Refugee Reform is a Mixed Bag That Needs to be Aired
Catherine Dauvergne
And so it begins. With the tabling this week of the Bill C-11, the government has finally revealed its plans for reforming Canada’s refugee laws. The bill is lengthy and complex, and provides for many more details to follow through regulations. This was not drafted overnight. It has been in the works for at least a year. What can now begin, however, is a period of engagement with the Canadian public.
The cloak and dagger routine which has surrounded this draft legislation is unprecedented for immigration reform in this country over the past quarter century. Previous reform legislation has been preceded by consultation and conversation, dialogue and debate. It is not too late, in this case, to give this proposal the airing it, and Canadians, deserve. That process must now be embraced to give this proposal any hope of democratic legitimacy.
The reform proposal is far-reaching. More change is on offer than at any time since the historic reforms of the mid-1980s which brought Charter of Rights and Freedoms protections to refugee claimants in Canada. And it is clearly a mixed bag.
On the up side, the government is clearly committed to spending money on the refugee determination system. Adding an interview layer to the process, introducing a long-overdue appeal process, and even (gasp) hiring and arming 100 more removals specialists, clearly signals that dollars are going to flow. This is important because drastic under-resourcing is the principal reason that the current system moves so slowly. Whatever our elected representatives may eventually agree to, we know that the dollars are there.
No one can argue with the objective of making things move more quickly. The agony of family reunification proceedings that last anywhere from two to ten years surely can be remedied. The proposed eight day and sixty day limits at the start of the process are, however, too stringent to be workable. Refugee claimants – particularly those who best fit the preferred stereotypes for vulnerability – cannot have their evidence ready in this time (even if all the new money went solely to legal aid and counseling support). Unrealistic time limits will clog the courts with cases the government will lose. But the idea of time limits can be scrutinized, compromised, and made to work.
Some aspects of the proposal are clearly problematic. The idea of ‘white-listing’ some countries as safe for all undercuts the spirit of international human rights protection. Worse, the details are to be left to regulation, and thus shielded from scrutiny. Similarly, it is impossible to see how tribunal members will have sufficient independence as public servants. This change alone could rob the tribunal of its quasi-judicial status.
Most troubling, however, are the ideas running alongside this reform proposal. The supporting documentation is replete with references to ‘abuse’ of the Canadian refugee system. The fact that just over half of all refugee claims fail does not mean that the claims are abusive or fraudulent. The refugee definition is a complicated piece of international law. Many people who are afraid, destitute and in danger, will not fit within its parameters. The lines are not easy to draw, which is why a highly trained cadre of professional and independent decision makers is required. The idea of rampant abuse is a rhetorical accelerant. Precisely the type of additive which undermines confidence in the as-yet-invisible details of the reform.
Similarly, the proposal for increased refugee resettlement is a simple smoke and mirrors distraction. For refugee advocates, resettlement is a motherhood issue: it cannot be argued against. But its promise is illusory, and it has nothing to do with the asylum system. There are not ‘deserving’ and ‘undeserving’ refugees. Human misery does not fall into such neat categories.
Refugee law is about two things, human rights and humanitarianism. These principles need to be injected into the reform debate. International law sets the standards of rights protection that Canada has committed to upholding. The Canadian tradition of humanitarianism underpins Canadians’ desire for fairness and compassion. The present proposals truncate humanitarianism. Long experience in all Western democracies shows that this is simply not palatable. Some humanitarian outlet is necessary. To ensure speed, it should happen sooner rather than later, but our sense of fair play demands that it happen somewhere.
Refugee law reform has a curious fit with democracy: those governed by the law never get to vote. For this reason, our standards must be higher. Those whose interests are affected do not have a voice so others must speak for them. They are by definition among the most vulnerable people on the planet. Robust debate and openness to reconsideration are the only way forward.
Catherine Dauvergne holds the Canada Research Chair in Migration Law at the University of British Columbia. Her most recent book is Making People Illegal: What Globalization Means for Migration and Law.