Refugee Rights in a Climate of Fear

By Gloria Nafziger: Refugee Coordinator Amnesty International

“It was like Donald Trump had awakened a dormant volcano that was ready to erupt at any time; and I didn’t want to be a part of it”

April 4 is Refugee Rights Day in Canada.  This is the anniversary of the Supreme Court’s 1985 Singh decision, which recognized that the Canadian Charter of Rights and Freedoms protects refugees’ fundamental rights.  The Court decided that refugee claimants are included in the Charter sentence: ‘Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.’ 

This means that, in accordance with the principles of fundamental justice and international law, refugees who enter Canada from the United States and make a refugee claim are entitled to an oral hearing.

In the past few months we have heard repeated media stories about refugees avoiding formal border stations between Canada and the United States and entering Canada irregularly.  Once in Canada, in keeping with Canada’s obligation to respect the Charter and international law, most are allowed to make a refugee claim. If they receive a positive decision they go on to become permanent residents of Canada and eventually, if they wish, Canadian Citizens.

In February and March I interviewed almost 50 border crossers in both Winnipeg and Montreal. There was a similar theme to all of their stories. The vast majority were Muslim and had come from Sudan, Somalia, Djbouti and Eritrea; all countries with a long history of human rights abuses. All but one had entered the United States with a valid visa, and continued to have lawful immigration status throughout the time they spent in the United States.  The vast majority planned to make their home in the United States Almost everyone had made a refugee claim or had planned to make a refugee claim in the United States.

The election of Donald Trump and the introduction of Executive Orders banning travel from seven, (now six) predominantly Muslim countries changed everything.  The anti-Muslim rhetoric they heard throughout the election campaign worried them, but when Donald Trump was elected they realized it was not just Donald Trump who did not like Muslims, but as one man stated ‘at least half the population supported his views.’

Many spoke of their future in the United States as a dark hole. They no longer believed they would be welcome, nor did they believe as Muslims they would get a fair hearing in the United States. They saw no future for their children. Those who had left family behind did not believe it would ever be possible to bring their family to join them in the United States.

They did not want to enter Canada improperly. A few did go to a formal border crossing only to be turned back into the United States due to the Canada-US Safe Third Country Agreement.  Others heard about the Agreement through vast networks within diaspora communities, and knew that they could not properly enter the Canada. Their only choice was to enter irregularly and take their chances.  One woman, crossing with two young children was terrified. As an Eritrean she expected to face armed border guards and abuse upon entry to Canada.

The Canada – US Safe Third Country Agreement applies only to refugees attempting to enter either country at a land border crossing.  The Agreement assumes that both Canada and the United States are safe countries for the purposes of refugee protection. Accordingly a refugee is expected to make a refugee claim in the first ‘safe’ country in which they arrive. There are a few exceptions to the Agreement, and those who do not meet one of the exceptions are turned back to the country from which they have come and expected to pursue a refugee claim in that country. In Canada those turned back to the United States under the Safe Third Country Agreement are NEVER allowed to make another refugee claim in Canada.

The refugees I spoke to no longer believed as Muslims, or as people from one of the countries subject to a travel ban, that the United States was a safe for them. After the US elections, they voted with their feet, and walked into Canada.

Several of the people I spoke to had already had positive decisions in their refugee claims.  Others waited hopefully, believing in the goodness of Canada as a country which respects human rights.

They told me:

“We came here to work hard, for safety, for the education of our children and to make Canada a better place. Canada has nothing to fear from us. Crossing the border as we did does not make us criminals.  It is not something we wanted to do; but we had no other choice.  Everyone, including the police and border guards has made us feel welcome. We are being welcomed and we will welcome others.  We are being treated like humans.  When you receive kindness you will give kindness in return. Canada is stronger by being kind and respecting human rights.”

The Singh decision is an important reminder that refugees have rights; and those rights include the right to an oral hearing.   The refugees remind us that kindness makes us stronger as a nation.