Migration, Security, and Resistance

Global and Local Perspectives

Graham Hudson, Idil Atak, Graham Hudson, Idil Atak

• Publisher: Routledge
• Year: 2021
• Print ISBN: 9780367528201
• eBook ISBN: 9781000467888
• Topic: Politique et relations internationales
• Subtopic: Histoire de l'armée et de la marine

This volume explores the digitization, privatization, and spatial displacement of border security and the effects these have on political accountability and migrant rights.

The governance of security and migration is unfolding in new political spaces. Cooperation and competition among immigration officials, border guards, transnational security corporations, IT companies, local police, and international organizations has decoupled migration governance from national political structures. The chapters in the volume examine how these dynamics affect the deployment and constraint of sovereign power in the United States, Canada, the United Kingdom, and the EU. Contributors trace this process from the disciplinary perspectives of law, political science, sociology, criminology, and geography. Part I of the book explores the reconfiguration of security and migration governance through historical processes of privatization, digitization, and the rescaling of border control technologies to local and global spaces. Part II explores how migrant rights actors have responded by rescaling resistance to global and local levels.

This book will be of much interest to students of critical security studies, global governance, migration studies, and international relations.

Part I Security and surveillance

1 Refugee system as a bordering site: security, surveillance, and the rights of asylum seekers in Canada

Idil Atak, Claire Ellis, and Zainab Abu Alrob

DOI: 10.4324/9781003058526-1

Introduction

Border control policies are implemented to facilitate mobility while meeting governmental mandates for orderly and secure migration channels. The binary relationship between mobility and the integrity of domestic immigration systems is underscored by the 2018 Global Compact on Safe, Orderly and Regular Migration (GCM), a comprehensive political step toward structuring responses to migration. “Ensuring security for States, communities and migrants, and facilitating safe and regular cross-border movements of people while preventing irregular migration” are part of the GCM’s core aims (Objective 11). To realize this commitment, States are called upon to enhance border management cooperation and to ensure that all migrants are treated in accordance with international human rights law (2018, para 19 a), b), and c)).

Research shows, however, that cooperation among States to govern the international movement of people can have negative implications for certain categories of migrants and thus impede international human rights law (Goodwin-Gill, 2014; Guild & Stoyanova, 2018; Moreno-Lax, 2018). This chapter explores the interlinkage between Canada’s international border management cooperation with the so-called Five Eyes countries and the rights of asylum seekers. Five Eyes, which emerged after the Second World War, is an intelligence sharing and strategic cooperation partnership among Canada, Australia, New Zealand, the United States (US), and the United Kingdom (UK) (Bigo, 2019). We offer a critical overview of the Budget Implementation Act (Bill C-97 2019), which introduced a new ground of ineligibility for asylum seekers who have made a previous refugee claim in a country that Canada shares an information-sharing agreement with. Such agreements are currently in place with Canada’s Five Eyes partners. The new ineligibility ground strengthens Canada’s border cooperation with these countries, in particular with the US, in relation to asylum seekers. The stated goal is to protect the integrity of Canada’s refugee system by preventing its abuse by those who are not genuine refugees (Open Parliament, 2019a). However, we argue that the main objective of the Canadian government is to deter secondary refugee movements, particularly those across the Canada–US border, which have considerably intensified since 2017. We further suggest that barriers erected within Canada’s refugee system amount to a bordering process that is enhanced by the increased pooling of migration control authority through cooperation, and in particular, (biometric) information exchange, between Canada and the other Five Eyes countries. Thus, the new ineligibility ground rescales migration control to an international stage in order to prevent specific groups of asylum seekers from accessing the Canadian refugee system. This bordering has significant implications for the rights of asylum seekers.

We draw on critical border studies that have long developed a rich account of borders not as static territorial boundaries but as “landscapes of power or regimes that connect places, laws, technologies, and authorities in the governance of migration” (Walters, 2018, p. 2799). As noted by Aas, the border is not “primarily a place, but a process” (Aas, 2005, p. 198). Extant literature has also mapped the ways in which borders have been rescaled and reconfigured to meet shifting social and political objectives (Anderson, 2017; Arbel, 2016; Topak et al., 2015). The active processes of “bordering” and their impacts on human rights are other topics that have attracted scholarly attention (Côté-Boucher, 2008; Diener & Hagen, 2009; Konrad, 2016; Mountz & Loyd, 2014). This chapter contributes to the literature by examining the role of the refugee system in Canada as a bordering site and assessing the impact of this process on the rights of asylum seekers.

First, we provide an overview of the changes introduced by Bill C-97 to Canada’s refugee system. To contextualize these changes, we highlight the geopolitical developments in North America, particularly those in relation to the implementation of the Canada–US Safe Third Country Agreement since 2017. We then discuss the increasing importance of automated biometric information sharing in the field of border control and refugee protection. Our aim is to underline that the new legislation has been a natural extension of Canada’s close cooperation with the other Five Eyes countries in relation to asylum. In the second part of this chapter, we explore how the new ineligibility ground further reconfigures Canada’s refugee system as a site of bordering. We look into the process whereby the legislative change has been legitimized by the government. We also examine elements that are coalesced in the new ineligibility ground, namely digital data collection, interoperability, and surveillance. Finally, we discuss the impact of the changes on the rights of asylum seekers.

The 2019 changes in Canada's refugee system

Bill C-97, a 392-page omnibus act, entered into force on June 6, 2019 (2019, c. 29). Division 16 of the Bill amends the Immigration and Refugee Protection Act (IRPA) and introduces a new ineligibility ground for asylum seekers¹ who have made a claim in “foreign countries that have an information-sharing agreement/arrangement with Canada”.² As mentioned, a person is ineligible to make a refugee claim in Canada, and thus to be heard by the Immigration and Refugee Board of Canada (IRB), if they have previously made a refugee claim in the US, Australia, New Zealand, or the UK. This ineligibility ground applies regardless of whether a decision was ever made on the previous claim.

Under the new legislation, the only legal avenue to challenge a deportation order is through a Pre-Removal Risk Assessment (PRRA) application, which involves an evaluation of the risk a foreigner would face if removed from Canada. A PRRA is conducted in accordance with the principle of non-refoulement, which prohibits deportation of individuals to places where they may face persecution or a substantial risk of torture or similar abuse (Article 33(1) of the Convention relating to the Status of Refugees (Refugee Convention); Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; IRPA, s. 115). However, the new ineligibility provision bars asylum seekers from applying for a Temporary Resident Permit while their PRRA application is processed. This leaves them with a precarious legal status and limited access to fundamental social and economic rights such as Interim Federal Health coverage. Under this legislation, asylum seekers are entitled to a hearing with a PRRA officer, a remedy which was not available previously (IRPA, s. 113.01). They may request a judicial review of a negative PRRA decision by the Federal Court.

Canada's refugee system: a management tool for the Canada–US border

The reason stated for these drastic changes in Canada’s refugee system was to reinforce the integrity of the Canadian immigration system, suggesting that the system was being undermined by the costs of processing baseless refugee claims. As an example, at the Second Reading of Bill C-97 at the Senate on June 10, 2019, Senator Peter Boehm emphasized that the legislative changes are meant to “deter irregular migration – to reduce the numbers [of asylum seekers] that began to rise in 2017 – and to encourage people genuinely in need of protection to make their claim in the first country to which they arrive that has a mature asylum system” (Senate of Canada, 2019). These concerns led to the addition of a new IRPA objective, which explicitly refers to the importance of “[maintaining], through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system” (IRPA, s. 3. (f.1)).

The new ineligibility provision was introduced in the midst of a sharp spike in unauthorized crossings across Canada’s border. Since the election of Donald J. Trump in the US in November 2016 and until March 2020 when the Canada–US border was closed because of the COVID-19 pandemic, more than 60,000 migrants crossed irregularly the land border via the US to claim asylum in Canada (IRB, 2021). Two factors may explain this phenomenon. The first one is the anti-immigrant rhetoric and changes in the US’s asylum policies, particularly the threat by the new Administration to terminate the Temporary Protected Status programs for some groups of migrants, including nationals of Haiti, Guatemala, Salvador, and Honduras (Baglay, 2019; Smith, 2019). Thus, a series of executive orders were issued by the US administration to create a hostile environment for refugees. Take, for instance, the executive order of March 6, 2017, which suspended for 90 days the entry of refugees and migrants from Iran, Libya, Somalia, Sudan, Syria, and Yemen into the US (Executive Order (US) No. 13780, 82 Fed. Reg. 13,209, 13,213 (March 6, 2017)).

The second factor is the 2004 Canada–US Safe Third Country Agreement (STCA), which bars most third-country nationals in the US from making an asylum claim at Canadian land ports of entry (Government of Canada, 2002, art. 4.1; Abu Alrob & Shields, 2019). Under this agreement, refugee protection claims must be made by asylum seekers in the first safe country – the US or Canada – they pass through. The STCA applies to asylum seekers who present themselves at official ports of entry along the land border, with the exception of those who have family members in Canada, are unaccompanied minors, have valid documents (visa or work permit), or qualify for public interest exceptions (STCA, art. 4.2). Nevertheless, a “loophole” in the agreement allows those who manage to arrive on Canadian soil, albeit irregularly, to stay and make an asylum claim (Arbel, 2016, p. 824).

On July 22, 2020, the Federal Court of Canada ruled that the STCA is unconstitutional since it infringes on the Canadian Charter of Rights and Freedoms (Canadian Council for Refugees, 2020, paras 135 and 146). We will revert to this decision later. In August 2020, the Government of Canada appealed the Federal Court decision citing the STCA as a “comprehensive vehicle” to managing the shared border while ensuring a “compassionate, fair and orderly refugee protection system” (Government of Canada, 2020a). Although the STCA remains in effect, such developments bring uncertainty around the future of the agreement and Canada’s approach to handling asylum claims at the border.

Against this background, the new ineligibility provision is part of the government’s efforts to close the “loophole” in the STCA (Open Parliament, 2019a). By barring asylum seekers who already made a refugee claim in the US from making a new claim in Canada, the government anticipated that the change would be instrumental in deterring irregular crossings and thus re-establishing order at its border.

Implementing ineligibility: the role of information sharing among the Five Eyes countries

Information sharing among the Five Eyes countries has been a vital component of cooperation in relation to asylum. With the new ineligibility provision, the cooperation makes further inroads into the refugee system.

The Canada–US Smart Border Declaration and its 32-point Action Plan for Creating a Secure and Smart Border adopted on December 12, 2001 o...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Contents
• List of figures
• List of tables
• Contributors
• Introduction
• PART I: Security and surveillance
• PART II: Rescaling resistance: local and global perspectives
• Index