The shifting borders of interdiction and asylum: a canadian case study of safe country of origin policies by Michelle Ball

Photgraphy by Michelle Ball, once used as the Facebook profile photograph for a small non-profit.

Photograph by Michelle Ball, once used as the Facebook profile photograph for a small non-profit.

MICHELLE BALL is a MSc Graduate from the London School of Economics and Political Science

Abstract:
This article examines the ways in which safe country of origin policies are used as a form of interdiction by liberal states. This is explored through a case study of Canada’s 2012 immigration reforms and adoption of a “Designated Country of Origin” (DCO) policy to interrogate the motivation of Canada’s adoption of this safe country of origin policy at this particular time. I argue that this policy was adopted as a type of visa-replacement which could discourage the arrival of refugee claimants, mostly European Roma, while still maintaining positive relations with the EU. This is examined through the perspective of interdiction literature and related literature on securitization, remote policing, and legal emulation. The case study is structured around two types of analysis. What was the policy environment in which DCOs were developed and who were its intended targets, as evidenced by refugee arrivals and the effects of this policy? I conclude that in the breakdown of visa policies, the motivation for a safe country of origin policy emerged in the Canadian context as DCOs allowed Canadian officials to discourage refugee flows of European Roma and also fulfill its diplomatic goals with the EU.

 

Introduction

“The border itself has become a moving barrier, a legal construct that is not tightly fixed to territorial benchmarks. This shifting border of immigration regulation… is selectively utilized by national immigration regulators to regain control over their crucial realm of responsibility, to determine who to permit to enter, who to remove, and who to keep at bay.”[1]

Many liberal states manage these shifting borders of immigration regulation through the use of interdiction policies which restrict the arrival of migrants physically or legally from their country of destination. Through an array of policies, immigration regulators are constantly navigating the conflicting objectives of the security needs of the sovereign state, international obligations towards migrants, and diplomatic considerations. These practices can involve the visually arresting turn-back operations in the Mediterranean of boats of migrants travelling from North Africa, or the less controversial use of visas or safe country of origin policies which prevent full access to asylum proceedings. However, all of these practices have in common the shifting of the physical or legal borders of a state to determine who falls within their migration responsibilities.

However, the obscure nature of interdiction practices renders analysis of such policies difficult. This is due to most interdictory practices being empirically difficult to track and often subsumed within national security and criminal prevention practices. In this obscure environment, and in the face of questions over its legality under international law, it becomes even more important to uncover the motivations of more “passive-pre-emptive” forms of interdiction.[2] It has been suggested by Kernerman that interdiction can be best understood through studying not those interdiction scripts which ‘work’, but rather extraordinary cases where they do not, offering a glimpse into the breakdown and repair inherent in managing interdiction contradictions.[3] I would like to extend the focus of this analysis and suggest that interdiction can be better understood when governments are forced to adopt more subtle interdictory tools in response to current challenges. Tools such as visas, safe third country or safe country of origin policies which deter or expedite potential refugee claimants work in a more passive way and are therefore less understood. I will therefore be focusing on one particular tool of interdiction that is often overlooked, that of safe country of origin.

Including safe country of origin tools within the category of interdiction is perhaps counter-intuitive, but can add considerably to its holistic analysis. Safe country of origin policies are used by a number of liberal states, with the UNHCR defining them as “countries determined to be non-refugee producing countries.”[4] While interdiction is sometimes understood to refer to policies which physically push back migrants before arrival, the Canadian Counsel for Refugees identifies two categories of interdiction: measures which are applied pre-arrival and post-arrival.[5] These can be seen either as barriers which prevent refugee claimants from accessing territory where they might find protection, or barriers which more subtly “push back” refugee claimants through preventing an effective asylum adjudication procedure.[6] Essentially, the effect of both types of policies is the same as they deny access to protection for potential refugee claimants.[7] In what follows, I will argue that analyzing safe country of origin policies as a type of interdiction enables a more thorough analysis of such controversial tools and allows connections to be made between policies which have the ultimate effect of restricting the arrival of refugees.

In addition, it is important to deconstruct the motivation of safe country of origin policies as they have the capacity to undermine the integrity of asylum procedures and increase the likelihood of asylum adjudication errors.[8] It is significant to note that the use of visas and safe country policies are not in themselves contradictory to international law or necessarily detrimental. The UNCHR in its 2010 report does not oppose the notion completely, although it recommends that “each application is examined fully on its merits… each applicant has an effective opportunity to rebut the presumption of safety of the country of origin in his/her individual circumstances… and applicants have the right to an effective remedy against a negative decision.”[9] It is debatable if safe country of origin policies respects such basic rights of refugee claimants. As safe country of origin policies are an understudied and controversial policy likely to spread in the next decade, a micro analysis of their use in Canada is extremely useful and timely. [10]

I use an illustrative case study to illuminate these tensions and fill the gaps in interdiction literature. My case study focuses on the “Designated Country of Origin” (DCO) category introduced in recent Canadian immigration reform, part of the “Protecting Canada`s Immigration System Act” which received Royal Ascent on June 28, 2012 and came into force December 15, 2012. But what was the motivation for Canada adopting a restrictive DCO instrument at this particular juncture? I will argue that in the breakdown of visa policies, the motivation for a safe country of origin policy emerged in the Canadian context as it allowed Canadian officials to discourage refugee flows of European Roma and also to fulfill its diplomatic goals with the EU. The illustrative case study of DCOs in Canada demonstrates the intricate balancing of interdictory policies between refugee protection obligations, sovereignty and border control goals, and diplomatic concerns. When examining the diplomatic interests of the Canadian government at the time of immigration reform and the effects which have arisen from the designation of certain countries as “safe,” the connection between interdiction and DCOs are thrown into stark relief. Therefore, through examining how the breakdown of visas led to the policy need for a new type of interdiction tool, this case study uncovers the often hidden and largely underemphasized mechanisms of safe country policies to block access to the full refugee system.

Following a literature review of debates in the interdiction and safe country literature, the policy environment in which the DCO policy was proposed, developed, justified and adopted will be examined. To this end, the connections as suggested by the literature of the breakdown of visas as a form of interdiction to address the arrival of European Roma refugee claimants are highlighted. Further, the role of the EU and free-trade agreements as an important factor is acknowledged in deconstructing the motivation for DCO adoption. Therefore the question becomes who the intended targets of this DCO policy really are and what effects on interdiction have been. This will be followed by a discussion of the significance of this case study and potential avenues of further investigation.

Debates in the interdiction literature and safe country of origin policies

“Many States which have the ability to do so find that intercepting migrants before they reach their territories is one of the most effective measures to enforce their domestic migration laws and policies.” International Organization for Migration[11]

There is significant debate in the interdiction literature regarding the motivation of states engaging in safe country of origin policies and other interdiction practices. The justification for their use may seem at first to be inherently logical and full-proof. Interdiction is justified by states as their exercising of their ‘right’ to control their borders.[12] There is a contradiction in this as it contravenes the basic principle of international refugee law that refugees are the exception to migration control. Under international law, states must examine the claims of refugee claimants who enter their territory.[13] However, this basic principle is glossed over in the state’s quest to rid itself of the obligations which kick in once a potential refugee claimant enters their territory. Each state manages these fundamental tensions through its own mixture of policies. This begs the question as to what purpose interdiction is being engaged if it presents such a fine line of legality. It could be to avoid the expenses of processing and supporting irregular migrants. Alternatively, it could be to avoid international obligations, as suggested by Gibney and Hansen.[14] More plausibly, it could be explained through a desire for security, relating migration with concerns over criminalization and human trafficking.

These questions highlight the ways in which the securitization of migration underpins much of the justification for the use of interdictory tools despite their potential to violate international law. There are four common approaches to the analysis of interdiction: legal analysis is undertaken by Hathaway, Ataner, and Soennecken, among others.[15] The role of securitization scripts as justification for interdiction practices is explored by authors such as Didier, and Huysmans.[16] Other perspectives include the role of globalization and the breakdown of national sovereignty as leading to interdiction such as argued by Shachar.[17] Huysmans deconstructs the way in which asylum is framed as a security and social problem instead of human rights.[18] “Exceptional” policies or technologies which deny rights to migrants are justified through associating immigration with terrorism and criminality without necessarily proving a connection between the two phenomena. This type of framing of refugees as “clandestine” or “illegal” enables the adoption of controversial tools to restrict the rights of migrants.[19]

This securitization of migrants is explored in a significant body of literature which focuses specifically on the intersection between the arrival of the Roma in Canada and the development of policies and instruments of exclusion. Molnar Diop explores the coalescence between the state’s use of security rhetoric, discourse, and performance using a case study of the Czech Roma in Canada.[20] She documents how discourse formation at the state level which positions the Roma as the “bogus” or “undesirable” refugee justifies increased intervention by the state.[21] Another important article by Levine-Rasky, St. Clair and Beaudoin also explores how the arrival of the Roma in Canada was a catalyst for legislative and policy change in Canada.[22] However, their argument is that the Roma are the casualties of a history of inherent racism in Canadian immigration policy, rejecting certain groups of immigrants as undesirable.[23] These articles are just a few which argue that state responses to unwanted immigration flows can be a lens into understanding policy change and the multiple tools of interdiction used by liberal states such as Canada.

There are a handful of studies which have specifically analyzed Canada’s adoption of a DCO policy, with most attributing DCO adoption to be the direct consequence of the breakdown of visas as an available tool of interdiction. Visas are used by states as a mechanism to stem refugee flows and to be the “first line of defense against the entry of undesirables.”[24] This use of visas can be seen as problematic as visas are blunt instruments which cannot differentiate between economic migrants and potential genuine refugee claimants. This leads to a dangerous grey zone of interdiction where protection of refugees is not prioritized or acknowledged. Nevertheless, states are frank about their use of visas as prevention of asylum flows. For example, Canadian officials have stated that, “we look at visa imposition when we think there’s a country that should not be a refugee-producing country and we have people coming and making refugee claims.”[25] Visas are for Canada, as they are for many liberal democracies, a controversial and widespread interdictory policy.

Visas are not only problematic for legal reasons but are also “blunt” instruments of migration control due to diplomatic tensions they can cause. This use of visas as asylum prevention can lead to states needing to look for a visa-replacement which is more subtle and yet still interdictory in its outcomes. The most commonly cited example of this in the literature is that of the relationship between Canada and the Czech Republic. Canada reintroduced a temporary resident visa on the Czech Republic in July of 2009, a visa which had been imposed and lifted before in the 1990s. This was due to high numbers of Czech nationals, most likely Czech Roma, claiming refugee status in Canada.[26] However, this time was more problematic as the Czech Republic was now a member of the European Union (EU). This placement of a visa on a European country by Canada invalidated the reciprocal agreements between Europe and Canada of visa free movement between the two areas. [27] Due to the independent nature of Canada’s asylum adjudication system, a number of claims were accepted and the government was forced to use interdiction tools to avoid the arrival of increasing numbers of Czech Roma seeking refugee status. This caused a great deal of friction between Canada and the EU, highlighting that “when a crisis of confidence occurs, the visa reassumes its diplomatic character rather than its migratory character.”[28] Most analysts attribute this diplomatic tension as key to understanding the need for a DCO category in Canada which could interdict such flows while maintaining positive relations with the EU.

Beyond the replacement of visas, however, there are alternative motivational factors of DCOs suggested in the literature. One avenue suggested is that of legal emulation of safe country policies from EU law. This avenue is explored by Macklin who compares the DCO policy in Canada to the EU-level safe country list, part of the Procedures Directive, in order to determine whether the case of adoption was one of strict legal emulation.[29] She concludes that the link between safe country of origin lists and the DCO is tenuous, although acknowledges that Canada emulated normative concepts based on the Aznar Protocol.[30] This normative emulation included erasing the possibility of a European refugee as a possible legal subject, arguing that Europe could not produce refugees.[31] Soennecken also uses legal comparison to uncover the motivation of DCO policies in Canada, and concludes that this adoption is explained by Canada going from a world leader in refugee protection to “a student, follower and adaptor of a key set of restrictionist asylum policies practiced in Europe.”[32] These two authors contradict one another regarding the likelihood of emulation from the EU to Canada. Soennecken concludes that changes in Canada’s immigration system were “directly inspired by events in the EU” while Macklin argues that “Canada’s posture towards the EU is less about emulation than appeasement.”[33] As may be deduced from both of these authors, the extent to which emulation was the primary motivational factor in the adoption of DCOs in Canada is uncertain. In Macklin’s analysis, there is a logical leap from concluding that DCOs were not a direct consequence of emulation but rather the normative and political power of the EU. There is certainly a connection, but in my case study below I hope to augment her conclusions as well as address some alternative explanations which she leaves unexplored.

From this brief literature review, it becomes clear that the study of safe country of origin spans a variety of theoretical backgrounds and requires a number of strategies to uncover its motivations, effects, and justifications. The main motivational factors identified in the literature for safe country of origin adoption includes the emulation of the EU, the breakdown of visas as a possible policy, and the securitization of migrants in the face of increasing conflicts between state’s objectives. Through the illustrative case study below, the consequences for refugee protection and the way in which interdiction practices become entangled with other security and diplomatic interests will be explored.
.

Case Study: Canada’s safe country of origin policy and its interdictory consequences

“An initial examination of European Roma seeking refugee status in Canada opens out into a series of sharp insights into the contested meaning of security, the political framing of illegal immigration, new techniques of surveillance, and the effects of different refugee systems and forms of visa reciprocity. The precise details are crucial…”[34]

This illustrative case study focuses on the new category of “Designated Country of Origin” which came into force in 2012.[35] This act amended the existing Immigration and Refugee Protection Act as it shortened the timelines for asylum adjudication, barred access to permanent residency and family reunification for certain refugees, and enabled greater control over the ability to detain refugee claimants.[36] Many of these restrictions are based upon the designation of certain nationalities as originating from a “safe” country. This DCO category is determined by the Minister of Citizenship and Immigration who has complete control to designate certain countries of origin as unlikely to produce refugees. The objective of designation is to funnel these refugee claimants through a truncated and expedited process which results in shorter timelines, denial of basic health care, and a denial of appeals.[37] In December 2012, 27 countries were added to the list, with more added later in 2013 and 2014.[38] This list very clearly targeted certain nationalities for expedited processes, mainly those originating from Europe.

First line of analysis: the policy environment

The first step in the analysis of the motivation of DCO adoption at this particular juncture is to probe the policy environment in which the category of DCOs was introduced and adopted. This section will be structured through two main lines of inquiry, one focusing on the link between visas and DCOs as suggested by the literature review and the other exploring the impacts of the Canadian-European Union Comprehensive Economic and Trade Agreement (CETA) to uncover the role of this trade agreement in the development of DCO adoption.

As evidenced by the literature reviewed above, the use of visas as interdiction for unwanted refugee claims, especially towards the Czech Republic and Hungary, has been extensively highlighted as an essential background to the adoption of DCOs. I will not review this literature at length except to make a few salient points. Between 2009 and 2010 when the visa was imposed, refugee claims from the Czech Republic fell dramatically. In 2009, refugee claims from the Czech Republic were at 2,085 and by 2010 they had fallen to 30. While visas achieved their goal of preventing the arrival of refugee claimants from some of the top refugee-producing countries at the time, its consequences on diplomacy were too substantial to ignore.

Secondly, a number of sources have emphasized the important role of trade priorities in influencing the development of the DCO category at this particular juncture. Since 2002, Canada has been in conversation with the EU to secure a free trade agreement but has been prevented in part due to disagreements over visas. This point was emphasized by EU Ambassador Mattias Brinkman who indicated that, “if visa restrictions on EU members … aren’t lifted by the time a deal is to be concluded, those countries would probably frustrate its implementation.”[39] CETA is unique as it requires each EU Member State to individually ratify the agreement, and states such as the Czech Republic have frequently expressed that visa restrictions to Canada would impede their ratification.[40] If Canada wanted to close the trade deal, it was clear that visas to frustrate European refugee claimants were going to impede agreement.

It is difficult to over-emphasize the importance of this trade deal to Canada and its subsequent impact on immigration policy. Macklin argues that placating Europe would be essential as Europe is Canada’s “second-largest trading partner and the world’s largest integrated economy.”[41] While having a visa on an EU country is clearly a provocation, the EU countries themselves are not in a position to oppose safe countries policies since they themselves use them.[42] Therefore a new instrument, one more subtle and less controversial for relations with Europe, was needed in order to intercept or divert refugee claimants from accessing the full process.

Second line of analysis: the intended targets and effects of DCO adoption

The second line of questioning regarding the motivation of DCO policy tools interrogates the intended targets of this policy. For this analysis, I examine the statistics on arrivals of refugee claimants before and after DCO adoption. In examining the effects on refugee arrivals since this policy was adopted, it becomes clear that there was one main target of the DCO category: European Roma.

When comparing the arrivals of refugee claimants before and after immigration reform, it becomes clear that certain nationalities were affected more than others. Through his experience as the Director of Policy in the Prime Minister of Canada’s Office, Wilson suggests that the way policy is developed is that an issue is “flagged” by a crisis and policy is developed in response. In the case of DCOs, he stipulates that it was the long-standing problem of being swamped by claimants from countries which do not normally produce refugees.[43] In the years preceding DCOs, the top country of refugee origin making claims in Canada was Hungary.[44] After Hungary had its visa removed in 2008, claims increased almost one hundred fold, rising from a few dozen claims in 2007 to almost three thousand in 2009 (see figure 1).[45]

Table 1: Claims referred, finalized, and decided, Hungary 2005-2011

Referred Accepted Rejected Abandoned Withdrawn % Accepted of total finalized %   Accepted of total decided
2005 60 51 268 41 25 13% 16%
2006 46 67 41 7 12 53% 62%
2007 34 16 15 1 6 42% 51%
2008 285 22 13 9 39 27% 63%
2009 2,418 3 5 47 204 1% 60%
2010 2,296 22 72 107 970 2% 23%
2011 4,423 165 738 249 828 8% 18%

 Note: 1.Claims finalized and decided in a given year may have been referred in a previous year.

  1. Total finalized= accepted + rejected + withdrawn + abandoned
  2. Total decided = accepted + rejected

Figure 1 Refugee Claims at the Immigration and Refugee Board for claimants from Hungary.[46]

This surge in claims from a European country was neither expected nor controllable by visa since Hungary was too important of a trade partner to have such a restriction. Therefore, this arrival of Hungarian refugee claims necessitated the creation of a DCO policy in Canada.

The DCO policy has been effective at preventing the access and arrival of designated refugee claimants to protection in Canada. At time of writing, there has been a dramatic drop in refugee claims in general and a particular absence of European Roma claimants from top origin countries formerly targeted by visas.[47] According to Citizenship and Immigration Canada’s quarterly datasets, in 2013 following the designation of the first round of DCO countries, claims from the top 10 source countries in Canada dropped from 20,503 in 2012 to 10,372 in 2013, a 49% decrease from the previous year.[48] This dramatic fall in refugee claims was acknowledged in the UNHCR’s 2013 Report on Asylum Trends which observed that Canada experienced a role reversal in asylum applications in 2013, going from the second and third highest destination country in 2008 and 2009 to a two thirds drop in the following years, and finishing in 2013 in 16th place. They proposed that the recent asylum policies and visa requirements imposed in recent years might be partially responsible.[49] When we isolate the arrivals of designated refugee claims, the drop is even more dramatic, a staggering 87% plunge in designated country of origin asylum claims since the imposition of the new policies.[50] It may be too early to derive any conclusions: however as of writing the DCO policy has disproportionately discouraged the arrival and refugee claims of European Roma, fulfilling its intended purpose of being a visa-substitute.

In addition, the government was intentionally searching for a policy tool which would suit their particular domestic needs and solve the Roma crisis. This is evidenced by the actions of government officials and border services who actively and pre-emptively interrogated Roma flows to Canada in order to justify their exclusion from Canada. In 2011, the Canadian Border Services Agency sent officers to Hungary to determine the source of the refugee flow and to develop a responsive “action plan.”[51] Their findings were published in the 2012 report “Project SARA” in which they state that Hungary’s membership in the EU should negate any need for travel to Canada for asylum and maintain that any problems faced by Roma were strictly a Hungarian domestic issue.[52] Immigration Minister Jason Kenney also visited Hungary in 2012. Citizenship and Immigration Canada called the visit a “fact-finding mission into the situation of minority communities in Hungary,” noting that Kenney visited Miskolc, a city from which more than 40% of refugee claimants originated.[53] Following his visit, Kenney seemed satisfied at the level of protection afforded to Roma in Hungary.[54] Canadian Border Services and the Immigration Minister were looking for policies which would not inhibit relations with Hungary as well as lessen its perceived burden of refugee flows from Europe.

In sum, evidence emerging from government publications, interviews with key individuals, datasets and media reports lead to the conclusion that DCO adoption in Canada was primarily motivated in response to a need to deny the “European refugee” and maintain good relations with the EU. It is a tool which, while allowing access to territory, still has the consequences of preventing full access to designated nationals and also discouraging the arrivals of refugee claimants at all. While visas were an effective interdiction tool, Canada was motivated to design and implement a more subtle interdiction policy when visas were no longer feasible in the context of a democratic EU and a desire for positive diplomatic relations.


Discussion

“… The processes of interdiction and immigration management sheds light not only on the evolution of state policy and management in dealing with this anxiety of migration and refugee movement, but also on the specific tactics that the changing nature of frontiers and international

travel necessitate.”[55]

While this case study focuses on one facet of Canadian migration policy, its response to migratory pressures sheds light beyond its immediate sphere. Uncovering the technologies and policies of interdiction are important because their results have real consequences for individuals seeking protection, despite governments claiming safe country policies are simply benign expedition of processes. Safe country policies are just one tool in the arsenal of states which together have large impacts on the ability of individuals to move freely and access protection. Toth argues that, when combined with readmission agreements and other interdictory tools, safe country agreements “discourage in-depth evaluation of applications and/or prohibition of expulsion or return in transit and destination states.”[56] In the Canadian context, DCO policies are just one change in a wide array of new policies in Canadian immigration which when combined represent a drastic altering of refugee protection in Canada.[57] A report from the Harvard Law School suggests these changes mean that “Canada is systematically closing its borders to refugee claimants, and circumventing its refugee protection obligations under domestic and international law.”[58]

There are a number of questions which emerge from this case study on which analysis would be useful to push the hypothesis further. One alternative explanation for Canada’s adoption of DCO provisions could be an argument of policy emulation. Safe country policies have existed for a number of decades in Europe prior to its adoption in Canada in 2012 and there have been a number of examples of policy sharing and best practices among western liberal democracies. Canadian officials have on numerous occasions explicitly referred to Europe’s use of such policies to justify the adoption of DCOs in Canada. For example, in the Canadian government’s press release announcing the first designated countries, it was stated that “many developed democracies use a similar authority to accelerate asylum procedures for the nationals of countries not normally known to produce refugees. These states include the United Kingdom, Ireland, France, and Germany.”[59] Clearly, Canada is not unique in its adoption of these policies and could be seen as simply joining other liberal states in its adoption of safe county policies.

However, evidence is mixed in regarding emulation of EU safe country policies in the Canadian context. While there are general similarities, there are significant differences between EU safe country policy and Canada’s DCO category. At the EU level, the Asylum Procedures Directive sets standards for Member States’ safe country policies at the domestic level and also proposes an EU-level list.[60] The EU policy and Canadian policy share similarities in that they both lead to accelerated procedures, but differ in other regards. Unlike in Canada, the EU labels safe country claims as ‘manifestly unfounded’ and prevents discrimination towards such claimants in regards to access to healthcare, for example. In addition, unlike Canada, the EU Procedures Directive does not allow for quantitative designation of safe countries, meaning that Canadian designation procedures are stricter and based upon ministerial discretion.[61] Macklin suggests that DCOs have more in common with the Aznar Protocol than strictly emulating EU safe country policies. This protocol prevents an EU citizen to make a claim in another EU member state as it is assumed that all Member States respect human rights and are, therefore, safe.[62] This means that it is impossible for there to exist such thing as a “European refugee” in the EU.

There are more similarities between this normative impossibility of a European Refugee than there is proof of strict legal emulation of EU safe country policies in Canada. This is seen in the continuity between Canadian and British officials in the logic of safe country policies. For example, the UK Home Secretary David Blunkett argued that, “It is frankly absurd that people can routinely claim that they are in fear of their lives in Poland or the Czech Republic. These are democratic countries which live under the rule of law.”[63] Compare this to the words of Canada’s Immigration Minister Kenney who justified DCOs by arguing that, “we’ve seen a troubling growth in the fake asylum claims coming particularly from the democratic European Union… and almost none of those European asylum claims turn out to be well-founded.”[64] This justifies the avoidance of such claims both in the EU and in Canada, despite the questionable fit of safe country policies with international refugee law.[65] Therefore, while normatively there are parallels in justification for exclusion of Roma claims between Europe and Canada, the case for direct safe country policy emulation is not strong.

Lastly, this detailed analysis of Canada’s safe country of origin tool contributes to a mostly absent debate over the legality and consequences of safe country policies. In the last year, important court challenges have emerged in Canada over DCOs which have the potential to contribute to the debate elsewhere over the use of safe country tools. On July 4, 2014, Justice Mactavish at the Federal Court of Canada released her ruling on a case regarding the constitutionality of the health care cuts for refugees as part of immigration reform. In the decision, Mactavish rules that the cuts violate section 15 of the Canadian Charter of Rights and Freedoms as it provides a lesser level of healthcare to those from designated countries. Most importantly, Mactavish argues that the DCO category is problematic as, “It puts their lives at risk, and perpetuates the stereotypical view that they are cheats, that their refugee claims are ‘bogus,’ and that they have come to Canada to abuse the generosity of Canadians.”[66] The ways in which safe country of origin policies have been debated in Canada has the capacity to contribute to the debate beyond the Canadian context and inform other states which may be considering adopting their own safe country categories.                                             .         .

Conclusions

The United Nations High Commissioner for Refugees, Antonio Guterres, recognised that “there are indeed Safe Countries of Origin and there are indeed countries in which there is a presumption that refugee claims will probably be not as strong as in other countries.”[67] This article is not interested in refuting the legality of such policies or bemoaning their existence. Rather, the article has aspired to investigate the ways in which safe country of origin policies are motivated by and interact with interdictory goals of liberal democracies. The DCO case study illustrates how interdiction not only shifts the border of states physically, but also shifts the state’s responsibility legally in the denial of full access to refugee determination. Safe country of origin policies, visas, and other interdictory tools have the capacity to work together to create a zone of exclusion. In the Canadian case, a DCO instrument was motivated by the need to both placate EU concerns and also restrict refugee flows deemed to be problematic. The seemingly absent debate regarding the consequences of safe country of origin policies is therefore addressed through this case study, contributing to a more informed understanding of the interdictory results of such policies.

It was observed by Hannah Arendt, the German-American political scientist, that “as citizens, we must prevent wrongdoing because the world in which we all live, wrong-doer, wrong sufferer and spectator, is at stake.”[68] However, in the practices of interdiction it is unclear where to draw the distinction between legitimate policy tool of Western democracies and policies which have the ultimate consequence of preventing the access of individual refugee claimants to seek protection. Indentifying ‘wrongdoing’ in policy can be difficult. States are increasingly evolving and adopting new interdictory policies which push their borders beyond their territory both physically and legally, flirting with the line between sovereignty and international law. For this reason, it becomes ever more essential to uncover the motivations and consequences of safe country of origin policies both in Canada and beyond.

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Gammeltoft-Hansen, Thomas. “The Refugee, The Sovereign, And The Sea: European Union Interdiction Policies.” Danish Institute for International Studies. (2008): 1-32.

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Harvard Immigration and Refugee Law Clinical Program, Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion. Harvard Law School, 2013.

Hathaway, James C. The Rights Of Refugees Under International Law. 1st ed. Cambridge: Cambridge University Press, 2005.

Human Rights Watch, International Catholic Migration Committee, World Council of Churches. ‘NGO Background Paper on the Refugee and Migration Interface.’ UNHCR Global Consultations on International Protection. Presented in Geneva, 28-29 June 2001.

Kernerman, Gerald. “Refugee Interdiction Before Heaven’s Gate,” Government and Opposition 43, no. 2 (2008): 230–248.

Lambert, Helene, Jane McAdam, and Maryellen Fullerton. The Global Reach Of European Refugee Law. Cambridge: Cambridge University Press, 2013.

Levine-Rasky, Cynthia, Paul St. Clair and Julianna Beaudoin. “The Roma and Canadian Refugee               Policy: A Case of New Racism.” Patterns of Prejudice 47, no. 3 (2013)

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Mazereeuw, Peter. “Refugee Claims Drop By Half In Canada, Rise In US, Says UN” Embassy, 2014. Accessed August 19, 2014. http://www.embassynews.ca/news/2014/04/01/refugee-claims-drop-by-half-in-canada-rise-in-us-says-un/45359 .

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*              The author would like to acknowledge a few individuals: thanks to Peter Showler and Paul Wilson for their insight into Canadian immigration law and politics, to Dr.Eiko Thielemann and Dr.Patrick McGovern for their guidance, and to Christine and William Ball, Janet Ham, and Allana Kennedy for their thoughtful comments and support.


[1] Ayelet Shachar, “Shifting Border Of Immigration Regulation,” Michigan Journal of International Law 3 (2007): 811.

[2] Gerald Kernerman, “Refugee Interdiction Before Heaven’s Gate,” Government and Opposition 43:2 (2008): 231.

[3] Kernerman, “Refugee Interdiction,” 232.

[4] Anca Gurzu,”Safe Country Of Origin List At The EU Level: The Bargaining Process And The Implications,” Review of European and Russian Affairs 7:1 (2012), 2.

[5] Canadian Council for Refugees, “Interdiction and Refugee Protection: Bridging the Gap,” (International Workshop, Ottawa, Canada. May 23, 2003): 3.

[6] Ibid., 9.

[7] Attila Ataner, “Refugee Interdiction And The Outer Limits Of Sovereignty,” JL& Equal. 3 (2004): 7, 12.

[8] Ataner, “Refugee Interdiction,” 36-37.

[9] UNHCR, Improving Asylum Procedures: Comparative Analysis and Recommendations for Law and Practice. UNHCR: UN Refugee Agency, March 2010.

[10] Gurzu, “Safe Country Of Origin List,” 3.

[11] Human Rights Watch, International Catholic Migration Committee, World Council of Churches. “NGO Background Paper on the Refugee and Migration Interface,” (paper presented at the UNHCR Global Consultations on International Protection, Geneva, 28-29 June 2001).

[12] Ataner, “Refugee Interdiction,” 7, 10.

[13] Thomas Gammeltoft-Hansen, ‘The Refugee, The Sovereign, And The Sea: European Union Interdiction Policies,” Sovereignty Games: Instrumentalizing State Sovereignty in Europe and Beyond (2008): 6.

[14] Kernerman, “Refugee Interdiction,” 235.

[15] See: James C Hathaway, The Rights Of Refugees Under International Law, 1st ed. (Cambridge, Cambridge University Press, 2005), 297; Ataner, “Refugee Interdiction., and Dagmar Soennecken, “Shifting Up And Back-The European Turn In Canadian Refugee Policy,” Comparative Migration Studies 2:1 (2014).

[16] See: Didier Bigo, Elspeth Guild and Sergio Carrera, Foreigners, Refugees Or Minorities?, 1st ed. (Burlington, Vt.: Ashgate Pub. Co., 2013), and Huysmans, The Politics of Insecurity.

[17] See: Shachar, The Shifting Border.

[18] Jef Huysmans, The Politics Of Insecurity, 1st ed. (London: Routledge, 2006): 3.

[19] Zetter, Roger, “More Labels, Fewer Refugees: Remaking The Refugee Label In An Era Of Globalization,” Journal of Refugee Studies 20:2 (2007): 183.

[20] Molnar Diop, Petra, “The “Bogus” Refugee: Roma Asylum Claimants and Discourses of Fraud in Canada’s Bill C-31,” Refuge Vol 30:1 (2014).

[21] Petra Molnar Diop, “The “Bogus” Refugee,” 69.

[22] Levine-Rasky, Cynthia, Paul St. Clair, and Julianna Beaudoin. “The Roma and Canadian Refugee Policy: A Case of New Racism,” Patterns of Prejudice 47, No.3 (2013)

[23] Cynthia Levine-Rasky, “The Roma and Canadian,” 69.

[24] Harvard Immigration and Refugee Law Clinical Program, Bordering On Failure: Canada-U.S. Border Policy And The Politics Of Refugee Exclusion (Harvard Law School, 2013): 38.

[25] Harvard Immigration, Bordering On Failure, 40.

[26] Didier Bigo, Elspeth Guild and Sergio Carrera, Foreigners, Refugees Or Minorities?, 1st ed. (Burlington, Vt.: Ashgate Pub. Co., 2013): 13.

[27] Bigo, Guild and Carrera, Foreigners, Refugees Or Minorities, 91.

[28] Ibid., 29.

[29] Lambert, McAdam, and Fullerton, The Global Reach, 129-130.

[30] The 1999 Aznar Protocal to the Treaty of Amsterdam denies access to asylum in the EU to EU citizens, based upon the assumption that a citizen of the EU must be inadmissible due to the democratic nature of all EU member states. (See Lambert, McAdam, and Fullerton, The Global Reach, 118).

[31] Hélène Lambert, Jane McAdam and Maryellen Fullerton, The Global Reach Of European Refugee Law (Cambridge, Cambridge University Press, 2013) 129-130.

[32] Ataner, “Refugee Interdiction., and Dagmar Soennecken, “Shifting Up And Back-The European Turn In Canadian Refugee Policy,” Comparative Migration Studies 2, iss 1 (2014): 102.

[33] Lambert, McAdam, and Fullerton, The Global Reach, 103.

[34] Bigo, Guild and Carrera, Foreigners, Refugees Or Minorities, forward.

[35] Immigration and Refugee Protection Act, SC 2001, c 27, accessed February 20, 2015, http://canlii.ca/t/52dg2.

[36] Lambert, McAdam, and Fullerton, The Global Reach, 100.

[37] Lambert, McAdam, and Fullerton, The Global Reach, 101.

[38] Citizenship and Immigration Canada, Making Canada’s Asylum System Faster And Fairer, 2012, accessed August 21, 2014.

[39] ‘The CETA Timeline,’ Embassy, October 31, 2012, accessed August 26, 2014, http://www.embassynews.ca/news/2012/10/30/the-ceta-timeline/42752 .

[40] Campbell Clark,”Visa feud clouds Harper’s free-trade dream with Europe,” EU-Canada Partnership, April 26, 2012, accessed August 30, 2014.

[41] Lambert, McAdam, and Fullerton, The Global Reach, 128.

[42] Paul Wilson, Skype (London, England, July 8, 2014).

[43] Paul Wilson, Skype (London, England, July 8, 2014).

[44] Peter Mazereeuw, “Refugee Claims Drop By Half In Canada, Rise In US, Says UN,Embassy, 2014, accessed August 19, 2014.

[45] Canadian Border Services Agency, Project SARA: International And Domestic Activities Final Report (Toronto, 2012): 13.

[46] Lambert, McAdam, and Fullerton, The Global Reach, 114.

[47] Data.gc.ca, “Top 10 Source Countries – Refugee Claims At All Offices (In Persons),” Data.Gc.Ca, last modified 2014, accessed August 19, 2014.

[48] Ibid.

[49] UNHCR, UNHCR Asylum Trends 2013 (UNHCR: UN Refugee Agency, 2014): 13.

[50] Ibid.

[51] Canadian Border Services Agency, Project SARA: International And Domestic Activities Final Report (Toronto, 2012):54.

[52] Canadian Border Services Agency, Project SARA, 54.

[53] Citizenship and Immigration Canada, Minister Jason Kenney Meets With Roma Leaders In Hungary, 2012, accessed August 19, 2014.

[54] This article is not able to comment fully on the complex debates surrounding the level of discrimination facing the Roma in Europe and its fit with the Geneva Convention’s definition of a refugee. For the purposes of this article, I will simply assume that all individuals deserve the same access to refugee determination regardless of these debates. For more information regarding the situation of the Roma in Europe, see: Amnesty International, We ask for justice: Europe’s Failure to protect Roma from racist violence, (London, 2014.), and Francois-Xavier Bagnoud Center for Health and Human Rights at the Harvard School of Public Health, Accelerating Patterns of Anti-Roma in Hungary, (Harvard University, Boston, 2014).

[55] Robert A Davidson, “Introduction: Spaces Of Immigration Prevention: Interdiction And The Nonplace,” Diacritics 33:3 (2006): 7.

[56] Zsuzsanna Vidra, Roma Migration To and From Europe: The Czech, Hungarian, and Slovak Case, 1st ed. (Budapest: Center for Policy Studies Central European University, 2013): 36.

[57] Maytree, Shaping The Future: Canada’s Rapidly Changing Immigration Policies, 2012.

[58] Harvard Immigration, Bordering On Failure, 1.

[59] Citizenship and Immigration Canada, Making Canada’s Asylum System.

[60] Directive 2005/85/EC of the European Council of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (OJ 2005 No.L326/13) (Procedures Directive).

[61] Lambert, McAdam, and Fullerton, The Global Reach, 122.

[62] Andrew Geddes, Immigration And European Integration, 1st ed. (Manchester, UK: Manchester University Press, 2000): 122.

[63] James C Hathaway, The Rights Of Refugees Under International Law, 1st ed. (Cambridge, Cambridge University Press, 2005), 297.

[64] Lambert, McAdam, and Fullerton, The Global Reach, 129.

[65] There are a number of authors who argue that safe country provisions restrict access to and the integrity of asylum protection in the EU, violating Geneva Convention obligations. For more, see Costello (2005), Gurzu (2012).

[66] Canadian Doctors For Refugee Care, The Canadian Association Of Refugee Lawyers, Daniel Garcia Rodriquez, Hanif Ayubi, And Justice For Children And Youth V Attorney General Of Canada And Minister Of Citizenship And Immigration, 2014 FC 651.

[67] Citizenship and Immigration Canada, Making Canada’s Asylum System.

[68] Duncan Bell, ed, Political Thought and International Relations, (Oxford: Oxford University Press, 2008): 114.

 

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