Canada could face legal trouble over refugee deportations: advocates

OTTAWA — Refugee advocates say Canada could be in legal hot water if the United States deports asylum seekers turned away from Canada as part of a broader deal with the U.S. to close the border to all but non-essential traffic.

On Monday, the U.S. announced a 30-day agreement with both Canada and Mexico that includes immediately returning any migrants without legal status to the countries from which they arrived, or to their countries of origin if that isn’t possible, rather than holding them at U.S. facilities.

Prime Minister Trudeau said last week anyone crossing between the two countries on foot to claim asylum will be turned away as part of the temporary border deal aimed at combating COVID-19.

This has raised questions about whether refugees turned back by Canada would be returned to their country of origin.

Alex Neve, secretary general at Amnesty International Canada, says the federal government should be concerned about the legal culpability such a move could place upon Canada.

Canada’s international obligations regarding refugees include a commitment to “non-refoulement,” which means not sending refugees back to countries where they could face torture or persecution.

If a refugee turned away by Canada is later deported to a country where they are harmed, Canada could be considered complicit in this outcome and therefore legally liable, Neve said.

“The other end of non-refoulement for a refugee is the possibility of death, torture, rape, arbitrary imprisonment. We cannot close our eyes to that, not only morally, but legally,” he said in an interview Saturday.

“It is entirely possible that if someone was subject to refoulement having been impacted by this border accord that we negotiated, that we would be legally liable. We would be complicit in what happened to them.”

Deputy Prime Minister Chrystia Freeland said Friday she is holding “urgent” discussions with U.S. officials over the issue, adding she wants assurances that refugees returned by Canada to the U.S. will not face refoulement.

“It is important for us to abide by our international commitments when it comes to refugees and we are very alive to concerns around refoulement.”

Refugee advocates were harshly critical of the move by Canada to temporarily turn away asylum seekers in the midst of a pandemic when it was announced last week.

Now that Canada knows refugees could face the prospect of being returned to their countries of origin — countries they have fled seeking humanitarian aid — Canada should walk away from this deal with the U.S., Neve said. 

“This is why we should never have entered into this accord in the first place, it is just simply too fraught and the likelihood that concerns like this will continue to come up is almost inescapable.” 

Janet Dench, executive director of the Canadian Council for Refugees, says her members were “extremely skeptical” from the outset that this new deal would ensure refugee rights are protected.

That skepticism has proven to be well-founded, Dench said.

“It seems like the Liberals have been hiding behind this fig leaf that they had some assurances from the U.S. government that, from the beginning, seemed extremely flimsy. And it’s now been exposed this fig leaf doesn’t really exist,” she said.

“They are trying to pretend they care about the rights of refugees, but if they cared about refugees they certainly wouldn’t have acted in this way.”

She agreed that Canada could face legal trouble if an asylum seeker turned away by Canada is deported by the United States.

Since 2017, more than 56,000 people have crossed into Canada from the U.S. on foot using informal openings in the border, the best known being one in Quebec called Roxham Road.

They do this to get around the Safe Third Country Agreement with the U.S., which forbids people from applying for asylum at regular land border crossings, on the grounds that people need to ask for refugee status where they arrive first and that both countries are safe.

The majority of these “irregular” migrants came to Canada from countries like Haiti and Nigeria and were in America legally. Many had temporary travel visas while others had temporary protected status in the U.S.

U.S. Customs and Border Protection spokesman Matthew Dyman said Immigration and Customs Enforcement, or ICE, only repatriates people who are illegally present in the U.S.

“If people are in the U.S. illegally ICE would co-ordinate to fly them to their home countries,” he said in an email. 

Even before these more recent developments, advocates were arguing major changes to U.S. immigration policy, including detentions and deportations of asylum seekers, have effectively rendered the U.S. unsafe for refugees and the Safe Third Country Agreement should be changed.

Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches are currently involved in a legal challenge of the agreement with the United States, arguing the agreement violates certain provisions of Canada’s Charter of Rights and Freedoms.

“Now we have just one more indication in which U.S. policy so frequently throws refugees under the bus,” Neve said.

“This indication that the U.S. is simply going to deport them as quickly as possible is a further indictment of the U.S. record living up to refugee protection obligations and one more reason why the Safe Third Country Agreement in its entirety needs to be scrapped.”

This report by The Canadian Press was first published March 28, 2020.

Teresa Wright, The Canadian Press