is a Safe Country

The Safe Third Country agreement was predicated upon the notion that Canada and the United States have comparable policies and “that the United States was a reliable partner for sharing responsibilities regarding refugees…But we know now that the problems associated with it [STCA] outweigh any benefits."[10]  For many migrants, the United States simply does not provide safe refuge. Mr. Frantz André clearly stated that the United States is not a safe country and that the STCA “is discriminatory.”[11]

Maureen Silcoff pointed to specific problems and deficiencies in the United States asylum system which creates unsafe and vulnerable situations for many people seeking asylum:

I think it's really useful to look at the very specific categories or classes of people who are experiencing lack of safety and serious deficiencies in the system. If the system doesn't function properly, people are at risk of refoulement, which means that they would be sent back to their country of origin to experience further persecution…

People who don't make an asylum claim right away can't enter into the asylum system. There are lots of reasons why people may not come forward—because they're traumatized, because they're ashamed, because of cultural reasons—so this particularly impacts gender-based claims.

We know that people may not come forward with their claim, and then if they turn up at the border and they're rejected because of the STCA, then they really have a problem in the U.S. because … they can't access the U.S. asylum system.[12]

She also went on to describe differences in immigration detention practices as a key difference between the US and Canadian immigration systems:

In Canada, detention is seen, both according to the case law and the policies, as a last resort. The UNHCR specifies that people seeking protection should only be detained as a last resort. The United States sees detention very differently. They see it as an immigration management tool… When somebody is in jail in the U.S., they're experiencing very serious difficulties, and that's very different from Canada, so that's another category of people who are vulnerable.[13]

3. Disputing claims that numbers of asylum seekers will increase

Minister Sean Fraser claimed that “A simple suspension of the safe third country agreement …  would lead to a potentially significant number of people making claims in a different and perhaps less organized way.”[14] According to the government the STCA “needs to be improved and modernized.”[15] Details were not provided regarding what modernization would look like.

However, witnesses disputed claims that suspension of the Safe Third Country agreement would result in drastic increases in refugee claims.

Maureen Silcoff noted that:

There's concern about the increase in numbers [of asylum seekers if the STCA is scrapped], but I think we have to separate what we know from what we're just fearing. What we know is that there has been no evidence to show there will in fact be an increase.

There was evidence provided through CBSA to the Federal Court in the safe third country agreement challenge, but there was no evidence. The court found that there was actually no evidence that there would be an increase, that there had not been statistics provided about that. I know that case is on appeal, but actually that point itself has not been appealed.[16]

On the contrary, witnesses claimed that the removal of the STCA would address chaos at the border and more evenly distribute claims throughout the country.

This sentiment was expressed by Perla Abou-Jaoudé:

We think that suspending the safe third country agreement would result in a better distribution of claims throughout the country, and one result would be to enable claimants to have access to an Association lawyer. That factor is very important for them to be well represented and for them to be recognized as credible by the judge.

In addition, that would give claimants better access to housing, food, and various services, including interpretation. By relieving the pressure on Quebec's system, it would facilitate better access to all these services.[17]

Stéphane Handfield, immigration lawyer, pointed to comparisons of inflows before and after implementation of the Safe Third Country Agreement as evidence to counter the argument that its suspension would drastically increase inflows:

You have to look at what was happening at the time, before the Safe Third Country Agreement went into effect. We were not getting disproportionate streams of asylum seekers. It was pretty much the same from year to year. So I don't see how suspending the agreement would worsen the situation, quite the contrary.

I would remind members that, so far in 2022, 99.3% of asylum seekers who enter Canada irregularly have done so through Roxham Road… If the agreement were suspended, asylum seekers would no longer converge there… Instead, asylum seekers could simply show up at any checkpoint and be properly handled by Canadian authorities, the way it used to be done.[18]

4. Closing the Border at Roxham Road is Not a Solution

Witnesses rejected claims that closing the border at Roxham road is a viable solution:

According to Stephan Reichold, Director General, Table de concertation des organismes au service des personnes réfugiées et immigrant:

It [closing Roxham Road] would lead to indescribable chaos. People would try to find other roads, roads much less safe than Roxham Road. That would not benefit anyone—not refugees, not Canada's security, not the provinces'. It's an idea that looks good but isn't.[19]

Ms. Appolonie Simbizi, Secretary General, Alliance des Burundais du Canada stated that : 

If Canada were to close Roxham Road without a tangible alternative to address the problem of asylum seekers at an impasse, it would be using its geographic location to partially escape its responsibilities to protect asylum seekers.[20]

Therefore, the NDP makes the following recommendation regarding the Safe Third Country Agreement.

Recommendation 1

That the government of Canada suspend the Safe Third Country Agreement.

B. Public policy exemptions to the Safe-Third Country Agreement

In the absence of suspension or removal of the STCA, the government must at the very minimum, issue public policy exemptions for vulnerable individuals.

Maureen Silcoff explained that public policy exemptions are another tool to protect vulnerable groups:

One option… is to end or suspend the STCA, but there's an alternative. Article 6 of the STCA allows Canada to exempt classes of people or individuals on public policy grounds.

Canada now uses only one public policy exemption. That's for individuals facing the death penalty. There used to be a second one, as mentioned earlier, for people who are on Canada's list of countries to which we don't deport. That was ended in 2009.

Options at this point could include expanding exemptions and allowing for gender-based claims… In fact, the UNHCR recommended using public policy exemptions when it commented on Canada's draft regulations back in 2002, and this included for gender-based claims.

As well, exemptions could be created for vulnerable people who are turned around at the border and put into U.S. jails. Of course, the images of kids in cages offer a horrific window into the system that jails vulnerable people when they're simply seeking safety.[21]

Several other witnesses agreed that at the very least, the government of Canada should exempt individuals from the Safe Third Country Agreement who are faced with a return to their home country when it is not safe to do so.[22] [23][24]

Therefore, the NDP makes the following recommendation.

Recommendation 2

If the Government of Canada fails to suspend the Safe Third Country Agreement, then the Government of Canada should undertake to expand exemptions provided in the Agreement to include gender-based claims as a public interest exception, and restore the exemption for claimants from moratorium countries.

C. Delays in issuing the Refugee Protection Claimant Protection Document and Work Permits

The Refugee Protection Claimant Document, or the "Brown Paper," is an essential document issued by the government to asylum seekers and refugee claimants upon their arrival, which affords them eligibility to access federal healthcare, obtain a work or study permit and access housing options.

Abdulla Daoud, executive Director of the Refugee Centre explained that:

 Typically, as soon as an individual makes an asylum claim in Canada, whether it be an inland claim, a border claim or an irregular crossing claim, they are instantly given the refugee protection claimant document, famously known as the brown paper. As soon as they are granted this document, they are given 45 days to submit their paperwork and initialize their claim.[25]

However, according to the Refugee Centre, there has been a recent "deterioration in the bureaucratic processes and promises made to asylum seekers by the Canadian government." The government has introduced an "Acknowledgement of Claim" document issued in temporary lieu of the brown paper in tandem with an "Entry for Further Examination Document" which "signifies that the CBSA agent does not have the capacity to assess the claim until an arbitrary date."[26]

The Refugee Centre first encountered these documents in January 2022 which Mr. Daoud describes as a "bureaucratic tool to delay granting the refugee claimant the brown paper, while stripping them of certain rights that the brown paper affords them."[27]

Further, the brown paper delays have recently become much lengthier and normalized according to Mr. Daoud:

At first, it provided an appointment dated three to six weeks from the refugee claimant's time of entry for them to acquire their brown paper and become eligible to apply for asylum in Canada. However, as time progressed, appointment times for both documents lengthened to 12 to 24 months... In one instance, our legal clinic saw an appointment given 16 months from the time of entry and the appointment was on a Sunday, when the IRCC offices are closed… From our internal statistics, from September 1 until today, over 90% of the 312 asylum seekers we have worked with have received an acknowledgement of claim with a date in the future for a brown paper.[28]

Witnesses such as Marzieh Nezakat, highlighted that these delays worsen the economic vulnerability of asylum seekers:

When making a claim inland, the claim process takes months longer [compared to claims at official ports of entry] and claimants are left with no income assistance and delayed work permits of up to 18 months, which makes earning a living nearly impossible.[29]

Therefore, the NDP makes the following recommendations related to processing of documents.

Recommendation 3

That Immigration, Refugees and Citizenship Canada and the Canada Border Services Agency work in tandem to issue Work Permits and Refugee Protection Claimant Documents, without delay, to all eligible asylum-seekers upon arrival, whether regular or irregular, at the Canadian border.

Recommendation 4

That Immigration, Refugees and Citizenship Canada and the Canadian Border Services Agency increase processing capacity to clear the current processing backlog for asylum seekers and issue them Refugee Protection Claimant Documents as soon as possible.

Recommendation 5:

That the Government of Canada ensure sufficient resources are allocated to the Royal Canadian Mounted Police, the Canada Border Services Agency and all relevant agencies at the border to support expeditious processing of asylum-seekers and safer working conditions for government officials. 

Recommendation 6

That IRCC issue a Refugee Protection Claimant Document that is valid until the final IRB determination is made.

D. Access to Resettlement and Other Support Services

Witnesses also spoke about the difficulties faced by asylum seekers in accessing housing upon their arrival to Canada.

 Stephan Reichhold spoke to the urgent need for housing resources:

We are proposing, and we are asking the federal government to establish, a system of longer-term accommodation… at least during the winter and especially for the most vulnerable families. Given the housing crisis, it is virtually impossible to find a place to live. The occupancy rate at shelters for homeless people is therefore rising, something we absolutely want to avoid.[30]

Marzieh Nezakat echoed concerns about the lack of funding from the federal government:

There is only one federally funded program [in British Columbia] which is called Reaching Home by IRCC and it is only for some of the transitional houses. We do not have many transitional houses for refugee claimants in B.C.… I would say nearly all the funding is provided by the provincial government and not by IRCC.[31]

Therefore, the NDP makes the following recommendation.

Recommendation 7

That the Government of Canada provide increased funding for resettlement services and establish a system of transitional housing for refugee claimants.

Recommendation 8

That the Government of Canada create and fund a training program for health care workers to raise their awareness of the Interim Federal Health Program and how health care workers play an active role in serving asylum-seekers through this program.

E. Conclusion

The NDP strongly agrees with committee witnesses who offered their expertise and recommendations through a practical and human rights-based lens.

The testimony from witnesses clearly indicated that the Government of Canada must suspend the STCA as a step towards building a more just and humane asylum system, in line with international human rights obligations.  Not only will this minimize the grave danger that asylum seekers are exposed to in an effort to find safety, it would also ensure orderly crossings, improve safety and security throughout Canada’s border communities, and provide the respect and dignity that human beings fleeing violence are entitled to under Canadian and International Law.

The failure of the Committee’s report to reflect this recommendation is a clear demonstration of the pre-existing bias of the majority of the committee members. 

With respect to the concerns and recommendations raised around processing delays for asylum seekers to obtain their refugee claimant identity documents and work permits and the need to ensure adequate supports are in place to ensure they succeed in their resettlement in Canada, the NDP is in full agreement with the witnesses’ perspective.  This delay exacerbates the vulnerability and economic precarity of asylum seekers when they arrive in Canada. The Government of Canada should endeavor to issue Work Permits and Refugee Protection Claimant Documents to all eligible asylum-seekers upon arrival, whether regular or irregular, at the Canadian border. Given that many of the asylum seekers have gone through traumatic and arduous journeys before they arrived in Canada, it would be critical that they are provided adequate resettlement support upon their arrival to Canada.

Addendum

An expanded Safe Third Country Agreement came into effect on March 25, 2023 at 12:01am EDT.  By applying the STCA beyond official ports of entry, to the entire length of the Canada-US border including internal waterways, the new policy further pushes asylum seekers to highly dangerous irregular migration pathways, risking life and limb in their desperate attempt to get to safety. This deal between Canada and the US was signed in secret, back in Ottawa on March 29, 2022, without any public consultation, while the constitutionality of the STCA is being challenged in the Supreme Court of Canada.

The government’s own internal analysis indicates that the expanded agreement may lead to increased dangers for asylum seekers, including risks of human trafficking and sexual violence, with disproportionate impact on migrant women, girls and LGBTQI+ individuals. The government moved ahead with this policy despite knowledge of the devastating human rights implications. The NDP condemns this policy and calls on the government to immediately suspend the STCA.