Photo: Takver/Flicker

It is time for those of us who report on refugees and other migrants to stop using the false and damaging term “illegal immigrant”. 

When desperate people cross from the U.S. into Canada via unguarded back roads or through farmers’ fields they are seeking an opportunity to make claims as refugees, under the provisions of the Geneva Convention of 1951 — which Canada signed more than 50 years ago. Although they get here irregularly, such migrants are not illegal. They are exercising their rights under international law to seek asylum in Canada. We should call them refugee claimants or asylum seekers. 

The same applies to equally desperate people trying to enter the U.S. at its southern border, both at official ports of entry and unguarded crossing points. Those migrants believe themselves to be in danger, often grave danger, in their home countries. Some have lost family members to criminal gangs from which their governments are unable or unwilling to protect them. Others bear literal scars from their encounters with criminals who operate as powers unto themselves, unhindered by officials who are sometimes corrupt, or are too frightened to act.

These asylum seekers enter the U.S. seeking protection and status under the clear and simple terms of the Geneva Convention, to which the U.S., like Canada, is a signatory. Calling such would-be refugees illegal immigrants is false and malicious.

Two countries, two very different refugee systems

These days, Canada generally respects the Geneva Convention on refugees. Once migrants arrive here claiming protection under that international treaty they are guaranteed full, fact-based hearings before the federal Immigration and Refugee Board (IRB).

The 1951 Convention on Refugees states that governments can legally detain asylum seekers only for a few specific and precise reasons. One of those is that the claimants cannot establish their identity to the satisfaction of the authorities. Another is that claimants have criminal records. And yet another is that the authorities have grounds to believe the would-be refugees will not show up for their hearings. 

Canada detains only a very small number of the migrants who make refugee claims here. The most common reason is the last one: “unlikely to appear”. When officials have concrete reasons to believe asylum seekers will not show up for their IRB hearings they do detain them, usually for a short time, but in rare cases for periods that are much too long.

In the U.S., currently, officials incarcerate just about everyone who appears at the southern border asking for asylum. Border officials pay no attention to the migrants’ claims of refugee status. Instead they treat virtually all asylum seekers as criminals, guilty, they say, of illegal entry into the U.S.

A U.S. federal court ruling in the 1990s provided that children accompanying adults cannot be incarcerated for more than 20 days. The U.S. government has no intention of resolving any asylum seekers’ case within 20 days, and probably would not have the capacity to do so. That’s why the authorities have been taking away asylum seekers’ children when they lock up the parents. 

President Trump claims to have resolved the issue by ordering border officials to incarcerate children together with their parents. At the same time, Trump’s Justice Department has asked the federal court judge who made the initial ruling on child detention to change the 20-day provision. We would then have the cheery and heart-warming prospect of asylum seekers and their families jailed indefinitely in criminal facilities.  

Trump’s executive order does nothing to reunite the more than 2000 children who have been separated from their parents. As well, Trump has indicated that his officials could still separate children and their parents after a period of confinement. The U.S president has also intimated that he is open to rescinding his hastily concocted executive order, almost on a whim.

The bottom line is that the Trump administration still intends to practice what it calls “zero tolerance”. It will continue to incarcerate virtually all asylum seekers, without exception. And it will do so whether those refugee claimants arrive at regular ports of entry or swim across the Rio Grande. This practice is a direct and flagrant violation of the Geneva Convention. The 1951 treaty specifies that governments can incarcerate would-be refugees only for legitimate reasons and only on a case-by-case basis.

Incarcerated asylum seekers in the U.S. can still make refugee claims from behind bars, but it is not easy. And U.S. Attorney General Jeff Sessions has made it all the more difficult by stating that fear of criminal gangs, however well-founded, does not qualify a person for refugee status. The Geneva Convention does, in fact, recognize that people can be legitimate refugees if they are in danger of being harmed or killed by so-called “non-state actors”. Criminal gangs fall onto that “non-state” category, but Sessions does not care. 

The U.S. Attorney General has been clear that his true motive for jailing asylum-seeking migrants is, in fact, deterrence. He wants to discourage others from trying to enter the U.S. to seek protection under the Geneva Convention. However, deterrence is not a legitimate ground for incarceration under international law, according to treaties the U.S. has signed. 

Of course, as we know all too well, the current U.S. administration has little regard for international treaties and agreements.

Canada has one such agreement with the U.S., which now looks like it is all but irrelevant. No, we’re not talking about the North American Free Trade Agreement (NAFTA). The agreement to which we’re referring is the Canada-U.S. Safe Third Country Agreement (STCA), which the two countries signed in 2002 as part of a larger entente on border security. 

An agreement that no longer makes any sense

Sixteen years ago, the STCA was almost a footnote to a multi-faceted package of integrated border measures. Since the arrival of President Trump, however, the safe third country agreement has forced would-be refugees, worried about their fates in an increasingly hostile U.S., to cross the U.S-Canada border ‘irregularly’, avoiding official border stations. Some have done so at considerable risk. A few suffered severe physical harm when they crossed in frigid winter conditions. Once in Canada, those irregular arrivals are free to make refugee claims. Canadian authorities will not force them back to an unwelcoming U.S. 

On the other hand, because of the STCA, any refugee claimant who tries to cross from the U.S. to Canada at an official border crossing will be turned back immediately, before setting foot on Canadian soil. 

The legal fiction of the safe third country agreement is that both the U.S. and Canada treat refugees according to international law and treaties. Would-be refugees do not have the right to venue shop between two supposedly equally welcoming and safe countries.

In light of what is currently happening in the U.S., the safe third country argument looks ridiculous. Refugees are manifestly not safe in the U.S., a country that blatantly and repeatedly defies key provisions of the 1951 Geneva Convention. 

After ducking the issue for a few days, Canadian Prime Minister Justin Trudeau said clearly and unreservedly this past Wednesday that he and his government believe what Trump is doing is wrong, full stop. The logical corollary to that statement is that the STCA now makes no sense whatsoever, either morally or according to international law.

The NDP has called on the Trudeau government to abrogate or at least suspend the 2002 Safe Third Country Agreement. Amnesty International and other groups such as the Canadian Council for Refugees have done the same. While six months ago many Canadians would have been horrified at the prospect of, in effect, opening our borders to thousands of potential refugees, the Trump administration’s increasingly wanton brutality has probably changed more than a few minds.

In addition, Trudeau seems to have lost his fear of offending an increasingly irrational and demonic Donald Trump. In any case, despite the Canadian government’s best efforts over more than a year to make nice with the U.S. president, immediately following the G-7 summit Trump decided to consign Canada and its government to his enemies list.  And he did so in particularly nasty and vicious way. 

If Canada were to do the right thing now and abrogate the Safe Third Country Agreement President Trump might not even deem it worth a single derisory tweet.

The true consequence of abrogating the safe third country agreement will not be arousing Trump’s ire. The true consequence, as the National Post’s Andrew Coyne has correctly noted, will be the cost of the additional resources Canada will need to process and assist the increased flow of asylum seekers from the U.S.

In the interests of justice and global solidarity, that would be a worthwhile price to pay. 

Photo: Takver/Flicker​

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Karl Nerenberg

Karl Nerenberg joined rabble in 2011 to cover news for the rest of us from Parliament Hill. Karl has been a journalist and filmmaker for over 25 years, including eight years as the producer of the CBC...