On November 26, 2013, the Harvard Immigration and Refugee Clinic (HIRC) released a comprehensive report titled “Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion

The report examines Canadian border measures designed to intercept and deflect “undesirable travelers”, including asylum seekers, before they set foot on Canadian soil and make a claim for refugee protection.  It also examines the U.S.-Canada Safe Third Country Agreement, a “refugee sharing” agreement implemented by Canada and the United States to exercise more control over their shared border. In effect since 2004, the Agreement forces refugee claimants to seek protection in the first country they reach—either Canada or the United States. It prevents asylum seekers who are in the United States, or traveling through the United States, from making refugee claims at the Canadian border (and vice versa), subject to certain exceptions. The report finds that through these measures, Canada is systematically closing its borders to asylum seekers, and avoiding its refugee protection obligations under domestic and international law.

“This report points to an alarming trend,” said Deborah Anker, Clinical Professor at Harvard Law School and Director of the Harvard Immigration and Refugee Clinic, who oversaw the report. “In the past, Canada provided the model upon which fairer treatment of refugees and better asylum processes developed in the United States. This report shows a deteriorating trend in Canada, and is quite disturbing.”

US-Canada border

Since its release last week, the report has received considerable attention in the Canadian press.

The 107-page study is the result of extensive research of Canadian and U.S. law, as well as fact-finding investigations conducted at four major ports of entry along the Canada-U.S. border led by HIRC affiliates Dr. Efrat Arbel S.J.D. ’12 and Alletta Brenner ’14. Arbel and Brenner worked with leading scholars and advocates on both sides of the border, including representatives from Human Rights First, Amnesty International Canada, the Canadian Council for Refugees, and the Canadian Association of Refugee Lawyers. They were also assisted by student researchers in Canada and the United States, including Afton Cissell ’15, Sarah Kalin ’14, Aurora Sánchez Palacio LL.M. ’13, and Jean Tanis ’15. Focusing equally on Canadian and U.S. law “was necessary to understand how Canada’s border measures impact asylum seekers on both sides of the border,” said Arbel.

“This report points to a clear gap between the promise of refugee rights protection as outlined in Canadian law, and the actual record of their enforcement in the monitoring of Canada’s borders,” said Arbel, a Canadian graduate of Harvard Law School’s doctoral program, who co-authored the report. “The Canadian government has repeatedly asserted that Canada’s borders are open to genuine refugees and that Canada’s refugee system is among the most generous in the world. But in fact, our research shows that by expanding and intensifying its border technologies, Canada is deliberately closing its borders to asylum seekers, and reneging on its refugee protection obligations under domestic and international law.”

Reflecting on the report’s significance, Audrey Macklin, professor and chair in Human Rights Law at the University of Toronto Faculty of Law, said: “This study provides yet more powerful evidence that Canada deliberately evades its international obligations toward refugees. That it does so while continuing to hide behind a dated and tattered reputation as a generous and humanitarian nation makes Canada’s conduct all the more shameful.” Catherine Dauvergne Professor and Trudeau Fellow at the University of British Columbia, added: “This compelling analysis demonstrates that the Safe Third Country Agreement between the United States and Canada serves to diminish human rights protection on both sides of the border.”

The report is the latest in a series of HIRC initiatives examining Canada’s treatment of asylum seekers. In 2006, Anker and students in the Harvard Immigration and Refugee Clinic and the Harvard International Human Rights Clinic published a report that examined the effect of the Safe Third Country Agreement (STCA) fifteen months after its implementation. In 2007, Anker and Arbel presented these findings in a Canadian Parliamentary hearing before the Standing Committee on Citizenship and Immigration Canada. The Harvard Immigration and Refugee Clinic was also involved in a legal challenge to the constitutionality of the Safe Third Country Agreement before the Federal Court of Canada, and led a challenge to Canada’s use of “direct back” policies before the Inter-American Commission of Human Rights.

“Our Clinical Program has been collaborating with Canadian colleagues for over 20 years. The report, like our earlier one focusing on the Safe Third Country Agreement and direct back policies in Canada, highlights the now-movement backwards and the effect of these policies in undercutting of the progress that was in place in the United States,” noted Anker.

In addition to its findings about the failures of Canadian refugee protection, the report also finds that the Safe Third Country Agreement has failed to achieve the goal of protecting the border. “Our investigations show that the Agreement has prompted a rise in human smuggling and unauthorized border crossings, making the border more dangerous and disorderly”, noted Brenner, a J.D. student at Harvard Law School, who co-authored the report. The report was released one week after a newly declassified report issued by the Canada-U.S. Integrated Border Enforcement Team was made public, and pointed to a “surge” in Canada-bound human smuggling activities. “The report’s findings that the Agreement has actually made the U.S.-Canada border less secure should give lawmakers serious pause,” added Brenner.

“This report is essential reading”, said Alex Neve, Secretary General of Amnesty International Canada. “Before the Safe Third Country Agreement was signed, Amnesty International made clear to the Canadian government our grave concerns over sending refugee claimants back to the United States given clear deficiencies in the U.S. asylum system. This report shows that the Agreement exposes asylum seekers to detention and deportation, and denies many asylum seekers their fundamental right to be heard”.

“We hope this report serves as a ‘wake up call’ for Canada and the United States,” said Arbel.

To view the report, please visit the HIRC blog.

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