Catherine Dauvergne, Globe and Mail, Monday, Jul. 20, 2009

Refugee law is not immigration policy. The imposition of visas on citizens of Mexico and the Czech Republic is a high-profile Band-Aid that creates perverse incentives and belies Canada’s human-rights commitments. Refugee law, by definition, responds to emergencies. Western countries, including Canada, would prefer to control refugee flows – to treat refugees as immigrants. This goal is unrealistic and thus doomed to fail. But the responsibility for this failure lies with the government, not with individuals seeking protection. The recent surge in claims from Mexico and the Czech Republic is driven by deteriorating circumstances in both of those places. In the case of the Roma, historic patterns of discrimination are not being effectively countered. In the case of Mexico, pockets of extremely high violence are seemingly beyond local control.

This doesn’t mean every Roma or Mexican is eligible for refugee status, but it does mean hundreds of thousands of people are living in fear and in real danger. Some of these people, if they were to reach Canada, would fit within the narrow definition of a refugee. Many would not. But most people do not have enough knowledge of refugee law to figure this out in advance. In fear they flee, and sort things out later. This is not rampant abuse of a system. Being in danger, with no prospects for the future and no support from one’s government, is not enough to make someone a refugee.

There are some people, of course, who are reasonably certain they are not refugees and who make claims they know will fail. But this is a small percentage of overall claim numbers, and even a small percentage of unsuccessful claims. While many claims from Mexico have failed recently, it is because of the widespread and often random nature of the risks there. These very factors that increase danger and fear make fitting in the refugee box harder.

Visas will make it harder for Mexicans and Czechs to reach Canada and make refugee claims. This will reduce claims numbers. It will also create an incentive for illegal entry to Canada, and a further incentive for people within Canada to go underground. And it will provide a niche market for those who smuggle and traffic in human beings; both industries are well developed in Mexico and Eastern Europe and will be able to capitalize quickly on this growth opportunity.

Canada’s refugee system does need work. Because the appeal system legislated in 2002 is not implemented, people use all sorts of other avenues, none of which are true appeals and all of which make the process longer. In addition, the government has created a front-end backlog by dramatically understaffing the body that determines refugee claims. It is this backlog that Immigration Minister Jason Kenney now blames on individuals.

The system needs to move more quickly, but it needs resources. The Immigration and Refugee Board already knows how to expedite claims, but it cannot do so when starved of staff. It is futile to call for limited access to the Federal Court – this access was limited two decades ago.

Some blame the current problems on the Supreme Court of Canada’s 1985 Singh decision, which ensures that international refugee law is a meaningful part of Canadian law. Canada is one of 144 countries that have signed up to this commitment – and it’s important to understand that Canada’s refugee system is part of an international system.

Refugee law is an international backup plan, meant to protect human rights when home states fail to do so. In recent years, 750,000 people a year have asked for this kind of backup protection, somewhere. Beyond these asylum seekers, the past decade has seen 10 million to 15 million refugees annually in camps, somewhere, with no possibility of seeking asylum. The 30,000 to 40,000 people who make it to Canada in a record high year are truly a drop in this bucket.

Because of the openness of Canada’s system, people who get here make claims. This has ensured that Canada has one of the smallest illegal or undocumented populations of all Western states. Rather than going underground, people stand up to be counted. With this, Canada has already solved one of the most difficult policy dilemmas of 21st-century migration governance. The new visas are a step backward.

Catherine Dauvergne is Canada Research Chair in Migration Law at the University of British Columbia.