July 26, 2018 5:20 pm
Updated: July 26, 2018 9:38 pm

‘Illegal’ or ‘irregular’? Debate about asylum-seekers needs to stop, experts warn

WATCH: Are they irregular or illegal border crossers? What to call asylum seekers flowing into Canada has been the topic of debate recently, with even Prime Minister Justin Trudeau calling them illegal. But experts say Trudeau is wrong and using that term is dehumanizing. Mike Le Couteur explains.

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It’s a debate that’s been raging for months. What started as a spat between politicians now seems to be a full-fledged war of words: are asylum-seekers who enter Canada at unofficial points of entry doing so “illegally” or “irregularly”?

Depending on who you ask, using the word “illegal” to describe border crossers is either a matter of “semantics” or a dangerous use of language, the result of which is to dehumanize and falsely criminalize anyone seeking asylum in Canada who doesn’t cross the border normally.

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As recently as Thursday morning, officials from Premier Doug Ford’s Progressive Conservative government, including Lisa MacLeod, Ontario’s minister responsible for immigration, used the word “illegal” to describe the action of asylum-seekers at Canada’s southern border.

But legal experts and human rights advocates — including representatives from the United Nations and Amnesty International — have urged Canadian politicians and journalists to think carefully before they speak and to consider the effects language might have, both on asylum-seekers and the Canadian population as a whole.

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“There’s nothing illegal when you come and you cross an international border to claim asylum,” said Jean-Nicolas Beuze, a representative from the UN High Commission on Refugees. Canada’s Immigration and Refugee Protection Act (IRPA) is “very clear” on that fact, he says.

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Beuze also criticized politicians for their use of what he calls “populist rhetoric which seeks to gain [short-term] voting support,” adding that it’s “dangerous” for politicians to characterize asylum seekers as having a potentially “bogus claim” before their case has been heard. That’s because under both international and domestic law, asylum seekers are “entitled” to Canada’s protection while their claims are being assessed.

Disagreement over what’s ‘illegal’

In April, Prime Minister Justin Trudeau stated unequivocally in the House of Commons that entering Canada at an unofficial point of entry is “illegal.”

“Crossing a border between official border crossings is illegal,” he said.

Trudeau’s comments were in response to a flurry of questions from Conservative MPs who’ve repeatedly used the word “illegal” to describe people crossing the border for the purpose of making an asylum claim.

WATCH: Trudeau says its ‘illegal’ to enter Canada irregularly

Other public officials, including Canada’s immigration minister, Ahmed Hussen, have also used the word “illegal” to describe border crossings at unofficial points of entry.

At a special parliamentary committee held Tuesday to discuss the issue of “irregular” border crossings, NDP immigration critic Jenny Kwan challenged Hussen over his use of this term “illegal,” saying it was irresponsible and not simply a matter of semantics as others, such as MacLeod, have suggested.

In his defense, Hussen said his use of the word “illegal” was referring to the physical act of crossing the border outside of a normal point of entry. He said he has always maintained that asylum seekers are themselves not “illegal” when trying to gain refuge in Canada.

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But legal experts who testified before the committee disagree with Hussen’s interpretation of the law, saying it is not illegal for someone to enter Canada for the purpose of making an asylum claim at any point along the Canada-U.S. border.

In fact, these experts say both international and Canadian law grant specific exemptions to asylum seekers, preventing them from being prosecuted for offences related to their efforts to claim refugee protection in Canada. This includes exemptions for using false passports and other documents, making certain false statements and crossing international borders irregularly.

“I find it difficult to frame this as illegality, given Canada’s obligations to refugees,” said Peter Edelmann, a Vancouver-based criminal defense and immigration lawyer.

“I’d like to emphasize that it is not a contravention of IRPA to cross at a place other than a port of entry,” he said.

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Edelmann also points to a section of Canada’s immigration regulations, which says anyone who crosses the border irregularly “must appear without delay for examination at the port of entry that is nearest to that place.”

According to Edelmann, these regulations mean that so long as someone follows the rules about entering Canada for the purpose of making an asylum claim, which explicitly allow claims to be made at non-points of entry, they cannot be considered “illegal.” Nor can the act of crossing the border itself be viewed as illegal.

Populist rhetoric ‘dehumanizes’ asylum seekers

Alex Neve is the secretary-general of Amnesty International Canada. He testified before the parliamentary committee Tuesday, urging MPs and government officials to choose their words carefully.

“I think it’s absolutely incumbent upon all of us to stop using the word illegal to refer to individuals who cross borders to make refugee claims,” he said.

“It’s a toxic trend that is undermining public support for refugee protection. It is creating an undue sense of alarm and hysteria about refugees and the threats they pose. And… is completely groundless in law,” he said.

“We need to banish it from our vocabulary.”

Meanwhile, immigration lawyer Jamie Liew, who also testified Tuesday, says the debate over “illegal” vs. “irregular” is distracting from the real issue – which is that people are coming to our borders to claim asylum, whether we like it or not, and someone has to deal with this.

READ MORE: Number of irregular border crossings plunges again between May and June

“It’s very damaging to the discourse,” she said. “The language of casting people as illegal really sends a message to the public saying these people aren’t deserving of our attention.”

MacLeod, meanwhile, has defended her use of the word “illegal,” saying she’s simply using a term Hussen himself used in the past.

Questioned directly about whether her use of the word “illegal” is appropriate, MacLeod has repeatedly emphasized Ontario’s position that the federal government is responsible for paying for asylum seekers, not the provinces. MacLeod places the current price tag for this at roughly $200 million for Ontario.

READ MORE: Ontario formally requests $200M from federal government to address asylum seeker costs

However, whether provincial or federal jurisdiction, Liew says the debate around asylum seekers needs to be more civil. She also says politicians should be focussed on finding solutions, rather than arguing about political talking points and potentially disparaging remarks about refugees.

“We should be talking about how to manage the border in an efficient, fair and humanitarian way,” she said. “Instead, we’re kind of using a lot of air space to discuss how we should characterize people coming across the border.”

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