Flight into punishment
Bill intended to prevent human smuggling punishes those fleeing persecution, violence
Parliament is currently debating legislation that would require oneyear, mandatory detention for certain migrants arriving in Canada, including 16- and 17-year-old children. Ostensibly intended to prevent human smuggling, this bill in fact punishes victims of human smuggling, including those desperately fleeing persecution and violence. The detention provisions in Bill C-31, the Protecting Canada’s Immigration System Act, would allow the citizenship and immigration minister to “designate” groups of people arriving in Canada who would automatically be sent into detention for a year if the minister either has “reasonable grounds to suspect” they were smuggled or thinks examination of the group’s members cannot be conducted in “a timely manner.” The limited exceptions to year-long detention are unlikely to result in practical relief. What would constitute a group is not defined and could technically include as few as two people travelling together. Children under age 16 in the group would either be detained with their parents or separated from them and sent to a child welfare agency. Under international law, 16 and 17 year olds are also children, yet Canada would run afoul of its obligations under the Convention on the Rights of the Child by subjecting them to oneyear detention. The Convention on the Rights of the Child protects children from the devastating psychological impact of long-term detention. A study published in the October 2011 journal of the Canadian Pediatric Society documents the effects of immigration detention on children’s mental health, including post-traumatic stress disorder, depression, suicidal thoughts, behavioural difficulties, developmental delay, and a host of other problems. Bill C-31 would also violate Canada’s obligations under the 1951 Refugee Convention, which prohibits punishing refugees for entering a country illegally. The year of mandatory detention without review imposed on all designated migrants would almost certainly include asylum seekers, some of whom will be recognized as needing protection after spending a year unnecessarily in detention. C-31 would also punish refugees by preventing “designated” persons, including those recognized as refugees, from applying for permanent resident status for five years, delaying family reunification. Refugees fleeing for their lives often do not have the luxury to use “legal” channels to escape. Canada should not forget that in 1939, 907 Jewish refugees arrived on Canada’s shores without proper documentation. Canada denied their entry, and the men, women and children had no choice but to return to Europe. Many died in concentration camps. Canadian law already provides the government with adequate procedures to deal with the concerns that C-31 purports to address. Current law allows the government to detain any foreign nationals who have not established their identity, are a flight risk, or might be a danger to the public. An independent decision-maker reviews whether detention is reasonable within the first 48 hours. Officials must review detention decisions after a week and then monthly until release or deportation. C-31 would remove this scrutiny while a designated person languishes in detention.
The stated purpose of C-31is “protecting Canada’s immigration system,” but protecting the system at the expense of refugees and migrant children seems like the wrong priority.
What motivates such a bill? Canada is not facing an influx of irregular arrivers who pose a real threat or meaningfully strain its resources. Despite the troubled state of the world, there has not been a surge of asylum seekers entering Canada. In fact, Canada had a 30 per cent decrease in asylum claims in 2010 from 2009 and 10 per cent fewer claims in 2009 than in 2008. Yes, there was a 4 per cent increase in the first half of 2011, but this was at a time when there was a 17 per cent increase in asylum claims among all industrial states, including a 34 per cent increase in the United States.
In fact, 80 per cent of the world’s refugees are in the developing world, straining resources of governments that can barely afford to provide for their own people. Canada received 23,200 asylum seekers in 2010; but an average of 10,000 new Somali refugees arrived irregularly in Kenya every month last year, including nearly 30,000 in August alone. Does a country with Canada’s resources and geographic isolation from war and civil strife really need to punish the relatively few refugees who arrive irregularly?
If the government wishes to target human smugglers, it should allocate greater resources toward investigation and enforcement of the smuggling offences. But detaining the victims is not the answer. Bill Frelick is refugee policy director at Human Rights Watch. Jennifer Egsgard is a member of Human Rights Watch’s Canada Committee, and a lawyer with Sills Egsgard LLP.