It has been suggested that Canada’s closed borders will be at odds with international obligations with respect to refugees and asylum seekers. It’s more complex than that. The border is not business as usual for Canadians or Americans. Official border crossings are closed except for essentials. Those of us that like a rules-based international world haven’t thought what should happen to asylum seekers at borders in international public health emergencies. We should begin.
Alex Neve pointed out in a March 19 Toronto Star article that human rights come as a package and the package comes with built in limits on many rights – like the right to freedom and freedom of movement. In a public heath emergency, limiting freedom of movement is justifiable, to the extent necessary. That means that movement of everyone in the US can be limited by the US and similarly the freedom of movement of everyone in Canada can be limited by Canada. If the US were to stop asylum seekers from reaching the Canadian border would that be illegal now? It depends.
For asylum seekers that are referred to it, Canada’s refugee hearing procedure serves as an asylum process and as an expulsion hearing in one. Once you are found to be a refugee you have asylum. Once you are not, you are in an expulsion process. The refugee hearing is supposed to check also for other human rights at issue such as risk of torture or cruel treatment. And, I like to hope, family rights. This process falls under the general limits imposed by public health and social services.
What about expulsion of people who are not refugees? This is a pandemic – an international public health emergency. International public health considerations should prevail. To my mind, while travel is limited so should be expulsion - deportation. This is the underlying notion about the rights of non-citizens - to the extent possible they are treated like citizens. It’s an international public health issue. It doesn’t help the rest of the world to deport people at this moment and they likely could not arrive! The US has stopped some deportations – to Italy for example. But the same concern surely applies before ventilators are in short supply elsewhere?
From the perspective of the pandemic, the best way of dealing with all non-citizens, including undocumented, is to ensure they fall under management by public health and social service. That way you help control the pandemic. For that to happen you need a firewall between the medical and social services and national border enforcement. Otherwise, undocumented and deportable people will not come forward for treatment and so you will increase the danger to public health. Back in the 1990s when we had visits to the Mexican border with our US church counterparts I gathered that this was how Mexico treated migrants with a health issue (no pandemic then). The migrant could reappear elsewhere in Mexico and the treatment could be continued – it was just public health. I think the same approach is more-or less feasible in Canada and the US thanks to boundaries between state/provincial and federal jurisdictions. And this is more-or less what Canada is doing. International rules and guidance would be useful. So no blaming of Canada here.
What about the US? Expulsion has been prevented to a few European countries but I think expulsions and possible refoulement goes on. The US then faces international condemnation. But condemnation has limited impact on big countries. In the international world of my grandchildren, I hope international rules like a freeze on expulsions in times of pandemics will be a norm. I also hope that by then the international system will have developed sanction mechanisms so that there can be at least some pressure on the world’s bullies to do the internationally agreed thing – for war and peace, refugee needs, climate change, tax evasion and pandemics. Right now only the World Trade Organization has the beginnings of teeth and President Trump seems to be trying to kill that body. But this is another story.
What about rights in asylum and in refugee status?
The American Declaration of the Rights and Duties of Man (American Declaration) provides for all of us in the Americas a right to seek and receive asylum in accordance with national and international law. The “international law” here includes the 1951 Convention Relating to the Status of Refugees (1951 Convention). However the right to seek asylum is limited in the American Declaration by the rights and freedoms of others, the security of all and public welfare. As I read that, in this pandemic, an international public health emergency, the right to seek and receive asylum can be suspended to the extent necessary. It may allow limitations on when and how asylum may be sought. But that needs guidance – more rules.
However, the 1951 Convention applies once an asylum seeker is on Canadian territory. (I think it also applies when Canadian officials exercise jurisdiction.) The Convention is given effect in Canadian law by the refugee status determination procedure. That procedure requires a hearing in accordance with the principles of fundamental justice thanks to the Supreme Court Singh decision. The decision is based on the Canadian Charter of Rights and Freedoms (Charter) and on the Canadian Bill of Rights. Charter rights can be limited as provided in section 1. But given the Bill of Rights has only limitations as written into individual provisions, and given the provisions of the 1951 Convention, I don’t see any legitimate limitation of the refugee hearing beyond public health requirements on all of us.
Some may say the 1951 Convention does not provide for people to enter Canada, and since free movement has been suspended in parts of the US and in Canada arrival would be illegal. However, the 1951 Convention provides that illegal entry is forgivable if the person is indeed a refugee (Art.31). So if someone does cross a border and appears in Canada, the 1951 Convention applies. Are there limits?
The nearest thing the 1951 Convention has to a limit of the rights are provisions to exclude certain individuals from being given refugee status. In addition a State can expel a refugee lawfully on the territory on grounds of national security. But this cannot be done without due process of law (Art.32). Note also that the right to “no return” to a territory where life or freedom may be threatened (non-refoulement) need not apply to a person who is a risk to the national security of Canada (Art.33). There is no provision for international public health emergencies. Nothing allows Canada to limit obligations to grant rights to refugees, or to expel refugees only because it is a time of a public health emergency. The public health emergency may threaten national security, but the threat from individual asylum seekers has so far been limited to things like spying.
What about other rights found at risk in Canada’s refugee status determination hearing?
Canada is party to the UN Covenant on Civil and Political Rights (CCPR) that allows rights to be limited “In times of public emergency which threatens the life of the nation ...” But some rights cannot be limited, including the right to equal treatment (non-discrimination) and the right to protection from torture and cruel treatment. In general rights can be limited by the rights and freedoms of others. The Charter requires limits to be in law and reasonable in a free and democratic society. Canada is also a party to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. That too has an absolute prohibition of expulsion to real risk of torture.
It is important to note that the human rights treaties apply when a state applies its jurisdiction over someone. For example if Canadian officials at a Canadian border apprehend, turn back, or question someone who has just crossed a border, Canada is exercising jurisdiction. And that means that Canada is responsible for upholding the human rights of the treaty at that point.
If torture or cruel treatment is a likely consequence of taking action like sending the person back, that would always be prohibited. So long as expulsion remains possible in the US, as I argue it should not be on public health grounds, Canada is not in line with international obligations if a person is just turned back. If Canada has taken jurisdiction it is Canada that must prevent that likely torture or cruel treatment. Since the established refugee status procedure is the place where that can be checked out, the wise move for the State complying with its obligations under a treaty is to put the person in line to be examined. That means the asylum procedure goes on as best it can subject to the required public health requirements - including 14 day isolation!
In terms of managing a public health emergency the wise move is for anyone aware of border crossers to make sure that those who cross get into a place where there can be effective isolation, quarantine and treatment if necessary. As I mentioned, control should be with the public health and social agencies, not border control. Canada does not need possible carriers of disease entering the territory and being put into jails without that period of isolation that is best handled by public health and social agencies anyway.
This mulling over of things isn’t clean and neat. But what comes out is that the best policy is to ensure that everyone who, for whatever reason, is in Canada or the US is fitted into the public health management regimen. That seems to have been the wisdom of those addressing the pandemic in Canada anyway. We can hope that as times improve the refugee hearings will finally emerge in the sun and with luck those that deserve it will end up getting their refugee or protected person status. But borders are international and now they call for rules for the nations involved and for enforcement. Canada is not alone in what happens at the border. The US should stop expulsions of asylum seekers - and indeed all undocumented people – and use measures to encourage them to fall under public health and social service management, without any connection to national border enforcement.
In
the longer term, we need to work for these
improved international rules. In the very long
term, the world needs to find ways for some
international enforcement of rules around
refugees, war and peace, climate change tax
evasion and indeed pandemic management so that we
don’t have to end up, as usual, blaming Canada
essentially because bully countries don’t pull
their weight.