A DEFENSE OF THE SAFE COUNTRY CONCEPT FOR REFUGEES (Written In 2002, but just as applicable today)

In late June of this year, Canada’s Deputy Prime Minister John Manley and United States Homeland Security Director Tom Ridge, announced a thirty point smart border plan designed to improve security along the US/Canadian border.

Included in the plan is a provision to declare the United States a safe country for refugees. This provision if approved by the legislators of both countries will mean that some of the people arriving at Canadian land border points from the United States will no longer be allowed to make a refugee claim in Canada.

This is a long overdue first step in the direction of reforming Canada’s dysfunctional inland refugee system.

The possibility of the United States being declared a safe country for refugees has outraged refugee activists, immigration lawyers and non-governmental organizations that receive Government funding to look after refugee claimants after their arrival in Canada.

These groups protest that the United States is not a safe country for refugees, despite the fact that country is also a signatory to the UN refugee Convention and accepts 53 percent of refugee applicants compared to Canada’s acceptance rate of 57 percent. These traditionally staunch defenders of an open door policy for people claiming flight from persecution further insist that anyone entering Canada should have the right to make a claim for refugee status.

These groups also have been highly successful in ensuring that Canada’s asylum system has remained resistant to any attempt at badly needed reform. It was primarily through their lobbying efforts that the Mulroney government failed to enact the safe country section of the 1989 refugee legislation, thus effectively negating that legislation and opening Canada up to thousands of illegal immigrants posing as refugees [ more than 400,000 asylum seekers have entered Canada since 1989.]

These same groups lobbied hard for passage of the Immigration and Refugee Protection Act approved in November 2002. This legislation made it easier for people to claim refugee status and more difficult to remove those who were found not to be genuine. This was done by broadening the definition of refugee accepted by the United Nations; adding yet a further level of appeal for refused cases at the Immigration and Refugee Board [IRB]; and formalizing and requiring a pre-removal risk review before anyone could be removed from the country.

Even before this new legislation was introduced, Canada had the most generous asylum system in the world. Consequently, there did not appear to be any rational reason for making the most generous system even more generous- but strong lobbying by the special interest groups managed to convince a willing Government to proceed. The timing was ill advised and the legislation itself bordered on the irresponsible. Notwithstanding hard evidence that Canada was rapidly becoming the country of choice for human smuggling by criminal organizations and despite strong evidence that a number of asylum seekers were known to be associated with al Qaeda terrorists, our Members of Parliament showed no concern. The Bill proceeded through the House of Commons unchanged.

Surprisingly, the legislation did not even stimulate any serious debate nor did it meet with any effective opposition in Parliament. The Bill was under debate before the House of Commons when the terrorist attack against the World Trade Center and the Pentagon took place. Later, during hearings in the Senate, a former Assistant Clerk of the Privy Council and three former Ambassadors appeared before the Senate Committee. They argued the Bill was seriously flawed and asked, in the light of the September events, that it be returned to the House of Commons to strengthen the security sections. The Senate Committee ignored this plea and rapidly approved the Bill, with little public fanfare.

Quite apart from the events on September 11, it was evident that the new Canadian legislation was out of step with the other asylum receiving countries. While Western European countries, the United States and Australia were tightening up their asylum systems, Canada was moving in the opposite direction.

Countries that are signatories to the United Nations Convention Relating to Refugees are thereby obliged to protect people fleeing persecution. Experience has demonstrated that if a country uses a quasi-judicial system to determine refugee status then there is every chance numbers will overwhelm the system. Backlogs build up and the process becomes so lengthy that it may take up to two years for a case to be heard. The system then becomes vulnerable to wide scale abuse and becomes a target for human smugglers. This is what has happened in Canada.

To protect the asylum system from abuse and to ensure that only credible cases get to the refugee board, most refugee receiving countries implement pre-screening procedures. There are a variety of methods used to achieve this purpose,but the most common technique is the safe country concept.

The rational for this concept is that if an individual is a citizen of a country that is democratic, a signatory to the UN refugee Convention and has a good human rights record, then the person concerned is unlikely to be a genuine refugee. If the claimant is not a citizen of a safe country but has arrived from one that is safe, then the person concerned can be returned to that country to have the claim considered there. Therefore, refugee applicants who are citizens of safe countries or who arrive via safe countries are deemed ineligible to make a refugee claim and are treated as illegal entrants. This form of screening- out ineligible applicants puts a stop to asylum shopping and leaves the Refugee Board free to adjudicate the most credible cases.

In the current system, anyone arriving in Canada, however, is entitled to claim refugee status and almost every one who applies is entitled to a full refugee hearing before the Immigration and Refugee Board [IRB]. They are also entitled to a full range of social benefits while waiting for their claim to be heard including free legal representation. The costs to the Canadian taxpayer of this system have been estimated to be in the neighborhood of 2 to 3 billion dollars each year.

The United Nations High Commissioner for Refugees [UNHCR] estimates there to be close to twenty five million refugees under the jurisdiction of his office. These poor people are living in desperate conditions in refugee camps around the world.

The UNHCR, with a budget of about $ 1 billion US, lacks funds to adequately feed, house, or in some cases, even to afford these refugees basic protection from armed attacks by marauding bands.

Canada gives the UNHCR a meager 20 to 25 million dollars annually. Yet our refugee activists and immigration lawyers see no contradiction in the amounts spent on asylum seekers as compared to what is given to help genuine refugees in the camps.

Last year 44,000 asylum seekers arrived in Canada: the year before the figure was 38,000. Almost all of these people came to Canada from or through safe countries, mainly from Western Europe or the United States. Few, if any came directly form the country where they claimed to be persecuted.

The highest numbers come from countries that provide Canada with most of its legal immigrants: China, India, Pakistan and Sri Lanka. Obviously these people are not coming to Canada to flee persecution but to avoid having to meet normal immigration requirements including medical, criminal and security checks.

Many thousands of these entrants arrive without documents or with false or altered ones. These are the people using the services of professional smugglers. Arriving in Canada without documents is not a barrier to admission and very few of those who do so are detained. Most are fingerprinted, photographed and released on the day they arrive. Security and criminal checks are started upon their arrival but often such checks take many months to complete. In the meantime they are on their own and free to reside anywhere in Canada. Since there is no tracking system there isnt any way of knowing where these people have gone. What is known is that 20% or more never bother to show up for their refugee hearing. So far the Canadian Government has not seemed to consider this a security concern.

In the first four months of this year, almost 11000 people arrived claiming to be refugees fleeing persecution. They were citizens of 152 different countries. Among them were citizens of the United States, Costa Rica, Brazil, Jamaica, Trinidad and Tobago, Portugal, Hungary, Argentina, Mexico, India, Turkey, Venezuela, Philippines, and Barbados as well as claimants arriving from France, Germany, Greece, Spain, Switzerland and the Netherlands! These are the people we are epected to believe are fleeing torture and death at the hands of their malevolent government!

It is highly unlikely that any of these claimants would have been permitted to apply for refugee status in the United States or Western Europe. They would have been screened out as coming from safe countries or subjected to accelerated procedures as manifestly unfounded claimants. Not so in Canada. The refugee activists would be outraged and would charge that these people, if not allowed to submit a claim, would be forced to return to certain torture or death.Such charges are of course ridiculous but the media usually gives credence to whatever is said by immigration lawyers and refugee activists on the assumption they are acting on behalf of genuine refugees

Ironically, perhaps the greatest threat to the well being of the 25 million refugees around the world is the immigration lawyers and refugee activists.These self- proclaimed protectors of the refugee devote most of their time and energy in advocacy work on behalf of the thousands of asylum seekers coming to Canada each year. They express little interest in the global plight of refugees in the camps.

The special interest groups have become the acknowledged experts on refugee matters. They exert influence far beyond their numbers or their importance in Canadian society. They are the organizations that receive Government funding for their activities. They are the organizations that regularly appear before Parliamentary Committees. They are invited to make presentations during Government consultations on refugee issues. The Minister of Immigration and the media consult them whenever refugee matters are to be discussed. The obvious conflict of interest involved is overlooked or ignored.

The inland refugee system has evolved into a multi-million dollar industry in Canada. Non-Governmental organizations receive millions of dollars each year to care for asylum seekers. Immigration lawyers receive millions in legal fees to represent asylum seekers at hearings before the IRB. The 180 or so members of the IRB, all of whom are political appointees and few of whom have any relevant refugee experience, receive annual salaries in the 80,000 to 100,000 dollar range.

The processing costs alone for asylum seekers last year was 150 million dollars. This does not include the far greater costs for housing, welfare and medical care.

Direct costs are not the only price Canada pays for its outmoded and misguided asylum system. Because of its refusal to enact a sensible safe country provision, Canada has been forced to impose visitor visa requirements on a great many democratic and friendly countries [excepting visitors from Western Europe and the United States], fearing that their citizens will submit refugee claims after their arrival. Such action not only is a barrier to free travel it has an adverse impact on our international trade and tourist industry. Furthermore, the imposition of visa requirements is always interpreted as an unfriendly act by the country affected, damaging our bilateral relations.

Canadas asylum system is not serving the interests of refugees. It inhibits us from doing our share to help resolve the serious global refugee problem. It encourages and rewards human smuggling. It undermines every effort undertaken to improve the security of North America against terrorist infiltration. It impairs our international trade and tourist industry. It has strained our bilateral relations with many friendly nations. It makes a mockery of our regular immigration programme at the cost of millions of dollars that might better be spent in other, more essential areas. In short, it is an area of public policy that cries out for urgent reform.

Reform should not be difficult. As a first step all that is needed is to enact the safe country provision that is already incorporated in the Immigration Act. The Government has the legislative power to list countries that are safe for refugees and to declare persons from those countries ineligible to make an asylum claim. All of the countries of the European Union have such a provision and the UNHCR has approved this method of pre-screening.

There is some difference of opinion about whether Canada can decide unilaterally if a country is safe for refugees, or if this must be negotiated with the country concerned. I am firmly of the view that the legislation enables the Canadian government to decide this unilaterally and without negotiation, as European countries do. What can be negotiated are arrangements for the return of illegal immigrants. Such return arrangements have proven useful in the European context

It is time that Canada once again played a leadership role in refugee issues. We can only do that by recognizing the difference between illegal migrants entering the country in the guise of seeking asylum and the real refugees, who are living in refugee camps. We must first, however, devise policies that are in the best interests of the refugee and of Canada. Perhaps the first tentative step taken by Mr. Manley will lead to further and more significant reform.

James Bissett

[Mr. Bissett is a former Canadian Ambassador. From 1985 to 1990, he was the Executive Director of the Canadian Immigration Service.]