September 12, 2018 -Interview with Rob Breakenridge -The Surge in Border Crossings at Canada’s Border

R Breakenridge:

The asylum seekers debate isn’t going away anytime soon. But more to it, I mean the problem itself isn’t going away anytime soon. Reasonable people can disagree on how big a problem it is or whether it warrants the term crisis, but it’s clearly a situation that we’re not prepared to deal that, this is stretching our resources when it comes to processing people who are arriving in Canada and claiming asylum. We get people every year that step foot in Canada, claim asylum. We review their claim, and once the decisions made about whether that claim’s legitimate, that person either gets to stay or they’re ordered to leave.

R Breakenridge:

But because of the increase in the numbers of people who have been walking across from the US into Canada, primarily in Quebec, or at least that’s where the bulk of it’s been as of late, it seems as though maybe it’s more than the system can handle. I guess we’ll get around to all of these claims eventually, but what’s the risk of letting the system build up a significant backlog?

R Breakenridge:

Story in The Globe and Mail today on some numbers around this. The wait time for a refugee claim hearing in Canada increased more than a third over the past two years to 19 months. More than 30,000 asylum seekers arriving via unauthorized border crossing place significant pressure on the system. The immigration [inaudible 00:01:17] managed to finalize 15% of the 27,000 asylum claims made by people who illegally or irregularly, depending on your preferred terminology, entered Quebec between February 2017 and this past June.

R Breakenridge:

The resulting backlog has created a growing queue for any and all asylum seekers. Under the Supreme Court’s landmark 1985 Singh decision, all refugee claimants in Canada, on Canadian soil, are entitled to an oral hearing. So do we need more resources to clear this backlog? What does it mean for people who have arrived in Canada by other means and maybe have what some would describe as perhaps more legitimate refugee claims?

R Breakenridge:

Well, turning this to talk a bit more about all this [inaudible 00:02:00], pleased to welcome to the program Raj [inaudible 00:02:01]. He’s a Calgary-based immigration lawyer, one of the founders of Stewart Sharma Harsanyi law firm. Raj, great to have you with us here. Welcome to the program.

Raj Sharma:

Thanks for having me on.

R Breakenridge:

What do you make of these numbers, first of all?

Raj Sharma:

Well, it’s understandable in terms of the concerns that Canadians may have. It’s a interesting debate. So you have the individuals that virtue signal on the one hand, and then there’s outrage machine on the other. If you look at the situation that we have, it’s difficult to compare, for example, Canada to countries like Bangladesh, which are hosting tens of thousands of individuals that enter on a daily or weekly basis.

Raj Sharma:

We have oceans on three sides of us, and we have the US to the south. So this phenomenon is relatively unknown to countries like Canada. It’s just the nature of our geography. And so it is unusual. There were a number of … we had significant border crossings prior to the Safe Third Country Agreement and in the aftermath of September 2001. So there was a spike and a surge about 17 years ago, and it appears that we’re having a surge again. We had about, 2,500 border crossers a[in 2016], and then all the sudden 30,000 in the last 18 months.

R Breakenridge:

Right, and I guess we need to put those numbers in perspective. But based on what we would deal with on a typical year, this is above and beyond what we’re equipped to deal with [crosstalk 00:03:46]

Raj Sharma:

Yeah, by factor of perhaps from the year prior you’re talking about perhaps a factor of seven to 10 times more.

R Breakenridge:

But how does that trickle down through the system?

Raj Sharma:

Well, the system itself, we have the Immigration Refugee Board, so after 1985, Singh decision is a sword and a shield in terms of refugee and immigration jurisprudence. So the Singh decision mandates hearings. So after Singh, I don’t think a lot of people understand is that we had to redetermine all those claims, and ultimately, we put in place some sort of amnesty given the backlog and given that the system simply would not be able to handle, in its birth, tens of thousands of cases that were backlogged.

Raj Sharma:

The current system, the IRB, the Immigration Refugee Board, the Refugee Protection Division, can handle about 20,000 cases, can finalize about 20,000 cases per year, so a large tribunal, an efficient tribunal. Now what you have over and above that, so anything over and above its capacity is going to lead to a backlog. The backlog then increases time in terms of hearing. So it’s a little bit like a snowball rolling down a hill.

Raj Sharma:

So let’s say you have individuals crossing the border, and let’s say it’s going to take 19, 20 months for a hearing. …What that does is that the longer that individual stay without being removed or potentially obtain status, then that will then encourage presumably more individuals to follow. And so you’ll have a feedback loop and eventually you will see, unless significant more resources are thrown at this, you are going to see a growing backlog, and frankly, I think that the wait time is probably going to be significantly more than 19 months.

R Breakenridge:

How else would someone come to be in the IRB system without having entered Canada this way, people that come and [inaudible 00:05:49] claims or even refugees that otherwise make their way to Canada?

Raj Sharma:

Sure. I’ll give you an example. So we had this spat with Saudi Arabia. So we had Saudi students here. We had Saudi doctors here. Now some individuals, they’re afraid of going back to Saudi, and so they’ll make a refugee claim here. So a lot of refugee claimants, in-Canada refugee claimants, come here on visitor visas. They come here as students. They make be here as [inaudible 00:06:19] workers, and then circumstances change, and they end up making a refugee claim from inside Canada.

R Breakenridge:

With regard to, say, the Syrian refugees who were resettled, they were in refugee camps elsewhere, what role does the IRB have in processing those individuals?

Raj Sharma:

Zero.

R Breakenridge:

Okay. Right, so we can distinguish then between people who are making asylum claims in Canada versus refugees that have otherwise been resettled.

Raj Sharma:

Correct, and so this is an important distinction. So the border crossers are not affecting the resources or the ability of Canada to resettle, for example, government-sponsored refugees or privately-sponsored refugees from outside Canada.

R Breakenridge:

When we look at ways of addressing this, does it make more sense to spend money on trying to clear the backlog, trying to process more claims, or does it make more sense to spend money on trying to reduce the number that are coming in in the first place?

Raj Sharma:

Probably a combination, but I mean you have … geometric problems are rarely solved by arithmetic. And so what you’ve got is you’ve got tens of thousands, and you’ve got a system that can handle, let’s say, 20. So ultimately, this problem can only be fixed, and this is a problem, this intractable problem or challenge, that doesn’t have any easy solution.

Raj Sharma:

So when we’re dealing with international migration, we’re talking about push and pull factors. So, for example, there’s a massive crisis in Venezuela, which is literally pushing out hundreds of thousands of individuals, and it is displacing hundreds of thousands of individuals. Now that is then, of course, being absorbed into the surrounding countries of Venezuela.

Raj Sharma:

So on the one hand, you deal with push-pull factors. On the other hand, you try to deal with a more efficient system or you throw more resources at it. But resources rarely ever meet demand. The Haitians that crossed over, so out of 30,000, about a third of them are the Haitians that have been refused or have been advised that their temporary protected status in the US is going to be up and not going to be renewed.

Raj Sharma:

So you’re between a rock and a hard place. So you’re in the US, your status is not going to be extended there, and going back to Haiti is not seen as an option, and the alternative now is going to be a claim in Canada. So how do we address these push-pull factors? Haiti itself is intractable problem. And so-

R Breakenridge:

[crosstalk 00:08:58] yeah, well, go ahead.

Raj Sharma:

I guess the issue is going to be this is that we’ve got 30,000, we’ve got a significant challenge on our hands. Now there are 400,000, approximately 400,000 individuals in the US, and their TPS status is coming up in September 2019, a year from now. So we have hundreds of thousands of individuals from El Salvador, from Nicaragua, from Honduras, and been in the US for well over 10 years. What is going to happen? A decision is going to be made, and they will have to make this decision between a rock and a hard place. So I think, and again, I don’t want to be an alarmist, but there is a powder keg in the US at present, and that powder keg may set off in about a year from now.

R Breakenridge:

Given that, I mean is the US likely to agree to any changes to the Safe Third Country Agreement, which is probably a favor to Canada to begin with? A lot of people seem to think that we can find a solution in simply changing that deal. Is there anything to that?

Raj Sharma:

I don’t know. I think if you look at the Trump administration, I think that this plays well to Trump’s base in terms of being hard on immigration or being hard on enforcement is something that seems to be a very integral part of A, of course, his nomination, his run for the presidency, and at present as well. I believe that the surge will subside with the ending of the Trump administration, and it’s anyone’s guess as to whether that entails a second term or how long that situation will continue in the US.

Raj Sharma:

But this is the reality. I think for a long time, Canada was able to rely on the benign, beneficent presence of the US that attracted legal and illegal migration flows. And that has changed, and we were caught, obviously, flat-footed and frankly very difficult to anticipate something like this. I guarantee you, this was not in any way anticipated 36 months ago.

Raj Sharma:

In terms of Safe Third Country Agreement, we asked for the Safe Third Country Agreement. It was to discourage forum shopping, so individuals that come to the US were supposed to claim protection in the US, and individuals that landed first in Canada were supposed to claim protection in Canada first. But the reality was always going to be that this was based on our understanding that our refugee determination systems were roughly analogous. And that may not hold true anymore.

Raj Sharma:

I don’t know what the future holds. It is entirely possible that the Safe Third Country Agreement might be struck down by the courts themselves. The US may not meet the criteria threshold for an analogous refugee determination system. I know a lot of individuals will say, “Well, that’s hogwash,” let’s say, but these are terms of art, and the US seems to be abdicating some of its core principles in this regard. Of course, we had the detention of child migrants and asylum seekers, and we had the separation of families along that southern border. This is something that is probably going to be determined in the courts. I don’t see any government wanting to be aggressive in this regard.

R Breakenridge:

You’re probably right. Raj, we’ll leave it there. Always do appreciate the insight. Thanks for making some time for us here.

Raj Sharma:

My pleasure. Thank you.