Experts say Scheer’s plan to close border loophole ‘doomed to failure’

Conservative Party Leader Andrew Scheer says that, if elected, he would close the loophole in the Safe Third Country Agreement (STCA) that allows people to make refugee claims in Canada even if they enter the country at an unofficial border crossing.

The Conservatives also aren’t ruling out creating detention camps at the border to house irregular migrants while their claims are being processed.

Asked directly if detention camps were something a Conservative government would create at the border, the Conservatives said the Immigration and Refugee Protection Act provides criteria for detaining asylum seekers. This leaves the option of creating detention camps at the border open.

Scheer’s pledge, made Wednesday at Roxham Road in Quebec, came with few details on exactly how he would close the loophole.

Scheer said his “preferred option” would be to renegotiate the STCA with the U.S., but when pressed on what he would do if U.S. President Donald Trump refused to make a deal, Scheer was light on details.

“There are other options. There are other tools available to the government that we will also be exploring,” Scheer said.

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One of these options is to declare the entire Canada-U.S. border an official port of entry. This way, people entering the country would be covered by the STCA and — if they do not qualify for an exemption under the agreement — would be sent back to the U.S.

Scheer suggested this is one of the options he’s looking at when he said “we can apply the principles of the Safe Third Country Agreement at other points along the border.”

But migration experts, border security officials and the government have questioned whether this is possible.

Sharry Aiken, a Queen’s University law professor, says any plan to scrap the loophole in the STCA without agreement from the U.S. is “doomed to failure.”

She also says expanding the agreement to cover the entire border is nonsensical because Canada does not have the resources to enforce this type of mass “securitization” of the border, nor is this type of strategy effective.

“It’s a huge border.”

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Aiken points to the U.S.-Mexico border as an example of why increased security does not mean fewer irregular migrants.

“As we can see in relation to what’s going on with respect to America’s efforts in relation to Mexico, they’re an abysmal failure,” she said. “People are still crossing, just at higher costs and at peril to their lives. People are dying all the time.”

A Conservative spokesperson later clarified Scheer’s comments on this issue. The Conservatives said it’s not their policy to expand official port of entry status to the entire border. Instead, they would “pursue a regulatory approach to ensure that the principles of the Safe Third Country Agreement are applied and people are not able to jump the queue.”

Promise would require new legislation

Since spring 2017, there has been a significant influx of asylum seekers in Canada, many of whom entered the country irregularly at unofficial border crossings.

The total number of asylum claims made in Canada in 2018 was 55,000, of which about one-third crossed the border irregularly. This was up from 23,500 total claims two years earlier.

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In addition to pledging to close the loophole in the STCA, Scheer said he would move existing judges from the Immigration and Refugee Board (IRB) closer to the border and widely used unofficial crossings to speed up the processing time for claims and make crossing “illegally” less attractive.

But Aiken and others say Scheer could not do this without first introducing new legislation to change the IRB’s mandate. That’s because the IRB operates independently of the government, and administrative decisions are strictly the authority of the IRB’s chairperson, she said.

Raoul Boulakia, a Toronto-based immigration lawyer, says moving refugee judges to the border would also make it a lot harder for asylum seekers to access a lawyer — a right they are guaranteed under Canada’s Constitution.

Meanwhile, Craig Damian Smith, director of the Global Migration Lab at the Munk School of Global Affairs and Public Policy, said Scheer’s pledge lacks vital details.

For example, he wonders if Scheer would create detention camps at the border for asylum seekers who enter the country irregularly to be held while their claims are processed.

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Smith also questions the logistics of the move. The IRB isn’t just made up of judges, he said. There are translators, administrative staff, offices and other things needed in order for claims to be heard and judges to be able to do their jobs.

Smith says holding asylum seekers at the border while their claims are processed — no matter how quickly this is done — presents other problems, such as limiting their ability to work, pay taxes and receive health care.

The Conservative Party, meanwhile, says that if elected, it will amend existing immigration legislation and regulations to make sure IRB judges can be deployed to irregular crossing “hot spots.”

The money needed to relocate IRB judges will come from existing budgets, Conservatives say, adding that there are no plans to change current work-permit rules for people whose asylum claims are allowed to go forward.

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Conservatives point out that immigration detention already takes place in Canada. However, there are currently no immigration detention centres at the border. Instead, would-be refugees who cannot prove their identity, are a flight risk or who could pose a security risk are detained at facilities in Montreal, Toronto and Vancouver.

Some asylum seekers are also held in long-term detention in provincial jails. According statistics from the Canada Border Services Agency, the average stay in immigration detention in 2017-18 was 14 days.

Under current rules, asylum seekers are allowed to move freely within Canada once their claims are made and so long as they are not detained. Unless laws are changed, Smith said, moving IRB judges to the border would not change this and likely will not speed up the hearing process.

Scheer has repeatedly said closing the STCA loophole would make Canada’s immigration system fairer, more orderly and more compassionate.