Canadian Lawyer

www.canadianlawyermag.com 49 asylum claims and got ac- cess to the job market and access to public services," Routley says. "It's a really difficult case to make be- cause if they walk across the border it's a sure thing — and I can't promise that. "It's an extremely un- popular opinion; but after spending so much time and energy to bring people into Canada legally, I just don't think it's fair or appropri- ate that the loophole exists. We all benefit by entering people through established streaming systems rather than asylum." But Bonisteel says it comes back to Canada be- ing a signatory — along with the U.S. — to the International Refugee Convention, which "states clearly if someone on Ca- nadian soil makes a claim, we have to hear that claim." "When politicians talk about closing that loophole, I always want to drill down and understand what they actually mean by that," she says. "I personally don't see a legal way to 'close that loophole.'" Neufeld says applying the agreement to the entire border would mean turning back most asylum seekers, effectively blocking them from their right to seek asylum. "Canada would be complicit in handing those individuals back to a system where we know we are indirectly contributing to their return to the country where they risk persecu- tion," Neufeld says. "What makes sense is for all asylum seekers to be able to come to ports of entry where they are fully examined and vetted and any security screening that needs to happen can happen and they're then able to enter Canada in an organized way and make their refugee claim." Prime Minister Justin Trudeau made comments about "modernizing" the agree- ment in his October election platform, but no details were offered. However, an amend- ment to the Immigration and Refugee Pro- tection Act — that was included in the 2019 federal budget bill — states that anyone who wants to make a refugee claim but has already commenced one in one of the so- called "Five Eyes" countries, which includes the U.S., will no longer be able to access a full refugee claim process before the Immi- gration and Refugee Board. Instead, they're being directed to a more summary pre-re- moval risk assessment process that has fewer procedural safeguards, no in-person witnesses and no provision for designated representatives for minor children or indi- viduals with mental health challenges. "The whole reason for this process is the government's idea the U.S. is equally safe for asylum seekers and, therefore, if people have commenced a claim, they are essentially 'asy- lum shopping' by now coming to Canada — that's the term they used," Neufeld says. "That might give us some clue as to what Trudeau means when he talks about modern- izing the system," Bonisteel says, noting that the change is so recent it's unclear how it's go- ing to play out as the first cases are just getting hearings now. But refugee lawyers, herself in- cluded, are concerned. Neufeld argues that the government is not considering the fact people may commence a claim in the U.S. and then things change — laws change or decisions come down or their legal counsel advises the claim is not likely to succeed. Another reality is they might be in detention, eventually get out on bond and come to Canada in hopes of a fairer process. "There are lots of cases where individuals genuinely need Canada's protection, and the fact they have started a process in the U.S. that they have left does not indicate they're not afraid — it actually might indicate they are extremely afraid," Neufeld says. She provides consultation to U.S. col- leagues to help determine claimants' chances of success in Canada, but she says many of the lawyers south of the border don't have a "very nuanced understanding" of the system here other than it's more fair, welcoming and humanitarian than theirs. She calls for more education and collaboration between the immigration bars in both countries, as both sides have the interests of their refugee cli- ents at heart. "There's definitely concern on the part of U.S. immigration lawyers — can people ac- cess the Canadian system? What kinds of danger are they being put in when they enter irregularly?" Neufeld says, noting that there are reports of people suffering from frostbite, for example. "That wouldn't be happening if they were coming to a formal port of entry." SAFE THIRD COUNTRY AGREEMENT 2002 - STCA signed by Canada and the United States 2004 - STCA comes into effect 2007 - First Federal Court of Canada challenge to constitutionality of the agreement, court rules designation of U.S. as safe is unreasonable, decision overturned on appeal for technical reasons 2016 - Higher numbers of refugees coming into Canada at unofficial border crossings, Donald Trump elected president of the U.S. 2019 - Second Federal Court hearing begins, currently awaiting decision

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