Friday, October 15, 2010

Asylum Process as Border Control

I'm in Toronto today, speaking at a conference entitled Directions and Developments in Refugee Determination. Organized by Donald Galloway of the University of Victoria Faculty of Law, former member of the Immigration and Refugee Board of Canada and current President of the Canadian Association for Refugee and Forced Migration Studies, the conference brings together law professors from around the world to discuss comparative and international law on refugee determination. In particular, the conference will focus on the new Canadian refugee law, Bill C-11, passed in June of this year, which makes significant changes to Canada's asylum process (prior post here).
My talk will focus on asylum process as border control. In the United States, anti-immigrant sentiment in combination with powerful push and pull factors enticing migrants northwards have resulted in a schizophrenic approach to immigration law and policy. While legal employment migration routes are severely restricted, jobs aplenty are available to those able to cross the border. In many cases, legal migration options are so limited that the asylum determination process provides the only avenue for lawful entry into the United States. The legislature has responded to resultant concerns of overload and misuse of the asylum process by instituting procedural bars to asylum.
These bars, which often aim to exclude the undocumented, may have unintended consequences, particularly for those applicants filing claims based on gender violence or sexual orientation. Such "non-traditional" applicants may be unaware that the harms they suffered, often at the hands of non-state actors, make them eligible for asylum, and may also be particularly reluctant to share their stories of persecution with government officials. Though these asylum seekers have meritorious claims, they may not file for asylum until after the one-year filing deadline has passed or may not be able to articulate their fears in an expedited removal hearing at the border. The unexpected consequences of these procedural bars, then, can be quite severe.
Is Canada headed down the same path? Faced with a 60% increase in asylum applications between 2006 and 2008, Bill C-11 imposed procedural bars on the asylum process. As discussed in my prior post, the law introduces safe country of origin requirements, which can be put into place based on the number of asylum claims from and grant rate for nationals from a given country. These nationals may then face shorter time limits in the asylum process, including those related to filing and perfecting appeals, which may be added through regulations.
Canada's use of procedural restrictions on the asylum system as a mechanism of border control mirrors the American approach. Not only will such an approach harm applicants with non-traditional claims, but it fails to address the root push-pull factors spurring migration in the first place. Procedural bars are not the solution to the "problem" of undocumented migration. Instead, Canada and the United States should pursue development policies that promote safety, stability, and economic growth in home countries and offer safe and legal migration routes for those whose labor is needed to drive our economy.

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