Inland Protection

• Author: Martin Jones - Sasha Baglay
• Profession: Centre for Refugee Studies, York University - Centre for Refugee Studies, York University. Faculty of Criminology, Justice and Policy Studies, University of Ontario Institute of Technology
• Pages: 215-253

215

CHAP TER 8

INLAND PROTECTION

A. OVERVIEW

The overwhelming majority of refugees i n the world are located outside

of Canada. Only a ver y small minorit y manage to travel to Canada and

seek protection. Furthermore, the numbers of ref ugees who succeed in

this journey have been steadily declining over the past few year s. In

2005, less than 20,000 individuals sought protection in Canad a; the

2005 f‌igure represents a drop of 23 percent from the previous year and

is less than half of the f‌igure for 2001.1

Those who seek protection are subjected to a complicated process

of examination. This proce ss is not designed to determine whether an

individual is generally in need of protection. Rather, it is designed to

determine whether she falls within the limited categories of individu-

als for which Canada has promised to offer protection. This chapter

will provide an over view of the process by which Canada determ ines

whether or not to offer this protection.

Canada offers inland protection to “Convention refugees” and to

“persons in need of protection.”2 However, needless to say, it does not

1 “Asylum Levels and Trends in I ndustrialized Cou ntries, 2005” (Geneva: UNHCR,

2006) at 9 (Table 1). See also App endix C.

2 The def‌initions of t hese terms can be found in t he Immigration and Refugee Pro-

tection Act, S.C. 2001, c. 27 [IRPA], ss. 96 & 97, respectively. The interpretat ion

of these ter ms in Canadian law a re dealt with in Chapters 3, 4, 5, & 6.

REFUGEE LAW216

simply accept all individuals who claim to fall with in either category.

Rather, after a process of examination and deliberation, Canadian au-

thorities ultimately provide protection to less th an half of indiv iduals

who seek protection in Canada.3

The process by which Canada deter mines a claim for protection con-

sists of two stages: (1) the determination of an individua l’s eligibility to

seek protection, and (2) the determination of the substantive merit of her

claim. These stages, wh ich will be di scussed in det ail below, presuppose

that an indiv idual has arrived in Can ada. The vast majority of the world’s

refugees do not, and cannot, travel to Ca nada to seek protection. In re-

cent years, the Canadian government has adopted policies that make it

even more diff‌icult for refugees to successfully travel to Canada. A dis-

cussion of the issues r aised by these barriers to acces s must precede any

discussion of the determ ination process.

B. ACCESS TO INLAND PROTECTION

The Ref ugee Convention imposes an e xplicit obligation on st ates part ies

not to expel a refugee to a country where he might be subject to perse-

cution, and to guarantee certain rights to refugees in the state party’s

territory. However, there is no corresponding explicit obligation to ad-

mit potential refugee claim ants who are outside a state party’s territor y.

Due to this gap in the R efugee Conve ntion, states have tr ied to limit their

protection obligations by erecting barr iers to entry. The legitimacy, le-

gal and otherwise, of these attempts at preventing the entr y of refugees

to countries has been the subject of extensive academic commentar y,

litigation, and popular debate. In particular, Canada tr ies to control

access to its inland refugee determination system by means of interdic-

tion and the Safe Third Country Agreement with the US. Both of these

methods of restricting access wi ll be discu ssed below.

3 The calculation of t he exact acceptance rate is fai rly complex, as it must

combine the var ious acceptance rates at the va rious levels of decision ma king.

Currently, only about 40 pe rcent of individuals receive pr otection from the RPD

(see Immigrat ion and Refugee Board, “Perfor mance Report 2003– 04,” online:

www.tbs-sct.gc.ca/rm a/dpr/03-04/IR B-CISR/ IRB-CISR d3401_e.asp#ref protec

[IRB Performance Re port 2003–4]). The acceptance rates at othe r levels of deci-

sion making (includ ing through the pre-removal ri sk assessment process) add

much less tha n 10 percent to th is total.

Inland Protection 217

1) I n ter d i ctio n

The term “interdiction” refers to a variety of state mea sures designed

to prevent non-citizens, including asylum seekers, from entering state

territory. These measures encompass, but are not limited to, the use

of carrier sanct ions, the collection of advance passenger inform ation,

the imposition of visa requirement s, the use of “direct backs” for fur-

ther examinat ion, and the interception of incoming vessels. All of these

measures share a common ulti mate purpose: the prevention of the entry

of particular i ndividuals or groups of indiv iduals onto Canadia n soil.

Canada is not alone in pursui ng these policies. Both the US and

Australia pioneered the interdiction of refugees in the 1980s and 1990s.

Interdiction is now practiced by the E U and most developed nations. At

the very least, Can ada’s interdiction policies end at the border. Unlike

Australia or the US, Can ada does not turn away boats with asylum seek-

ers and affords largely equal t reatment to all refugee claimants regardles s

of whether they entered the country legally or illegally.4 Nevertheless,

despite this d istinction, Canada does practice interdiction. Most of the

interdiction measures, except for visa requirements, are co-ordinated by

the Canada Border Ser vices Agency (CBSA) and are carried out at both

Canadian port s of entry and overse as departure point s.

The CBSA’s forty-f‌ive Migration Integrity Off‌icers abroad work

with airlines and foreign immigration and law enforcement authori-

ties to detect document fraud, and deter and prevent illegal migration.

They are dispatched at thir ty-nine international loc ations according to

Canada’s strategy of “pushing the borders out.”5 During 2003 to 2005,

CBSA interdicted over 70 percent of improperly documented individu-

als before their arr ival in Canada.6 As a re sult, the number of improp-

erly documented arrival s is at its lowest since the statistics were f‌irst

recorded in 1989.

In addition to relying upon its own p ersonnel, the CBSA co-operates

with tran sportation companies in screening and interdicting i mprop-

4 The possible exception to t his proposition is the est ablished special procedu re

used on refugee cl aimants who are stowaways or sh ip-jumpers and the ad hoc

special proc edure that has been us ed in the past on large groups of ref ugees

arriv ing by sea. However, while special pro cedures may be used in the se cases,

the substant ive eligibility for protect ion of these special categor ies of refugees

remains t he same.

5 Canada Borde r Services Agency, “Performanc e Report 2004–05,” online:

Treasury Board of Canada, www.tbs-sct.gc.ca/rma/dpr1/04-05/BSA-ASF/BSA-

ASFd4502_e.a sp#prog-admis [CBSA Perfor mance Report 2004–5].

6Ibid.