“Closing” Roxham Road has been invoked time and time again in recent weeks, by columnists and elected officials alike, even creating an imbroglio between the Quebec Minister of Immigration, Christine Fréchette, and her own CAQ government. In 2022, a record 50,000 asylum seekers went through the now famous path, which connects Montérégie and New York State.
These asylum seekers avoid official border crossings between Canada and the United States because of the safe third country agreementsigned in 2002 and entered into force in 2004. Under this agreement, “persons who enter Canada at a land port of entry are still not eligible to apply for refugee status, and will be returned to the States unless they meet one of the exceptions provided for in the Agreement”.
There is indeed little chance that an asylum seeker can claim persecution in the United States, a country considered “safe”. Fact, of the 62,113 applications still pending before the IRB as of September 2022, only 274 considered the United States as a country of persecution.
The question that arises is the following: could the safe third country agreement be applied throughout the 8,891 km that separate us from the United Statesin order to limit the passage of these asylum seekers using Roxham Road and other alternative routes?
From an operational perspective, the answer is no. Nor can Quebec close Roxham Road, because it is the federal government that has the jurisdiction to manage Canadian borders.
Furthermore, Canada is subject to obligations resulting from the Canadian Charter of Rights and Freedoms: it cannot return asylum seekers to a country where there is a risk of torture. Under international law, Canada has also ratified the Convention Relating to the Status of Refugees and the Convention Against Torturewhich implies this principle of non-refoulement to anyone at risk of torture, inhuman or degrading treatment.
Professor of migration law at UQÀMI am director of the Observatory on International Migration, Refugees, Stateless Persons and Asylum (OMIRAS). I propose here an overview of what international laws say about the reception of refugees.
Before the Supreme Court
The legal saga to invalidate the safe third country agreement began in 2007 before the Federal Court, then before the Federal Court of Appeal, and ended in 2009 with a rejection by the Supreme Court.
Since 2020, with the arrival of tens of thousands of applicants arriving from the United States through unofficial ports of entry, a new application has been made by Amnesty International, the Canadian Council of Churches, the Canadian Council for Refugees and asylum seekers to invalidate the agreement. Following several back and forth in court, an application for leave to appeal was filed. On December 16, 2022, the Supreme Court agreed to receive the case and review the agreement. We will therefore have to wait for the decision of the highest Canadian court on the validity or otherwise of the agreement.
The Canadian Press/Graham Hughes
A right guaranteed in international law
Canada hosts a tiny number of asylum seekers worldwide. The UNHCR estimates them at more than 4.9 million. Added to them are the 25 million refugees and several other millions of internally displaced persons. Most live in countries bordering their country of originsuch as Jordan, Turkey or Lebanon, in the Middle East, Colombia, in South America, or Uganda and Kenya, in Africa (continent hosting the largest number of refugees).
Ultimately, Canada is obliged to let people claiming to be fleeing persecution submit their asylum claims, a right guaranteed by the UN. All these asylum applications must be deemed admissible before being forwarded to the Refugee Protection Division, which is competent to examine applications for international protection in Canada. If the applications meet the criteria, the individuals will be recognized as refugees in Canada.
Irregular migrants and asylum seekers
There is currently a confusion between irregular migration and the reception of asylum seekers. For the latter, the safe third country agreement allows them to arrive in Canada through Roxham Road (at their own risk). The invalidation of the agreement would allow people claiming to be fleeing persecution to submit their asylum claim safely in Canada, regardless of their place of arrival. It should be noted that organizations for the defense of migrants, including Amnesty Internationalrecount practices that violate the human rights of asylum seekers in the United States.
For irregular migration, Canada has a Global Assistance Program for Irregular Migrants (PAMMI) and legislative provisions to eradicate irregular immigration. Québec will have to continue collaborating with the federal government in order to fight effectively against irregular migration, in particular by targeting the real causes of these displacements (economic inequalities, climate change, conflicts and violence in the world).
Other paths will open
Roxham Road presents complex issues. But it must be placed in its global context, with the presence of more than 100 million people in exile in the world.
Faced with the increasing influx of refugees, more than 68% of Quebecers want Roxham Road closed. The pressures on the system are growing. It costs 20 million more per month in Quebec in social assistance benefitsin particular due to the fact that the Quebec welcomes 64% of these asylum applications in Canada and that Canada is slow to issue work permits.
Despite this, it is not relevant to close Roxham Road, as other entry points will replace it, exposing asylum seekers to more risk and danger. The example of the European Union is revealing: as soon as one road closes, other even more dangerous are opening up and the number of dead or missing people is climbing. Added to this are the multiple human rights violations suffered by these millions of men, women and children fleeing wars and persecution.
