Michael Barutciski is co-ordinator of Canadian Studies at York University’s Glendon College. He was previously director of the diplomacy program at the University of Canterbury Law School and fellow in law at Oxford University’s Refugee Studies Centre.
After years of controversy, the Trudeau government is putting an end to the unofficial crossings at Roxham Road, which were undermining public confidence in border integrity. While all migrants must be treated with dignity, we should also recognize that effective protection is about balancing the rights of asylum seekers with legitimate state concerns. Prime Minister Justin Trudeau appears aware, at last, that asylum is a two-way street and that the situation was leading to a backlash. He announced last week with U.S. President Joe Biden that the Safe Third Country Agreement (STCA) will extend across the entire Canada-U.S. border. This can lead to a balanced overall policy if there is a genuine commitment to a comprehensive regional approach.
Although commentators insisted the U.S. would never agree to remove the loophole in the STCA that allowed the Roxham Road situation, the timing was right for a renegotiation. The Biden administration is leading a collaborative strategy to establish orderly migration in the Americas, and the recent scandalous revelations that U.S. officials were encouraging irregular migrants to cross at Roxham Road provided Ottawa with the additional impetus to take a broader, hemispheric approach to migration.
Even before these revelations, the application of the STCA was undermining public trust. It left the impression that the government was unable to control the border; illegal entry at Roxham Road became so easy that it was almost an invitation for undocumented migrants to try their chances at obtaining asylum in Canada. It also gave the appearance of an incoherent system favouring irregular migrants over those who present themselves at official crossings. The latter were generally turned back to the U.S. in accordance with the STCA, which stipulates that they should seek protection in the first “safe” country they enter. No protection principle could justify such a double standard, one that treated asylum seekers differently based on which part of the land border they used to enter.
The additional protocol announced recently follows the most rational option: By extending the STCA to the entire border, it guarantees that collaboration between the U.S. and Canada is not limited to official crossings. Neither country is obliged to return migrants, although they now have the formal structures to proceed this way if they so choose. The dissuasion element will make irregular migration more complicated, so the logic is that fewer migrants will choose this path. Refugee advocates and their academic allies have countered by claiming that migrants will now start to cross at more remote places, implying border control is futile. This is essentially an argument for open borders.
By amending the STCA, Ottawa has backtracked from its previous position that the 1951 Refugee Convention automatically grants every asylum seeker at Roxham Road the right to a hearing. Indeed, the word “asylum” was deliberately omitted from the convention’s 46 articles, and following a failed endeavour to adopt an asylum treaty in 1977, no further attempts have been made to codify a legally binding right to seek asylum. Just as international treaty law does not stipulate such a right, the Supreme Court’s landmark Singh decision never determined that every asylum seeker automatically has the right to a hearing once they set foot in Canada.
Yet the government’s previous position played well to activists and academics who continue to prefer the status quo, which has an understandable appeal if the issue is simply about handling irregular migration at the border in a somewhat predictable and semi-orderly manner. However, this view remains tone-deaf to the symbolic impact of the RCMP’s credibility-sapping participation in border theatre: Until recently, border agents tried to dissuade migrants from entering illegally by yelling out that they will be arrested, even though everyone knew they would be immediately released to pursue their asylum claims in Canada.
Last month’s diplomatic development should stop this situation from continuing. It appears to be a simple version of a quid pro quo arrangement previously suggested to advance negotiations: Washington has agreed to amend the STCA, while Ottawa has committed to resettling at least 15,000 asylum seekers from Latin America. But as migration flows stabilize, the Canadian contribution should expand well beyond 15,000 resettled refugees. By tending to humanitarian needs, Canada’s labour shortages could also be addressed by new legal pathways for migrants, who have much to contribute to the economy.
Instead of the current undignified status quo that forces migrants to enter illegally at Roxham Road, ambitious collaboration could bring us closer to a humane model for orderly migration not just between Canada and the U.S., but around the world. The crucial question is whether there will be a long-term commitment.