An Imperiled Border Agreement Could Doom Canada's Welcoming Immigration Policy

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President Donald Trump talks with Canadian Prime Minister Justin Trudeau as they arrive for the G-20 summit in Japan. 

The Canadian government is quietly attempting to renegotiate a “safe third country” agreement it has with the United States. In doing so, Prime Minister Justin Trudeau has had to highlight an issue that has become politically explosive and could create blowback for him in the national elections this October.

The safe third country agreement between the U.S. and Canada stipulates that asylum seekers must claim asylum in whichever of the two countries they arrive first, as both countries are considered safe for asylum seekers under the agreement. Because immigrants traveling overland tend to flow north from Latin America, more people must claim asylum in the U.S. rather than continuing on to Canada, thwarting the Trump administration’s efforts to lower asylum claims.

The situation represents an upending of expectations: At the same time the Trump administration is doing all it can to deter asylum seekers at the Mexican border, it has been content to allow this agreement to remain intact. But more importantly, the situation has upended Canada’s relatively friendly stance on immigration. Political pressure has effectively pushed the Trudeau government to seek renegotiation to close a loophole in the agreement. If asylum seekers cross into Canada at an unofficial point of entry, the safe third country agreement does not apply. This has been framed by Canada’s Conservatives as a loss of control at the border and has become a political wedge issue in the country.

When the agreement was signed in 2004, Canada saw a 50 percent decrease in asylum claims in the first year. But as the Trump administration has cracked down on asylum seekers, migrants have fled further north to find a way into a more welcoming nation. Through the loophole in the agreement, asylum seekers have taken to crossing through farm fields in places such as Emerson, Manitoba, or via Roxham Road in Quebec.

The loophole is no secret, despite what is a treacherous journey. Before Trump was elected, the numbers of asylum seekers crossing irregularly—in between official ports of entry—was so low Canada did not keep records. But since 2017, more than 40,000 asylum seekers have trekked north through the Canadian winter to knock on farmers’ doors, asking for the Mounties to process their asylum claims.

For a country that previously accepted 25,000 Syrian refugees in four months, an average of 20,000 asylum seekers per year is relatively small. And the numbers of irregular crossers have fallen nearly 50 percent compared to the numbers at this time last year. Despite this, Canadian conservatives have treated irregular border crossings as a national emergency.

Under the governing Liberal Party, Canada has set increased immigration targets, intending to welcome more than a million new permanent residents by the end of 2021. According to the U.N., as of 2018 Canada has resettled more refugees than any other nation worldwide.

But Conservative leader Andrew Scheer is campaigning on a platform that would “end illegal border crossings at unofficial points of entry.” He blames Trudeau for the border’s so-called porosity and for what he sees as a resulting decline in the Canadian public’s positive views toward immigration. Some Conservatives have taken to calling irregular crossers “illegal immigrants,” evoking the parallel American rhetoric. The right-wing People’s Party of Canada, led by former Conservative MP Maxime Bernier and favoring reductions in immigration, has put more pressure on the Trudeau government.

Canada needs immigration to meet labor shortages—on that, everyone agrees—but irregular crossers are discussed differently from other immigrants, playing into the hands of Conservatives. “We don’t want immigration to be used as a political weapon here as it has been in the United States,” Goldy Hyder, head of the Business Council of Canada, told Reuters.

Jean-Nicolas Beuze, the U.N. Refugee Agency’s representative (UNHCR) in Canada, said that safe third country agreements, when agreed upon between countries with similar asylum systems and safeguards during the asylum process, can be a helpful tool to share the cost of processing asylum claims between countries, so long as those countries meet certain requirements to be considered safe third countries.

Emphasizing the need to respect asylum seekers’ rights, Beuze said, “We have to be mindful that [these countries] need to find an efficient way of dealing with them. We will lose public opinion when people realize how much it costs to process asylum claims in our countries.”

Anti-immigrant rhetoric, however, has grown more heated as national elections draw near. Quebec, where the flow of asylum seekers is heaviest, elected Coalition Avenir Québec leader François Legault, who, in 2017, warned the border might become a “sieve.” At the time, the Parti Québécois then-leader Jean-François Lisée proposed to block more asylum seekers by building a fence. The fact that provinces, rather than the federal government, have been bearing much of the cost of asylum seekers who cross irregularly gives credence to Conservatives’ complaints. In January, the federal government announced new money for the provinces, but the provinces say it’s not enough.

“I think that conservative elements in Canada view irregular border crossings through the lens of political opportunism and will do their best to exploit it—regardless of whether the numbers remain small or even decline,” says Audrey Macklin, a professor at the University of Toronto. “They will adapt Trump’s anti-immigrant rhetoric to a Canadian audience if it will help. They have little regard for facts, few scruples, and no regard for international law.”

Conservatives have had some success in swaying public opinion. A Vancouver-based Angus Reid Institute poll in August 2018 stated that two-thirds of Canadians think irregular border crossing is a “crisis” and that the number of crossers is “too many” for authorities to handle. Canadians said in the poll they trust Conservative leader Andrew Scheer over Trudeau to handle it. Attitudes toward immigration have declined sharply among all voters as well. Nearly half the population wanted to see immigration targets reduced in 2018, compared to 36 percent in 2014. While this may be indicative of a global reactionary-populist trend toward immigrants as the global migrant crisis grows, it is also reflective of Canadian politicians using fears about a “nearly open border” to turn the public against immigration altogether.

Trudeau fears a loss of his majority and, according to conservatives, it’s these fears that brought him to the negotiating table. Opening these negotiations comes with the peril of Trump taking notice. Since announcing the renegotiations, the two governments have largely kept quiet. In fact, there’s been no status update on these safe third country talks since the initial announcement in early April. According to a State Department official, the U.S. does not discuss “internal and interagency deliberations” and will not “comment on any discussions with Canada.” But the barrage of attacks on immigration and Trudeau’s weakened public support for more-generous migration policies could signal trouble no matter the outcome.

The Trump administration, for its part, seems to see safe third country agreements as a possible tool to achieve lower numbers of asylum seekers. Recently, the U.S. announced that it is looking into safe third country agreements with Mexico and Guatemala, which would force asylum seekers to file in those countries through which most asylum seekers travel, rather than in the U.S. Refugee advocacy organizations argue that neither country meets the requirements to be considered safe and legal. Legal experts have said they could—and would—sue the administration on domestic and possibly international grounds should an agreement go through.

But if Trump looked into the safe third country agreement with Canada, he would see that it does not benefit his hard-line immigration agenda and pull out of it, says Janet Dench, executive director of the Canadian Council for Refugees. To Dench, that would be ideal. Her organization is suing Canada over the agreement on the grounds that the U.S. does not meet the requirements to be considered a safe third country, and that therefore the agreement violates Canada’s international refugee obligations.

CCR previously joined with other organizations to take the Canadian government to court over the safe third country agreement in 2007, winning in federal court. But when the Canadian government appealed the decision, CCR and its allies lost on an issue of legal standing. This second time around, Dench said that they have already found U.S. refugee and asylum experts to testify that there are “extensive and compelling reasons for why the U.S. is not safe for all refugees.” The hearing in the case will take place in November.

“I see the safe third country agreement concept as just one element in a wide range of policies and programs and strategies that are used by governments to prevent and deter refugees from getting to their territory and exercising their right to asylum,” explains Dench. “The safe third country is a kind of civilized thing. It’s a brutal thing, but you dress it up in legal niceties.”

But while ending the safe third country agreement could benefit asylum seekers who want to enter Canada, the controversy around it could imperil one of the last bastions of relatively positive sentiment toward immigrants in the world.

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