Hamza Naim- The Impacts of Designated Countries of Origin Policies on Canada's Ethical Obligation to Refugees
Introduction
In 2012, the Harper government made abrupt and fundamental changes to the Canadian asylum system, which were collectively recognized by many immigration scholars as the "2012 Immigration Reform" (Atak, 2018). Also known as the Protecting Canada's Immigration System Act, the enactment of Bill C-31 was amongst the most significant policy changes to transpire during this process, as it amended numerous immigration laws across multiple platforms. A notable example of an amendment was the creation of two new categories of refugees, namely designated foreign nationals (DFNs) and refugee claimants who seek asylum from a designated country of origin (DCO). The latter division, which has now been discontinued by the Trudeau government, is the most pertinent to this essay (Immigration, Refugees and Citizenship Canada, 2019). Those from a DCO, according to section 109.1 of Bill C-31, were refugee-claimants arriving from a country that the Minister of Immigration, Refugees and Citizenship deemed to be free of state persecution of individuals for reasons that were protected by the Canadian asylum system. The Minister was given substantial discretionary power in creating such designations; the bill granted the Minister alone the power to designate countries. Refugee claimants coming from a DCO, under this statute, were subject to harsher treatment, shorter times to navigate application systems, and other forms of rights restrictions (C-31, 2012).
This paper analyzes the major criticisms and strengths of Canada's former DCO practice, arguing that the costs of it significantly outweighed its benefits. There will be a subsequent consideration of the ethical dimension of refugees by determining what obligation states have to claimants, and whether the DCO policy inhibited or allowed Canada to fulfill such obligations.
Criticisms of Canada's DCO Policy
A criticism of Canada's DCO policy was that the Minister of Immigration, Refugees and Citizenship was granted excessive discretionary power, without checks or limitations, in determining which countries they deemed as a DCO. Furthermore, the criteria that warranted such designations were ambiguous and could be interpreted subjectively, which gave the Minister even more power in their decisions. Under section 109.1 (2) (b) of Bill C-31, it stated that a country may be categorized as a DCO "if the Minister is of the opinion that in the country in question (i) there is an independent judicial system, (ii) basic democratic rights and freedoms are recognized and mechanisms or redress are available if those rights and freedoms are infringed, and (iii) civil society organizations exits" (C-31, 2012). What must be noted from this excerpt is that the fulfillment of each criterion was subject to the Minister's opinion. Because the provision granted the Minister the power to make designations based on their opinions regarding whether or not the country in question had the specified systems, without having substantive measurements, the interpretation of the criteria was subjective. Furthermore, the minimum requirements that were given for each criterion were insufficient, which exacerbated the problem of discretionary powers for the Minister. The criteria that guided their judgement stipulated that these institutions merely had to exist, as opposed to setting a minimum standard for what qualified as a non-corrupt independent judicial branch or robust civil organization.
Another issue that was frequently recognized as a result of the powers granted to the Minister was that a lack of expertise existed in the process of designating countries of origin. The Minister, in addition to being subject to few regulations when making designations, was not required to make their designation decisions on the basis of expert recommendations. The process of designation was not conducted by experts in the field, but rather was managed by a political figure who did not necessarily have the qualifications to make such decisions. The Minister's lack of expertise in the affairs of the countries that they had the ability to designate could have been, and arguably was, detrimental to the legitimacy of the asylum process.
The political nature of being a minister, while having access to these decision-making powers, is worrisome for many scholars, including Alboim and Cohl (2012). The lack of constraints and the ambiguous nature of the guidance criteria could have led the Minister to designate countries for political or economic reasons. In a democratic system, the prosperity of the economy is often integral to ensuring that the governing party maintains its political power (Political Power Follows Economic Power, 2016). Some immigration scholars were concerned that in an effort to appease other states that have the potential to impact the success of the Canadian economy, the Minister could have been inclined to falsely designate or refrain from designating certain countries (Alboim and Cohl, 2012). In this way, the designation policy could have diverted the asylum process from having the policy objective of giving refugee claimants a fair and efficient asylum system, to the abuse of an instrument to promote the economic and political interests of the governing party.
The criticism of the discretionary powers given to the Minister of Immigration, Refugees, and Citizenship was characterized by a lack of constraints on the minister, ambiguous guiding criteria for the Minister, the absence of expert opinions, and the political nature of the one who is placed in charge of the designation process as they may have ulterior motives for the designations of certain countries.
The final criticism was about the greater limitations on the already stringent timeline for refugee claimants that arrived from DCOs to place their claims. This shortcoming was already a feature of the Canadian asylum system and was, and continues to be, one that has been frequently mentioned by immigration scholars (Bates, Bond, and Wiseman, 2016). However, the timeline issue was exacerbated by the DCO policy that placed further time restrictions on the claimants that arrived from specific countries. The main change was in regards to the limited time they were given leading up to the first hearing in front of the Immigration and Refugee Board (IRB). Whereas an ordinary refugee claimant would have a timeline of up to sixty days prior to their first hearing, a claimant from a DCO would only have up to thirty days (Alboim and Cohl, 2012). The shortened timeline could have been a daunting obstacle for many refugee claimants for a variety of reasons, including lack of documentation, a difficult transition in language, and can act as a deterrent to apply.
Most refugee claimants flee from imminent threats. For this reason, it is extremely challenging for them to obtain all documentation prior to departing from their country (UNHCR, 1984). This means that claimants often flee without possession of all of their identification documents. The acquisition of these official documents is not only a complicated process, but is also one that requires an extensive amount of time (UNHCR, 1984). With the reduced timeline for asylum seekers from DCOs, claimants were forced to obtain necessary documentation that was pertinent to their trial within a very short time span.
Additionally, by virtue of refugee claimants' foreign origins, there may be a language barrier upon their arrival to Canada. Language transition presents another obstacle that they are expected to overcome within only thirty days if they wish to present a successful claim to the IRB. Refugee claimants from DCOs were required to acquire documentation that was imperative to having a successful first hearing, an enormous feat on its own, while not even being familiar with the language of the land.
In the end, documentation and language challenges in compound with the stringent timelines could have deterred people who were in danger of persecution from seeking asylum in Canada (Bates, Bond, and Wiseman, 2016).
Justifications for Canada's DCO Policy
The most significant justification used for the Canadian DCO policy was efficiency. Harper's government focused on the importance of efficiency to address the backlog within the Canadian asylum system, arguing that conserving resources by the mitigation of false claims allowed for the use of resources for legitimate claims (Kenney, 2012). The reduction of resources spent on false refugee claims through deterrence and expedited processes was a plausible argument. However, because the process of a possible frivolous refugee claim being deterred cannot be quantified, the possible savings remain unknown. (Kenney, 2012).
Although this effect may be fortuitous in the sense that it theoretically mitigates the amount of false refugee claims in Canada, the policy remains problematic because it does not particularly target false claims. The DCO policy not only deters those with false asylum claims, but also those with legitimate asylum claims (who doubt their ability to navigate the system in the stringent timelines), which further victimizes genuine refugees.
Additionally, the rationale that an expedited process would allow for bona fide asylum claims to be processed faster is inherently flawed. The system's refusal to provide a fair process to those who came from certain countries indicated a theoretical concession: that some individuals from DCOs were making asylum claims with valid reason to. If this were not the case, meaning that all claims from a country were categorically fraudulent, it would have been more logical and efficient to bar claims from the DCO altogether. The treatment of these legitimate claims as frivolous created conditions where sincere claimants were being punished alongside those who intended to abuse the system. In this case, the trade-off could not have been seen as the elimination of applications with false premises in exchange for genuine ones, because in an effort to eliminate false claims and ensure more efficient processing, many legitimate claims were adversely affected. The policy harmed all asylum-seekers from DCOs equally, therefore making it impossible to generalize the trade-off as less false claims for more true claims.
The final justification utilized by the Harper government for the policy was that it was implemented to prevent people from abusing Canada's generosity. This statement, however, is likely intended to garner public support rather than to actually promote procedural fairness. The DCO policy adopted by Canada did not increase the amount of vetting for claimants, but instead simply expedited the asylum-seeking process. Thus, the policy did not further scrutinize the claims of refugee claimants, but rather made the process shorter and the decisions made by the IRB less calculated. The image that the Harper government was trying to disseminate was one that displayed refugee claimants in a negative light, as though many of them file fraudulent claims to abuse generosity. This assertion has no merit, and may be rooted in an effort to appeal to a xenophobic audience in Canada to strengthen the Harper government's political power.
The Ethical Dimension of the DCO Policy
There are two ethical elements that are relevant to the topic of this paper. The first reflects on why states have an obligation to help asylum-seekers. According to Gibney, the most common way of understanding the ethics underlying the international community's obligations to refugees is through the doctrine of a "duty of rescue", which states that any entity has a duty to assist strangers in peril when the costs of doing so are low (Gibney, 2018). This definition is likely the best standard to be used for the purpose of this essay, as it is relative to the status of every individual or country to which it is being applied, and only expects a state to help others within its means. Additionally, it sets the premise for why states owe refugees protection at all.
The second element, which Gibney discusses, is the extent to which states owe refugees protection. He highlights two differing opinions, those of minimalist views and those of maximalist views. For minimalists, a state's obligation is simply to protect refugees from their persecutors. This suggests that states can respond in various ways to a refugee crisis, such as intervention or protection of the refugees within their country of origin, rather than having to accept them and bear the burdens associated with asylum systems. Conversely, maximalists would suggest that a state's obligations extend much further than just ensuring protection from persecution, possibly including things like the integration of the refugees into a state's domestic systems and the treatment of refugees as no different than nationals of the state. Although there is a large disparity in expectations held by both ideologies, it is important to note that the least that both sides will accept is the "protection [of refugees] from their persecutors" (Gibney, 2018).
Historically, humanitarian intervention has proved to be an ineffective way of completing this task as it requires the transportation of military equipment, infantry, and other methods to protect vulnerable people. This method tends to be expensive, can lead to protracted conflict, and has previously been ineffective, so most countries have adopted asylum systems to perform their ethical obligations.
In a Canadian context, the minimalist position, a fundamental belief that is accepted by both the maximalist and minimalist viewpoints, will be recognized as the standard for judging whether the state is delivering on its obligations to protect refugees. In the next section, this standard will be applied specifically to the asylum system as it is one of the most practical instruments that Canada has used historically to respond to its ethical responsibilities.
The DCO Policy and Canada's Moral Obligations
Canada's DCO policy did not comply with the standard of ethical obligations that exists for every state in regards to their actions towards refugees. At the least, this standard requires Canada to protect refugees from their persecutors. The DCO policy failed to fulfill Canada's obligations to protect refugees for the following reasons. First, the expedited process made it difficult for legitimate claimants from DCOs to receive a fair trial. Their inability to provide a strong case for reasons out of their control, including language barriers, could have translated into the IRB's rejection of their claim. Furthermore, other prospective refugee claimants may have been deterred from applying because they were fearful that they would be unable to create a strong case in only thirty days. Whether through an unfair rejection by trial or through deterrence, a greater risk was created for those who needed refuge from persecution. This policy placed Canada in a position where it could have rejected claimants with valid premises for seeking refuge by posing significant limitations to individuals' ability to adequately present their cases.
Next, as previously established, the reason that the Minister may choose to designate a country was not always in the best interest of claimants, especially if economically or politically motivated. Even if a valid designation was made for the sake of complying with the provisions' guidelines and intended purpose, many claims could exist as exceptions for an otherwise safe country. The punishment of all claimants from one country is unfair and illogical. The categorization of DCOs and the associated repeal of the rights of many asylum-seekers inhibited Canada's ability to fulfill its ethical obligation of protecting claimants from persecution; it may have forced those with genuine claims outside of the protection of the state either through deterrence or insufficient application timelines.
In addition, an invalid equivalency was asserted by the Harper government in terms of the trade-off of false claims for the faster processing of legitimate claims. The Harper government stated that the trade-off that the DCO policy created was a reduction in false claims through allegedly targeted deterrence to allow for the claims of those who were genuinely seeking refuge (Kenney, 2012). This is fallacious in the sense that it treats all the claims from DCOs as if they are ill-founded. The policy deterred everyone from these specified countries from applying for refugee status, which means it is erroneous to claim that only those who were false claimants were adversely affected by the catch-all policy. The enactment of this policy certainly ensured a faster system, but it also meant that procedural fairness was compromised. In an effort to deter a small proportion of people who may endeavour to enter Canada through false pretenses, the policy sacrificed a fair process for everyone from these countries. This policy created structural conditions that increased the likelihood for asylum-seekers to be rejected and sent back to their country of origin despite the validity of their claims, or prevented them from applying through deterring them with harsh treatment. The DCO policy was problematic in that it prevented the state from fulfilling its ethical obligations towards refugees.
Conclusion
The promotion of efficiency through the DCO policy compromised the principle of fairness. The justifications that the Harper government used to enact this bill have received substantial criticism from immigration scholars, especially because some of the justifications were inconsistent and utilized xenophobic rhetoric to achieve public support. The bill granted an immense amount of power to the Minister, who can be both influenced by political motives, and insufficiently tutored in the topic of immigration. Finally, the short timeline before the first hearing being further limited for claimants from DCOs could have been pernicious to the success of their cases. This structurally disadvantaged them and increased their chances of rejection by the IRB. In conclusion, the DCO policy impeded Canada's ability to provide protection for refugees from persecutors, and therefore conflicted with the universally accepted notion that providing said protection is the bare minimum required of states. Possible future research could analyze how the guideline criteria and powers of the Minister could have been adjusted to resolve the existing problems.
Works Cited
"Act to Amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act." Parliament of Canada, 2012, https://www.parl.ca/DocumentViewer/en/41-1/bill/C-31/first-reading/page-45 - 7, Accessed 4 December 2018.
Alboim, Naomi, and Karen A. Cohl. Shaping the future: Canada's rapidly changing immigration policies. Maytree Foundation, 2012.
Atak, Idil, Graham Hudson, and Delphine Nakache. "The securitisation of Canada's refugee system: Reviewing the unintended consequences of the 2012 reform." Refugee Survey Quarterly 37.1 (2018): 1-24.
Bates, Emily, Jennifer Bond, and David Wiseman. "Troubling signs: mapping access to justice in Canada's refugee system reform." Ottawa L. Rev. 47 (2015): 1.
"Canada ends the Designated Country of Origin practice." Immigration, Refugees and Citizenship Canada, 2019, https://www.canada.ca/en/immigration-refugees- citizenship/news/2019/05/canada-ends-the-designated-country-of-origin-practice.html, Accessed July 22, 2020.
Gibney, Matthew J. "The ethics of refugees." Philosophy Compass 13.10 (2018): e12521.
"Identity Documents for Refugees." United Nations High Commissioner for Refugees, 1984, https://www.unhcr.org/excom/scip/3ae68cce4/identity-documents-refugees.html, Accessed December 4, 2020.
Kenney, Jason. "Protecting Canada's Immigration System Act." Parliament of Canada, 6 March 2012, https://www.ourcommons.ca/DocumentViewer/en/41-1/house/sitting-90/hansard, Accessed 5 December 2018.
"Political Power Follows Economic Power." The Economist, 2016, https://www.economist.com/buttonwoods-notebook/2016/02/03/political-power-follows- economic-power, Accessed 5 December 2018.