Canadian Return Policy and the Migration-Terrorism Nexus
Source: Pixabay
by: Younes Ahouga, Toronto Metropolitan University
The creation of the current Canadian return policy is linked to the establishment of a common North American security perimeter with the United States following the terrorist attacks of 11 September 2001. To deflect accusations that Canada represented a potential haven for terrorists and safeguard the free flow of capital, goods, and people with the US, the Canadian immigration and asylum policies were closely aligned with those of the US and integrated in a broader antiterrorist strategy. This alignment unfolded in four stages which I argue welded together the fight against terrorism and the deportation of foreign nationals.
First, the Canadian Parliament agreed to the Immigration and Refugee Protection Act (IRPA) in November 2001. It authorized the refusal of entry, preventive detention, and deportation of permanent residents, migrants, and asylum seekers for security reasons.
Second, Canada and the US signed the Smart Border Action Plan in December 2001 to monitor the security risks posed by visitors, asylum seekers, and migrants entering North America. Under this action plan, both countries created joint passenger analysis units and interoperable databases, adopted common biometric standards for travel documents, coordinated their visa requirements, and shared information on asylum seekers. Third, Canada and the US signed a Safe Third Country Agreement in December 2002. Like the Dublin regulation of the European Union, the agreement required asylum seekers to lodge their refugee claims in the first country of arrival. Thus, asylum seekers who attempt to cross the land border of Canada from the US must be returned to the US and vice versa. Fourth, the Department of Public Safety and Emergency Preparedness and the Canada Border Services Agency (CBSA) were created in December 2003 to implement the IRPA, the Smart Border Action Plan, and the Safe Third Country Agreement. CBSA is also tasked with stopping irregular migration and screening and deporting visitors, migrants, and asylum seekers.
As the Canadian return policy is built to address terrorist threats, it presupposes the existence of a migration-terrorism nexus that represents an acute and pressing security problem. The nexus justifies the establishment of a separate legal framework for the arrest and detention of permanent residents, temporary migrants, asylum seekers, and irregular migrants. Foreign nationals can be arrested and detained under the IRPA, rather than the criminal code or the Anti-terrorism Act, if officers have ‘reasonable grounds to believe’ that they are a danger to the public or would not comply with their deportation. Although detentions under the IRPA are reviewed by an independent administrative tribunal, the Immigration and Refugee Board of Canada, officers present their case against detainees based on oral submissions and rarely present evidence to support them. Additionally, officers present their cases without being sworn as witnesses or undergoing cross-examination. In other words, foreign nationals can be detained ‘without the application of the rigorous procedural safeguards of the criminal process or a criminal standard of proof’.
The absence of such safeguards is particularly problematic, as the IRPA does not preclude the indefinite detention of individuals. Foreign nationals believed to represent a danger to the public, such as Alvin Brown or Kashif Alif, can be detained for years pending deportation with no set release date and under some of the most restrictive conditions of confinement in Canada, including maximum security jails and solitary confinement. In other words, the securitization of return policy stemming from the migration-terrorism nexus leads to practices that violate international human rights norms and international standards on immigration detention. Therefore, the Canadian policy of return should be de-securitized so that the arrest, detention, and deportation of foreign nationals could be handled by ordinary means. In fact, security threats posed by foreign nationals should be addressed exclusively based on Canadian criminal law, which offers stronger procedural safeguards than the IRPA. This is crucial to ensure that the human rights of foreign nationals are protected by the Canadian return policy.
Contact:
Younes Ahouga, Canada Excellence Research Chair in Migration and Integration Program | Toronto Metropolitan University | younes.ahouga@ryerson.ca