The Securitisation of Canada’s Refugee System: Reviewing the Unintended Consequences of the 2012 Reform

The Securitisation of Canada’s Refugee System: Reviewing the Unintended Consequences of the... ABSTRACT In 2012, Canada made regulatory changes and adopted legislations amending the Immigration and Refugee Protection Act, including the Protecting Canada’s Immigration System Act and the Balanced Refugee Reform Act. These pieces of legislation contain a number of measures which include: expedited refugee claim hearings, reduced procedural guarantees and reviews, growing use of socioeconomic deterrents, and increased immigration detention. Drawing on a qualitative research, this article explores the unintended results and counter-productive effects of these new measures, with a particular focus on their practical and human rights implications. It is argued that the government has used the language of security to rationalise the imposition of disproportionately harsh treatment on asylum seekers. Unsurprisingly, the new measures have resulted in violations of asylum seekers’ human rights. In addition, they have had a detrimental impact on third parties involved in the refugee protection system, such as legal counsels and service providers. Finally, it is argued that there is a correlation between the new refugee measures and the increase in irregular migration in Canada. 1. INTRODUCTION As the number of refugees in the world soared from 10.4 million in 2012 to 22.5 million in 2016,1 Canada has enjoyed praise from local and global actors for resettling more than 40,000 Syrian refugees between November 2015 and February 2017.2 Indeed, the country solidified its global reputation for humanitarianism and human rights leadership. However, the success of Canada’s refugee resettlement program belies the embrace of securitising practices towards in-land asylum-seekers,3 which have long been designed to limit their fair and equitable access to justice. While the roots of these practices can be traced at least as far back as the 1990s, the Conservative Government of Stephen Harper (2006–2015) introduced exceptionally harsh measures following the arrival of nearly 600 Tamil asylum-seekers aboard two boats, MV Ocean Lady in 2009 and MV Sun Sea in 2010.4 Shortly thereafter, Parliament introduced the Protecting Canada’s Immigration System Act (PCISA 2012) and the Balanced Refugee Reform Act (BRRA 2010), both of which amended the Immigration and Refugee Protection Act (IRPA 2001).5 This legislation – which we shorthand as the “2012 refugee reform” – contains a number of restrictive measures that apply to in-land asylum-seekers and include: expedited refugee claim hearings, reduced procedural guarantees, growing use of socio-economic deterrents, and increased immigration detention. Drawing on a qualitative research, this article explores the unintended results and counter-productive effects of the 2012 refugee reform, with a particular focus on its practical and human rights implications. We argue that the Government has used the language of security to rationalise the imposition of disproportionately harsh treatment on asylum-seekers. Yet, when one peers beneath this language, we see also that a driving policy rationale relates to improving administrative efficiency and reducing the costs of the refugee system. The language of security and the timing of the irregular arrivals in 2009–2010 provided a convenient opportunity to limit access to justice to persons stigmatised, often ex ante, as deceitful, dishonest, and undeserving of refugee status. Not surprisingly, these developments have had negative repercussions on the human rights of asylum claimants and a number of unanticipated policy consequences. This article builds on the literature available in Canada,6 but adopts a more comprehensive view of the topic. It notably deals with several new measures pertaining to the 2012 refugee reform while examining their interrelated consequences. Our analysis is also made through the lens of security. The securitisation of immigration and refugee protection has been studied extensively in the European Union (EU) and the US.7 With some exceptions,8 there is still a paucity of research on this issue in Canada. Hence, this article aims to fill these gaps. We begin by outlining our research methodology. We then discuss the securitisation process and how this translates into some of the changes relating to Canada’s refugee status determination system. This is followed by a critical analysis of the unintended consequences of the 2012 refugee reform, with a special focus on its human rights impacts. 2. METHODOLOGY For this research, we collected and analysed data from a variety of primary sources (e.g., interviews) and secondary sources (e.g., statistics from government databases, government and external stakeholder reports, scholarly publications, grey material). The primary field research was conducted between October 2015 and May 2017, and included 66 research participants from British Columbia, Quebec, and Ontario, three provinces that are homes to the largest number of asylum-seekers in Canada.9 We conducted 58 semi-structured interviews (one-on-one or in group) with stakeholders from various professional perspectives and profiles. The participants were drawn from four main groups: Civil servants (6) from the Immigration and Refugee Board (IRB), a member of the Crown Attorney’s Office, civil servants from Immigration, Refugees, Citizenship Canada (IRCC) (5) and Public Safety Canada (1), elected members of the City council of Toronto (1) and Federal parliament (1), and city staff in the City of Toronto (2). Practitioners (refugee, immigration and criminal lawyers, lawyers working in legal clinics (20), inter-governmental organisation representatives (2), non-governmental organisation (NGO) workers and representatives (21), i.e., non-governmental service provider organisations working with migrants and refugees, and health professionals that operate “on the ground” in Toronto, Ottawa, Montreal, Vancouver, and Victoria. Academics and researchers in Canada (5). The irregular migrant community (2). Irregular migrants may be defined as people who enter or reside in a country without that country’s express legal permission.10The interviews lasted on average one hour. They took place either in the researchers’ offices or in the offices of the interviewees. We audio-recorded each interview and we treated the data collected according to Ryerson and University of Ottawa Research Ethics Boards guidelines. All interviews were transcribed and coded in NVivo. 3. THE SECURITISATION: THE CASE OF CANADA’S 2012 REFUGEE REFORM Securitisation is an “essentially contested concept” which has no neutral definition.11 The extent to which migration law and policy have been securitised has, unsurprisingly, also been a contested question.12 Although considerably diverse, the general schools of thought within the field of security studies include the Copenhagen School,13 and the Paris School and associated critical perspectives.14 The Copenhagen School adopts a rather narrow conception of security drawn from international relations theory on militarism and exceptionality. The gist of this perspective is that security includes a cluster of speech acts that open up and maintain zones of exceptionality, which operates outside of the realm of “ordinary” law and politics. The historic preoccupation with those within this school is with how exceptionality poses a crisis for the normativity of law. The nature of exceptionality is that political authority is not subject to legal constraints and therefore is arbitrarily deployed.15 One of the difficulties with this conception of security is that liberal-democratic states do not expressly declare that they are acting outside of law. Instead, they find ways of either working within the law or spreading thin but opaque veneers of legality over what is, in fact, legally unjustifiable. This is precisely why scholars debate the extents to which 9/11 fundamentally changed migration law and policy or, instead, simply shifted the course of much deeper, altogether normal historical trends. But the normalcy of security does not settle questions of legitimacy. Indeed, the act of using legal form to mask illiberal practices may normalise states of exception, which harden into unalterable, barely perceptible form.16 Critical security scholars, such as Bigo, respond to this problem by adopting a broader conception of security that may be uncoupled from dramatic or express invocations of exceptionality and which allow us to move beyond contests between liberal political authority and liberal legal authority. More precisely, they deny that security and the programs of the liberal state are mutually antagonistic. To the contrary, the two coexist in a tense, uneasy, but productive relationship that permit the beneficial movement of desirable bodies across borders while enabling the exclusions and removal of undesirables.17 Without treading into the nuances of theory, the point is that security broadly conceived describes discursive associations between sub-categories of migrants as dangerous, deceitful, or otherwise threatening, all for the purpose of rationalising economically beneficial social and territorial exclusion.18 As Balzacq contends, one of the trappings of security is discourse which frames measures as both a necessary and a proportionate response to a perceived threat.19 The political and media narrative of migrants and asylum-seekers is a good example. A study by the International Organization for Migration (IOM) notes: By highlighting certain aspects of migration and not addressing others, by using particular language and certain kinds of rhetorical devices (such as analogies and metaphors), political actors not only provide people with some (carefully chosen) facts about migration, they also give them a sense of how that information should be interpreted.20 This precise phenomenon was at play in Canada, following the aforementioned irregular boat arrivals in 2009 and 2010. Indeed, the Federal Government suggested that asylum claimants on board of the two boats may be supporters of or potential contributors to terrorist activities.21 Immediately following the arrival of the second boat, MV Sun Sea, the Government stated, quite erroneously, that at least one-third of the passengers aboard were “suspected human smugglers and terrorists” working to reconstitute the Liberation Tigers of Tamil Eelam (LTTE)’s “base of operations overseas in order to renew resistance to the Government of Sri Lanka”.22 Linkages between security and irregular migration have been a constant theme in Canada, even in the 1980s,23 but it seemed the Harper administration used the boat arrivals as a pretext to deploy immigration measures well beyond those that were introduced earlier. In 2013, the Auditor General of Canada noted, “Canadian government considers migrant smuggling as a profit-driven organized crime that exploits vulnerable people, funds terrorist activities, undermines the integrity of Canada’s borders and immigration system, and threatens the national security of Canada and its partners.”24 We see here a range of goals, including protecting national and international security, disrupting terrorist financing and organised crime, and solidifying state sovereignty. But notice what is lurking in the background, bundled up in the “integrity” of the immigration system: the maintenance of an otherwise liberal regime that is open to those who play by the rules. This would include, of course, migrants who contribute to the social, political, and economic well-being of the country. What is not stated here, but was conspicuous in other public and parliamentary fora, was the financial implications of running the refugee status determination (RSD) system. At the same time as it was stigmatising the passengers of the MVs Ocean Lady and Sun Sea as security threats, the Government referred to them as “bogus refugees” and “queue jumpers”.25 This mantra was quickly extended to all asylum-seekers, suggesting that the integrity of our immigration system was being undermined by the costs of processing baseless claims. In presenting the 2012 refugee reform for parliamentary debate, the then Immigration Minister argued that Canada’s asylum system was “broken”, inefficient, costly, and subject to “abuse”: PCISA is part of our plan to restore integrity to our asylum system and restore Canadian’s confidence in our immigration system. The bill would make Canada’s refugee determination process faster and fairer and would result in faster protection for those who legitimately need refugee protection. It would also, and this is the important aspect of it, ensure faster removal of those whose claims are withdrawn, those claims that are bogus and those claims that have been rejected.26 The intermingling of discourses on security and “integrity” paints a complicated picture of the 2012 refugee reform. On the one hand, the stated objectives of the reform were to relieve pressure from an overburdened refugee determination system – a defensible objective by any standard. By 2009 – the year the MV Ocean Lady arrived – there was a backlog of 62,000 refugee claims. Between 2010 and 2012, the system took 21 months to produce a decision to recognise refugee status, and an average of four and a half years to reach a final decision after all remedies were exhausted.27 But on the other hand, the Government weighed the relative costs of justice and of injustice, choosing to impose the burden of legislative reform onto asylum-seekers. The language of security and the timing of the irregular arrivals provided a convenient opportunity to achieve efficiency and savings by restricting access to refugee protection for the persons stigmatised, ex ante, as deceitful, dishonest, and dangerous. The openness of Canada's faster and fairer RSD system could be plausibly presented at the same time as broad classes of deserving but undesirable asylum-seekers could be denied access to justice. As noted by Kronick and Rousseau,28 the political discourse has considerably influenced mental representations and social opinions in Canada, which may have contributed to the ease with which Parliament implemented unjust measures. Interestingly, many of the measures included in the 2012 reforms were not functionally related to security at all. But security did play a practical role beyond shaping public discourse about the need for reform. One measure – the “Designated foreign nationals” (DFN) class – was introduced in all likelihood in order to serve as a deterrent or even interdiction function.29 Characterised as “a specific legal response to the unauthorised arrival by sea of asylum seekers to Canada”,30 the DFN regime is the best example of securitisation as it illustrates the exceptionally harsh nature of policy response justified by political discourse. It allows the Minister of Public Safety to designate individuals who arrive to Canada with the help of a smuggler, in a group of two or more and to mandate the detention of DFNs aged 16 years and over.31 The detention is reviewed after 14 days, followed by another review after six months and then every six months. In comparison, the decision to detain non-designated foreign nationals is always made on a discretionary (case-by-case) basis; an initial detention review takes place within 48 hours, followed by a review within seven days, and then every 30 days from the previous review.32 Other extraordinary features of this new class are: DFNs whose refugee claims are rejected by the RPD are denied a right of appeal to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB),33 and face immediate deportation; DFNs do not have the right to an automatic stay of removal upon applying for leave and for judicial review to the Federal Court, and can therefore be deported during their application; DFNs are ineligible to apply for a work permit until their claim is approved by the IRB, or until their claim has been in the system for more than 180 days and no decision has been made.34 Conversely, for non-DFN claimants, work permits are issued for 12 months from the date of their claim’s referral to the IRB; Finally, even when they obtain refugee status or the status of a ‘person in need of protection,’ DFNs are required to wait five years before applying for permanent residence and before they can sponsor their family members.35 In contrast, foreign nationals who obtain the status of “refugee” or “protected person” can apply for permanent residence after 180 days have passed, and sponsor family members once they gain permanent residence.The DFN regime has been used only once and retroactively, on 5 December 2012, against five groups of foreign nationals; in total, 85 people including 35 children who illegally crossed the Canada-US border into the province of Quebec between February and October 2012.36 According to the figures provided by IRB, Immigration Division has heard 11 of these cases since January 2013, leading to nine Romanian citizens being removed and two released. At first glance, one might see the DFN as an inert measure. But the Government has used it to project an extra-territorial deterrent effect, on the presumption that the risk of being subject to a DFN would sway persons against irregular migration. It also aimed to reassure audiences such as the Conservative electorate and the US that the borders are under control and the abuse of the refugee system would not be tolerated. In her analysis of similar political moves in the UK, Aliverti highlights how such measures are used symbolically “as an attempt to appease a sector of the electorate, the media and the Opposition about the ‘immigration problem’ to bring immigration under control”.37 Hence the invocation of harsh sanctions to deal with immigration offences serves mostly as a threat rather than to actually prevent the offense or prosecute the offender. Several provisions pertaining to the DFN regime, including accelerated timelines, can be considered as key tools to make the system faster and reducing the cost of the RSD. Many of the punitive measures such as the mandatory detention of 16- and 17-year-old children without a prompt review of their detention’s lawfulness and the exclusion of DFNs from the right to appeal to the RAD of the IRB are clearly at odds not only with the Canadian Charter of Rights and Freedoms, but also with Canada’s international obligations under the Convention relating to the Status of Refugees.38 The regime notably carries a serious risk for the principle of non-refoulement, which prohibits deportation of individuals to places where they may face persecution or the substantial risk of torture or similar abuse.39 It is hard to measure the success of the DFN regime’s objectives, but it nonetheless stands as an example of how security can have invisible or at least latent or implicit presence, helping to limit access to the RSD system. In sum, the aforementioned examples illustrate the multiple layers of securitisation in Canada, where public discourse has fortified economically driven barriers to the RSD. But the tense relationship between security/barriers and the maintenance of a faster and fairer RSD raises questions about how well the two can co-exist. Karyotis and Skleparis argue that security is, in fact, a counter-productive strategy, raising obstacles to the development of a coherent immigration policy.40 On the one hand, it unjustifiably deprives persons of rights. On the other, it ignores the cost of injustice or the possibility that security tends to be a rather expensive and inefficient endeavour. 4. THE UNINTENDED CONSEQUENCES OF 2012 REFUGEE REFORM Our interview data suggest that Canada’s 2012 refugee reform has engendered several unanticipated consequences. These consequences are classified into three main themes: migrants’ human rights violations, negative impacts on third parties involved in the refugee system, and irregular migration. 4.1. Human rights violations The most obvious outcome of the recent changes is their negative impact on the human rights of migrants. Advocates, academics, refugee lawyers, and civil society organisations have levelled pointed criticisms towards the 2012 refugee reform, arguing that many of the new measures violate the rights of refugee claimants in Canada. These criticisms have been supported by empirical research outlining the impact of the measures, particularly on asylum-seekers. For instance, the University of Ottawa’s Refugee Assistance Project (UORAP) found that these changes carry implications for the ability of refugee claimants to attain procedural, substantive, and symbolic access to justice as they seek protection in Canada.41 Courts have also on several occasions held that some recent measures against asylum-seekers contravene the Charter and are not justified by the principles and purposes of the IRPA.42 In this section, we focus on a number of pressing human rights issues highlighted by interviewees. We point out that lack of access to fair procedures at the front-end or middle of the RSD process results in the exertion of pressures at its final stage and/or non-compliance with international human rights standards. 4.1.1. Accelerated timelines The PCISA introduced truncated timelines in asylum claims’ processing. For most claimants, hearings at the RPD are now supposed to be held no later than 60 days after the refugee claim is referred to the IRB. Refugee lawyers and community organisation representatives invariably thought that, while the new timelines may work for some asylum-seekers, they typically do not give claimants enough time to prepare their claims. Several interviewees noted how shorter timelines impact vulnerable claimants, who have difficulties providing formal legal and factual materials in support of what are credible claims. As one lawyer put it: [T]he changes […] flipped so drastically, that now it’s very hard for a lot of individuals to compile the evidence that they need, in time for their refugee hearing, and the interpretation of the new evidence requirements for introducing new evidence on appeal, if you’re lucky enough to have an appeal, before the Refugee Appeal Division (Participant 10, Toronto). In addition, the new timelines have been particularly problematic for claimants from the “designated countries of origin” (DCOs). DCO claimants are asylum-seekers coming from countries that the Minister of Immigration, Refugees and Citizenship (“the Minister”) has formally designated as “safe”. DCOs are so listed in part because they are deemed to possess formal state institutions commensurate with democratic principles and the rule of law, including an independent judicial system, basic democratic rights and freedoms, as well as mechanisms for redress if those rights or freedoms are infringed.43 Currently, the Minister has designated 42 countries as DCOs. They include Mexico and Hungary, which, prior to 2012, were the two main countries of origin for asylum-seekers in Canada. Claimants from DCOs have a shorter period of time to prepare for an IRB hearing (30 days for inland claims and 45 days for claims made at a port-of-entry) than non-DCO claimants. High acceptance rates in 2016 for two main DCO countries – Hungary (57 per cent) and Slovakia (47 per cent) – reveal that several asylum-seekers from these countries have in fact well-founded reasons to claim protection.44 The new timelines therefore exacerbate the risks of legitimate applications being rejected without a thorough analysis of the merits of the claims; there is a consequent, unjustifiable risk of refoulement for DCO claimants. Some interviewees noted that the system has become either too fast or too slow to be fair. The administration’s priority was to schedule the initial RPD hearings for new asylum applications.45 As a result, secondary intake of claims, i.e. claims returned to RPD by the RAD or Federal Court, remained unresolved for a period of time. In addition, significant delays have occurred in the processing of the “legacy claims,” i.e. asylum claims referred to the IRB prior to the entry into force of the new regime on 15 December 2012. In June 2017, about 5,500 legacy claimants were still awaiting a decision.46 In a 2016 report, the Canadian Association of Refugee Lawyers (CARL) noted that some of the legacy claimants remained in Canada for more than three years on temporary status with no assurance of receiving Canada’s protection, and no means of getting on with their lives.47 A representative from a Toronto-based NGO corroborated this finding: We still have families that are in the legacy cases. There are seven or eight families connected to [the organisation] that still haven’t had their hearings, and it’s been, like, four years or longer. There’s a family that hasn’t had their hearing in five years. […] every single one of those families is suffering from some serious mental health challenge, related to it. Long family separation […] If they are accepted, it’s still going to be another two, three, four years. So, it’s like, almost a decade of being separated from their children (Participant 17, Toronto). As the short timelines may hinder an individual’s ability to retain counsel, this may lead to a rise in the number of unrepresented claimants who are unprepared and ill-equipped to present their claims. Some interviewees argued that reduced timelines exacerbate the existence of inferior legal representation and have incentivised volume-based practices which could be detrimental to the principle of due process of law. A study by Rehaag, which investigated over 70,000 refugee decisions from 2005 to 2009, highlighted the vital role of counsel in successful outcomes.48 Moreover, the new system imposes exceptional pressures on legal aid programs to provide effective legal services for refugee claimants. Legal aid in Canada varies from province to province. Immigration and refugee lawyers that we interviewed in British Columbia and Quebec invariably complained about the legal aid level, which is largely insufficient to represent complex cases in these provinces. This, in turn, is likely to result in experienced refugee counsels refusing DCO cases due to time restrictions.49 The new timelines prioritise efficiency over fairness. They impose hardship on refugee claimants and on the RSD system overall, including legal counsels and community services, as will be discussed below. 4.1.2. Limitation of procedural rights and existing reviews The 2012 refugee reform introduced considerable statutory limitations and bars relating to procedural guarantees available to refugee claimants. For instance, while the establishment of the Refugee Appeal Division in December 2012 was a welcome development in terms of ensuring fundamental justice in refugee protection, a number of foreign nationals, such as DFNs, have been barred from appealing to the RAD in order to deport more speedily those individuals whose claims are rejected by the RPD. Another illustration of this is the aforementioned legacy claimants. The lack of appeal considerably increases the hardship on these claimants who, because of their prolonged stay in Canada, are likely to establish strong social and economic ties in the society. A refugee lawyer underlined that: The Refugee Appeal Division […] was really a very positive development in the way refugee status determination is handled in Canada. The problematic part of it is the number of limitations they’ve put on those who have access to it. In my mind, if there is merit to an appeal process, in refugee status determination, then there’s merit in providing it to everybody who is eligible to make a refugee claim. It’s just kind of common sense to me (Participant 10, Toronto). It is noteworthy that, initially DCO claimants were denied the right to appeal a negative decision before the RAD. This was challenged before the Federal Court. On 23 July 2015, Boswell J. found that prohibiting claimants from DCOs from accessing the RAD contravenes Section 15 of the Charter and constitutes an impairment to their right of equality and non-discrimination. The decision notes that: Expressly imposing a disadvantage on the basis of national origin alone constitutes discrimination […] and this distinction perpetuates the historical disadvantage of undesirable refugee claimants and the stereotype that their fears of persecution or discrimination are less worthy of attention.50 Another example is the absence of the automatic stay of removal (ASR) for persons filing an application for judicial review to the Federal Court against a negative RPD decision.51 Hence unsuccessful claimants without access to the RAD do not benefit from an ASR, and are deported before a final decision on their claim has been made. As IRCC put it, “the no-ASR policy was intended to allow the Canada Border Services Agency (CBSA) to initiate the removal of these claimants several months earlier than claimants who are granted an ASR”.52 The policy consequence, however, is quite problematic in terms of the right to an effective remedy and the principle of non-refoulement. A study by IRCC that examined a sample of claimants (312) who did not benefit from an ASR, found that the CBSA attempted to remove more than half (57 per cent) of these claimants while the judicial review litigation before the Federal Court was pending.53 Figures also show that there has been a steady increase in the number of persons with pending humanitarian applications who were removed since 2002. In Europe, there are numerous court decisions both at the European and national level highlighting the human rights violations caused by the absence of a stay of removal.54 In I.M. v. France, for instance, the European Court of Human Rights (ECtHR) held that an “effective remedy” requires an appeal with suspensive effect in order to prevent refoulement, granting enough time to prepare the appeal and acquiring effective legal assistance and interpretation.55 As a result, France introduced a suspensive effect for all appeals before the National Court of Asylum (Cour nationale du droit d’asile), which enables asylum-seekers to remain on French territory while their appeal is pending.56 The Government also sought to eliminate or restricted previously existing review mechanisms. Before 2012, most claimants whose refugee claims were not successful, and who had been given a removal order, could apply for a Pre-Removal Risk Assessment (PRRA). They had 15 days to submit their application to IRCC, and 30 days to submit new documentation and evidence to IRCC.57 Pursuant to the BRRA, failed refugee claimants are barred to apply for a PRRA for one year following their final IRB decision. Those claimants from DCOs and DFNs have no access to a PRRA for 36 months after a negative decision.58 In addition, refused asylum claimants can apply for permanent residence on humanitarian and compassionate (H&C) grounds only one year following their final IRB decision.59 Before the refugee reform, the H&C application could be made at any time while in Canada. Claimants are also barred from submitting H&C applications while their refugee claim is pending, which was previously allowed. The Government introduced these changes in the hopes of deterring asylum-seekers and removing refused claimants as soon as possible. 4.1.3. Limitation of Charter protections The securitisation of asylum has been exacerbated by the retraction of Charter protections in front-end and intermediary proceedings, such as admissibility and exclusion determinations.60 In other words, the lack of Charter protections at key stages of the removal process exacerbates the cumulative or holistic impact of discrete measures introduced by the 2012 refugee reform. Unfortunately, courts have not had the advantage of full empirical studies on the impacts of these measures, which may have contributed to a misunderstanding of the nature and gravity of rights deprivations. Several prominent refugee lawyers compared the current urgency to a series of Supreme Court decisions. One began with the 2002 case of Suresh,61 where the Court ruled that deportation to torture is generally (but not absolutely) prohibited, and that decisions about this risk must abide by a core minimum of procedural protections. This decision (inadvertently) not only linked the applicability of the Charter to the existence of irreparable harm over and above the mere act of deportation, but also intimated that such harm must be of a grave nature akin to torture or death. One interviewee stated: The test is you have to show the court that you have a serious issue, that you would suffer irreparable harm, harm that’s not compensable in damages […] It’s irreparable harm to be deported from Canada, therefore, you have to show something beyond irreparable, something more than irreparable, the fact that your child’s going to be harmed, and your child’s not going to get better, because she’s been separated from her mom for ten years, […], is irreparable harm. But it doesn’t count, in these cases. And it’s only immigration cases that they use irreparable harm plus, only in immigration cases. You won’t find it anywhere else in the case law in Canada (Participant 2, Toronto). Other interviewed lawyers pointed to recent cases that have denied the applicability of the Charter to front-end and intermediary stages of the removal process. In the 2015 case of B010 v. Canada,62 the Court decided that Section 7 of the Charter (the right to life, liberty and security of the person) is “not engaged at the stage of determining admissibility to Canada” and that the benefit of the Charter “is typically engaged” only during the actual removal stage. One participant noted: The question that raises is, where that leaves the same decision […] in admissibility contexts, where the inadmissibility determination completely removes the right of a refugee hearing. So, if the 1985 Singh decision said, “Section 7 of the Charter and the Bill of Rights require that in matters of refugee determination where credibility is at stake, refugee claimants have the right to an oral hearing”63 where is that, now that we have Supreme Court jurisprudence that says a process that removes that right, categorically, the Charter has no application to it (Participant 10, Toronto). This interviewee’s observation should be placed in the context of rules that deny to certain classes of inadmissible persons protection against deportation to persecution. In Febles v. Canada,64 the Court denied the applicability of the Charter to decisions about whether a person should be excluded from refugee protection. The Court reasoned that persons who are denied the right to claim refugee status on grounds mentioned above can always “apply for a stay of removal to a place if they would face death, torture or cruel and unusual treatment or punishment if removed to that place” i.e. for a PRRA.65 But this list of human rights abuses is under-inclusive and excludes persecution – in many cases affecting persons who have diminished capacities to meet fully the case against them in the contexts of inadmissibility and exclusion determinations. The Supreme Court has not yet ruled on whether the substantive and procedural protections available at the end stage of the removal process are adequate; if they are not, then diminished access to justice at earlier stages assumes even greater significance. There are sound reasons for thinking PRRA bars and other obstacles to challenge deportation to persecution are inconsistent with the Charter: The whole reason that we have […] this refugee adjudication process and the oral hearing is because in saying the Supreme Court found that the Charter is engaged; there’s a right to a hearing, that’s required for section 7. And gradually, they’ve managed to push the Charter entirely out of the refugee protection regime. […] they do that in part because they rely on the fact that under the current system, […] it’s not the final risk assessment. The person isn’t going from the refugee board on to a plane. They still have other procedures available to them. […] So then they say, ‘There’s no Charter at the RPD.’ And then you try to raise in the context of the PRRA, but […] the court recently found that the Charter is not engaged in the PRRA proceeding either, because that’s also not the final moment. You’re not actually facing removal immediately. You still have access to the federal court for a stay, and you can always ask CBSA very nicely to please, please not put you on a plane to torture. So, […] the Charter, and section 7 is being pushed back and back and back, to the point that it feels like the only time that we can actually force the court to recognize there’s a Charter issue engaged is when they have, like, one foot on the plane. Until they’re at that point, and only if they’ve exhausted every possible remedy, even the request to defer removal, which has no law around it. It’s just a discretionary administrative request (Participant 15, Toronto). Two recent judgements are noteworthy here. In Peter v. Canada,66 the Federal Court found that Section 7 of the Charter is not engaged when persons who may have a well-founded fear of persecution are denied the right to make that claim, either to the RPD or to a removals officer. The case concerned Section 112 (2) of the IRPA, which was introduced through the Balanced Refugee Reform Act. The provision bars persons from claiming protection through PRRAs if they are from DCOs or have filed unsuccessful claims before the RPD within the last 12 or 36 months, depending on their designation. The claimants argued this regime denies protections to which persons are entitled under international law and by virtue of principles of fundamental justice. Although the reasoning in this case is hard to follow, the gist of the ruling was that persons who have failed to make a successful claim for refugee protection before the RPD are unlikely to do so before a removal officer; this supposedly takes care of the 12/36-month PRRA bar. As for persons denied a hearing before the RPD by virtue of being from a DCO, Annis J. ruled that removal to persecution “does not expose the applicant to irreparable harm, in the sense that if the decision of the removal officer is overturned, the applicant is prevented from being readmitted to Canada”,67 and, that the Federal Court can always overrule the negative decision of a removal officer, if it is unreasonable.68 The Federal Court of Appeal overruled this decision on the grounds that it was premised on insufficient factual foundations.69 But, it declined to pronounce on the substantive issues, meaning that the constitutionality of this portion of the removal process remains unsettled and will likely be before courts again in short order. We would note that Annis J.’s confidence in the effectiveness of hearings before the RPD is misplaced. A good number of persons with credible claims are being deemed ineligible to apply for refugee protection. Further, aforementioned legislative changes drastically reduce the ability to file complete claims. When making inferences about the success rate of claimants before the RPD, we should also consider harms accruing from timeline accelerations and increased use of detention. The availability of empirical evidence concerning the ineffective, arbitrary, and overly broad nature of recent measures will help bolster the strength of future Charter challenges. 4.2. Negative impact on third parties The 2012 refugee reform has had important unintended consequences not only for asylum-seekers, but also for third parties involved in the refugee protection system. These stakeholders include legal counsels, non-governmental organisations, social workers, IRB members, and service providers. The extent and the pace of these changes are considered to be “draconian” by several participants. The Canadian refugee landscape is seen as a field of law in flux, in the sense that the legal uncertainty affects all actors involved, including IRB members. Indeed, an IRB evaluation admitted that the new system has generated huge pressure on its members. Concerns were raised over how the stressful nature and pace of the work could diminish job satisfaction, lead to burn-out, and drive members to seek opportunities elsewhere.70 Unsurprisingly, such pressures have created a work environment that affects the ability to reach the immediate expected outcomes of the new legislation, as well as the long-term sustainability and quality of the IRB’s work. The changes also made it more difficult for professionals working in solidarity with asylum-seekers and migrants to perform their tasks. Take as an example, some representatives from civil society organisations who noted that the changes and, in particular, the new RSD timelines have shifted their organisations’ priority from providing vital social support to newcomers through community programming, to assisting them with their refugee claim. As described by a frontline service provider: Now our interns and our settlement workers are basically so overwhelmed with just supporting people in their first two weeks, in their first two months, because everything has to happen at the front end and it is really, really busy. So it has really changed the shape of our community. But also, it means that people who are incredibly vulnerable when they first arrive, and might not have access to social assistance, or need to find housing or need to get into school […] they are just things that get put on the back burner, because their legal process is so demanding that I think it creates a lot of vulnerability for people at the very beginning (Participant 17, Toronto). Moreover, some participants considered that the security language that has permeated the system has had a considerable impact on how immigration and refugee law is understood and practiced by each key stakeholder, including lawyers, decision-makers, and law enforcement officers. As a refugee lawyer in Toronto said, “the changes over the last several years have put such a negative cloud over the practice of refugee law, they’ve made it feel like an embattled zone” (Participant 1, Toronto). Another Toronto-based lawyer noted that “The whole system has become more punitive […] under the previous ten years. The Conservative Government was sort of really bent on criminalising and sort of restricting immigrants’ rights (Participant 6, Toronto). And one human rights activist told us: “With the reforms that have happened, you can’t really recognize the system anymore, and so we’re dealing with a whole new way of looking at refugees in particular […] And so the entire practice is permeated by these views” (Participant 1, Toronto). The rapid changes have also created confusion among frontline workers. Legal uncertainty affects the way the services are delivered and exacerbates the vulnerability of migrants: “There is uncertainty of the answers, the situations, the recourses, what to say, what advice to give […]. It’s an animal that moves and every week, […] and we have been […] working here in the last 5 years in a very, very frustrating environment, because the people were so desperate” (Participant 3, Toronto). The representatives of a Toronto civil society organisation described their experience as follows: P8: the extent of changes in immigration and refugee policy has been so broad and so deep that it’s confusing to […] P9: and so quick […] P8: […] to anyone who makes it their full-time work, and front-line workers in settlement, this is not their full-time work, and yet inevitably, because there are no other access of services, it all ends up, you know, coming to them. It’s really hard for frontline workers to understand this is what’s going to happen to their client, and so very often we’ve heard of clients traveling, coming back, and at the border, being told ‘oh really, you traveled and you came here as a refugee, ok’ and the next thing they know is that their status is being vacated and proceedings are in place to have them removed. And so the impact of the changes is really happening at many different levels (Participants 8 and 9, Toronto). A particularly problematic area in this respect is the vacation and cessation provisions redefined in the PCISA in 2012. Pursuant to the IRPA,71 an individual can lose his/her status of refugee or protected person through a cessation process where s/he voluntarily re-establishes themselves in their previous country of nationality, becomes a national of another country where they do not fear persecution, or “re-avails themselves of the protection of their former country,” which could include applying for a passport or temporarily returning to the home country.72 Cessation applications are brought against permanent residents who have traveled back to their countries of origin, often many years after their claims for protection have been decided. The Government considers them to have “re-availed” themselves of the protection of their country of origin. Whereas from 2007 to 2011, there were 106 cessation applications made by the Minister of Public Safety, a target of 875 applications per year was set in 2013.73 As a result, cessation and vacation proceedings have increased five-fold between 2012–2013 and 2014–2015.74 Several NGO representatives described how the extensive use of cessation has affected their work. For example, they noted: Overnight, the person can lose Convention refugee status, permanent refugee status, and be deported. And [a] lot of the people doing the day-to-day work on the ground are completely overwhelmed by what’s happening, and not prepared to deal with it, but they are the ones who are in day-to-day touch with these people making these sort of, you know, literally life and death decisions (Participants 8 and 9, Toronto). Immigration and refugee lawyers faced similar challenges. As one of them highlighted: The issue, in terms of giving legal advice and for people to make informed decisions, decisions about their future, is that they, they honestly don’t know what to do and they’re often left in a situation where they prefer not to disclose, i.e. not to apply for citizenship, not to apply for anything else, and not put themselves at risk of losing their status in Canada (Participant 18, Toronto). In addition to the pressure it has created on the system, the enforcement of cessation provisions also criminalises migrants and results in violations of their human rights. Those who are affected by cessation provisions have no right of appeal and no statutory stay of removal pending their leave application for judicial review to the Federal Court. Moreover, the law can be applied retroactively to any conduct prior to the entry into force of the provision on 15 December 2012. On a positive note, several interviewees mentioned that the cessation applications have considerably decreased since the election of the Liberal Government in October 2015. To alleviate the disproportional effects of some of these policies, lawyers must craft creative strategies. Immigration detention is one such area. Some lawyers we interviewed noted the difficulty of challenging detention decisions before the Federal Court, including the long timelines they are facing. Hence, since the Ontario Superior Court of Appeal affirmed, in Chaudhary v. Canada,75 that detainees’ constitutional rights under the Canadian Charter of Rights and Freedoms translate into a right to apply for direct habeas corpus relief at court, notwithstanding the existence of the detention review regime under IRPA, several lawyers prefer taking their detainee clients to the Ontario Superior Court, instead of challenging IRB’s detention decisions before the Federal Court. Some interviewees highlighted that Superior Courts have a tradition and a rich jurisprudence in terms of the rights of detained individuals that the Federal Court has not. In a similar vein, lawyers in Ontario have developed ad hoc mechanisms to prevent the risk of refoulement that stems from the PRRA bars. 4.3. Irregular migration A last unintended consequence of the 2012 refugee reform discussed in this article is its potential impact on irregular migration. The number of irregular migrants present in Canada is unclear. Although there are no official statistics, politicians, and the media tend to claim they are between 200,000–500,000, most of whom reside in Toronto, Montreal, and Vancouver.76 In a recent report on Toronto’s sanctuary city policy, we examined how profound the human rights implications of living without status are.77 Because irregularity is extremely hard to measure and evaluate, it remains unclear if and how reform policies have directly impacted irregularity in Canada. What is clear, nonetheless, is that certain policies are seen as having a correlation with irregular migration, a phenomenon which results from a complicated interplay of immigration, asylum policy, and border controls.78 Evidence-based research in Europe and the US suggests, for instance, that harsher border controls and tighter asylum policies are conducive to more irregular migration.79 As noted by Düvell, “constantly changing and/or complex legislations, bureaucratic and inefficient procedures, (and) hostile organisational cultures are likely to result in irregularity”.80 The phenomenon has recently attracted considerable political and media attention in Canada following the sudden increase in illegal border crossings after the US presidential elections. Indeed, 2,145 individuals crossed the land border via the US to claim asylum in Canada in the first two months of 2017, in defiance of the 2004 Canada-US Safe Third Country Agreement (STCA) – another legal instrument to manage asylum movements, which bars most third country nationals in the US from making an asylum claim at a Canadian land border. The Government reported that 5,712 refugee claimants had arrived in Canada in the month of August alone – an 82 per cent jump from July.81 Arbel and more recently Amnesty International (AI) and the Canadian Council for Refugees (CCR), among others, pointed to the counterproductive consequences of the STCA: enhancing irregular migration and migrant smuggling.82 Despite these developments, as of today there has been little evaluation of how asylum-seekers can become irregular migrants in Canada. Among all refugee reform measures, the DCO policy was seen by some participants as having the clearer connection to irregular migration, since it has encouraged people not to file a refugee claim for fear of refusal and subsequent removal. As previously noted, DCO claimants have less time to prepare their hearing than other claimants. They are also ineligible to apply for a work permit until their claim is approved by the IRB or their claim has been in the system for more than 180 days and no decision has been made. What’s more, until recently, DCO claimants did not have the right to appeal a refugee decision. They also have 2 years more than other claimants to be eligible for a PRRA, if they have not been already deported. One can expect that these factors would serve as effective deterrents against some DCO nationals in Canada who may otherwise consider claiming refugee status. Research shows that in some European countries, migrants who may actually be entitled to protection, remain in an irregular status, because they feel it is impossible to receive refugee status in Europe.83 Likewise, some of the participants pointed out that accelerated timelines disincentive claimants to make their claim upon arrival to Canada, and in some cases, result into refugee claimants preferring to remain in an irregular situation until they gather evidence needed to support their claim. As explained by a refugee lawyer: “Now if you come in, either illegally or as a visitor, you control the timeframes. So until you put in your set of documents, the clock doesn’t start ticking, and you can kind of buy time to gather up personal corroborative evidence that way.” (Participant 1, Toronto). Some participants also highlighted how service providers and legal counsels have had to adapt to claimants’ preferences and develop resistance strategies to the new rules that are seen as unjust. I think it’s about 80% of asylum seekers now, are not presenting themselves at the borders; asking for asylum inland. At least it buys them time to do more preparing before the clock starts ticking. […] we don’t hurry them up to run out and make their appointment, because we want to help them get as prepared as they can, before they even present themselves (Participant 16, Toronto). Another problem concerns the unwillingness of migrants to use last resort remedies. For instance, we were told by some interviewees that many rejected claimants refrain from making a stay of removal request to CBSA because they are scared of being detained and deported. Reduced legal options for failed refugee claimants are also considered to have an effect on irregular migration. In addition to the above-mentioned delayed access to PRRA, it is noteworthy that IRCC assesses the PRRA but the CBSA initiates it (which was not the case before 2012). A service provider representative explained how these conditions have had an impact on irregular migration: You don’t have access to a PRRA for three years, and so some people actually have gone underground for three years, until the bar on accessing the PRRA is up, and then have tried to access that application. You have to go into CBSA and be given a PRRA. Well, if you’ve been underground for the past few years and you go to CBSA, good chances are you’re going to be detained. You’ll still be able to fill out a PRRA, but from within detention, and so if it’s not successful then you’ll be deported. [… when] we explain to them what they actually have to do to access a PRRA – to go and present themselves to CBSA – and they say, “There’s no way I’m going to do that” (Participant 17, Toronto). This quote also exemplifies the role of the CBSA in the securitisation of Canada’s RSD. The CBSA is the federal agency housed within Public Safety Canada and responsible for border controls, immigration enforcement and customs services.84 Although operating since 2003, the CBSA played a key role in erecting barriers to the RSD. The 2012 reforms were followed by a considerable increase in the law enforcement mandate and capacity of the CBSA. As an illustration, the previous Conservative Government pledged to accelerate the removal procedure and set the target for the CBSA to get 80 per cent of removals to be completed within 12 months of an IRB decision.85 Research participants strongly criticised the increasing powers and, more pointedly, overtly instrumental deployment of the CBSA. While many of them tend to see the CBSA as strongly embedded in its enhanced law enforcement mandate and as neglecting other key policy objectives – such as upholding Canada’s humanitarian approach and international human rights obligations – several interviewees pointed out that with increased powers, the CBSA reinforces its culture of fear, notably by targeting racialised immigrant communities, intruding in the private lives of asylum claimants and discarding the specific needs of vulnerable groups such as children and claimants with mental health issues (Participant 46, Victoria; Participant 29, Montreal). An immigration and refugee lawyer noted that “one of the biggest problems with the CBSA [is that it is] a huge police force now […] without any controls, without any kind of monitoring or surveillance, without a history of how police operate” (Participant 2, Toronto). The CBSA’s treatment of refugee claimants appears to be a factor enhancing irregular migration in Canada. Its hostile organisational culture seems to have a deterrent effect on refused asylum-seekers in terms of exhausting the existing legal remedies or complying with deportation orders. Overall, the 2012 refugee reform creates systemic conditions and various barriers that heighten the risk of false negative determinations, i.e., where an asylum claim fails. In particular, DCO claimants face obstacles in accessing the refugee status determination and an effective remedy. Yet, not all rejected asylum-seekers are deported from Canada. Following the 2012 refugee reform, the Government was not able to meet the target for the removal of failed refugee claimants. On the contrary, removals decreased after the changes, from 13,869 in 2012 to 10,743 in 2013, and 7,852 in 2014. In 2013 and 2014, only 14 per cent (2,674) of those who claimed asylum after 15 December 2012 were deported.86 Some of these migrants may arguably become irregular migrants. A recent research conducted in Europe suggests that a 10 per cent increase in asylum rejections raises the number of irregular migrants by an average of 2 per cent to 4 per cent.87 Finally, tougher immigration policies also mean that once migrants become irregular, they are less likely to return to their countries of origin because they believe they would never be able to come back. This may contribute to an increase in the volume of irregular migrants present in a country.88 5. CONCLUSION In this article, we discussed the securitisation of Canada’s asylum system and the unintended results of this process. We argued that the Government used security rhetoric to justify the passage of restrictive asylum legislation that dramatically altered the Canadian RSD. The 2012 reform has not been successful in achieving the Government’s stated policy goals, i.e. to make the system faster to enhance quick removal of rejected refugee claimants with a view to protecting the refugee system’s integrity. Pursuant to the entry into force of the reform, the number of asylum claims decreased by half, from 20,427 claims in 2012 to 10,322 in 2013, yet the Government has not be able to process refugee claims and appeals in accordance with regulated time limits.89 This should not come as a surprise: the complexity of the refugee status determination and the dramatic consequences of false negative determinations mean the RSD can hardly be dealt with in an expedited manner.90 The 2012 refugee reform is considered consistently (though by no means totally) ineffective, insofar as many claimants find recourse through H&C applications and other “exhaust valves” built into the system. Many interviewees spoke about how this is a primary means of securing reasonable decisions that ought to have been provided earlier in the process. In addition to having failed to fulfil its primary goals, the 2012 refugee reform has engendered a number of negative unintended consequences: its discriminatory impact for specific groups and classes, a too slow or too fast refugee process, negative implications on access to justice and important human rights violations. The rigid and atrophied design leads stakeholders to work creatively within the system. We also found evidence of a connection between the 2012 changes and irregular migration in Canada, a development which endangers the integrity of the system. Some government representatives who we met acknowledged that some of the changes by the previous Government are unfair and need to be revised. It was admitted, for instance, that both the accelerated and differentiated timelines for hearings between the DCO and the non-DCO regimes created inefficiencies. Making the timelines more reasonable is part of the RSD reform planned by IRCC, with a view to ensuring timely protection of refugees and removals of rejected asylum claimants. We believe that the Government should take the opportunity to repeal the most controversial measures such as the DFN and the DCO regimes in order to provide equal access to the asylum system for everybody without discrimination. Ultimately, a new reform of the refugee system should bring Canada’s humanitarian approach and human rights obligations back into balance, as a condition to ensuring the system’s fairness and integrity. This article draws on: I. Atak, G. Hudson & D. Nakache, “Making Canada’s Refugee System Faster and Fairer”: Reviewing the Stated Goals and Unintended Consequences of the 2012 Reform, Canadian Association for Refugee and Forced Migration Studies (CARFMS) Working Paper Series 3, 2017. Footnotes 1 United Nations High Commissioner for Refugees (UNHCR), UNHCR Global Trends: Forced Displacement in 2014, Geneva, UNHCR, 2014, available at: http://www.unhcr.org/statistics/country/556725e69/unhcr-global-trends-2014.html (last visited 19 Dec. 2017). 2 Government of Canada, #Welcome Refugees. Key Figures, Government of Canada website, last modified 4 May 2017, available at: http://www.cic.gc.ca/english/refugees/welcome/index.asp (last visited 19 Dec. 2017). 3 Persons can claim refugee status from within Canada either to the Canada Border Services Agency (CBSA) at a port-of-entry, or to an inland office operated by Immigration, Refugees and Citizenship Canada (IRCC) or the CBSA. Eligible claims are referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), which is in charge of determining whether the claimant is a “Convention refugee” (IRPA s. 96) or a “Person in need of protection” (IRPA s. 97(1)); Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 4 A. Macklin, “Disappearing Refugees: Reflections on the Canada-U.S. Safe Third Country Agreement”, Columbia Human Rights Law Review, 36(2), 2005, 101–161; F. Crépeau & D. Nakache, “Controlling Irregular Migration in Canada- Reconciling Security Concerns with Human Rights Protection”, IRPP Study, 12(1), 2006, 42 ; F. Crépeau, D. Nakache & I. Atak, “International Migration: Security Concerns and Human Rights Standards”, Transcultural Psychiatry, 44(3), 2007, 311–337; E. Arbel & A. Brenner, “Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion”, Criminal Justice, Borders and Citizenship Research Paper No. 2420854, Harvard Law School, Cambridge, Apr. 5, 2014; P. Molnar Diop, “The “Bogus” Refugee: Roma Asylum Claimants and Discourses of Fraud in Canada’s Bill C-31”, Refuge: Canada’s Journal on Refugees, 30(1), 2014, 67–80. 5 Protecting Canada’s Immigration System Act, S.C. 2012, c. 17; Balanced Refugee Reform Act, S.C. 2010, c. 8; IRPA, S.C. 2001, c. 27. 6 C. Dawson, “Refugee Hotels: The Discourse of Hospitality and the Rise of Immigration Detention in Canada”, University of Toronto Quarterly, 83(4), Fall 2014, 826–846; C. Costello, “Safe Country? Says Who?”, International Journal of Refugee Law, 28(4), 2016, 601–622; R. Bhuyan, A. Vargas & M. Píntín-Perez, “Fleeing Domestic Violence from a ‘Safe’ Country? Refugee Determination for Mexican Asylum-Seekers in Canada”, Refuge, 32(3), 2016, 95–107; S. Rehaag, J. Danch & J. 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Pasquino, “The Law of Exception: A Typology of Emergency Powers”, International Journal of Constitutional Law, 2, 2004, 210. 16 Squire, “The Securitisation of Migration”, 19–36. 17 D. Bigo, & A. Tsoukala (eds.), Terror, Insecurity and Liberty: Illiberal Practices of Liberal Regimes After 9/11, London, Routledge, 2008. 18 J. Huysmans, “Revisiting Copenhagen: Or, On the Creative Development of a Security Studies Agenda in Europe”, European Journal of International Relations, 4(4), 1998, 479–505. 19 T. Balzacq, “A Theory of Securitization: Origins, Core Assumptions and Variations”, in T. Balzacq (ed.), Securitization Theory: How Security Problems Emerge and Dissolve, London, Routledge, 2011, 13. 20 International Organization for Migration (IOM), “Communicating Effectively About Migration”, in World Migration Report, Geneva, IOM, 3, 2011, 17, available at: https://publications.iom.int/system/files/pdf/wmr2011_english.pdf (last visited 19 Dec. 2017). 21 A. Bradimore & H. Bauder, “Mystery Ships and Risky Boat People: Tamil Refugee Migration in the Newsprint Media”, Canadian Journal of Communication, 36(4), 2011, 637–666; A. Tsoukala, “Turning Immigrants into Security Threats: A Multi-Faceted Process”, in G. Lazaridis (ed.), Security, Insecurity and Migration in Europe, Aldershot, Ashgate, 2011,179–195; A. Kaushal & C. Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions”, International Journal of Refugee Law, 23(1), 2010, 54–92. 22 In July 2017, the four men accused of assisting the voyage of the first Tamil migrant ship (Ocean Lady) were acquitted, and in January 2017, three of four men accused of arranging the voyage of the second Tamil migrant ship (MV Sun Sea) were found not guilty. A mistrial was declared for the fourth man, although a separate jury deemed him guilty a few months later – making him the only one of the eight in the two cases to be convicted. The Public Prosecution Service announced on 27 July 2017 that it does not anticipate any further prosecutions involving the two boats. S. Dhillon, “B.C. Court Acquits Four Men Accused of Human Smuggling in Tamil Migrant Case”, The Globe and Mail, 27 Jul. 2017, available at: https://www.theglobeandmail.com/news/british-columbia/bc-court-acquits-four-men-accused-of-human-smuggling-in-tamil-migrant-case/article35817853/ (last visited 19 Dec. 2017); D. Quan, “Years After Two Ships Brought 568 Migrants to Canada, Seven Acquittals and One Conviction”, National Post, 27 Jul. 2017, available at: http://nationalpost.com/news/canada/years-after-two-ships-brought-568-migrants-to-canada-seven-acquittals-and-one-conviction (last visited 19 Dec. 2017); S. Krishnamurti, “Queue-jumpers, Terrorists, Breeders: Representations of Tamil Migrants in Canadian Popular Media,” South Asian Diaspora, 5(1), 2013, 139–157. 23 W.G. Robinson, Special Advisor to the Minister of Employment and Immigration, Illegal Migrants in Canada, Supply Services Canada, Ottawa, 1983. 24 Office of the Auditor General of Canada, 2013 Fall Report of the Auditor General of Canada: Chapter 5 – Preventing Illegal Entry into Canada, Fall 2013, available at: http://www.oag-bvg.gc.ca/internet/English/parl_oag_201311_05_e_38799.html (last visited 19 Dec. 2017). 25 Office of the Prime Minister, Minister of Immigration, Refugees and Citizenship Mandate Letter, 2010, available at: https://pm.gc.ca/eng/mandate-letters (last visited 19 Dec. 2017). 26 R. Dykstra (Parliamentary Secretary to the Minister of Citizenship and Immigration, CPC), House of Commons: Bill C-31, 2nd Reading, 8 Jun. 2012. 27 These statistics were provided by the Immigration and Refugee Board and are on file with the authors; also see J. Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC), House of Commons: Bill C-31 1st Reading, 1 Jun. 2012, available at: http://www.cic.gc.ca/english/department/media/speeches/2012/2012-02-16.asp. 28 R. Kronick & C. Rousseau, “Rights, Compassion and Invisible Children: A Critical Discourse Analysis of the Parliamentary Debates on the Mandatory Detention of Migrant Children in Canada”, Journal of Refugee Studies, 28(4), 2005, 544–569. 29 IRPA, DFN, s. 20.1(2). 30 A. Neylon, “Ensuring Precariousness: The Status of Designated Foreign National under the Protecting Canada’s Immigration System Act 2012”, International Journal of Refugee Law, 27(2), 2015, 297–326. 31 IRPA, s. 55. 32 IRPA, s. 57. 33 IRPA, s. 110(2)(a). 34 IRPA, s. 24(4). 35 IRPA, s. 11(1.2). 36 Public Safety, Public Safety Canada, Minister of Public Safety makes First Designation of Irregular Arrival under Protection Canada’s Immigration System Act, 5 Dec. 2012, available at: https://www.publicsafety.gc.ca/cnt/nws/nws-rlss/2012/20121205-en.aspx (last visited 19 Dec. 2017). 37 Aliverti, “Making People Criminal”, 417. 38 Convention relating to the Status of Refugees (Refugee Convention), 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr. 1954). 39 Art. 33(1) of the Refugee Convention; Art. 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, 10 Dec. 1984 (entry into force: 26 Jun. 1987); IRPA Section 115. 40 G. Karyotis & D. Skleparis, “Qui Bono? The Winners and Losers of Securitising Migration”, Griffith Law Review, 22(3), 2013, 683–706. 41 E. Bates, J. Bond & D. Wiseman, “Troubling Signs: Mapping Access to Justice in Canada’s Refugee System Reform”, Ottawa Law Review, 47(1), 2016, 71–72. 42 Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704. 43 IRPA, Section 109. 44 IRB, Refugee Protection Claims (New System) by Country of Alleged Persecution – 2016, available at: http://www.irb-cisr.gc.ca/Eng/RefClaDem/stats/Pages/RPDStat2016.aspx (last visited 19 Dec. 2017). 45 IRCC, Evaluation of the In-Canada Asylum System Reforms, Ottawa, Apr. 2016, available at: http://www.IRCC.gc.ca/english/pdf/pub/E4-2014-icas.pdf (last visited 19 Dec. 2017). 46 N. Keung, “Refugee Board Set to Finally Hear ‘Legacy’ Asylum Claims”, Toronto Star, 21 Jun. 2017, available at: https://www.thestar.com/news/immigration/2017/06/21/refugee-board-set-to-finally-hear-legacy-asylum-claims.html (last visited 19 Dec. 2017). 47 Canadian Association of Refugee Lawyers (CARL), Reform Proposals for Canada’s Inland Refugee Determination System and Other Aspects of the Immigration System, CARL, Jul. 2016, available at: http://www.carl-acaadr.ca/sites/default/files/CARL%20brief%20FINAL_July2016.pdf (last visited 19 Dec. 2017). 48 S. Rehaag, “The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment”, Osgoode Hall Law Journal, 49, 2011, 71–116. 49 Bates, Bond & Wiseman, “Troubling Signs”, 61. 50 Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892, para. 128. 51 Claimants who receive a negative decision from the RAD and those who do not have access to the RAD can file an application for leave and for judicial review of the RAD decision or the RPD decision with the Federal Court. 52 IRCC, Evaluation of the In-Canada Asylum System Reforms, 21. 53 Ibid. 54 European Court of Human Rights (ECtHR), Jabari v. Turkey, Appl. No. 40035/98, 11 Jul. 2000. 55 ECtHR, I.M. v. France, Appl. No. 9152/09, 2 Feb. 2012, para. 157–158. 56 Asylum Information Database (AIDA), Country Report: France, 2016, 21, available at: http://www.asylumineurope.org/reports/country/france (last visited 19 Dec. 2017). 57 The PRRA officer cannot consider evidence submitted at the IRB hearing – new evidence that came up after the IRB decision or that was not reasonably available at the time of the IRB decision can be submitted. 58 IRPA s. 112(2)(b.1). 59 IRPA s. 25. 60 The IRPA sets out circumstances by which a claimant can be inadmissible, including, security (s. 34(1)), human and international rights violations (s. 35(1)), serious criminality and criminality (s. 36), and organised criminality (s. 37). Since June 2012, individuals who are declared inadmissible under IRPA s. 34, 35, and 37 have no access to H&C or to the Immigration Appeal Division to appeal removal order: Bill C-43 Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16. 61 Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3. 62 B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 [2015] 3 S.C.R. 704. 63 Singh v. Canada (Minister of Employment and Immigration) [1985] 1 S.C.R. 177. 64 Febles v. Canada [2014] 3 S.C.R. 431. 65 Ibid., para. 67. 66 Peter v. Canada (Public Safety and Emergency Preparedness) [2014] FCJ No 1132 (QL); 13 Imm LR (4th) 169. 67 Ibid., para. 296. 68 Ibid., para. 274. 69 Savunthararasa v. Canada (Public Safety and Emergency Preparedness) [2016] FCJ No 173 (QL). 70 IRB, Executive Evaluation Report of the Refugee Determination System of the Immigration and Refugee Board of Canada, Policy, Planning And Corporate Affairs Branch, Ottawa, Mar. 2016, available at: http://www.irb-cisr.gc.ca/Eng/transp/ReviewEval/Pages/ExecEvalRep2016.aspx (last visited 19 Dec. 2017). 71 IRPA, s. 40.1(2) and s. 46(1)(c.1). 72 IRPA, s. 108; CARL, 24–25. 73 Government of Canada, Operational Bulletin 485-A: Bridging Open Work Permits for Certain Federal Economic Class Applicants, Ottawa, 19 Sep. 2013, available at http://www.IRCC.gc.ca/english/resources/manuals/bulletins/2013/ob485A.asp (last visited 19 Dec. 2017). 74 Canadian Association of Refugee Lawyers, Reform Proposals for Canada’s Inland Refugee Determination System and Other Aspects of the Immigration System, Jul. 2016, 26–27. 75 Court of Appeal for Ontario, Chaudhary v. Canada [2015] ONSC 1503. 76 L. Goldring & P. Landolt, “The Conditionality of Legal Status and Rights: Conceptualizing Precarious Non-Citizenship in Canada”, in L. Goldring & P. Landolt (eds.), Producing and Negotiating Non-Citizenship: Precarious Legal Status in Canada, Toronto, University of Toronto Press, 2013, 3–27; E. Khandor, J. McDonald & P. Nyers, The Regularization of Non Status Immigrants in Canada, 1960-2004: Past Policies, Current Perspectives, Active Campaigns, CERIS-The Ontario Metropolis Centre, 2004. 77 G. Hudson, I. Atak, M. Manocchi & C.-A. Hannan (eds.), (No) Access T.O.: A Pilot Study on Sanctuary City Policy in Toronto, Canada, Toronto, Ryerson Centre for Immigration and Settlement, Feb. 2017. 78 C. Dauvergne, Making People Illegal: What Globalization Means for Migration and Law, Cambridge, Cambridge University Press, 2008. 79 A. De Giorgi, “Immigration Control, Post-Fordism, and Less Eligibility: A Materialistic Critique of the Criminalization of Immigration Across Europe”, Punishment & Society, 12(2), 2010, 147–167; M. Samers, “An Emerging Geopolitics of ‘Illegal’ Immigration in the European Union”, European Journal of Migration and Law, 6(1), 2004, 27–45; K. Koser, “Irregular Migration, State Security and Human Security: A Paper Prepared for The Policy Analysis and Research Programme of The Global Commission On International Migration”, Global Commission on International Migration, Sep. 2005, available at: https://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/policy_and_research/gcim/tp/TP5.pdf (last visited 19 Dec. 2017); A. Bloch, “Living in Fear: Rejected Asylum Seekers Living as Irregular Migrants in England”, Journal of Ethnic and Migration Studies, 40(10), 2014, 1507–1525. 80 F. Düvell, “Paths into Irregularity: The Legal and Political Construction of Irregular Migration”, European Journal of Migration and Law, 13(3), 2011, 275–295. 81 Government of Canada, Asylum Claims, webpage, last modified 19 Dec. 2017, available at: http://www.cic.gc.ca/english/refugees/asylum-claims-made-in-canada.asp (last visited 19 Dec. 2017); A. Woods, “Canada Not Ready for Second-Wave of Asylum Seekers, Union Head Warns”, The Star, 19 Sep. 2017, available at: https://www.thestar.com/news/canada/2017/09/19/5712-asylum-seekers-crossed-canada-us-border-in-august.html (last visited 19 Dec. 2017). 82 E. Arbel, “Shifting Borders and the Boundaries of Rights: Examining the Safe Third Country Agreement between Canada and the United States”, International Journal of Refugee Law, 25(1), 2013, 65–86; AI and CCR, Contesting the Designation of the US as a Safe Third Country, 19 May 2017, available at: http://ccrweb.ca/sites/ccrweb.ca/files/stca-submission-2017.pdf (last visited 19 Dec. 2017). 83 Bloch, “Living in Fear”. L. Schuster, “Turning Refugees into ‘Illegal Migrants’: Afghan Asylum Seekers in Europe”, Ethnic and Racial Studies, 34(8), 2011, 1392–1407; Düvell, “Paths into Irregularity”, 275–295. 84 Canada Border Services Agency Act, S.C. 2005, c. 38. 85 IRCC, Evaluation of the In-Canada Asylum System Reforms, 14. 86 Ibid., iv–v. 87 M. Czaika & M. Hobolth, “Do Restrictive Asylum and Visa Policies Increase Irregular Migration into Europe?”, European Union Politics, 17(3), 2016, 345–365. 88 D.S. Massey, J. Durand & K.A. Pren, “Why Border Enforcement Backfired”, American Journal of Sociology, 121(5), 2016, 1557–1600. 89 IRB, Executive Evaluation Report of the Refugee Determination System of the Immigration and Refugee Board of Canada, Policy, Planning and Corporate Affairs Branch, Ottawa, Mar. 2016, available at: http://www.irbcisr.gc.ca/Eng/transp/ReviewEval/Pages/ExecEvalRep2016.aspx (last visited 19 Dec. 2017); IRB, 17. 90 See for example: C. Rousseau, F. Crépeau, P. Foxen & F. Houle, “The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board”, Journal of Refugee Studies, 15(1), 2002, 43–70. © Author(s) [2018]. All rights reserved. For Permissions, please email: journals.permissions@oup.com http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Refugee Survey Quarterly Oxford University Press

The Securitisation of Canada’s Refugee System: Reviewing the Unintended Consequences of the 2012 Reform

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Oxford University Press
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Abstract

ABSTRACT In 2012, Canada made regulatory changes and adopted legislations amending the Immigration and Refugee Protection Act, including the Protecting Canada’s Immigration System Act and the Balanced Refugee Reform Act. These pieces of legislation contain a number of measures which include: expedited refugee claim hearings, reduced procedural guarantees and reviews, growing use of socioeconomic deterrents, and increased immigration detention. Drawing on a qualitative research, this article explores the unintended results and counter-productive effects of these new measures, with a particular focus on their practical and human rights implications. It is argued that the government has used the language of security to rationalise the imposition of disproportionately harsh treatment on asylum seekers. Unsurprisingly, the new measures have resulted in violations of asylum seekers’ human rights. In addition, they have had a detrimental impact on third parties involved in the refugee protection system, such as legal counsels and service providers. Finally, it is argued that there is a correlation between the new refugee measures and the increase in irregular migration in Canada. 1. INTRODUCTION As the number of refugees in the world soared from 10.4 million in 2012 to 22.5 million in 2016,1 Canada has enjoyed praise from local and global actors for resettling more than 40,000 Syrian refugees between November 2015 and February 2017.2 Indeed, the country solidified its global reputation for humanitarianism and human rights leadership. However, the success of Canada’s refugee resettlement program belies the embrace of securitising practices towards in-land asylum-seekers,3 which have long been designed to limit their fair and equitable access to justice. While the roots of these practices can be traced at least as far back as the 1990s, the Conservative Government of Stephen Harper (2006–2015) introduced exceptionally harsh measures following the arrival of nearly 600 Tamil asylum-seekers aboard two boats, MV Ocean Lady in 2009 and MV Sun Sea in 2010.4 Shortly thereafter, Parliament introduced the Protecting Canada’s Immigration System Act (PCISA 2012) and the Balanced Refugee Reform Act (BRRA 2010), both of which amended the Immigration and Refugee Protection Act (IRPA 2001).5 This legislation – which we shorthand as the “2012 refugee reform” – contains a number of restrictive measures that apply to in-land asylum-seekers and include: expedited refugee claim hearings, reduced procedural guarantees, growing use of socio-economic deterrents, and increased immigration detention. Drawing on a qualitative research, this article explores the unintended results and counter-productive effects of the 2012 refugee reform, with a particular focus on its practical and human rights implications. We argue that the Government has used the language of security to rationalise the imposition of disproportionately harsh treatment on asylum-seekers. Yet, when one peers beneath this language, we see also that a driving policy rationale relates to improving administrative efficiency and reducing the costs of the refugee system. The language of security and the timing of the irregular arrivals in 2009–2010 provided a convenient opportunity to limit access to justice to persons stigmatised, often ex ante, as deceitful, dishonest, and undeserving of refugee status. Not surprisingly, these developments have had negative repercussions on the human rights of asylum claimants and a number of unanticipated policy consequences. This article builds on the literature available in Canada,6 but adopts a more comprehensive view of the topic. It notably deals with several new measures pertaining to the 2012 refugee reform while examining their interrelated consequences. Our analysis is also made through the lens of security. The securitisation of immigration and refugee protection has been studied extensively in the European Union (EU) and the US.7 With some exceptions,8 there is still a paucity of research on this issue in Canada. Hence, this article aims to fill these gaps. We begin by outlining our research methodology. We then discuss the securitisation process and how this translates into some of the changes relating to Canada’s refugee status determination system. This is followed by a critical analysis of the unintended consequences of the 2012 refugee reform, with a special focus on its human rights impacts. 2. METHODOLOGY For this research, we collected and analysed data from a variety of primary sources (e.g., interviews) and secondary sources (e.g., statistics from government databases, government and external stakeholder reports, scholarly publications, grey material). The primary field research was conducted between October 2015 and May 2017, and included 66 research participants from British Columbia, Quebec, and Ontario, three provinces that are homes to the largest number of asylum-seekers in Canada.9 We conducted 58 semi-structured interviews (one-on-one or in group) with stakeholders from various professional perspectives and profiles. The participants were drawn from four main groups: Civil servants (6) from the Immigration and Refugee Board (IRB), a member of the Crown Attorney’s Office, civil servants from Immigration, Refugees, Citizenship Canada (IRCC) (5) and Public Safety Canada (1), elected members of the City council of Toronto (1) and Federal parliament (1), and city staff in the City of Toronto (2). Practitioners (refugee, immigration and criminal lawyers, lawyers working in legal clinics (20), inter-governmental organisation representatives (2), non-governmental organisation (NGO) workers and representatives (21), i.e., non-governmental service provider organisations working with migrants and refugees, and health professionals that operate “on the ground” in Toronto, Ottawa, Montreal, Vancouver, and Victoria. Academics and researchers in Canada (5). The irregular migrant community (2). Irregular migrants may be defined as people who enter or reside in a country without that country’s express legal permission.10The interviews lasted on average one hour. They took place either in the researchers’ offices or in the offices of the interviewees. We audio-recorded each interview and we treated the data collected according to Ryerson and University of Ottawa Research Ethics Boards guidelines. All interviews were transcribed and coded in NVivo. 3. THE SECURITISATION: THE CASE OF CANADA’S 2012 REFUGEE REFORM Securitisation is an “essentially contested concept” which has no neutral definition.11 The extent to which migration law and policy have been securitised has, unsurprisingly, also been a contested question.12 Although considerably diverse, the general schools of thought within the field of security studies include the Copenhagen School,13 and the Paris School and associated critical perspectives.14 The Copenhagen School adopts a rather narrow conception of security drawn from international relations theory on militarism and exceptionality. The gist of this perspective is that security includes a cluster of speech acts that open up and maintain zones of exceptionality, which operates outside of the realm of “ordinary” law and politics. The historic preoccupation with those within this school is with how exceptionality poses a crisis for the normativity of law. The nature of exceptionality is that political authority is not subject to legal constraints and therefore is arbitrarily deployed.15 One of the difficulties with this conception of security is that liberal-democratic states do not expressly declare that they are acting outside of law. Instead, they find ways of either working within the law or spreading thin but opaque veneers of legality over what is, in fact, legally unjustifiable. This is precisely why scholars debate the extents to which 9/11 fundamentally changed migration law and policy or, instead, simply shifted the course of much deeper, altogether normal historical trends. But the normalcy of security does not settle questions of legitimacy. Indeed, the act of using legal form to mask illiberal practices may normalise states of exception, which harden into unalterable, barely perceptible form.16 Critical security scholars, such as Bigo, respond to this problem by adopting a broader conception of security that may be uncoupled from dramatic or express invocations of exceptionality and which allow us to move beyond contests between liberal political authority and liberal legal authority. More precisely, they deny that security and the programs of the liberal state are mutually antagonistic. To the contrary, the two coexist in a tense, uneasy, but productive relationship that permit the beneficial movement of desirable bodies across borders while enabling the exclusions and removal of undesirables.17 Without treading into the nuances of theory, the point is that security broadly conceived describes discursive associations between sub-categories of migrants as dangerous, deceitful, or otherwise threatening, all for the purpose of rationalising economically beneficial social and territorial exclusion.18 As Balzacq contends, one of the trappings of security is discourse which frames measures as both a necessary and a proportionate response to a perceived threat.19 The political and media narrative of migrants and asylum-seekers is a good example. A study by the International Organization for Migration (IOM) notes: By highlighting certain aspects of migration and not addressing others, by using particular language and certain kinds of rhetorical devices (such as analogies and metaphors), political actors not only provide people with some (carefully chosen) facts about migration, they also give them a sense of how that information should be interpreted.20 This precise phenomenon was at play in Canada, following the aforementioned irregular boat arrivals in 2009 and 2010. Indeed, the Federal Government suggested that asylum claimants on board of the two boats may be supporters of or potential contributors to terrorist activities.21 Immediately following the arrival of the second boat, MV Sun Sea, the Government stated, quite erroneously, that at least one-third of the passengers aboard were “suspected human smugglers and terrorists” working to reconstitute the Liberation Tigers of Tamil Eelam (LTTE)’s “base of operations overseas in order to renew resistance to the Government of Sri Lanka”.22 Linkages between security and irregular migration have been a constant theme in Canada, even in the 1980s,23 but it seemed the Harper administration used the boat arrivals as a pretext to deploy immigration measures well beyond those that were introduced earlier. In 2013, the Auditor General of Canada noted, “Canadian government considers migrant smuggling as a profit-driven organized crime that exploits vulnerable people, funds terrorist activities, undermines the integrity of Canada’s borders and immigration system, and threatens the national security of Canada and its partners.”24 We see here a range of goals, including protecting national and international security, disrupting terrorist financing and organised crime, and solidifying state sovereignty. But notice what is lurking in the background, bundled up in the “integrity” of the immigration system: the maintenance of an otherwise liberal regime that is open to those who play by the rules. This would include, of course, migrants who contribute to the social, political, and economic well-being of the country. What is not stated here, but was conspicuous in other public and parliamentary fora, was the financial implications of running the refugee status determination (RSD) system. At the same time as it was stigmatising the passengers of the MVs Ocean Lady and Sun Sea as security threats, the Government referred to them as “bogus refugees” and “queue jumpers”.25 This mantra was quickly extended to all asylum-seekers, suggesting that the integrity of our immigration system was being undermined by the costs of processing baseless claims. In presenting the 2012 refugee reform for parliamentary debate, the then Immigration Minister argued that Canada’s asylum system was “broken”, inefficient, costly, and subject to “abuse”: PCISA is part of our plan to restore integrity to our asylum system and restore Canadian’s confidence in our immigration system. The bill would make Canada’s refugee determination process faster and fairer and would result in faster protection for those who legitimately need refugee protection. It would also, and this is the important aspect of it, ensure faster removal of those whose claims are withdrawn, those claims that are bogus and those claims that have been rejected.26 The intermingling of discourses on security and “integrity” paints a complicated picture of the 2012 refugee reform. On the one hand, the stated objectives of the reform were to relieve pressure from an overburdened refugee determination system – a defensible objective by any standard. By 2009 – the year the MV Ocean Lady arrived – there was a backlog of 62,000 refugee claims. Between 2010 and 2012, the system took 21 months to produce a decision to recognise refugee status, and an average of four and a half years to reach a final decision after all remedies were exhausted.27 But on the other hand, the Government weighed the relative costs of justice and of injustice, choosing to impose the burden of legislative reform onto asylum-seekers. The language of security and the timing of the irregular arrivals provided a convenient opportunity to achieve efficiency and savings by restricting access to refugee protection for the persons stigmatised, ex ante, as deceitful, dishonest, and dangerous. The openness of Canada's faster and fairer RSD system could be plausibly presented at the same time as broad classes of deserving but undesirable asylum-seekers could be denied access to justice. As noted by Kronick and Rousseau,28 the political discourse has considerably influenced mental representations and social opinions in Canada, which may have contributed to the ease with which Parliament implemented unjust measures. Interestingly, many of the measures included in the 2012 reforms were not functionally related to security at all. But security did play a practical role beyond shaping public discourse about the need for reform. One measure – the “Designated foreign nationals” (DFN) class – was introduced in all likelihood in order to serve as a deterrent or even interdiction function.29 Characterised as “a specific legal response to the unauthorised arrival by sea of asylum seekers to Canada”,30 the DFN regime is the best example of securitisation as it illustrates the exceptionally harsh nature of policy response justified by political discourse. It allows the Minister of Public Safety to designate individuals who arrive to Canada with the help of a smuggler, in a group of two or more and to mandate the detention of DFNs aged 16 years and over.31 The detention is reviewed after 14 days, followed by another review after six months and then every six months. In comparison, the decision to detain non-designated foreign nationals is always made on a discretionary (case-by-case) basis; an initial detention review takes place within 48 hours, followed by a review within seven days, and then every 30 days from the previous review.32 Other extraordinary features of this new class are: DFNs whose refugee claims are rejected by the RPD are denied a right of appeal to the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB),33 and face immediate deportation; DFNs do not have the right to an automatic stay of removal upon applying for leave and for judicial review to the Federal Court, and can therefore be deported during their application; DFNs are ineligible to apply for a work permit until their claim is approved by the IRB, or until their claim has been in the system for more than 180 days and no decision has been made.34 Conversely, for non-DFN claimants, work permits are issued for 12 months from the date of their claim’s referral to the IRB; Finally, even when they obtain refugee status or the status of a ‘person in need of protection,’ DFNs are required to wait five years before applying for permanent residence and before they can sponsor their family members.35 In contrast, foreign nationals who obtain the status of “refugee” or “protected person” can apply for permanent residence after 180 days have passed, and sponsor family members once they gain permanent residence.The DFN regime has been used only once and retroactively, on 5 December 2012, against five groups of foreign nationals; in total, 85 people including 35 children who illegally crossed the Canada-US border into the province of Quebec between February and October 2012.36 According to the figures provided by IRB, Immigration Division has heard 11 of these cases since January 2013, leading to nine Romanian citizens being removed and two released. At first glance, one might see the DFN as an inert measure. But the Government has used it to project an extra-territorial deterrent effect, on the presumption that the risk of being subject to a DFN would sway persons against irregular migration. It also aimed to reassure audiences such as the Conservative electorate and the US that the borders are under control and the abuse of the refugee system would not be tolerated. In her analysis of similar political moves in the UK, Aliverti highlights how such measures are used symbolically “as an attempt to appease a sector of the electorate, the media and the Opposition about the ‘immigration problem’ to bring immigration under control”.37 Hence the invocation of harsh sanctions to deal with immigration offences serves mostly as a threat rather than to actually prevent the offense or prosecute the offender. Several provisions pertaining to the DFN regime, including accelerated timelines, can be considered as key tools to make the system faster and reducing the cost of the RSD. Many of the punitive measures such as the mandatory detention of 16- and 17-year-old children without a prompt review of their detention’s lawfulness and the exclusion of DFNs from the right to appeal to the RAD of the IRB are clearly at odds not only with the Canadian Charter of Rights and Freedoms, but also with Canada’s international obligations under the Convention relating to the Status of Refugees.38 The regime notably carries a serious risk for the principle of non-refoulement, which prohibits deportation of individuals to places where they may face persecution or the substantial risk of torture or similar abuse.39 It is hard to measure the success of the DFN regime’s objectives, but it nonetheless stands as an example of how security can have invisible or at least latent or implicit presence, helping to limit access to the RSD system. In sum, the aforementioned examples illustrate the multiple layers of securitisation in Canada, where public discourse has fortified economically driven barriers to the RSD. But the tense relationship between security/barriers and the maintenance of a faster and fairer RSD raises questions about how well the two can co-exist. Karyotis and Skleparis argue that security is, in fact, a counter-productive strategy, raising obstacles to the development of a coherent immigration policy.40 On the one hand, it unjustifiably deprives persons of rights. On the other, it ignores the cost of injustice or the possibility that security tends to be a rather expensive and inefficient endeavour. 4. THE UNINTENDED CONSEQUENCES OF 2012 REFUGEE REFORM Our interview data suggest that Canada’s 2012 refugee reform has engendered several unanticipated consequences. These consequences are classified into three main themes: migrants’ human rights violations, negative impacts on third parties involved in the refugee system, and irregular migration. 4.1. Human rights violations The most obvious outcome of the recent changes is their negative impact on the human rights of migrants. Advocates, academics, refugee lawyers, and civil society organisations have levelled pointed criticisms towards the 2012 refugee reform, arguing that many of the new measures violate the rights of refugee claimants in Canada. These criticisms have been supported by empirical research outlining the impact of the measures, particularly on asylum-seekers. For instance, the University of Ottawa’s Refugee Assistance Project (UORAP) found that these changes carry implications for the ability of refugee claimants to attain procedural, substantive, and symbolic access to justice as they seek protection in Canada.41 Courts have also on several occasions held that some recent measures against asylum-seekers contravene the Charter and are not justified by the principles and purposes of the IRPA.42 In this section, we focus on a number of pressing human rights issues highlighted by interviewees. We point out that lack of access to fair procedures at the front-end or middle of the RSD process results in the exertion of pressures at its final stage and/or non-compliance with international human rights standards. 4.1.1. Accelerated timelines The PCISA introduced truncated timelines in asylum claims’ processing. For most claimants, hearings at the RPD are now supposed to be held no later than 60 days after the refugee claim is referred to the IRB. Refugee lawyers and community organisation representatives invariably thought that, while the new timelines may work for some asylum-seekers, they typically do not give claimants enough time to prepare their claims. Several interviewees noted how shorter timelines impact vulnerable claimants, who have difficulties providing formal legal and factual materials in support of what are credible claims. As one lawyer put it: [T]he changes […] flipped so drastically, that now it’s very hard for a lot of individuals to compile the evidence that they need, in time for their refugee hearing, and the interpretation of the new evidence requirements for introducing new evidence on appeal, if you’re lucky enough to have an appeal, before the Refugee Appeal Division (Participant 10, Toronto). In addition, the new timelines have been particularly problematic for claimants from the “designated countries of origin” (DCOs). DCO claimants are asylum-seekers coming from countries that the Minister of Immigration, Refugees and Citizenship (“the Minister”) has formally designated as “safe”. DCOs are so listed in part because they are deemed to possess formal state institutions commensurate with democratic principles and the rule of law, including an independent judicial system, basic democratic rights and freedoms, as well as mechanisms for redress if those rights or freedoms are infringed.43 Currently, the Minister has designated 42 countries as DCOs. They include Mexico and Hungary, which, prior to 2012, were the two main countries of origin for asylum-seekers in Canada. Claimants from DCOs have a shorter period of time to prepare for an IRB hearing (30 days for inland claims and 45 days for claims made at a port-of-entry) than non-DCO claimants. High acceptance rates in 2016 for two main DCO countries – Hungary (57 per cent) and Slovakia (47 per cent) – reveal that several asylum-seekers from these countries have in fact well-founded reasons to claim protection.44 The new timelines therefore exacerbate the risks of legitimate applications being rejected without a thorough analysis of the merits of the claims; there is a consequent, unjustifiable risk of refoulement for DCO claimants. Some interviewees noted that the system has become either too fast or too slow to be fair. The administration’s priority was to schedule the initial RPD hearings for new asylum applications.45 As a result, secondary intake of claims, i.e. claims returned to RPD by the RAD or Federal Court, remained unresolved for a period of time. In addition, significant delays have occurred in the processing of the “legacy claims,” i.e. asylum claims referred to the IRB prior to the entry into force of the new regime on 15 December 2012. In June 2017, about 5,500 legacy claimants were still awaiting a decision.46 In a 2016 report, the Canadian Association of Refugee Lawyers (CARL) noted that some of the legacy claimants remained in Canada for more than three years on temporary status with no assurance of receiving Canada’s protection, and no means of getting on with their lives.47 A representative from a Toronto-based NGO corroborated this finding: We still have families that are in the legacy cases. There are seven or eight families connected to [the organisation] that still haven’t had their hearings, and it’s been, like, four years or longer. There’s a family that hasn’t had their hearing in five years. […] every single one of those families is suffering from some serious mental health challenge, related to it. Long family separation […] If they are accepted, it’s still going to be another two, three, four years. So, it’s like, almost a decade of being separated from their children (Participant 17, Toronto). As the short timelines may hinder an individual’s ability to retain counsel, this may lead to a rise in the number of unrepresented claimants who are unprepared and ill-equipped to present their claims. Some interviewees argued that reduced timelines exacerbate the existence of inferior legal representation and have incentivised volume-based practices which could be detrimental to the principle of due process of law. A study by Rehaag, which investigated over 70,000 refugee decisions from 2005 to 2009, highlighted the vital role of counsel in successful outcomes.48 Moreover, the new system imposes exceptional pressures on legal aid programs to provide effective legal services for refugee claimants. Legal aid in Canada varies from province to province. Immigration and refugee lawyers that we interviewed in British Columbia and Quebec invariably complained about the legal aid level, which is largely insufficient to represent complex cases in these provinces. This, in turn, is likely to result in experienced refugee counsels refusing DCO cases due to time restrictions.49 The new timelines prioritise efficiency over fairness. They impose hardship on refugee claimants and on the RSD system overall, including legal counsels and community services, as will be discussed below. 4.1.2. Limitation of procedural rights and existing reviews The 2012 refugee reform introduced considerable statutory limitations and bars relating to procedural guarantees available to refugee claimants. For instance, while the establishment of the Refugee Appeal Division in December 2012 was a welcome development in terms of ensuring fundamental justice in refugee protection, a number of foreign nationals, such as DFNs, have been barred from appealing to the RAD in order to deport more speedily those individuals whose claims are rejected by the RPD. Another illustration of this is the aforementioned legacy claimants. The lack of appeal considerably increases the hardship on these claimants who, because of their prolonged stay in Canada, are likely to establish strong social and economic ties in the society. A refugee lawyer underlined that: The Refugee Appeal Division […] was really a very positive development in the way refugee status determination is handled in Canada. The problematic part of it is the number of limitations they’ve put on those who have access to it. In my mind, if there is merit to an appeal process, in refugee status determination, then there’s merit in providing it to everybody who is eligible to make a refugee claim. It’s just kind of common sense to me (Participant 10, Toronto). It is noteworthy that, initially DCO claimants were denied the right to appeal a negative decision before the RAD. This was challenged before the Federal Court. On 23 July 2015, Boswell J. found that prohibiting claimants from DCOs from accessing the RAD contravenes Section 15 of the Charter and constitutes an impairment to their right of equality and non-discrimination. The decision notes that: Expressly imposing a disadvantage on the basis of national origin alone constitutes discrimination […] and this distinction perpetuates the historical disadvantage of undesirable refugee claimants and the stereotype that their fears of persecution or discrimination are less worthy of attention.50 Another example is the absence of the automatic stay of removal (ASR) for persons filing an application for judicial review to the Federal Court against a negative RPD decision.51 Hence unsuccessful claimants without access to the RAD do not benefit from an ASR, and are deported before a final decision on their claim has been made. As IRCC put it, “the no-ASR policy was intended to allow the Canada Border Services Agency (CBSA) to initiate the removal of these claimants several months earlier than claimants who are granted an ASR”.52 The policy consequence, however, is quite problematic in terms of the right to an effective remedy and the principle of non-refoulement. A study by IRCC that examined a sample of claimants (312) who did not benefit from an ASR, found that the CBSA attempted to remove more than half (57 per cent) of these claimants while the judicial review litigation before the Federal Court was pending.53 Figures also show that there has been a steady increase in the number of persons with pending humanitarian applications who were removed since 2002. In Europe, there are numerous court decisions both at the European and national level highlighting the human rights violations caused by the absence of a stay of removal.54 In I.M. v. France, for instance, the European Court of Human Rights (ECtHR) held that an “effective remedy” requires an appeal with suspensive effect in order to prevent refoulement, granting enough time to prepare the appeal and acquiring effective legal assistance and interpretation.55 As a result, France introduced a suspensive effect for all appeals before the National Court of Asylum (Cour nationale du droit d’asile), which enables asylum-seekers to remain on French territory while their appeal is pending.56 The Government also sought to eliminate or restricted previously existing review mechanisms. Before 2012, most claimants whose refugee claims were not successful, and who had been given a removal order, could apply for a Pre-Removal Risk Assessment (PRRA). They had 15 days to submit their application to IRCC, and 30 days to submit new documentation and evidence to IRCC.57 Pursuant to the BRRA, failed refugee claimants are barred to apply for a PRRA for one year following their final IRB decision. Those claimants from DCOs and DFNs have no access to a PRRA for 36 months after a negative decision.58 In addition, refused asylum claimants can apply for permanent residence on humanitarian and compassionate (H&C) grounds only one year following their final IRB decision.59 Before the refugee reform, the H&C application could be made at any time while in Canada. Claimants are also barred from submitting H&C applications while their refugee claim is pending, which was previously allowed. The Government introduced these changes in the hopes of deterring asylum-seekers and removing refused claimants as soon as possible. 4.1.3. Limitation of Charter protections The securitisation of asylum has been exacerbated by the retraction of Charter protections in front-end and intermediary proceedings, such as admissibility and exclusion determinations.60 In other words, the lack of Charter protections at key stages of the removal process exacerbates the cumulative or holistic impact of discrete measures introduced by the 2012 refugee reform. Unfortunately, courts have not had the advantage of full empirical studies on the impacts of these measures, which may have contributed to a misunderstanding of the nature and gravity of rights deprivations. Several prominent refugee lawyers compared the current urgency to a series of Supreme Court decisions. One began with the 2002 case of Suresh,61 where the Court ruled that deportation to torture is generally (but not absolutely) prohibited, and that decisions about this risk must abide by a core minimum of procedural protections. This decision (inadvertently) not only linked the applicability of the Charter to the existence of irreparable harm over and above the mere act of deportation, but also intimated that such harm must be of a grave nature akin to torture or death. One interviewee stated: The test is you have to show the court that you have a serious issue, that you would suffer irreparable harm, harm that’s not compensable in damages […] It’s irreparable harm to be deported from Canada, therefore, you have to show something beyond irreparable, something more than irreparable, the fact that your child’s going to be harmed, and your child’s not going to get better, because she’s been separated from her mom for ten years, […], is irreparable harm. But it doesn’t count, in these cases. And it’s only immigration cases that they use irreparable harm plus, only in immigration cases. You won’t find it anywhere else in the case law in Canada (Participant 2, Toronto). Other interviewed lawyers pointed to recent cases that have denied the applicability of the Charter to front-end and intermediary stages of the removal process. In the 2015 case of B010 v. Canada,62 the Court decided that Section 7 of the Charter (the right to life, liberty and security of the person) is “not engaged at the stage of determining admissibility to Canada” and that the benefit of the Charter “is typically engaged” only during the actual removal stage. One participant noted: The question that raises is, where that leaves the same decision […] in admissibility contexts, where the inadmissibility determination completely removes the right of a refugee hearing. So, if the 1985 Singh decision said, “Section 7 of the Charter and the Bill of Rights require that in matters of refugee determination where credibility is at stake, refugee claimants have the right to an oral hearing”63 where is that, now that we have Supreme Court jurisprudence that says a process that removes that right, categorically, the Charter has no application to it (Participant 10, Toronto). This interviewee’s observation should be placed in the context of rules that deny to certain classes of inadmissible persons protection against deportation to persecution. In Febles v. Canada,64 the Court denied the applicability of the Charter to decisions about whether a person should be excluded from refugee protection. The Court reasoned that persons who are denied the right to claim refugee status on grounds mentioned above can always “apply for a stay of removal to a place if they would face death, torture or cruel and unusual treatment or punishment if removed to that place” i.e. for a PRRA.65 But this list of human rights abuses is under-inclusive and excludes persecution – in many cases affecting persons who have diminished capacities to meet fully the case against them in the contexts of inadmissibility and exclusion determinations. The Supreme Court has not yet ruled on whether the substantive and procedural protections available at the end stage of the removal process are adequate; if they are not, then diminished access to justice at earlier stages assumes even greater significance. There are sound reasons for thinking PRRA bars and other obstacles to challenge deportation to persecution are inconsistent with the Charter: The whole reason that we have […] this refugee adjudication process and the oral hearing is because in saying the Supreme Court found that the Charter is engaged; there’s a right to a hearing, that’s required for section 7. And gradually, they’ve managed to push the Charter entirely out of the refugee protection regime. […] they do that in part because they rely on the fact that under the current system, […] it’s not the final risk assessment. The person isn’t going from the refugee board on to a plane. They still have other procedures available to them. […] So then they say, ‘There’s no Charter at the RPD.’ And then you try to raise in the context of the PRRA, but […] the court recently found that the Charter is not engaged in the PRRA proceeding either, because that’s also not the final moment. You’re not actually facing removal immediately. You still have access to the federal court for a stay, and you can always ask CBSA very nicely to please, please not put you on a plane to torture. So, […] the Charter, and section 7 is being pushed back and back and back, to the point that it feels like the only time that we can actually force the court to recognize there’s a Charter issue engaged is when they have, like, one foot on the plane. Until they’re at that point, and only if they’ve exhausted every possible remedy, even the request to defer removal, which has no law around it. It’s just a discretionary administrative request (Participant 15, Toronto). Two recent judgements are noteworthy here. In Peter v. Canada,66 the Federal Court found that Section 7 of the Charter is not engaged when persons who may have a well-founded fear of persecution are denied the right to make that claim, either to the RPD or to a removals officer. The case concerned Section 112 (2) of the IRPA, which was introduced through the Balanced Refugee Reform Act. The provision bars persons from claiming protection through PRRAs if they are from DCOs or have filed unsuccessful claims before the RPD within the last 12 or 36 months, depending on their designation. The claimants argued this regime denies protections to which persons are entitled under international law and by virtue of principles of fundamental justice. Although the reasoning in this case is hard to follow, the gist of the ruling was that persons who have failed to make a successful claim for refugee protection before the RPD are unlikely to do so before a removal officer; this supposedly takes care of the 12/36-month PRRA bar. As for persons denied a hearing before the RPD by virtue of being from a DCO, Annis J. ruled that removal to persecution “does not expose the applicant to irreparable harm, in the sense that if the decision of the removal officer is overturned, the applicant is prevented from being readmitted to Canada”,67 and, that the Federal Court can always overrule the negative decision of a removal officer, if it is unreasonable.68 The Federal Court of Appeal overruled this decision on the grounds that it was premised on insufficient factual foundations.69 But, it declined to pronounce on the substantive issues, meaning that the constitutionality of this portion of the removal process remains unsettled and will likely be before courts again in short order. We would note that Annis J.’s confidence in the effectiveness of hearings before the RPD is misplaced. A good number of persons with credible claims are being deemed ineligible to apply for refugee protection. Further, aforementioned legislative changes drastically reduce the ability to file complete claims. When making inferences about the success rate of claimants before the RPD, we should also consider harms accruing from timeline accelerations and increased use of detention. The availability of empirical evidence concerning the ineffective, arbitrary, and overly broad nature of recent measures will help bolster the strength of future Charter challenges. 4.2. Negative impact on third parties The 2012 refugee reform has had important unintended consequences not only for asylum-seekers, but also for third parties involved in the refugee protection system. These stakeholders include legal counsels, non-governmental organisations, social workers, IRB members, and service providers. The extent and the pace of these changes are considered to be “draconian” by several participants. The Canadian refugee landscape is seen as a field of law in flux, in the sense that the legal uncertainty affects all actors involved, including IRB members. Indeed, an IRB evaluation admitted that the new system has generated huge pressure on its members. Concerns were raised over how the stressful nature and pace of the work could diminish job satisfaction, lead to burn-out, and drive members to seek opportunities elsewhere.70 Unsurprisingly, such pressures have created a work environment that affects the ability to reach the immediate expected outcomes of the new legislation, as well as the long-term sustainability and quality of the IRB’s work. The changes also made it more difficult for professionals working in solidarity with asylum-seekers and migrants to perform their tasks. Take as an example, some representatives from civil society organisations who noted that the changes and, in particular, the new RSD timelines have shifted their organisations’ priority from providing vital social support to newcomers through community programming, to assisting them with their refugee claim. As described by a frontline service provider: Now our interns and our settlement workers are basically so overwhelmed with just supporting people in their first two weeks, in their first two months, because everything has to happen at the front end and it is really, really busy. So it has really changed the shape of our community. But also, it means that people who are incredibly vulnerable when they first arrive, and might not have access to social assistance, or need to find housing or need to get into school […] they are just things that get put on the back burner, because their legal process is so demanding that I think it creates a lot of vulnerability for people at the very beginning (Participant 17, Toronto). Moreover, some participants considered that the security language that has permeated the system has had a considerable impact on how immigration and refugee law is understood and practiced by each key stakeholder, including lawyers, decision-makers, and law enforcement officers. As a refugee lawyer in Toronto said, “the changes over the last several years have put such a negative cloud over the practice of refugee law, they’ve made it feel like an embattled zone” (Participant 1, Toronto). Another Toronto-based lawyer noted that “The whole system has become more punitive […] under the previous ten years. The Conservative Government was sort of really bent on criminalising and sort of restricting immigrants’ rights (Participant 6, Toronto). And one human rights activist told us: “With the reforms that have happened, you can’t really recognize the system anymore, and so we’re dealing with a whole new way of looking at refugees in particular […] And so the entire practice is permeated by these views” (Participant 1, Toronto). The rapid changes have also created confusion among frontline workers. Legal uncertainty affects the way the services are delivered and exacerbates the vulnerability of migrants: “There is uncertainty of the answers, the situations, the recourses, what to say, what advice to give […]. It’s an animal that moves and every week, […] and we have been […] working here in the last 5 years in a very, very frustrating environment, because the people were so desperate” (Participant 3, Toronto). The representatives of a Toronto civil society organisation described their experience as follows: P8: the extent of changes in immigration and refugee policy has been so broad and so deep that it’s confusing to […] P9: and so quick […] P8: […] to anyone who makes it their full-time work, and front-line workers in settlement, this is not their full-time work, and yet inevitably, because there are no other access of services, it all ends up, you know, coming to them. It’s really hard for frontline workers to understand this is what’s going to happen to their client, and so very often we’ve heard of clients traveling, coming back, and at the border, being told ‘oh really, you traveled and you came here as a refugee, ok’ and the next thing they know is that their status is being vacated and proceedings are in place to have them removed. And so the impact of the changes is really happening at many different levels (Participants 8 and 9, Toronto). A particularly problematic area in this respect is the vacation and cessation provisions redefined in the PCISA in 2012. Pursuant to the IRPA,71 an individual can lose his/her status of refugee or protected person through a cessation process where s/he voluntarily re-establishes themselves in their previous country of nationality, becomes a national of another country where they do not fear persecution, or “re-avails themselves of the protection of their former country,” which could include applying for a passport or temporarily returning to the home country.72 Cessation applications are brought against permanent residents who have traveled back to their countries of origin, often many years after their claims for protection have been decided. The Government considers them to have “re-availed” themselves of the protection of their country of origin. Whereas from 2007 to 2011, there were 106 cessation applications made by the Minister of Public Safety, a target of 875 applications per year was set in 2013.73 As a result, cessation and vacation proceedings have increased five-fold between 2012–2013 and 2014–2015.74 Several NGO representatives described how the extensive use of cessation has affected their work. For example, they noted: Overnight, the person can lose Convention refugee status, permanent refugee status, and be deported. And [a] lot of the people doing the day-to-day work on the ground are completely overwhelmed by what’s happening, and not prepared to deal with it, but they are the ones who are in day-to-day touch with these people making these sort of, you know, literally life and death decisions (Participants 8 and 9, Toronto). Immigration and refugee lawyers faced similar challenges. As one of them highlighted: The issue, in terms of giving legal advice and for people to make informed decisions, decisions about their future, is that they, they honestly don’t know what to do and they’re often left in a situation where they prefer not to disclose, i.e. not to apply for citizenship, not to apply for anything else, and not put themselves at risk of losing their status in Canada (Participant 18, Toronto). In addition to the pressure it has created on the system, the enforcement of cessation provisions also criminalises migrants and results in violations of their human rights. Those who are affected by cessation provisions have no right of appeal and no statutory stay of removal pending their leave application for judicial review to the Federal Court. Moreover, the law can be applied retroactively to any conduct prior to the entry into force of the provision on 15 December 2012. On a positive note, several interviewees mentioned that the cessation applications have considerably decreased since the election of the Liberal Government in October 2015. To alleviate the disproportional effects of some of these policies, lawyers must craft creative strategies. Immigration detention is one such area. Some lawyers we interviewed noted the difficulty of challenging detention decisions before the Federal Court, including the long timelines they are facing. Hence, since the Ontario Superior Court of Appeal affirmed, in Chaudhary v. Canada,75 that detainees’ constitutional rights under the Canadian Charter of Rights and Freedoms translate into a right to apply for direct habeas corpus relief at court, notwithstanding the existence of the detention review regime under IRPA, several lawyers prefer taking their detainee clients to the Ontario Superior Court, instead of challenging IRB’s detention decisions before the Federal Court. Some interviewees highlighted that Superior Courts have a tradition and a rich jurisprudence in terms of the rights of detained individuals that the Federal Court has not. In a similar vein, lawyers in Ontario have developed ad hoc mechanisms to prevent the risk of refoulement that stems from the PRRA bars. 4.3. Irregular migration A last unintended consequence of the 2012 refugee reform discussed in this article is its potential impact on irregular migration. The number of irregular migrants present in Canada is unclear. Although there are no official statistics, politicians, and the media tend to claim they are between 200,000–500,000, most of whom reside in Toronto, Montreal, and Vancouver.76 In a recent report on Toronto’s sanctuary city policy, we examined how profound the human rights implications of living without status are.77 Because irregularity is extremely hard to measure and evaluate, it remains unclear if and how reform policies have directly impacted irregularity in Canada. What is clear, nonetheless, is that certain policies are seen as having a correlation with irregular migration, a phenomenon which results from a complicated interplay of immigration, asylum policy, and border controls.78 Evidence-based research in Europe and the US suggests, for instance, that harsher border controls and tighter asylum policies are conducive to more irregular migration.79 As noted by Düvell, “constantly changing and/or complex legislations, bureaucratic and inefficient procedures, (and) hostile organisational cultures are likely to result in irregularity”.80 The phenomenon has recently attracted considerable political and media attention in Canada following the sudden increase in illegal border crossings after the US presidential elections. Indeed, 2,145 individuals crossed the land border via the US to claim asylum in Canada in the first two months of 2017, in defiance of the 2004 Canada-US Safe Third Country Agreement (STCA) – another legal instrument to manage asylum movements, which bars most third country nationals in the US from making an asylum claim at a Canadian land border. The Government reported that 5,712 refugee claimants had arrived in Canada in the month of August alone – an 82 per cent jump from July.81 Arbel and more recently Amnesty International (AI) and the Canadian Council for Refugees (CCR), among others, pointed to the counterproductive consequences of the STCA: enhancing irregular migration and migrant smuggling.82 Despite these developments, as of today there has been little evaluation of how asylum-seekers can become irregular migrants in Canada. Among all refugee reform measures, the DCO policy was seen by some participants as having the clearer connection to irregular migration, since it has encouraged people not to file a refugee claim for fear of refusal and subsequent removal. As previously noted, DCO claimants have less time to prepare their hearing than other claimants. They are also ineligible to apply for a work permit until their claim is approved by the IRB or their claim has been in the system for more than 180 days and no decision has been made. What’s more, until recently, DCO claimants did not have the right to appeal a refugee decision. They also have 2 years more than other claimants to be eligible for a PRRA, if they have not been already deported. One can expect that these factors would serve as effective deterrents against some DCO nationals in Canada who may otherwise consider claiming refugee status. Research shows that in some European countries, migrants who may actually be entitled to protection, remain in an irregular status, because they feel it is impossible to receive refugee status in Europe.83 Likewise, some of the participants pointed out that accelerated timelines disincentive claimants to make their claim upon arrival to Canada, and in some cases, result into refugee claimants preferring to remain in an irregular situation until they gather evidence needed to support their claim. As explained by a refugee lawyer: “Now if you come in, either illegally or as a visitor, you control the timeframes. So until you put in your set of documents, the clock doesn’t start ticking, and you can kind of buy time to gather up personal corroborative evidence that way.” (Participant 1, Toronto). Some participants also highlighted how service providers and legal counsels have had to adapt to claimants’ preferences and develop resistance strategies to the new rules that are seen as unjust. I think it’s about 80% of asylum seekers now, are not presenting themselves at the borders; asking for asylum inland. At least it buys them time to do more preparing before the clock starts ticking. […] we don’t hurry them up to run out and make their appointment, because we want to help them get as prepared as they can, before they even present themselves (Participant 16, Toronto). Another problem concerns the unwillingness of migrants to use last resort remedies. For instance, we were told by some interviewees that many rejected claimants refrain from making a stay of removal request to CBSA because they are scared of being detained and deported. Reduced legal options for failed refugee claimants are also considered to have an effect on irregular migration. In addition to the above-mentioned delayed access to PRRA, it is noteworthy that IRCC assesses the PRRA but the CBSA initiates it (which was not the case before 2012). A service provider representative explained how these conditions have had an impact on irregular migration: You don’t have access to a PRRA for three years, and so some people actually have gone underground for three years, until the bar on accessing the PRRA is up, and then have tried to access that application. You have to go into CBSA and be given a PRRA. Well, if you’ve been underground for the past few years and you go to CBSA, good chances are you’re going to be detained. You’ll still be able to fill out a PRRA, but from within detention, and so if it’s not successful then you’ll be deported. [… when] we explain to them what they actually have to do to access a PRRA – to go and present themselves to CBSA – and they say, “There’s no way I’m going to do that” (Participant 17, Toronto). This quote also exemplifies the role of the CBSA in the securitisation of Canada’s RSD. The CBSA is the federal agency housed within Public Safety Canada and responsible for border controls, immigration enforcement and customs services.84 Although operating since 2003, the CBSA played a key role in erecting barriers to the RSD. The 2012 reforms were followed by a considerable increase in the law enforcement mandate and capacity of the CBSA. As an illustration, the previous Conservative Government pledged to accelerate the removal procedure and set the target for the CBSA to get 80 per cent of removals to be completed within 12 months of an IRB decision.85 Research participants strongly criticised the increasing powers and, more pointedly, overtly instrumental deployment of the CBSA. While many of them tend to see the CBSA as strongly embedded in its enhanced law enforcement mandate and as neglecting other key policy objectives – such as upholding Canada’s humanitarian approach and international human rights obligations – several interviewees pointed out that with increased powers, the CBSA reinforces its culture of fear, notably by targeting racialised immigrant communities, intruding in the private lives of asylum claimants and discarding the specific needs of vulnerable groups such as children and claimants with mental health issues (Participant 46, Victoria; Participant 29, Montreal). An immigration and refugee lawyer noted that “one of the biggest problems with the CBSA [is that it is] a huge police force now […] without any controls, without any kind of monitoring or surveillance, without a history of how police operate” (Participant 2, Toronto). The CBSA’s treatment of refugee claimants appears to be a factor enhancing irregular migration in Canada. Its hostile organisational culture seems to have a deterrent effect on refused asylum-seekers in terms of exhausting the existing legal remedies or complying with deportation orders. Overall, the 2012 refugee reform creates systemic conditions and various barriers that heighten the risk of false negative determinations, i.e., where an asylum claim fails. In particular, DCO claimants face obstacles in accessing the refugee status determination and an effective remedy. Yet, not all rejected asylum-seekers are deported from Canada. Following the 2012 refugee reform, the Government was not able to meet the target for the removal of failed refugee claimants. On the contrary, removals decreased after the changes, from 13,869 in 2012 to 10,743 in 2013, and 7,852 in 2014. In 2013 and 2014, only 14 per cent (2,674) of those who claimed asylum after 15 December 2012 were deported.86 Some of these migrants may arguably become irregular migrants. A recent research conducted in Europe suggests that a 10 per cent increase in asylum rejections raises the number of irregular migrants by an average of 2 per cent to 4 per cent.87 Finally, tougher immigration policies also mean that once migrants become irregular, they are less likely to return to their countries of origin because they believe they would never be able to come back. This may contribute to an increase in the volume of irregular migrants present in a country.88 5. CONCLUSION In this article, we discussed the securitisation of Canada’s asylum system and the unintended results of this process. We argued that the Government used security rhetoric to justify the passage of restrictive asylum legislation that dramatically altered the Canadian RSD. The 2012 reform has not been successful in achieving the Government’s stated policy goals, i.e. to make the system faster to enhance quick removal of rejected refugee claimants with a view to protecting the refugee system’s integrity. Pursuant to the entry into force of the reform, the number of asylum claims decreased by half, from 20,427 claims in 2012 to 10,322 in 2013, yet the Government has not be able to process refugee claims and appeals in accordance with regulated time limits.89 This should not come as a surprise: the complexity of the refugee status determination and the dramatic consequences of false negative determinations mean the RSD can hardly be dealt with in an expedited manner.90 The 2012 refugee reform is considered consistently (though by no means totally) ineffective, insofar as many claimants find recourse through H&C applications and other “exhaust valves” built into the system. Many interviewees spoke about how this is a primary means of securing reasonable decisions that ought to have been provided earlier in the process. In addition to having failed to fulfil its primary goals, the 2012 refugee reform has engendered a number of negative unintended consequences: its discriminatory impact for specific groups and classes, a too slow or too fast refugee process, negative implications on access to justice and important human rights violations. The rigid and atrophied design leads stakeholders to work creatively within the system. We also found evidence of a connection between the 2012 changes and irregular migration in Canada, a development which endangers the integrity of the system. Some government representatives who we met acknowledged that some of the changes by the previous Government are unfair and need to be revised. It was admitted, for instance, that both the accelerated and differentiated timelines for hearings between the DCO and the non-DCO regimes created inefficiencies. Making the timelines more reasonable is part of the RSD reform planned by IRCC, with a view to ensuring timely protection of refugees and removals of rejected asylum claimants. We believe that the Government should take the opportunity to repeal the most controversial measures such as the DFN and the DCO regimes in order to provide equal access to the asylum system for everybody without discrimination. Ultimately, a new reform of the refugee system should bring Canada’s humanitarian approach and human rights obligations back into balance, as a condition to ensuring the system’s fairness and integrity. This article draws on: I. Atak, G. Hudson & D. Nakache, “Making Canada’s Refugee System Faster and Fairer”: Reviewing the Stated Goals and Unintended Consequences of the 2012 Reform, Canadian Association for Refugee and Forced Migration Studies (CARFMS) Working Paper Series 3, 2017. Footnotes 1 United Nations High Commissioner for Refugees (UNHCR), UNHCR Global Trends: Forced Displacement in 2014, Geneva, UNHCR, 2014, available at: http://www.unhcr.org/statistics/country/556725e69/unhcr-global-trends-2014.html (last visited 19 Dec. 2017). 2 Government of Canada, #Welcome Refugees. Key Figures, Government of Canada website, last modified 4 May 2017, available at: http://www.cic.gc.ca/english/refugees/welcome/index.asp (last visited 19 Dec. 2017). 3 Persons can claim refugee status from within Canada either to the Canada Border Services Agency (CBSA) at a port-of-entry, or to an inland office operated by Immigration, Refugees and Citizenship Canada (IRCC) or the CBSA. Eligible claims are referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB), which is in charge of determining whether the claimant is a “Convention refugee” (IRPA s. 96) or a “Person in need of protection” (IRPA s. 97(1)); Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27. 4 A. Macklin, “Disappearing Refugees: Reflections on the Canada-U.S. Safe Third Country Agreement”, Columbia Human Rights Law Review, 36(2), 2005, 101–161; F. Crépeau & D. Nakache, “Controlling Irregular Migration in Canada- Reconciling Security Concerns with Human Rights Protection”, IRPP Study, 12(1), 2006, 42 ; F. Crépeau, D. Nakache & I. Atak, “International Migration: Security Concerns and Human Rights Standards”, Transcultural Psychiatry, 44(3), 2007, 311–337; E. Arbel & A. Brenner, “Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion”, Criminal Justice, Borders and Citizenship Research Paper No. 2420854, Harvard Law School, Cambridge, Apr. 5, 2014; P. Molnar Diop, “The “Bogus” Refugee: Roma Asylum Claimants and Discourses of Fraud in Canada’s Bill C-31”, Refuge: Canada’s Journal on Refugees, 30(1), 2014, 67–80. 5 Protecting Canada’s Immigration System Act, S.C. 2012, c. 17; Balanced Refugee Reform Act, S.C. 2010, c. 8; IRPA, S.C. 2001, c. 27. 6 C. Dawson, “Refugee Hotels: The Discourse of Hospitality and the Rise of Immigration Detention in Canada”, University of Toronto Quarterly, 83(4), Fall 2014, 826–846; C. Costello, “Safe Country? Says Who?”, International Journal of Refugee Law, 28(4), 2016, 601–622; R. Bhuyan, A. Vargas & M. Píntín-Perez, “Fleeing Domestic Violence from a ‘Safe’ Country? Refugee Determination for Mexican Asylum-Seekers in Canada”, Refuge, 32(3), 2016, 95–107; S. Rehaag, J. Danch & J. Beaudoin, “No Refuge: Hungarian Romani Refugee Claimants in Canada”, Osgoode Hall Law Journal 52(3), 2015, 705–774. 7 See for example, J. P. Stumpf, “The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power”, American University Law Review, 56, 2006, 367–419; Y. Vázquez, “Constructing Crimmigration: Latino Subordination in a “Post-Racial” World”, Cincinnati Law Research Paper Series, Ohio State Law Journal, 76, 2015, 600–657; A. Di Giorgi, “Immigration Control, Post-Fordism, and Less Eligibility. A Materialist Critique of the Criminalization of Immigration Across Europe”, Punishment & Society, 12(2), 2010, 147–167; Council of Europe, Commissioner for Human Rights, Criminalisation of Migration in Europe: Human Rights Implications, Issue Paper, Feb. 2010, available at: http://www.refworld.org/docid/4b6a9fef2.html (last visited 19 Dec. 2017); M. Provera, The Criminalisation of Irregular Migration in The European Union, CEPS Paper in Liberty and Security No. 80, 2015, available at: https://www.ceps.eu/publications/criminalisation-irregular-migration-european-union (last visited 19 Dec. 2017); A. Aliverti, “Making People Criminal: The Role of the Criminal Law in Immigration Enforcement”, Theoretical Criminology, 16, 2012, 417–434. 8 C. Olsen, R. El-Bialy, M. Mckelvie, P. Rauman & F. Brunger, ““Other” Troubles: Deconstructing Perceptions and Changing Responses to Refugees in Canada”, Journal of Immigrant and Minority Health, 18(1), 2016, 58–66; S. Marsden, “The New Precariousness: Temporary Migrants and the Law in Canada”, Canadian Journal of Law and Society, 27(2), 2012, 209–229; R. Kronick & C. Rousseau, “Rights, Compassion and Invisible Children: A Critical Discourse Analysis of the Parliamentary Debates on the Mandatory Detention of Migrant Children in Canada”, Journal of Refugee Studies, 28(4), 2015, 544–569; S. Rehaag & A.G. Grant, Unappealing: An Assessment of the Limits on Appeal Rights in Canada’s New Refugee Determination System, Osgoode Legal Studies Research Paper Series, Toronto, 2015, available at: http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1129&context=olsrps (last visited 19 Dec. 2017); A. Macklin, “A Safe Country to Emulate? Canada and the European Refugee”, in H. Lambert, J. McAdam & M. Fullerton (eds.), The Global Reach of European Refugee Law, Cambridge, Cambridge University Press, 2013, 99–131; E. Osterberg, Social Impacts of the Securitized Arrival Experiences of In-Canada Refugee Claimants, Canadian Network for Research on Terrorism, Security, and Society, Jun. 2016, available at: http://tsas.ca/wp-content/uploads/2016/06/TSASWP16-09_Osterberg.pdf (last visited 19 Dec. 2017). 9 Immigration, Refugees and Citizenship Canada (IRCC), Departmental Plan 2017-2018, Ottawa, IRCC, 2017, available at: http://www.cic.gc.ca/english/pdf/pub/dp-pm-2017-2018-eng.pdf (last visited 19 Dec. 2017). 10 B. Vollmer, “Policy Discourses on Irregular Migration in the EU, ‘Number Games’ and ‘Political Games’”, European Journal of Migration and Law, 13(3), 2011, 317–339. 11 S. Smith, “The Contested Concept of Security”, Critical Security Studies and World Politics, 2005, 27–62; W.B. Gallie, “Essentially Contested Concepts”, Proceedings of the Aristotelian Society, 56, 1956, 167–198; B. Buzan, “People, States and Fear: An Agenda for International Security Studies in the Post-Cold War Era”, 2nd ed., Ecpr Press, London, Harvester Wheatsheaf, 1991. 12 C. Boswell, “Migration Control in Europe after 9/11: Explaining the Absence of Securitization”, JCMS: Journal of Common Market Studies, 45(3), 2007, 589–610; V. Squire, “The Securitisation of Migration: An Absent Presence?”, in G. Lazaridis & K. Wadia (eds.), The Securitisation of Migration in the EU, London, Palgrave Macmillan, 2015, 19–36. 13 O. Waever, B. Buzan, M. Kelstrup & P. Lemaître, Identity, Migration and the New Security Agenda in Europe, New York, Pinter, 1993, 65; B. Buzan, O.Waever & J. de Wilde, Security: A New Framework for Analysis, Boulder, Lynne Rienner Publishers, 1998, 33; G. Campesi, The Arab Spring and the Crisis of the European Border Regime: Manufacturing Emergency in the Lampedusa Crisis, EUI Working Paper, RSCAS; 2011(59), 11–12; J. Huysmans, “The European Union and the Securitisation of Migration”, Journal of Common Market Studies, 38(5), 2000, 751–777. 14 D. Bigo, “Security and Immigration: Toward a Critique of the Governmentality of Unease”, Alternatives 27(Suppl), 2002, 63–92; D. Bigo, “When Two Become One: Internal and External Securitisations in Europe”, in M. Kelstrup & M Williams (eds.), International Relations Theory and the Politics of European Integration. Power, Security and Community, London, Routledge, 2000, 171–204; R.W. Jones, ‘”Message in a Bottle”? Theory and Practice in Critical Security Studies”, Contemporary Security Policy, 16, 1995, 299–319. 15 D. Dyzenhaus, “The State of Emergency in Legal Theory”, in V. Ramraj, M. Hor & K. Roach (eds.), Global Anti-Terrorism Law and Policy, Cambridge, New York, Cambridge University Press, 2005, 65; O. Gross, “Chaos and Rules: Should Responses to Violent Crises Always be Constitutional?”, Yale Law Journal, 112, 2003, 1011; J. Ferejohn & P. Pasquino, “The Law of Exception: A Typology of Emergency Powers”, International Journal of Constitutional Law, 2, 2004, 210. 16 Squire, “The Securitisation of Migration”, 19–36. 17 D. Bigo, & A. Tsoukala (eds.), Terror, Insecurity and Liberty: Illiberal Practices of Liberal Regimes After 9/11, London, Routledge, 2008. 18 J. Huysmans, “Revisiting Copenhagen: Or, On the Creative Development of a Security Studies Agenda in Europe”, European Journal of International Relations, 4(4), 1998, 479–505. 19 T. Balzacq, “A Theory of Securitization: Origins, Core Assumptions and Variations”, in T. Balzacq (ed.), Securitization Theory: How Security Problems Emerge and Dissolve, London, Routledge, 2011, 13. 20 International Organization for Migration (IOM), “Communicating Effectively About Migration”, in World Migration Report, Geneva, IOM, 3, 2011, 17, available at: https://publications.iom.int/system/files/pdf/wmr2011_english.pdf (last visited 19 Dec. 2017). 21 A. Bradimore & H. Bauder, “Mystery Ships and Risky Boat People: Tamil Refugee Migration in the Newsprint Media”, Canadian Journal of Communication, 36(4), 2011, 637–666; A. Tsoukala, “Turning Immigrants into Security Threats: A Multi-Faceted Process”, in G. Lazaridis (ed.), Security, Insecurity and Migration in Europe, Aldershot, Ashgate, 2011,179–195; A. Kaushal & C. Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions”, International Journal of Refugee Law, 23(1), 2010, 54–92. 22 In July 2017, the four men accused of assisting the voyage of the first Tamil migrant ship (Ocean Lady) were acquitted, and in January 2017, three of four men accused of arranging the voyage of the second Tamil migrant ship (MV Sun Sea) were found not guilty. A mistrial was declared for the fourth man, although a separate jury deemed him guilty a few months later – making him the only one of the eight in the two cases to be convicted. The Public Prosecution Service announced on 27 July 2017 that it does not anticipate any further prosecutions involving the two boats. S. Dhillon, “B.C. Court Acquits Four Men Accused of Human Smuggling in Tamil Migrant Case”, The Globe and Mail, 27 Jul. 2017, available at: https://www.theglobeandmail.com/news/british-columbia/bc-court-acquits-four-men-accused-of-human-smuggling-in-tamil-migrant-case/article35817853/ (last visited 19 Dec. 2017); D. Quan, “Years After Two Ships Brought 568 Migrants to Canada, Seven Acquittals and One Conviction”, National Post, 27 Jul. 2017, available at: http://nationalpost.com/news/canada/years-after-two-ships-brought-568-migrants-to-canada-seven-acquittals-and-one-conviction (last visited 19 Dec. 2017); S. Krishnamurti, “Queue-jumpers, Terrorists, Breeders: Representations of Tamil Migrants in Canadian Popular Media,” South Asian Diaspora, 5(1), 2013, 139–157. 23 W.G. Robinson, Special Advisor to the Minister of Employment and Immigration, Illegal Migrants in Canada, Supply Services Canada, Ottawa, 1983. 24 Office of the Auditor General of Canada, 2013 Fall Report of the Auditor General of Canada: Chapter 5 – Preventing Illegal Entry into Canada, Fall 2013, available at: http://www.oag-bvg.gc.ca/internet/English/parl_oag_201311_05_e_38799.html (last visited 19 Dec. 2017). 25 Office of the Prime Minister, Minister of Immigration, Refugees and Citizenship Mandate Letter, 2010, available at: https://pm.gc.ca/eng/mandate-letters (last visited 19 Dec. 2017). 26 R. Dykstra (Parliamentary Secretary to the Minister of Citizenship and Immigration, CPC), House of Commons: Bill C-31, 2nd Reading, 8 Jun. 2012. 27 These statistics were provided by the Immigration and Refugee Board and are on file with the authors; also see J. Kenney (Minister of Citizenship, Immigration and Multiculturalism, CPC), House of Commons: Bill C-31 1st Reading, 1 Jun. 2012, available at: http://www.cic.gc.ca/english/department/media/speeches/2012/2012-02-16.asp. 28 R. Kronick & C. Rousseau, “Rights, Compassion and Invisible Children: A Critical Discourse Analysis of the Parliamentary Debates on the Mandatory Detention of Migrant Children in Canada”, Journal of Refugee Studies, 28(4), 2005, 544–569. 29 IRPA, DFN, s. 20.1(2). 30 A. Neylon, “Ensuring Precariousness: The Status of Designated Foreign National under the Protecting Canada’s Immigration System Act 2012”, International Journal of Refugee Law, 27(2), 2015, 297–326. 31 IRPA, s. 55. 32 IRPA, s. 57. 33 IRPA, s. 110(2)(a). 34 IRPA, s. 24(4). 35 IRPA, s. 11(1.2). 36 Public Safety, Public Safety Canada, Minister of Public Safety makes First Designation of Irregular Arrival under Protection Canada’s Immigration System Act, 5 Dec. 2012, available at: https://www.publicsafety.gc.ca/cnt/nws/nws-rlss/2012/20121205-en.aspx (last visited 19 Dec. 2017). 37 Aliverti, “Making People Criminal”, 417. 38 Convention relating to the Status of Refugees (Refugee Convention), 189 UNTS 150, 28 Jul. 1951 (entry into force: 22 Apr. 1954). 39 Art. 33(1) of the Refugee Convention; Art. 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85, 10 Dec. 1984 (entry into force: 26 Jun. 1987); IRPA Section 115. 40 G. Karyotis & D. Skleparis, “Qui Bono? The Winners and Losers of Securitising Migration”, Griffith Law Review, 22(3), 2013, 683–706. 41 E. Bates, J. Bond & D. Wiseman, “Troubling Signs: Mapping Access to Justice in Canada’s Refugee System Reform”, Ottawa Law Review, 47(1), 2016, 71–72. 42 Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704. 43 IRPA, Section 109. 44 IRB, Refugee Protection Claims (New System) by Country of Alleged Persecution – 2016, available at: http://www.irb-cisr.gc.ca/Eng/RefClaDem/stats/Pages/RPDStat2016.aspx (last visited 19 Dec. 2017). 45 IRCC, Evaluation of the In-Canada Asylum System Reforms, Ottawa, Apr. 2016, available at: http://www.IRCC.gc.ca/english/pdf/pub/E4-2014-icas.pdf (last visited 19 Dec. 2017). 46 N. Keung, “Refugee Board Set to Finally Hear ‘Legacy’ Asylum Claims”, Toronto Star, 21 Jun. 2017, available at: https://www.thestar.com/news/immigration/2017/06/21/refugee-board-set-to-finally-hear-legacy-asylum-claims.html (last visited 19 Dec. 2017). 47 Canadian Association of Refugee Lawyers (CARL), Reform Proposals for Canada’s Inland Refugee Determination System and Other Aspects of the Immigration System, CARL, Jul. 2016, available at: http://www.carl-acaadr.ca/sites/default/files/CARL%20brief%20FINAL_July2016.pdf (last visited 19 Dec. 2017). 48 S. Rehaag, “The Role of Counsel in Canada’s Refugee Determination System: An Empirical Assessment”, Osgoode Hall Law Journal, 49, 2011, 71–116. 49 Bates, Bond & Wiseman, “Troubling Signs”, 61. 50 Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892, para. 128. 51 Claimants who receive a negative decision from the RAD and those who do not have access to the RAD can file an application for leave and for judicial review of the RAD decision or the RPD decision with the Federal Court. 52 IRCC, Evaluation of the In-Canada Asylum System Reforms, 21. 53 Ibid. 54 European Court of Human Rights (ECtHR), Jabari v. Turkey, Appl. No. 40035/98, 11 Jul. 2000. 55 ECtHR, I.M. v. France, Appl. No. 9152/09, 2 Feb. 2012, para. 157–158. 56 Asylum Information Database (AIDA), Country Report: France, 2016, 21, available at: http://www.asylumineurope.org/reports/country/france (last visited 19 Dec. 2017). 57 The PRRA officer cannot consider evidence submitted at the IRB hearing – new evidence that came up after the IRB decision or that was not reasonably available at the time of the IRB decision can be submitted. 58 IRPA s. 112(2)(b.1). 59 IRPA s. 25. 60 The IRPA sets out circumstances by which a claimant can be inadmissible, including, security (s. 34(1)), human and international rights violations (s. 35(1)), serious criminality and criminality (s. 36), and organised criminality (s. 37). Since June 2012, individuals who are declared inadmissible under IRPA s. 34, 35, and 37 have no access to H&C or to the Immigration Appeal Division to appeal removal order: Bill C-43 Faster Removal of Foreign Criminals Act, S.C. 2013, c. 16. 61 Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3. 62 B010 v. Canada (Citizenship and Immigration), 2015 SCC 58 [2015] 3 S.C.R. 704. 63 Singh v. Canada (Minister of Employment and Immigration) [1985] 1 S.C.R. 177. 64 Febles v. Canada [2014] 3 S.C.R. 431. 65 Ibid., para. 67. 66 Peter v. Canada (Public Safety and Emergency Preparedness) [2014] FCJ No 1132 (QL); 13 Imm LR (4th) 169. 67 Ibid., para. 296. 68 Ibid., para. 274. 69 Savunthararasa v. Canada (Public Safety and Emergency Preparedness) [2016] FCJ No 173 (QL). 70 IRB, Executive Evaluation Report of the Refugee Determination System of the Immigration and Refugee Board of Canada, Policy, Planning And Corporate Affairs Branch, Ottawa, Mar. 2016, available at: http://www.irb-cisr.gc.ca/Eng/transp/ReviewEval/Pages/ExecEvalRep2016.aspx (last visited 19 Dec. 2017). 71 IRPA, s. 40.1(2) and s. 46(1)(c.1). 72 IRPA, s. 108; CARL, 24–25. 73 Government of Canada, Operational Bulletin 485-A: Bridging Open Work Permits for Certain Federal Economic Class Applicants, Ottawa, 19 Sep. 2013, available at http://www.IRCC.gc.ca/english/resources/manuals/bulletins/2013/ob485A.asp (last visited 19 Dec. 2017). 74 Canadian Association of Refugee Lawyers, Reform Proposals for Canada’s Inland Refugee Determination System and Other Aspects of the Immigration System, Jul. 2016, 26–27. 75 Court of Appeal for Ontario, Chaudhary v. Canada [2015] ONSC 1503. 76 L. Goldring & P. Landolt, “The Conditionality of Legal Status and Rights: Conceptualizing Precarious Non-Citizenship in Canada”, in L. Goldring & P. Landolt (eds.), Producing and Negotiating Non-Citizenship: Precarious Legal Status in Canada, Toronto, University of Toronto Press, 2013, 3–27; E. Khandor, J. McDonald & P. Nyers, The Regularization of Non Status Immigrants in Canada, 1960-2004: Past Policies, Current Perspectives, Active Campaigns, CERIS-The Ontario Metropolis Centre, 2004. 77 G. Hudson, I. Atak, M. Manocchi & C.-A. Hannan (eds.), (No) Access T.O.: A Pilot Study on Sanctuary City Policy in Toronto, Canada, Toronto, Ryerson Centre for Immigration and Settlement, Feb. 2017. 78 C. Dauvergne, Making People Illegal: What Globalization Means for Migration and Law, Cambridge, Cambridge University Press, 2008. 79 A. De Giorgi, “Immigration Control, Post-Fordism, and Less Eligibility: A Materialistic Critique of the Criminalization of Immigration Across Europe”, Punishment & Society, 12(2), 2010, 147–167; M. Samers, “An Emerging Geopolitics of ‘Illegal’ Immigration in the European Union”, European Journal of Migration and Law, 6(1), 2004, 27–45; K. Koser, “Irregular Migration, State Security and Human Security: A Paper Prepared for The Policy Analysis and Research Programme of The Global Commission On International Migration”, Global Commission on International Migration, Sep. 2005, available at: https://www.iom.int/jahia/webdav/site/myjahiasite/shared/shared/mainsite/policy_and_research/gcim/tp/TP5.pdf (last visited 19 Dec. 2017); A. Bloch, “Living in Fear: Rejected Asylum Seekers Living as Irregular Migrants in England”, Journal of Ethnic and Migration Studies, 40(10), 2014, 1507–1525. 80 F. Düvell, “Paths into Irregularity: The Legal and Political Construction of Irregular Migration”, European Journal of Migration and Law, 13(3), 2011, 275–295. 81 Government of Canada, Asylum Claims, webpage, last modified 19 Dec. 2017, available at: http://www.cic.gc.ca/english/refugees/asylum-claims-made-in-canada.asp (last visited 19 Dec. 2017); A. Woods, “Canada Not Ready for Second-Wave of Asylum Seekers, Union Head Warns”, The Star, 19 Sep. 2017, available at: https://www.thestar.com/news/canada/2017/09/19/5712-asylum-seekers-crossed-canada-us-border-in-august.html (last visited 19 Dec. 2017). 82 E. 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Pren, “Why Border Enforcement Backfired”, American Journal of Sociology, 121(5), 2016, 1557–1600. 89 IRB, Executive Evaluation Report of the Refugee Determination System of the Immigration and Refugee Board of Canada, Policy, Planning and Corporate Affairs Branch, Ottawa, Mar. 2016, available at: http://www.irbcisr.gc.ca/Eng/transp/ReviewEval/Pages/ExecEvalRep2016.aspx (last visited 19 Dec. 2017); IRB, 17. 90 See for example: C. Rousseau, F. Crépeau, P. Foxen & F. Houle, “The Complexity of Determining Refugeehood: A Multidisciplinary Analysis of the Decision-Making Process of the Canadian Immigration and Refugee Board”, Journal of Refugee Studies, 15(1), 2002, 43–70. © Author(s) [2018]. All rights reserved. For Permissions, please email: journals.permissions@oup.com

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