Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion

"The Harvard Immigration and Refugee Clinic (HIRC) released today a comprehensive report titled Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion. The result of extensive research and fact-finding investigations led by HIRC affiliates Dr. Efrat Arbel (SJD '12) and Alletta Brenner (JD '14), the report finds that Canada is systematically closing its borders to asylum seekers, and failing in its refugee protection obligations under domestic and international law.

"This report points to an alarming trend", said Deborah Anker, Clinical Professor at Harvard Law School and Director of the Harvard Immigration and Refugee Clinic. "For decades, Canada was known for its generosity in refugee protection and served as a model that raised the standards of refugee protection worldwide, especially in the United States. This report shows a deteriorating trend in Canada, and is quite disturbing."

The report examines Canadian border measures designed to intercept and deflect "undesirable travellers," including asylum seekers, before they set foot on Canadian soil and make a claim for refugee protection. It also examines the U.S.-Canada Safe Third Country Agreement (STCA), a bilateral agreement implemented by Canada and the United States to exercise more control over their shared border. In effect since 2004, the Agreement forces refugee claimants to seek protection in the first country they reach - either the U.S. or Canada. The report finds that the STCA has triggered a sharp decline in asylum claims made at the Canadian border.

"The Canadian government has repeatedly asserted that Canada's borders are open to genuine refugees and that Canada's refugee system is among the most generous in the world," said Arbel, a graduate of Harvard Law School's doctoral program, who co-authored the report. "But in fact, our research shows Canada deliberately closing its borders to asylum seekers, and avoiding its refugee protection obligations under domestic and international law."

The report concludes the STCA is not achieving the goal of protecting the border. "Our investigations show that the Agreement has prompted a rise in human smuggling and unauthorized border crossings, making the border more dangerous and disorderly", noted Brenner, a JD student at Harvard Law School, who co-authored the report. Given the emphasis on border security in recent U.S. Congressional debates on comprehensive immigration reform, "the report's findings that the Agreement has actually made the U.S.-Canada border less secure should give U.S. lawmakers serious pause," Brenner said.

"This report is as significant for the United States as it is for Canada, particularly given the current focus on immigration reform" said Anker. In addition to its criticism of Canadian border policy, the report identifies key aspects of the U.S. asylum system that do not meet international protection standards and put asylum seekers at risk, including misuse and overuse of immigration detention and expedited removal before claimants have a fair chance to prove their asylum claim.

"We hope this report serves as a 'wake up call' for Canada and the United States", said Arbel." - HILC, Nov. 26, 2013.