By: Karina Juma, Canadian Immigration & Refugee Lawyer
Earlier today, the Minister of Public Safety, Gary Anandasangaree, introduced a new bill entitled the “Strong Borders Act” (Bill C-2), proposing amendments to strengthen law enforcement at Canadian borders, combat transnational organized crime (including the importation of fentanyl), and introduce stronger anti-money laundering measures.
If Bill C-2 becomes law, it will have significant impacts on Canadian immigration and asylum processes, with the potential to cancel immigration applications awaiting processing, contrary to Canadian administrative law principles, as well as to bar individuals from claiming refugee protection, contrary to Canada’s international obligations under the 1951 Refugee Convention and other fundamental human rights treaties like the Universal Declaration of Human Rights.
Immigration-Related Changes
The Strong Borders Act seeks to amend the Immigration and Refugee Protection Act (IRPA) and the Department of Citizenship and Immigration Act to:
- Allow Immigration, Refugees and Citizenship Canada (IRCC) to share client information (e.g., identity, immigration status) with federal, provincial, and territorial partners through information-sharing agreements;
- Improve client information sharing between different IRCC programs; and
- Allow for regulations to be created to share client information across federal government departments for cooperation purposes.
Bill C-2 also proposes amending the IRPA to strengthen control over immigration documents for the public interest, which Public Safety Canada states are matters relating to public health or national security. The changes would allow immigration authorities to:
- Immediately cancel, suspend or change groups of immigration documents;
- Suspend the acceptance of new applications; and
- Pause or cancel the processing of applications already in the inventory.
This expansion of IRCC’s powers is particularly alarming because immigration applications could arbitrarily be delayed or refused, leaving applicants without any reasons or recourse to challenge the decision, which is directly at odds with the principles of justification, intelligibility, and transparency required in administrative decisions, as established by the Supreme Court of Canada in Vavilov.
Refugee-Related Changes
Sweeping changes have also been proposed to Canada’s asylum system, claiming to “improve and modernize” the system by “making it more efficient and easier for claimants to navigate” by:
- Simplifying the online application process and making the process the same whether claiming asylum at a port of entry or in-land;
- Referring complete claims to the Immigration and Refugee Board of Canada (IRB) to speed up decisions;
- Ensuring that claims are only decided while a claimant is physically in Canada;
- Removing inactive cases from the system;
- Speeding up voluntary departures by making removal orders come into effect the same day a claim is withdrawn; and
- Assigning representatives to vulnerable claimants to support them during IRCC and Canada Border Services Agency (CBSA) proceedings.
Some of the most concerning changes relate to proposed ineligibility measures to “protect the asylum system against sudden increases in claims”. Bill C-2 will:
- Stop the referral of refugee claims to the IRB made by people more than one year after first arriving in Canada for anyone who arrived after June 24, 2020, including students and temporary residents, irrespective of whether they left and returned to Canada; and
- Stop the referral of refugee claims from people entering Canada from the U.S. by foot and making a claim after 14 days.
The Strong Borders Act will, however, allow people affected by the above ineligibility provisions to apply for a pre-removal risk assessment (PRRA) so they are not returned to a country where they could face harm.
The proposed ineligibility provisions have the potential to prevent access to asylum for thousands of individuals, directly contradicting Article 14 of the Universal Declaration of Human Rights, which stipulates that “everyone has the right to seek and to enjoy in other countries asylum from persecution”, and the principles enshrined in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
Although delay in claiming protection is a consideration in refugee claims, this determination is for IRB Board Members to make, not for IRCC or CBSA to decide. Furthermore, these changes will hinder sur place claims (when a well-founded fear of persecution arises from events that occur after a person has left their country of nationality or country of former habitual residence).
Reflections from A Practitioner’s Point of View
At a time when borders are becoming more restrictive and immigration is constantly under attack, these amendments feed into the narrative that immigrants and refugees are problems.
The changes proposed to the immigration system would remove essential checks and balances that ensure that, at minimum, reasons are provided for delayed or cancelled applications. Imagine waiting years for a permanent residence application to be processed, only for it to be suddenly pulled off of the belt because of a suspected health or security risk, with no opportunity to address the alleged concerns and no way of knowing what those concerns actually are.
In our day-to-day work, we have borne witness to the biased application of immigration measures as a form of reprisal, and we fear that the proposed changes will only increase the targeting of certain applicants. For example, we have come across many applicants caught in prolonged, comprehensive security screening processes spurred by geopolitical tensions and for whom processing delays are being used as punishment. The federal government’s aim is to force applicants out of the system without actually refusing them, using exhaustion as its weapon. Where applicants have been refused, the government has been hesitant to engage with our (geo)political arguments, shielding itself instead behind inadmissibility and unclear statutory definitions, hoping that we ourselves will become fatigued if our efforts to call out discrimination, racial profiling, and unfairness repeatedly go unanswered.
Regarding the asylum-related changes, it is unreasonable to attach a date – especially one from five years ago when Canada was in the midst of the pandemic – as the cut-off date for arrival in Canada and referral of claims to the IRB. Many places in the world where there was violence or unrest five years ago have only become more turbulent and the crystallization of fear is not always predictable, sometimes not for years after leaving one’s country, depending on the circumstances. In any event, these types of credibility assessments are for the IRB to make and today’s announcement will allow IRCC and CBSA to significantly overstep their roles, raising questions about what immigration authorities will be allowed to do next if this bill is passed.
