This
too will pass ?
Spring 2012 refugee legislation and
beyond. May 2012
Click square for index
Legislation
debated during spring 2012 was a rehash
of the legislative proposals begun in
2010 with more excessive rights
restrictions. Issues resolved in
2010-2011 were dealt with all over again
presumably because the Conservative
government was no longer a
minority. Lorne Waldman, in his
keynote address at the CARFMS Conference
at York University in May believed “this
too will pass” and that the history of
refugee law is a series of ups and
downs. But is it? There is a little up
and a lot of down! The 2010 legislation
gave a kind of appeal on the merits to
some refugee claimants and took away
rights from several defined groups. But
will “this too pass” ?
Spring 2010 featured a national debate
about proposed refugee legislation in
response to Roma refugees from Hungary
whom we were told couldn’t possibly be
persecuted in a European country. Canada
needed to be able to declare such a
source country ”safe.” As with safe
third country, Canada is saying “me too”
to likely illegal European policies –
but with a difference. The EU is a
curious political space and it has
declared its members cannot be sources
of refugees. Whatever the legality of
the EU position, Canada cannot claim it
– it is not part of that special
political space. The EU position is
wrong because countries remain sovereign
states accountable for their human
rights treaty obligations whether they
sign EU treaties with other countries or
not. Over time many countries are not
safe for one or another social group.
The 1951 Convention relating to the
status of refugees was written after WW2
from European experience – including
experience of the persecution of
Roma. Persecution of Roma was
documented in 2010 and again in
2012. And a special provision for
a presumed safe country of origin was
not necessary. Canada already had an
Immigration and Refugee Board precisely
to respond to claims of refugee status
as international treaty obligations
require. At the same time, embedded in
the spring 2010 package alongside many
rights restrictions was implementation
of a limited right of appeal on the
merits for some groups of refugee
claimants.
Fall 2010 led to legislative proposals
in response to Sri Lankan Tamil refugees
who arrived by boat evidently as part of
the aftermath of the end of a protracted
war and decades of instances of Tamil
persecution. The proposals were all
rights restricting. Instead of accepting
this as a modest Canadian share in the
picking up of the pieces after the war,
the government declared it would
legislate to respond to smugglers. The
fact that legislation was already in
place to charge smugglers and prosecute
them did not seem relevant. The proposed
legislation would give the government
power to define a group of refugees for
special treatment. Like safe third
country and country of origin
designation, this designation is
inherently discriminatory. Members of
the group would face automatic larger
detention periods and reduced procedural
safeguards. As refugee lawyers pointed
out, this would only hurt refugees – not
smugglers. My October 2010 article
touched on the scene in fall 2010. My
September 2011 article looked at then
Bill C4 in the light of international
human rights treaty body case law.
So in early 2012 the old legislative
debates from 2010-2011 had to be
relived. In keeping with the deterrence
and detention policy’s need to display a
mean spirit towards refugees, later in
spring 2012 the government fanned the
flagging debate and went beyond the 2011
proposals with additional service cuts –
proposing cutting the federal interim
health service for some
categories. Health rights
restrictions were added.
In his keynote address at the May 2012
meeting of the CARFMS in Toronto, Lorne
Waldman reviewed the history of refugee
law from the first 1976 legislation. He
saw it as a series of ups and downs. He
noted that from the beginning those
working with refugees had pointed out
why the legislation would not work. Each
time they were ignored. Each time they
were proven correct. The 2012
legislation is no different. The
timelines for the legal processes are
not viable. The denials of appeal are
not legal. “This too will pass” he said
referring to the current legislative
proposals. He felt the courts would push
back.
I see the history more as a general
swing away from the universal rights the
Supreme Court proclaimed for refugee
claimants in the 1985 Singh et al v
Canada decision. Some groups of non
citizens may benefit from a few ups, but
more and more groups of non-citizens and
refugee claimants get more downs.
Although court action is crucial and can
change the scene in the longer term, I
am less optimistic than Lorne Waldman
about the willingness of the courts to
uphold refugee rights in a general
Canadian social context which does not
value human rights and which regards
refugees as a problem. It will take
progressive international human rights
case law on equal treatment and due
process before our courts budge on these
underlying issues. And I worry about
what governments can do to refugees
while the courts get around to
responding to a few individuals who
eventually get before them. It takes
time for international bodies and the
national courts to adjust the law.
However, I agree with Lorne that we can
take hope that, at least eventually,
“this too will pass”- as will this
government.
So ups with a lot of downs will continue
for some time yet. Repeated review of
refugee legislation with an accompanying
barrage of media stories about more
detention and other mean spirited
measures is one of the hallmarks of the
coordinated refugee “detention and
deterrence” policies developed by the
Western block of governments. The irony
of the detention and deterrence policy
is that those NGOs working with refugees
are obliged to challenge the rights
restricting measures repeatedly
proposed, but in so doing they publicise
and promote the deterrence desired by
the governments. The other side of the
coin is that Canada and other Western
countries continue to settle modest but
significant numbers of asylum seekers
annually. Canada will settle some 25,000
-40,000 each year.
There is more to it than ups and downs.
Under the cloak of the detention and
deterrence mantras, the formal legal
safeguards for refugees have slowly but
steadily improved in several countries
where the public debate presents a worse
picture of refugee treatment than in
Canada. For example the UK already has
an independent appeal tribunal for
refugee status determination with a
further level of judicial review –
though not an initial hearing before an
independent tribunal. In the European
Court of Human Rights decision MSS v
Belgium and Greece an appeal tribunal in
Belgium for asylum seekers featured in
the case. An accelerated form of the
appeal process for asylum seekers being
returned to Greece under the EU safe
country of origin policy was found
rights-violating by the Court. A
restricted general appeal and no appeal
for some groups is what Canada is
proposing in the 2012 legislative
package.
All Western countries including Canada
take turns to run public debate and
legislative changes within the
deterrence and detention policy.
Underneath the public debate some
structural improvements have also taken
place. So expect more ups and downs
until, maybe, in the long term, this
inherently rights restricting deterrence
and detention policy will be check-mated
by the human rights treaty bodies. Then
it too will pass. But that can happen
only if there are renewed and continuing
efforts to put suitable cases before
international human rights bodies.
