The Roxham Road saga in Canada, and what it tells us about the popular feeling about migrants worldwide

After years of negotiations, Joe Biden and Justin Trudeau have come to an agreement on the expansion of the Third Safe Country Agreement (TSCA) between the United States and Canada to irregular entry points, on March 24th, 2023. This led to the closure of Roxham Road at midnight on the following day. To summarize the legal context, until then, if asylum seekers were to cross the land border between the US and Canada they would be returned to whichever of these two countries they were in first. That is, however, unless they entered the second State through irregular entry points, which were not included in the previous version of the TSCA, adopted in 2002.

The new version of the TSCA, which is not yet publicly available and from which all the details have not yet been unveiled, applies to all crossings, by land or internal waters, including, and this is what is new, those between the regular points of entry. On both sides of the border, this expansion of the TSCA seems to obey public pressure to stop irregular entries into the country. Because people entering irregularly were mainly coming from the US to Canada, Canada agreed to welcome an additional 15,000 migrants from the Western hemisphere, a very mysterious formula, on a humanitarian basis in the upcoming year, to compensate partially.

For me, there is no well-founded argument to support the expansion, and even the upholding of the TSCA, as well as the closure of Roxham Road (see migration law experts on the matter herehere and here). Note, in particular, the TSCA is currently under judicial review by the Supreme Court of Canada for its conformity with the Canadian Charter of Rights and Freedoms.

Even if it would not violate human rights of human seekers per se, there are no measures adopted by States that have ever stopped migration, even the highest and most-sophisticated wall. In addition to being costly for States, obstacles to migration re-locate migration to other borders or to other points of irregular entry, often more dangerous ones. Additionally, they reinforce organized crime at the border by increasing recourse to falsified documents and smugglers, thus increasing security concerns for migrants and at the border. Ultimately, obstacles to migration increase the number of undocumented migrants within the country. Indeed, even though some asylum seekers used to enter the Canadian territory through an irregular entry point such as Roxham Road, they were screened by the RCMP – including on security grounds – and entered the regular asylum system by depositing a demand for asylum as soon as they arrived. It won’t be the case now that Roxham Road is closed since they will enter via clandestine means or paths and will thus not be identified and screened upon entry.

Yet the narrative that brought the Canadian government to negotiate to expand the TSCA and close Roxham Road is strong and deeply rooted in the political and popular discourses. Indeed, there has been a torrent of political and editorial calls for the closure of Roxham Road in Canada (see, for example, the public letter of Quebec’s Prime Minister and the comparison of a crossing of Roxham board with an all-inclusive trip by a federal opposition party on its social media). In January 2023, there were 68% of the population in the province of Quebec in favour of closing Roxham Road. 

To be fair, people in Quebec feeled that, because Roxham Road, the main irregular entry point between the US and Canada, is on their soil, they beared a disproportionate responsibility towards asylum seekers within Canada. If it may be true that Quebec used to bear an important part of the “burden” of asylum seekers in Canada, the mere repeal of the TSCA was a valid option; expanding it and closing Roxham Road cannot be the right solution. 

In any case, the number of entries has to be nuanced; in 2022, only 40,000 persons have entered Canada through Roxham Road. In comparison, on the American continent, approximately 340,000 asylum seekers present themselves on the southern border of the United States each year. Brazil and Costa Rica have received more than 200,000 claims each in 2022, and Peru 537,000. There are currently, according to the UNHCR, 4.9 million asylum seekers worldwide.

Be it as it may, my aim here is not to focus on the federal disputes between Quebec and the rest of Canada regarding migration. Rather, I now wish to briefly explore what the massive popular and political mobilization against Roxham Road in the past few months tells us about the global perception of migrants. Indeed, mistrust towards migrants, refugees, and asylum seekers, and a tendency to border closure is not unique to Canada. New border walls are built every year in the hope of preventing migration; from six fences at the fall of the Berlin wall, this number has grown to somewhere between seventy and eighty, most of them erected after the turn of the millennium. This is without mentioning the various externalization practices of States, especially Western States, such as pushback, non-rescue of migrants at sea, offshore detention, abroad processing, etc. Economic, social, political, cultural and security considerations motivate such practices. Canada is no exception. But there is also, underlying these initiatives, a fundamental mistrust of humankind towards the «other», the «stranger», no matter how they have been defined throughout history. 

More specifically, this strong tendency of fear towards the «other», the «stranger», has been reinforced after 9/11, through frequent equations between the “migrant” and the “terrorist”, even more so between the “refugee” and the “terrorist”. This has been vehiculated by populist parties and movements, by media, but also through international legal instruments (see, for example, UN Security Council Resolution 1373, para 2(c) and  3(f) and the 2006 UN Global Counter-Terrorism Strategy adopted by the General Assembly, para 2 and 7 of the second pillar (similar provisions still figure is the latest updated version of the UN Global Counter-Terrorism Strategy of 2021, see para. 32 and 38)). Yet the amalgam of terrorism with asylum seekers or refugees has never been supported by scientific data. Indeed, it cannot be demonstrated that the welcoming of refugees or asylum seekers puts a country at higher security risks, even in the case of massive displacements (which was not the case through the Roxham Road in Canada). Indeed, the sole correlation that has been established between refugees and terrorism is the increase of hate crimes by homegrown right-wing movements or individuals towards migrants in countries that welcome a high number of migrants.

Indeed, I find it very shocking that Quebec and Canada respectively pushed towards and adopted measures leading to the closure of Roxham Road. This obeys the popular favour, but counters all logic, where there should be a public responsibility to educate and inform the population. Such a political decision not only goes counter to reasonable thinking (let’s not forget, if it needs to be added, that Canada is under a severe labour shortage, with more than one million vacant positions in Canada, this currently being the most severe challenge for businesses in the country) but contradicts also the most elementary considerations of humanity. It must be kept in mind, indeed, that contrarily to the widespread belief, asylum seekers who used to cross through Roxham Road were not coming for vacations nor to benefit from our public services, but were fleeing for their lives, security, liberty and most fundamental human rights, leaving everything they love, as well as friends and part of their families behind. This was everything but an easy journey, and, even for those who were to be granted asylum, it was very far from being finished when they entered Canada.

Rethinking International Law’s Responses to Refugee Flows

portrait of Tendayi Achumie

Over the past year, the international refugee system has proven itself incapable of managing massive movements of human beings throughout the world, from Syria to Myanmar to Honduras, and of adequately protecting those in flight.  Most commentators agree that the system is either irretrievably broken, or on the precipice of breakdown.  Just this morning, UN High Commissioner for Refugees Special Envoy Angelina Jolie Pitt expressed the latter sentiment in an interview by the BBC — part of a full day of reporting on “how mass migration is changing our world.”  Critiques of the system are commonplace; creative solutions in much shorter supply.

For those interested in reading a provocative and thoughtful proposal for reform, I recommend highly Prof. Tendayi Achiume’s article, Syria, Cost-sharing, and the Responsibility to Protect Refugees.  Achiume, pictured above left, offers a novel approach to the Responsibility to Protect, leveraging it as a toolkit to improve coordination and equitable cost-sharing around refugee flows.  The article itself is well worth a read, but for those looking for a shorter take, my review of her article was posted on Jotwell this morning.

We Still Live in the Age of Refugees: Expanding the Horizon of International Refugee Law

On this day, in 1954, the Convention on the Status of Refugees (the Refugee Convention) signed 28.07.1951, entered into force. Incorporating fundamental norms regarding who is a refugee, and setting out the rights and responsibilities of refugees as well as the responsibilities of receiving states, the convention was a landmark in establishing international standards for the treatment of refugees, based on principles of humanity. The convention was originally adopted to deal with the aftermath of World War II and the displacements it caused by persecution and war, but got universal coverage with the 1967 Protocol.  Despite criticism arguing that it is outdated or that it is an instrument for abuse, the cycle of war and systematic human rights violations continue to confirm the relevance and importance of the convention and the protocol today, over half a century later.

Together with international human rights law and international humanitarian law, international refugee law aims at the protection of the life and dignity of each and every person. International refugee law has, however, since its inception been primarily concerned with the duties of the receiving states. This is perhaps a result of a necessary division of labor in international law. It has, however, led the discourse and work of international refugee law to be primarily about the duties and the policies of the receiving state, and not about the duties and policies of the refugee producing state- the source state. Hence, refugee law continues to be law that lags behind- it is marked by post-problem attention instead of including attention to the root of the problem- namely the domestic situation that forces some persons to flee their home country. Refugee law needs not only to be met by humanitarian concerns but equally by political considerations at the root. As we mark the 60th anniversary of the Refugee Convention, it is time to ask whether a better protection of the life and dignity of each person, including each refugee, requires that international refugee law includes attention to the root of the problem, and expands its horizon to include attention to the domestic legal order of source states.

This is nothing particularly radical, it is already part of international human rights law, but it seems somehow to have been forgotten along the way when discussing international refugee law. The Refugee Convention itself confirms that the primary duties lie with the source country by referring to the Universal Declaration of Human Rights (UDHR) in its preamble and to the principle that human beings shall enjoy fundamental rights and principles without discrimination. TO ensure these rights is the duty of every state. Indeed, if all states took these duties seriously, there would be far less refugees in the world.

Furthermore, the definition of refugee in the Refugee Convention provides us with some additional guidelines in how to approach the source country problem in so far as it is related to the domestic legal order. Article 1(a)(2) of the convention defines a refugee as an individual who is outside her country of nationality or habitual residence, who is unable or unwilling to return due to a well-founded fear of persecution based on her race, religion, nationality, political opinion, or membership in a particular social group. Under this definition, internally displaced persons, including for example persons fleeing natural disasters and generalized violence are not considered refugees under the convention.

This definition is important because it corresponds to the international human rights obligations of every state under the UDHR and under the covenants. It tells us that countries that do not make a serious attempt to reform their legal orders to comply with international human rights law inevitably will produce refugees. This includes legal orders that justify discrimination based on the above-mentioned grounds, and legal orders that severely restrict fundamental freedoms such as freedom of expression , freedom of assembly and political participation. Often such restrictions come hand in hand with strict enforcement and persecution, for example as crimes against the state, either legally or extra-legally.

By forcing members of their own population to flee their country and seek refuge in other countries, the legal orders of source countries cease to be merely a domestic matter. They are translated into an international matter due to the border-crossing effects, which are painfully human in nature. This requires global attention, and it requires the attention of international refugee law.

Israeli Supreme Court rejects the amendment to the Infiltration Law as Unconstitutional

Yesterday, 16 September 2013, the Israeli Supreme Court, sitting as the High Court of Justice (BAGATS), rejected a Parliamentary law as unconstitutional when it accepted petitions (in three unified cases) against the 2012 amendment of the 1954 Israeli Infiltration Law.

Under the amended Law, individuals entering Israel illegally (henceforth ‘Infiltrators’) could be held in custody for three years, without trial, providing they received an expulsion order by the Ministry of Defense, for reasons of their illegal entry into Israel. The amendment also foresees the possibility for early release and sets out detention conditions including judicial review.

Three petitions were brought before the Court and were united. One petition dealt directly with the illegality of the amended Infiltration Law.Tthe other two petitions were appeals against decisions of lower courts  that centered to the question of the legality of the amended Infiltration Law.

The 120 page Decision sets out the context of the acute  immigration challenges Israel has been facing over the last decade and the shaping of its immigration policy. The Decision also describes the conflicting interests and rights at hand, namely of Infiltrators who are asylum seekers and possibly refugees; and within the specific circumstances of the State of Israel (many Infiltrators, including asylum seekers come for States of Origin that are in a state of belligerence with Israel).

In a unanimous decision [with several separate opinions] the nine Supreme Court Judges accepted the petitions and rejected the 2012 amendment to the Infiltration Law as unconstitutional. More specifically, they decided that the amendment to the Law and the three-year detention period is contrary to the Israeli Basic Law: Human Dignity and Liberty of 1992.

The decision is groundbreaking and marks a victory for Israeli human rights lawyers and NGOs who petitioned to the Court. Among the entities who joined the case as amicus to the Court stands the Concord Clinic for Human Rights and International Law, that I have recently joined. At the head of the Concord Institute stands, Prof. Frances Raday. This specific case was led by Prof. Raday and Adv. Avinoam Cohen.

The Decision is also interesting for the understanding of the immigration situation in Israel in a more general context. In this vein, I would like to bring forth a few facts and considerations the  Court underscored in its decision :

The dilemma: The Court underlined that Israel has not been spared by the global phenomena of an increasing, world immigration flow. Immigration issues within the Israeli context, have raised difficult dilemmas and issues such as family unification, foreign workers, asylum seekers or refugees, and Infiltrators.  Most of these elements raise conflicts between national and public interests and immigrants’ rights, including their basic human rights, their right to dignity and freedom. On the other hand questions of growing violence and local employment, have also arisen. The balance is hard to strike and any decision will necessarily mean compromising one of these interests. Parties agree that the vast Infiltration phenomena causes damage to Israeli society and national interests, the dispute is on possible and legitimate ways to deal with reality. [In the social sphere the struggle for immigrants’ and refugee rights is marked by, for instance,  rhetoric of Israel being a nation of refugees]

The Numbers: The decision deals with the Infiltration, hence illegal entry into Israel’s borders, as opposed to foreign workers or tourists who have entered Israel legally and have over-stayed their visa permits. Most Infiltrators enter Israel through the Egyptian border, which is 220km long. Recently, the State built a fence at the border in order to fight different forms of trafficking (in women, weapons, drugs and Infiltration). The Immigration phenomena has reached such broad dimensions, as to mark changes in the different layers of life in Israel. Infiltration has influenced interior security and public safety. There has been a marked change in the urban setting and impact on the economic setting. The most recent figures used by the Court (MOI figures) point at 64,649 Infiltrators who have entered Israel illegally by 1, May 2013, of which 54, 580 individuals are living in Israel [for a population of approximately 7,700,000]. A reading into the numbers shows however, that lately the number of new Infiltrators has decreased considerably , from 14,709 Infiltrators in 2010 and 17,258 Infiltrators in 2011 (an average of 1,400 individuals monthly); to 10,412 in 2012 (an  average of 870 individuals monthly) and in 2013 there were 10 individuals in January, 5 individuals in February and 3 in March.

Additionally, 66% of Infiltrators living in Israel come from Eritrea and 25% come from Sudan.

The Situation in Eritrea and Sudan based on UN reports and Israel’s policy toward each group of asylum seekers/Infiltrators: The Decision relies on UN reports when describing the difficult political situation in both Eritrea and Sudan , setting a picture of dictatorship, forced disappearances, arbitrary executions (for Eritrea) and full-blown conflict, mass rapes, violation of human rights and genocide, in Sudan.

Israeli policy in terms of asylum seekers (including Infiltrators) is based on The Convention on the Status of Refugees of 1951 and on its internal laws. Additionally to the protection an individual is entitled to if he/she is a recognized Refugee, Israel also abides by the principle of ‘non-refoulement’ preventing someone from being sent back to a place where his life would be in danger. The protection resulting from ‘non-refoulement’ is referred to as temporary protection, regardless of a person’s individual claims to be recognized as a refugee.

A ‘Normative Fog’ for Eritreans: Israel practices a non expulsion policy toward Eritreans, since Eritrea has been recognized as a conflict State. Nevertheless, Eritreans do not enjoy full rights that would enable them to build their lives in Israel as long term residents. For this to happen, Israel would have to make a positive finding as to their entitlement for ‘temporary protection’. This has not happened. The status of Eritreans is unclear to all because of this vague policy applied by the Government. Their rights (to social security, medical care, employment, education and so forth) have not been explicitly set out.  It has left what Judge Hayut referred to in another decision as a ‘normative fog’.

Policy toward Sudanese: Sudanese benefit from a somewhat better situation, however, the Court states, their situation is somewhat similar to Eritreans notwithstanding. Their situation is better since they have been positively recognized with the entitlement to ‘temporary protection’. This gives them the right to legally work and stay in Israel for instance. Their situation is somewhat unclear since Israel now considers that Sudan is a country where safe return is possible. North Sudan does not have diplomatic relations with Israel. The identities of individuals from North Sudan is not permitted for publication since this would put their lives in peril (hence the principle of ‘non-refoulement’ would apply). If their identity is known they become refugees ‘sur place’. This is because past experience has shown that Sudanese who have returned to Sudan (from Jordan) and who were thought to have been in Israel, were executed (hanged). Sudanese passports bear the statement that the passport is valid for all countries except for Israel.

The situation in South Sudan is different. Israel has diplomatic relations with South Sudan. On 31 January 2012, the Minister of Interior issued a decision, confirmed by the Courts, that Sudanese in Israel from South Sudan can now return to their Country of Origin.

The mass number of Sudanese residents in Israel makes this decision difficult to implement and will take time. Before returning to their countries, individual RSDs are prepared (interviews, assessments and decisions as to an individual entitlement for refugee status as opposed to the collective, temporary protection).  So currently, their legal status in Israel is unclear.

The Legal Situation before the Amendment to the Infiltration Law: under the previous Law, an individual who was in Israel illegally, could be ordered to leave the country based on the Law on Entrance into Israel. Once an expulsion order was issued and if the individual did not leave the country as ordered, he/she could be arrested. The Law on Entrance into Israel) did not mention a time limit to the duration of detention. The Supreme Court enstated limits on the MOI’s discretion and operated a judicial review. Further case law limited the detention periods and ordered the release of detainees if their expulsion from Israel was not going to be implemented in a short period of time. A further step was marked by amendments to the Law , namely in 2001, that were aimed at dealing with the increasing numbers of illegal immigrants and/or infiltration into Israel.

In practice, illegal immigrants and Infiltrators were released from detention after short periods of time and were given permits. In 2006, the Government tried to implement to previous Infiltration Law and petitions were filed to the Supreme Court against the law and its application because it did not explicitly limit the time period for detention. In a Supreme Court decision of 7 October 2008 the new procedure in place was that a person caught at the border for Infiltration  would be detained at the border and transfered to a detention center, no later than 72 hours from the time he/she were caught. Within 14 days the person would be brought before a judge who would consider whether the individual should be released.

Final Words: In her written Decision, confirmed by all Judges unanimously, Judge Arbel states that out of 55,000 individuals who have infiltrated Israel illegally, 1,750 are in detention. Therefore, for Israeli society, the challenges it faces, stemming from illegal infiltration, are as acute.  However, for the 1,750 individuals in detention, applying the Amended Infiltration Law marks the difference from arbitrary, unresolvable arrest, to freedom and hope.

In reaching the Decision, Judges looked at comparative law, international law and national laws.