Opinion Editorial

Let's set refugee policy without U.S. involvement

Jamie Liew, Postmedia Network

Conservative public safety critic Tony Clement . (GETTY IMAGES)

Conservative public safety critic Tony Clement . (GETTY IMAGES)

The streams of people crossing snow-laden fields, risking loss of fingers and life in the cold, have prompted a lively discussion about what to do about migrants circumventing our ports of entries at land borders.

Conservative public safety critic Tony Clement called for a stop to the growing number of "illegal crossings" by refugees at the Canada-U.S. border. But Clement did not understand what exactly happens at the border, even in legal terms. Now that this humanitarian crisis is at our doorstep, let's be sure we do.

The term used by Clement, "illegal crossings," is incorrect. The Immigration and Refugee Protection Act (IRPA) does state that a person seeking to enter Canada must appear to be examined by a Canadian official (presumably at a port of entry) to determine if he or she is authorized to enter. It also states that contravening any part of the act is an offence.

It is important, however, to note that the act also provides a caveat to this. A person who claims refugee protection may not be charged with an offence in relation to their coming into Canada pending disposition of their claim or if refugee protection is conferred. In other words, it is not illegal for a refugee -- or a refugee claimant for that matter -- to enter a country without authorization.

This exception in the act recognizes a long-held principle of international refugee law and in the United Nations' Refugee Convention: a state shall not impose penalties on refugees who may enter without authorization. It recognizes refugees sometimes make desperate and perilous choices to find safe haven.

The focus of our discussion should not be whether persons are entering "illegally" or not, but how we can alleviate the hardship of those taking risks to seek refugee protection.

Indeed, the crossing of refugees in barren fields is proof that Canada is not doing all it can to help. The existence and enforcement of the Canada-U.S. Safe Third Country Agreement is the primary reason refugees are avoiding our ports of entry.

The agreement delegates Canada's assessment of whether we should authorize entry of some foreign nationals into Canada from the United States to the U.S. itself. Refugees understand that if they are coming from the U.S., they may not be allowed to enter Canada. They are expected to claim refugee protection in the U.S. if they set foot there first.

Putting aside the issue of whether we should let refugees into Canada, every Canadian should feel queasy at the idea that Canada has allowed another nation to make such important decisions for us. Even before President Donald Trump issued his executive order barring travellers from several countries, questions arose regarding whether the U.S. was abiding by international human rights and refugee law standards. The U.S. assesses refugee protection in very different ways from Canada. This should concern us.

One example is that the U.S. imposes a one-year limit to make a refugee claim, and due to backlogs of immigration processing, may miss this deadline through no fault of the claimant. As well, the U.S. detains many more refugee claimants than does Canada.

If we want to ensure people are arriving to Canada with their limbs intact, a simple solution in the short term is to suspend the Safe Third Country Agreement. In the long term, Canada must revisit the agreement and not take for granted that another state will make decisions the way Canadians would.

Finally, we should stop characterizing this humanitarian crisis as "illegal crossings" and focus on policy alternatives to provide a humanitarian approach to this refugee crisis.

Jamie Liew is a refugee lawyer and a University of Ottawa law professor.