Close the Roxham Road ‘loophole’ in the Safe Third Country Agreement? The whole agreement is one big loophole

Open this photo in gallery:

When it was reported that New York City was providing migrants with bus fare to upstate Plattsburgh, near the infamous Roxham Road border crossing into Canada, Canadians were properly shocked at the cynicism. This sort of opportunistic human-shuffling was supposed to be the stuff of troglodyte Republican governors in the South, not enlightened Democratic mayors in the Northeast.

Especially scandalized were the media and political class of Quebec, the province where the irregular crossing point at Roxham Road is located, through which nearly 40,000 entrants sought asylum in Canada last year – more than twice the previous record, set during the great migrant crisis of 2017. But when it was revealed that the federal government had been paying to bus the same migrants en masse from Quebec to Ontario, ah, that was just federalism in action.

Usually zealous in defence of any claim of jurisdiction, especially in immigration – a former Parti Québécois leader had earlier proposed that the government of Quebec pay to send the migrants down the 401, or rather only the non-French speakers – the Legault government was only too happy to let Ottawa take them off its hands. Indeed, it had demanded it. “We are starting to see results,” Quebec Immigration Minister Christine Fréchette exulted. “We’re very happy with that.”

Quebec is at least open in its desire to stem the flow of asylum seekers: Premier François Legault was in the news of late demanding Justin Trudeau do more to discourage them from coming to Canada, on the grounds that “we’ve exceeded our welcoming capacity” – though given his government’s general stance on immigration it may be debated just how deep a well has thus been exhausted.

But Canada likes to congratulate itself on its generosity toward immigrants and especially refugees. There’s some justice in this: The reason so many migrants come north, after all, seeking asylum in Canada rather than in the United States, is because of our system’s more lenient approach, well known in the migrant community.

What is less well known is how much of our comparatively generous refugee policy is made possible by the United States’s less generous policy. The reason we are more willing to accept refugee applications may not be by virtue of our superior compassion. It may simply be that we get fewer of them, protected as we are by oceans on three sides – and the United States on the fourth.

If you are wondering why, if Canada’s system is so liberal, so many of the asylum seekers in question go first to the United States, it is because it is easier to get a visa to enter the U.S. Canada may be more generous to asylum seekers once they are on our soil, but we go to some lengths to prevent them from getting here in the first place. And in this endeavour we have been greatly assisted by the United States, especially since the signing of the 2004 Safe Third Country Agreement.

Ostensibly the agreement is reciprocal: As each country agreed to regard the other as a “safe” haven for refugees, so each agreed to require would-be refugees to make their claim in whichever of the two they first entered. Thus a migrant, having landed in the United States, could not then seek asylum in Canada, and vice versa.

But who’s kidding whom: The flow of asylum seekers has always been overwhelmingly northward. No one, given a choice, would pass on claiming refugee status in Canada to take their chances on the U.S. system. The point of the agreement was not to prevent refugee claimants from entering the U.S. from Canada: It was only ever intended to prevent them from entering Canada from the U.S.

It was, in fact, at our request that the agreement came to be. In the wake of the Sept. 11 attacks, and the tense security climate in the U.S. that ensued, the Chrétien government feared the flow of refugee claimants would become unmanageable. So, in return for some unrelated security undertakings, it persuaded the Bush administration to sign the STCA.

The agreement is what allows us to turn back refugee claimants at the border without a hearing, notwithstanding our obligations under the United Nations Convention on Refugees, not to say the protections for “life, liberty and security of the person” under our own Constitution. The Americans agreed to take them – otherwise they would be made stateless – and we agreed to say that refugee applicants would be “safe” with them.

As is well known, however, the agreement only applies at certain designated crossing points. This is how we got to Roxham Road: Knowing they would be turned back at the official crossing points, asylum seekers took to crossing at irregular points, knowing we would have to let them in, at least until their claim had been heard. This was entirely logical and predictable. Indeed, it was widely predicted at the time.

That the agreement does not apply between official crossing points is often described as a “loophole,” usually by grandstanding politicians demanding that it be closed. But in truth it is the whole agreement that is the loophole – an exception to the general rule that countries do not reject those claiming refugee status without an impartial hearing.

At any rate, it is far from clear how the irregular crossing loophole is supposed to be closed, or what would be accomplished if it was. Start with those airy demands to just “close the border,” unilaterally. How? It’s 5,000 miles long. What are the cops supposed to do: form a human chain? Leaving aside the enormous investment in money and manpower that would be required – the Americans haven’t managed it with Mexico, with a border less than half as long – it would still require American co-operation to make it stick.

(That’s how Canada was able to close the border during the pandemic: because the Americans agreed to take back whomever we turned away. Once that agreement ended, so did the border closing.)

All right: Close Roxham Road, then. That should be easy enough. Fine – but the migrants came to Roxham Road because the regular crossings were closed to them. Close Roxham Road, and they’d simply cross somewhere else – without the same infrastructure for tracking and receiving them. Just as many people would enter Canada “illegally” as before. We just wouldn’t know where, or who, or why.

So we are left with the favourite answer of the Easy Answerers: Renegotiate the STCA. Again: How? The agreement was a favour to us to begin with: What would we have to offer the Americans to get them to agree to changes that would see fewer migrants leaving the U.S., and more being returned?

Even supposing that were possible, what would such a deal look like? What exactly would be renegotiated? Apply it to the entire border? But that still leaves us with the practical problem of implementation. Unless you literally closed every possible crossing point, you would simply be driving the migration business underground. It’s a bit like prohibition: You can restrict the supply all you like, but so long as the demand is there, you’re only making more problems for yourself.

Talk of negotiating a tighter STCA seems especially strange given the imminent likelihood of its invalidation by the courts. The constitutionality of the agreement has always hung by the slender thread of official designation of the U.S. refugee system as “safe.” But as federal courts have twice recognized, that is a highly contentious proposition. Claimants turned back at the border are not only often condemned to horrifying ordeals within the U.S., but are very much at risk of being sent back, unjustly, to their country of origin, to face death and worse.

Both court decisions were overturned on appeal, so it will fall to the Supreme Court to settle the matter, as soon as this summer. Rather than investing too much energy in fruitless attempts to renegotiate the STCA, it would be better if federal and provincial governments prepared for the possibility of its demise.

There is reason to welcome such a prospect. If nothing else, it would do more to close Roxham Road, and points like it, than any police action would. Knowing they would no longer be turned back at the official crossing points, migrants would no longer have any incentive to take the more difficult and dangerous irregular routes. It’s possible there would be a surge in overall numbers, but they would likely be distributed much more evenly across the country.

The only real way to stem the flow of migrants northward is to close the gap between the American and Canadian refugee determination systems. That was to some extent achieved with the end of the Trump administration, but even under a Democratic president a claimant is likely to receive rougher treatment in the U.S. than here, and will so long as the crisis at the Mexican border persists.

Absent any change of heart on the Americans’ part, we will have to recognize that it is not such an easy matter to secure a 5,000-mile border. We cannot stop people from coming to Canada who are desperate enough to try and determined enough to succeed.

What we can do is try to regularize the inflow: to ensure that people do not arrive undetected, or disappear afterward. Assuring them of a fair hearing is a good way to ensure that more submit to the vetting process. If the cost is allowing some false claimants to remain here for a time while their case is heard, it is a price worth paying, compared with the alternatives.

In time we may conclude that the STCA was not the solution to our border troubles: It was the problem all along.