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Robert Falconer is a research associate at the University of Calgary’s School of Public Policy. Craig Damian Smith is a senior research associate at the Canada Excellence Research Chair in Migration & Integration program at Ryerson University.

Earlier this month, the Patels – a family of four from India – died of cold exposure trying to walk south through the Canada-U.S. border, near Emerson, Man.

But rather than look at how policies incentivize such irregular migration and produce such tragedies, Canadian politicians and news media have been quick to parrot rhetoric from other rich countries, speculating about the responsibility of criminal smugglers and wider networks of nefarious actors. “It is so tragic to see a family perish like this, victims of human traffickers, misinformation and people who have taken advantage of their desire to build a better world,” Prime Minister Justin Trudeau said.

Just three months earlier, the U.K.’s Interior Minister blamed smugglers for the death of 31 people when a boat capsized in the English Channel, and vowed to pass laws to make it illegal to claim asylum. And the U.S., which for decades has forced irregular migrants to make deadly desert crossings, has criminalized humanitarian groups as smugglers.

But while the Florida man arrested in the Patels’ case allegedly sought to profit from their desperation, he did not cause it.

What the political rhetoric around irregular migration misses is that human smuggling is a symptom of the friction between the desire to migrate or find protection, and the absence of safe and legal pathways to do so. Prohibition in the face of high demand only fosters illicit markets, and “cracking down” on small-time criminals addresses symptoms, not the causes.

The number of U.S. green cards offered every year has been capped at 675,000 since 1991, resulting in an average wait time of 7.5 years for eligible immigrants. But it varies by country; for an Indian professional, wait times to enter the U.S. can reach up to 50 years. Roughly 14 per cent of potential applicants will die of old age before receiving a green card.

The U.S. has taken an even more restrictive approach to asylum. The Biden administration has continued a series of Trump era policies to expel asylum seekers without a hearing, or force them to remain in Mexico until it is heard. That led the backlog to surpass 1.6 million last December, pushing wait times to more than five years.

While Canadian immigration quotas are larger per capita – 421,000 for 2022 – the federal government has taken a similar approach to asylum. The majority of asylum seekers are recognized as refugees; they differ from resettled refugees, such as those from Afghanistan and Syria, only by the manner in which they arrived. Nevertheless, they are often unfairly assailed as “queue jumpers” or “bogus refugees,” or accused of “asylum shopping.” These accusations miss the entire point of why people migrate.

Since 2004, Canada and the U.S. have returned asylum seekers to each other under a Safe Third Country Agreement (STCA), which applies only to official ports of entry, leading to what is often called a “loophole” in the agreement. In fact, governmental discussions in 2001 recognized that sealing the border would mean more smuggling and a larger undocumented population.

Many asylum seekers have crossed between border points to avoid being returned to the U.S., where they would likely face imprisonment and deportation. The route the Patels were using developed precisely because the STCA incentivized irregular crossings.

In 2017, Canada established an informal humanitarian corridor at Roxham Road, but from March, 2020, to November 2021, it turned back almost every asylum seeker on public health grounds. Inland claims increased significantly. Most will be from people on visas, but many have been forced to bypass new restrictions through clandestine crossings.

Canada has stated that it is now in the process of “modernizing” the STCA. While details are murky, it will likely mean expanding measures to turn back asylum seekers. This is particularly troubling with the Supreme Court of Canada set to rule on the agreement’s constitutionality.

Because a reformed STCA would limit asylum access, rather than affect demand, there will only be more clandestine journeys, more organized smuggling and more dangerous modes of border crossings. Enforcing an expanded STCA will also require massive expenditures to surveil and police the border, resulting in more incarceration, a larger undocumented population, and corruption among border guards. Securitization is a self-fulfilling policy.

Canada is at a crossroads. It can choose hard line policies to the benefit of the Canadian security establishment and create more smugglers, even as its politicians heap blame on them when tragedy strikes. Or it can choose to manage the border by investing in a timelier, fairer asylum system and rethinking how it responds to demand for migration.

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