Closing Roxham Road would be unrealistic, irresponsible and cruel
Roxham Road, once upon a time, was a relatively innocuous five kilometre long country lane connecting Quebec and New York. But in the past few years (and particularly in recent weeks) it has become an increasingly hyperbolic flashpoint in the debate about refugees, migrants and borders. As is often the case when it comes to refugees and migrants, political agendas are largely leading the charge; misconceptions abound.
Roxham Road has become a rallying cry for those who insist Canada’s refugee system is unreasonably overloaded, and others who are always looking for openings to argue that Canada is a magnet for bogus refugees. As such, there is much talk of an urgent need to shut down Roxham Road -- reflected in newspaper editorials decrying it as a “loophole”, and demands coming from Quebec Premier François Legault, as well as Pierre Poilievre’s self-declared deadline of 30 days for Justin Trudeau to take that step.
Those demands are unrealistic, irresponsible and cruel. Prime Minister Trudeau has rightly pushed back, pointing out that it is fictitious to imagine closing down “6,000 kilometres worth of undefended shared border” between Canada and the United States. But he goes on to repeat what has been a common government line for some time, a vague elusion to talks being underway with the US government to “renegotiate the Safe Third Country Agreement” (there is also often mention of the need to “modernize” the STCA.) That is the agreement that shuts the door to making refugee claims at official Canada/US land border posts, that funnels refugee claimants instead to irregular crossings like Roxham Road.
But renegotiating or modernizing a bad agreement that is the source of the problem would not in any meaningful way solve the problem. It is in fact easy to imagine the ways that it could make the situation far worse.
All of this breathless talk of Roxham Road being a crisis and of the Canadian border being somehow out of control misses so much. It disregards the inescapable global realities of forced displacement and migration in our world. It pays scant attention to Canada’s binding international obligations with respect to refugee protection and human rights. It fails to recognize the countless ways that welcoming greater numbers of refugees and migrants is undeniably in Canada’s best interest; a necessity in fact. And it completely glosses over the simple truth that this is, at the end of the day, absolutely not a numbers game. It is about peoples’ lives, freedom, struggles and hopes. Surely that should be uppermost in how we set border policy.
Calls to shut down the Roxham Road loophole may make for catchy soundbites, but no more. The real answers lie elsewhere. Not in expanding the reach of the Safe Third Country Agreement, but in scrapping it entirely and ensuring that the border is governed by scrupulous regard for essential principles of refugee protection and human rights.
Background and context
In 2002, the Canadian and US governments -- of Jean Chrétien and George Bush at the time -- finalized a Safe Third Country Agreement (STCA), which entered into force in 2004. (There had in fact been an earlier attempt to do so in 1996, which was approved on the Canadian side by the Chrétien government, but ripped up by Bill Clinton’s White House as he was readying to head out on the campaign trail for his second term.)
The STCA dictates that refugee claimants who pass through either of our two countries and seek to make a refugee claim at a border post with the other, are turned back to the first country and required to make their claim their instead. There are some limited exceptions, such as when the claimant has close family members with status in the second country.
While the STCA does operate in both directions, the main impact is with respect to refugee claimants who come through the United States on their way to Canada. The number of claimants who arrive first in Canada and then turn to the US to make a refugee claim is relatively low. The reasons for that northward flow are obvious. For refugee claimants coming overland from Mexico, Central America and other countries in Latin America, it is literally impossible to avoid coming through the United States. And for refugee claimants coming by air from other parts of the world, it is often easier to reach the United States, because there are more international flights from more locations around the world to US airports than there are to Canadian airports. And it is often more feasible for people to get visas to travel to the United States than to Canada, flying into JFK airport for instance, and then continuing on to the Canada/US border by bus.
Canada’s fabled generosity
None of that is somehow shady or suspect. It is the world we live in. That is how people who need to turn to Canada for protection are able to reach Canada.
For all the talk of Canada being a remarkably generous country when it comes to welcoming refugees, the geographic reality is that we are far from the frontlines of any situation of war, repression or natural disaster that forces significant numbers of people to flee their homes and seek safety elsewhere. In most corners of the world that reality of mass displacement lies just across the border, as people flee from a neighbouring country. But for Canada that reality is many thousands of kilometres away, across the entirety of the United States and the vast oceans that surround us.
And we do nothing to make it easy for people to make that journey. Strict Canadian visa requirements apply to any country in the world that is a significant source of refugees. That is backed up with sanctions on airlines, who are penalized if they allow people onto flights to Canada without proper documents. Canadian officials are even often deployed in airports to do final checks of people’s documents before they board a flight. In none of this is there an exception for refugees.
I’ve always felt that we have been too quick to truly lay claim to this fabled generosity in welcoming refugees. The truth is we have never actually been tested, so the “generosity” has come rather easily.
The false assumption of “safety” in the United States
The STCA is premised on a false assumption. That assumption is that both Canada and the United States meet international legal requirements with respect to refugee protection, enshrined in the 1951 Refugee Convention, binding international human rights treaties and norms of customary international law. And as such that it is reasonable to require refugees to make their claim in the first country they reach, the first opportunity to seek protection.
Even in Canada, however, international obligations towards refugees are not always met, as recent research by Human Rights Watch and Amnesty International with respect to immigration detention practices in this country has made clear. But it is an entirely different story in the United States, where the multitude ways that refugee protection laws, policies and practices fall dramatically short of international law have been convincingly and repeatedly documented. Refugees turned back from seeking protection in Canada are turned back to face a grim reality of human rights violations in the United States. There is no way to gloss over that harsh truth.
Notably, the two times that the STCA has been challenged in court in Canada, the Federal Court judges who have spent days hearing the extensive expert testimony, the legal arguments and the personal evidence from refugees who have experienced the cruelty of US asylum and immigration practices firsthand have agreed with that assessment. In 2007 and again in 2020, those Federal Court judges ruled that enforcement of the STCA violated the Charter of Rights and Freedoms, and overturned it.
Both times, however, the Federal Court of Appeal reversed those judgements, on a range of technical and legal grounds, not because the substantive conclusions about the United States being unsafe for refugees were found to be incorrect. While the Supreme Court refused to hear a further appeal of the 2007 challenge, there was a Supreme Court appeal hearing of the 2020 case, held last fall. The Supreme Court ruling in that appeal should be released in the coming months and one way or the other will undoubtedly shift the STCA debate yet again.
Regardless of where the Supreme Court leaves us, though, as the debate about Roxham Road, the STCA and the Canada/US border goes forward, here are five key points to keep in mind.
* Canada is not overrun, not even close
Despite the rhetoric, the numbers of refugees who cross the Canada/US border to make claims for protection in this country have never been overwhelming and unmanageable. Before the STCA came into force in 2004, such claims were made at official border posts all along the Canada/US frontier, not concentrated in one location as has become the case with Roxham Road. As I recall the numbers were perhaps in the range of 15,000 per year, often accounting for around 40% of the claims made in Canada in any given year. I was a practicing refugee lawyer at that time and I represented many refugees who came to Canada that way, strong and compelling claims of individuals fleeing grave persecution in such countries as Somalia, Ethiopia, Colombia, Iran, Guatemala, Rwanda and Burundi. There was no other way that they could have reached Canada.
Those numbers diminished after the STCA came into effect. It was perhaps not yet widely understood that the agreement only applied at official border posts and did not prohibit claims from people who were able to cross into Canada irregularly. It was also likely well understood that crossing that border irregularly could be reckless and perilous, even fatally so.
That all changed when Donald Trump became the US president in January 2017 and almost immediately launched a full out assault on the rights of refugees and migrants in the United States, including with his cruel and racist “Muslim Ban”. The US, which had never truly been “safe” for refugees in terms of what is required under international law, had now become undeniably dangerous.
And the numbers did rise. How could they not? Would any of us, in the United States and seeking safety and protection as a refugee, have not decided that turning to Canada was a safer bet? It became known that crossing irregularly was the way to avoid being turned back from Canada under the STCA. And despite the risks of doing so, that was a journey worth making.
At first many of those crossings were indeed very dangerous, particularly as people made the journey, often on their own, in freezing winter conditions. There were numerous accounts of severe frostbite and other injuries, and at least one report of a woman from Ghana who died of hypothermia, in a drainage ditch in the United States only 500 metres from the Manitoba border. With time it became known that Roxham Road was safer, more accessible, and closer to a large city, Montreal. Before long, the official, unofficial border crossing was up and running.
And the numbers now? We are told that around 39,000 refugee claimants crossed over at Roxham Road in 2022, the highest number yet. Not an insignificant number of course. But let’s put it in context.
In a world in which the UNHCR tells us that there are 32.5 million refugees, that means that the individuals crossing at Roxham Road amount to just over 1/10 of 1 percent of the world’s refugees. It is certainly a number that pales dramatically in comparison with the influx faced by other countries. There are 3.7 million refugees from Syria in Turkey, 936,000 Rohingya refugees reside in Bangladesh, over 1.8 million Venezuelan refugees and migrants have fled to Colombia, and there are 850,000 South Sudanese refugees in Uganda. The United States reports 2.38 million “migrant encounters” along the US/Mexico border in 2022, 571,000 of whom were from three countries, Venezuela, Nicaragua and Cuba. Throughout Europe, the numbers of refugees fleeing from Ukraine have been staggering. Between March and November 2022, 1.4 million Ukrainians were granted Temporary Protection Status in Poland alone.
Viewed globally, therefore, the numbers of refugee claimants arriving at Roxham Road are not even remotely close to a crisis. And there is no evidence to suggest that those numbers are poised to surge, STCA or not.
But even viewed domestically the numbers are far from overwhelming. Canada’s overall figure for refugee claimants arriving in 2022 stands at around 63,000, about 2/3 of whom entered the country via Roxham Road. That overall figure still does not rank anywhere near what other countries around the world face; including many countries with nowhere near the wealth and capacity that Canada has. The UNHCR notes that 74% of the world’s refugees are hosted in low and middle-income nations.
None of that is to suggest that concerns expressed about the particular pressures faced by the communities around Roxham Road, or by Quebec more widely, are not legitimate, they most certainly area. The answer to that concern, however, lies not in turning refugees away but finding ways to humanely share the responsibility for protection with other communities and regions in the country.
Allowing refugees to choose where they seek protection is both lawful and compassionate
Many commentators derisively suggest that refugee claimants who make their way to Roxham Road are not deserving of protection because they are supposedly queue jumping or asylum shopping. Because of course when life, safety, liberty and equality are at stake, we should all find the right queue and patiently wait it out for as long as it takes. If only such queues existed.
The suggestion seems to be that if they were real refugees, they would not travel halfway around the world. If they were real refugees, they would make their claims for protection at the earliest point possible, i.e. the United States. That concerns about the cruelty of immigration detention in the United States are smoke and mirrors. And that surely the real refugees are the ones who remain in the camps and apply to come to Canada through the orderly process of sponsorship and resettlement.
Do any of us honestly believe that if faced with similar circumstances, we would not make similar choices? That we would not feel able to wait it out in an overcrowded and potentially dangerous refugee camp for the 4 or 5 years that a resettlement application might take to process? That we would not feel compelled to try to reach Canada, where friends have already successfully settled? That we would not want Canada to be the place where we find safety, as we have heard that refugee rights are respected and upheld there?
Refugees have already had choice, autonomy and dignity decimated in their lives in so many ways. For those who feel compelled and are somehow able, on their own or often with young children in tow, to make the grueling journey to a country road on the Quebec/New York border and make a request for protection to Canada, the least we can do is to respond with compassion, fairness and understanding.
Border closures and barriers to protection lead to irregular and dangerous refugee journeys
What does it even mean to call for Roxham Road to be closed? Excluding the northern border with Alaska, the Canada/US border is 6400 kilometres long, 2800 kilometres of which is by land and the rest by water. If we close Roxham Road and official border posts remain closed to most refugee claimants because of the STCA, what about the rest of that long, expansive, undefended and unrestricted border? Do we assume that refugee claimants would not, by necessity, look for other places to cross irregularly? And might that include, again, many of the dangerous and life-threatening crossings that were commonplace in 2017?
Of course it would. We know that to be so, everywhere.
That is why the Mediterranean has become such a graveyard for refugees who have turned to more dangerous crossings, in more overcrowded and less seaworthy ships, from countries like Libya and Turkey, desperate to reach Greece and Italy. Human Rights Watch reports that more than 24,000 refugees have died since 2014 while trying to cross the Mediterranean. In December 2022, 180 Rohingya refugees died when their ship floundered in the Andaman Sea. The UNHCR says that means that 2022 has become one of the deadliest years for Rohingya refugees from Myanmar, trying to escape from the harsh conditions of refugee camps in Bangladesh. 2022 was also the deadliest year on record along the US/Mexico border, with 800 migrant deaths according to US government figures.
Closing borders and doing end runs around fundamental refugee protection principles does not stop refugees from fleeing. It does not stop refugees from looking for greater safety. It does not stop refugees from taking greater risks, including risks to their and their family’s safety, and their very lives. We cannot pretend otherwise when we make glib suggestions to shut down a relatively safe route to safety like Roxham Road.
Keeping the border open to refugees protects rights and allows for orderly border management
My primary concern in this debate about Roxham Road and the STCA is refugee protection and human rights; and overwhelmingly the right thing to do is to scrap the STCA. It is worth observing as well though, that the STCA has been a bad deal when it comes to orderly border management as well.
Assuming that responsible border management means keeping reliable records of the identity and status of the individuals coming over that border, surely we want and need to encourage people to come forward to official border posts and be processed in an orderly fashion. Surely we want a system in place that strongly discourages and certainly does not encourage irregular border crossings.
There is no chance that the US is going to agree to a revised agreement that somehow shuts down the entirety of the Canada/US border to refugee claimants. And it is impossible to conceive how that would be enforced even if the US did for some unimaginable reason agree to it, beyond staggering amounts of money being expended on border patrols and fences. All of which would be patently susceptible to Charter of Rights and other legal challenges.
So the remaining two options would seem to be that we either get rid of the STCA and return to a system under which the refugee claims at the Canada/US border are made at official border posts, along the entirety of that border and not concentrated in one location in Quebec, or we continue to have a system that encourages, in fact requires, refugee claimants to cross irregularly. It is clear which of those options is best when it comes to refugee safety and human rights protection. It also seems pretty clear which option, the same one, is best when it comes to managing the border. That is what we generally call a win/win proposition.
We need national approaches that share the responsibility and the benefits of refugee protection
Finally, though, to say that Roxham Road should not be closed down is not to dismiss out of hand the concerns expressed by local and provincial officials in Quebec who are finding it difficult to meet the demands of supporting, housing and providing other services for refugee claimants crossing into Canada at that spot.
Unless and until Canada takes the sensible step of withdrawing from the STCA, it is entirely reasonable to expect that there be a national strategy for meeting the needs of refugee claimants who enter the country at Roxham Road.
The federal government clearly has a primary responsibility for initiating a national approach, given its constitutional responsibility for refugees and immigrants. That means providing adequate financial resources and it means spearheading a process under which refugee claimants who are willing to move to other parts of the country can be transferred safely. There has not been much research or reporting as to whether refugee claimants might be not only willing, but perhaps would even prefer, to move elsewhere. Many will be attracted to other parts of the country where they may have friends and family, or where others from their community have already settled. They may be keen to move to areas where the prospects for employment, education and housing are greater.
In fact, such an approach could catalyze a more consistent national approach when it comes to refugee rights more generally. For too long refugee claimants have faced uneven respect for their rights across the country, particularly when it comes to accessing legal aid as they navigate the refugee determination system, and also when they find it necessary to apply for social assistance. Entitlement to these and other essential services differs considerably from province to province. It should be consistent.
Keep Roxham Road open, and end the STCA
No one wants there to be the need for a Roxham Road, including the refugee claimants who make long and arduous journeys to get there. It reflects the disgraceful amount of conflict, human rights abuse and other injustices that are at the root of growing levels of displacement in our world. But we do not change or avoid those wrongs by shutting down access to refugee protection on one country lane along the Quebec/New York border.
Roxham Road needs to stay open as one very minimal contribution Canada makes to addressing the pressing global challenge of forced displacement. We should also absolutely put in place a rights-based national strategy, led and supported by the federal government, to ensure that the needs of refugee claimants arriving at Roxham Road are met, and that the responsibility for protection is shared with other communities and provinces. Regardless of how the Supreme Court rules in the coming months, and certainly not waiting for that judgement, we should revoke the Safe Third Country Agreement (the agreement itself anticipates that possibility), and thus encourage refugee claimants to come forward at official land border posts rather than continue to make irregular and sometimes dangerous crossings.
Above all of this, we should up our game when it comes to advancing human rights protection around the world, doing so consistently and as a priority in all of our bilateral relationships and multilateral endeavours. Putting human rights first is always the answer, be it keeping people safe or managing borders effectively.
