By Michael Barutciski
March 18, 2026
Canadians are justifiably proud of their historical commitment to refugee protection. When the UN High Commissioner for Refugees awarded the prestigious Nansen humanitarian medal to Canada’s population in 1986, it was not a coincidence.
Aside from innovating with community-sponsored selection and resettlement of refugees from overseas, Canada has also established the most generous procedures for migrants who show up (uninvited) at our borders seeking protection in the form of asylum. The treatment of these asylum seekers by Canadian authorities has been considered the gold standard for decades.
While these achievements deserve to be celebrated, we need to be aware of the context that made such humanitarianism possible. Canada became a global model because it specialized in migration control, with tight visa policies playing a crucial role in limiting overall intake. It is much easier to adopt expansive and generous interpretations of international norms when the number of beneficiaries is relatively limited.
The lenient entry policies of recent years have upended this balance in a way that cannot be overstated. Our legal traditions and practice have meanwhile continued to provide asylum seekers with unparalleled treatment, even though we are now dealing with numbers rivalling top European asylum countries with double our population. This is clearly unsustainable, so the federal government has been trying to reintroduce the previous tight visa policies.
The problem is that the backlog for asylum decisions at the Immigration and Refugee Board (IRB) is huge, while at the same time there are unprecedented numbers of temporary residents whose visas are expiring. They will not all leave quietly after years of implicit semi-promises that they could eventually transition to permanent status. As a sign of the underlying worries, the Immigration Minister has recently expressed concern that many foreign students have started claiming asylum.
This is the conundrum the government must now face. Bill C-12, which introduces a one-year deadline for filing an asylum claim, represents a practical first step to avoid aggravating the IRB’s backlog. Given the wide-ranging problems and confusion regarding the institution of asylum, a useful next step would be to revisit and clarify the basic principles and purposes of this historic concept. A clearer vision will then help to address the IRB’s backlog, while respecting Canada’s commitments and humanitarian tradition.
To the extent that the country’s challenges resemble those of our allies and partners, we can no longer avoid extensive collaboration at the international level. The way in which asylum is now interconnected with mass transnational migration flows indicates that old approaches need to be modernized to address 21st-century realities.
Clarifying the basic principles and purpose of asylum
For most of human history, asylum was never envisioned as an individual entitlement to be invoked against the authorities of a potential host society. Contrary to the wishful thinking of well-intentioned authors, ancient civilizations saw asylum as a charitable and discretionary act, usually offered to various types of destitute people, including fugitives. This was not a “human right,” a modern concept that did not exist centuries ago, and it was certainly not conceived as an obligation to protect foreign migrants claiming to be persecuted by their own political authorities. Until well into the twentieth century, if we could speak of a “right” relating to asylum, it was in the sense of a state’s right to grant asylum to whomever it saw fit.
From a historical perspective, it is therefore useful to understand that the idea of asylum as a human right protecting individuals from political persecution is relatively recent. Yet, to this day, states still refuse to sign an international treaty that explicitly obliges them to provide asylum to persecuted people. The last attempt during an important Geneva conference in 1977 ended up in a diplomatic fiasco with advocates and academics misreading the limited government (and public) support for creating a new right to asylum for persecuted people.
Even the Refugee Convention signed in 1951 does not mention the word “asylum” in its 46 articles. This fundamental treaty does not, for example, include anything about providing asylum seekers with a hearing. Its most basic protection is the principle of “non-refoulement,” which stipulates that refugees cannot be returned to a country where their “life or freedom would be threatened.” To the extent that transfers to safe countries are possible, it should be clear that an obligation to avoid “refoulement” is not the same as providing asylum. This is the nuance that allows Canada to enter into a Safe Third Country Agreement (STCA) with the United States.
The negotiation process relating to the Refugee Convention provides further insight into our current predicament. The drafters deliberately limited the category of beneficiaries to foreigners who are individually persecuted, which is why the expression “refugee” is used in the singular form. Statements by the diplomats drafting the non-refoulement guarantee clarify why they did not intend for this protection to cover mass flows or refugees fleeing war. The French representative, who was supporting an earlier intervention on the importance of the limitations, provides us with the type of honest talk that is unfortunately lacking today:
Mr. ROCHEFORT (France) agreed with the views expressed by the representative of Switzerland … A country could not contract an unconditional obligation towards persons over whom it was difficult to exercise any control, and into the ranks of whom undesirable elements might well infiltrate. The problem was a moral and psychological one, and in order to solve it, it would be necessary to take into account the possible reactions of public opinion.
The underlying dilemma has not changed and these carefully considered omissions need to be appreciated so that current challenges are properly contextualized. Contrary to what many may think, there was never a genuine and explicit commitment in treaty law to protect mass flows or people fleeing wars. We may be willing to help with discretionary humanitarian aid, but we did not agree to provide fleeing foreigners with an entitlement to settle on our territories.
Even with a restricted refugee definition and non-refoulement provision being negotiated in Geneva, Prime Minister Louis Saint-Laurent’s Cabinet nevertheless instructed the Canadian representative not to sign days before the official signature of this historic treaty. According to Government of Canada archives, there was concern that it would somehow oblige the country to provide asylum to communist US citizens who claimed to be persecuted in the context of the McCarthy witch hunts. After “considerable discussion,” the federal Cabinet, which included prominent members Lester B. Pearson and C.D. Howe, concluded “authority could not be given to sign the Convention.” Canada eventually became a party to the Refugee Convention in 1969 (by means of accession), following the civil rights movement in the US, yet the fact that it is not a signatory reflects how our continental partner has always affected our own asylum policy.
Despite this ambiguous context, our political and media classes have been influenced over the decades by advocates and academics who have pushed for an approach guided by what Max Weber would qualify as an ethics of conviction or Gesinnungsethik. The unidimensional (convictions-based) way our universities promote “refugee studies” is reflected in our collective thinking that lacks a crucial aspect to make asylum policy sustainable in the long-term: an ability to find a prudent compromise between ideological purity and an ethics of responsibility or Verantwortungsethik.
Unsurprisingly, the academic theories in vogue have for years revolved around the idea of reconceiving asylum as “surrogate protection” of human rights. We now generally interpret the refugee definition in a larger manner that covers war refugees, along with many more categories, despite no changes to international treaty law. Indeed, our judges have increasingly interpreted the protection beneficiaries in an inclusive way that would be unrecognizable to the original drafters of the Refugee Convention.
Yet there is only so far we can continue without a serious reassessment of our willingness to assume the inevitable consequences. With the transformation of international transportation and technology, the only way a system claiming to protect war refugees can survive is if we use migration control methods such as visas to make sure an overwhelming number of nationals from populous large countries (e.g. Iran, Sudan, Syria, Afghanistan) cannot show up at our border. This is the underlying hypocrisy at the heart of the Canadian tendency to expand beneficiaries covered by the refugee definition.
Providing foreigners with territorial asylum is clearly a complicated societal issue: it can only work if it has significant public support. It is therefore unwise to have such an obligation indirectly imposed by well-intentioned judges, although this has been the strategy of advocates and academics for decades.
It makes sense for legal interpretations to evolve, but we have gone too far in our desire to be as open as possible. Instead, we should be promoting legal sources that are explicitly consensual because they more accurately reflect the political constraints on this sensitive issue that requires democratic backing. By fundamentally changing our interpretation of key notions relating to asylum, we are now disconnected from the original and prudent commitment negotiated by the original drafters of the Refugee Convention.
National legislation is another consensus-based approach that highlights the political limits to the evolution of legal norms relating to asylum.
For many years, a key source of confusion regarding asylum is that many Canadians have held the false assumption that asylum seekers benefit from the right to a hearing as soon as they set foot in the country. Yet section 101 of the Immigration and Refugee Protection Act specifically includes ineligibility clauses that should suggest caution to anyone who believes automatic access to a hearing is part of Canada’s system.
Parliament has provided for an initial determination as to whether the migrant is even eligible to make a claim, including various security-related grounds of ineligibility. Moreover, there is also a clause rendering claimants ineligible when they come “directly or indirectly to Canada from a country designated by the regulations.” This is the legislative provision that enables transfer to the US. Even a cursory reading of the Act should make clear that an automatic right to a refugee hearing was never intended or established by Parliament.
The way advocates and academics have promoted a distorted interpretation of the landmark 1985 Supreme Court decision in Singh v. Minister of Employment and Immigration has contributed to the confusion. Contrary to the widespread misreading that has influenced the media and even parliamentary committees, our country’s top court never decided the Charter of Rights and Freedoms guarantees asylum seekers the right to a hearing.
The Supreme Court did establish an important general rule in Singh: all persons who arrive at the border are covered by the Charter, regardless of their immigration status. Yet establishing that the Charter applies is not the same as interpreting the content of these Charter rights in various contexts. In terms of refugee status determination procedures, the Supreme Court noted in Singh that the claimants, all Sikhs, were going to be sent by Canadian authorities back to their home country. For six of the seven claimants, this meant being returned to India, a country the Court considered dangerous for them given the violent internal tensions at the time. (The other claimant was to be returned to Guyana.)
However, the Supreme Court never generalized by saying that all claimants always have a right to a hearing. If claimants come to Canada via a safe third country, such as the US, then they can be returned to that country. This is the basic principle at the heart of the Safe Third Country Agreement, which the Court accepted in 2023 when it refused to declare the agreement unconstitutional (as advocates and academics have been demanding for years).
In other words, dealing with asylum claimants coming from the US is a different situation than the one addressed in Singh and the legal constraints are not the same. We will not be able to encourage creative solutions to our asylum conundrum if we cannot recognize the nuance in Canadian legislation, which replicates the logic underlying the 1951 Refugee Convention.
The theme of exaggerated legal constraints characterizes the Canadian approach and it speaks to the lack of seriousness in addressing genuine dilemmas.
Another issue that has been creating tensions across the federation relates to the geographic distribution of asylum seekers. With a record backlog at the IRB, uneven distribution has considerable implications on provincial responsibilities and creates disproportionate burdens. Yet we are unnecessarily limiting political options if we falsely claim that the Charter of Rights and Freedoms prevents the involuntary transfer of asylum seekers across the country – as was done recently in parliamentary committee by the director general of asylum policy at Immigration, Refugees and Citizenship Canada (IRCC.)
Section 6 of the Charter is clear: mobility rights are reserved only for citizens and permanent residents. Given their status as temporary residents, asylum seekers do not benefit from these rights. The following section 7 protects liberty, but we cannot interpret such a general provision in a way that directly contradicts the precise wording in section 6. From a practical perspective, we will never be able to distribute asylum seekers across the federation in a spirit of responsibility-sharing if we insist on their consent because most will simply refuse to be transferred outside the big urban centres.
Recent immigration-related tensions in Canada have centred around uncontrolled migration, with advocates and academics seeking to expand the rights of all migrants, including asylum seekers. Unfortunately, it is clear our country’s historical approach to asylum is somewhat characterized by confusion.
To fully grasp the confusion, we also need to appreciate that a progressive approach to the concept of borders has been favoured for years by our intellectual classes. Our universities have been promoting an ideology that espouses that a global injustice results from a supposed “birthright lottery.” The idea is that people from poor and unstable regions are unable to travel to Western countries because they are not lucky enough to have been born somewhere that provides passports which allow visa-free travel. Contrary to Western citizens who can easily travel to most countries, these losers in the “birthright lottery” are forced to take risky journeys to claim asylum if they want to escape their difficult conditions.
There is no doubt that this view is attractive to those who value maximal individual liberty. However, while it is understandable to sympathize with reversing a perceived global injustice, it is foolish to manage migration with theoretical and ideological constructs devoid of data or real-world concerns. Progressive theorists would have us believe that the capacity for migrants to integrate into a society is limitless because it depends on political will, but in the real world there are both political and practical constraints.
While it is legitimate, indeed necessary, to limit the number of asylum seekers so that the system does not break down, we need to be upfront about the inevitable containment effect in regions of origin. This requires a sophisticated approach to international solidarity, given the simplistic arguments frequently used to denounce Canada’s small share of the world’s displaced persons. It is true that the vast majority of these people are stuck in poor countries of the Global South. But Canada is a modern, rich country that offers unparalleled treatment to asylum seekers, including generous benefits and almost automatic citizenship to those granted asylum. In many other regions asylum seekers often struggle to receive adequate food and shelter and are given a precarious status from unstable host governments. Suggesting Canada is hosting only a small fraction of these vulnerable migrants is to compare apples with oranges.
While humanitarian assistance can help attenuate the burden on regional states that are inevitably going to bear the brunt of the human responsibilities, we can play a constructive role by developing mechanisms of international co-operation and by managing uncontrolled migration. This important theme will be explored below in the concluding section.
Reducing the IRB’s backlog
If we accept that asylum in Canada should be reserved for exceptional cases regarding individuals who are actual victims of persecution, then we must reconsider our generous practice. We interpret the norms so inclusively that we are de facto granting this form of protection to foreigners fleeing general human rights problems and misery in their home country. The latter may be deserving of Canada’s protection, but their cases should be handled on a discretionary basis as opposed to a legal obligation. Refugee resettlement could be the appropriate mechanism for these migrants because it is a form of controlled migration: the government ultimately decides on who to select and how many to admit in any given year.
Yet asylum is a controversial concept precisely because it is intimately linked to uncontrolled migration. Contrary to academic theories that suggest asylum capacity is only limited by political will, the real-world problems experienced in Canada over the last few years demonstrate why it is sensible to restrict available space to unambiguous cases involving individualized persecution.
By normalizing yearly asylum claims in the six digits (i.e. multiple times higher than a mere decade ago), we now have a backlog of almost 300,000 applicants who are waiting for a first-level decision at the IRB. Claimants can spend several years clarifying their status. To relieve pressure so that this historic backlog does not grow even bigger, it is necessary to limit future claims. The one-year deadline for filing an asylum claim introduced by Bill C-12 represents a practical first step to avoid aggravating the IRB’s backlog.
When considering other options, we need to be aware that our European allies are openly trying to curtail the inflow of asylum seekers. Not long ago, this was a central (albeit unspoken) part of our own asylum policy. Given our geographic isolation, a key role was played by strict visa issuance reinforced by rigorous interdiction measures. Canada was for decades a leader in this form of migration control and it was by abandoning this approach over the last few years that we find ourselves with the current unsustainable situation.
By ignoring this key tacit dimension, some of our policymakers appear confused about policy options: Although he is sometimes credited with recognizing the recent abuse in the asylum system, former Immigration Minister Marc Miller has expressed doubt as to whether Canada can even use visas to restrict the arrival of potential asylum seekers. This misinformed view ironically makes it easier to mislead Canadians by blaming supposed global trends. Yet the fact that our top source countries for asylum claims include India and Mexico should signal that our situation diverges considerably from the typical flows affecting our peers. Our leaders should not be obscuring that we actually have some of the largest asylum numbers on a per capita basis in the Western world.
These problems of superficial analysis suggest we have to be careful not to abandon the strategic mindset that allowed us to effectively manage migration for much of our history. Similarly, our geographic position and historical relationship with the US oblige us to reinforce the STCA if we do not want to be overwhelmed by large numbers coming across our common land border. These are examples of the harsh realities of asylum policy that we have been unable to openly and honestly debate in recent years.
Past attempts at streamlining procedures and increasing resources
Before we embark on attempts to limit the timeline for asylum decisions, we should understand what happened to previous attempts. This is an old problem and IRB experiences provide important lessons.
While the amendments recently introduced by Bill C-12 will help control the IRB’s backlog by introducing a one-year filing deadline, they also include a provision that removes the old time limits for speeding up decision-making. This discreet provision included in Part 8 of Bill C-12 indicates Parliament is relaxing the pressure on the IRB to expedite claims.
The deadline of 60 days for first-level hearings introduced in legislation from 2012 collapsed shortly after the start of the Roxham Road saga. For the following years, the government tolerated the IRB’s de facto inability to meet legal timeline requirements and it has now formally abandoned the idea by deferring to the IRB’s internal “strategic case management.”
Although it has recently been recommended by both the Standing Senate Committee on Social Affairs, Science and Technology and the Standing Senate Committee on National Security, Defence, and Veterans Affairs, allocating more resources is not necessarily the answer. The suggestion that this would allow quicker decisions is likely unrealistic even though it has long been recommended by optimistic analysts. We need to keep in mind that resources and personnel at both the IRB and IRCC have doubled over the last decade. There is little reason to believe throwing more money at the current system will produce different results.
Moreover, there is an unacknowledged dilemma that points to the actual underlying problem: If delays are shortened and decisions are negative, then advocates will initiate legal challenges that will further delay the process. This is how we got to the current lengthy delays following the attempt to impose a 60-day timeline.
If, on the other hand, quicker procedures result in 95 per cent acceptance rates, as was the case with the old “preliminary hearing” in the first years after the IRB was created in 1989, then we should question why we even bother investing the time and resources when we are essentially allowing almost every asylum seeker to stay in Canada.
To establish a functioning and efficient system, we will ultimately have to curtail legal challenges and be willing to take swift action after negative decisions. The inconvenient truth is that the solution to Canada’s asylum problem will inevitably require limiting the number of claims and restricting the numerous (and redundant) legal challenges currently available. A sophisticated asylum system simply cannot exist with mass migration resulting from (relatively) open border policies.
Parliament will need to take a more hands-on approach because the IRB has demonstrated over the years that it is incapable of functioning in an efficient manner that produces timely decisions. There may be multiple reasons for this disappointing record, but Parliament can no longer avoid the necessary procedural changes to address the constant and recurring delays.
The need to streamline and harmonize asylum procedures
We should always try to have an asylum process that is credible and fair towards migrants, while also swift and respectful of the host society’s generosity. To preserve credibility and prevent misuse, procedural safeguards must also be realistically balanced with what is possible within reasonable timelines. It is important for both the claimants and the hosts that we realize the process must be conducted as quickly as possible and that resources are not limitless.
To maintain a manageable system, it is legitimate to limit access to the asylum process and to allow expedited procedures. While the one-year filing deadline in Bill C-12 is practical, it will also respect migrant rights if we thoroughly conduct the pre-removal risk assessment (that by law can include an oral hearing if necessary) so that we can seriously address the possibility of changed circumstances in the country of origin.
The outlier status and accompanying pull factor that has resulted from years of Canada’s overly generous approach also places additional pressure to harmonize our asylum system with other Western democracies, while building on the US partnership. Yet advocates and academics have been calling for the STCA to be suspended, in the same way they never accepted the introduction of the “safe third country” concept in Canadian legislation almost four decades ago. This hardline position illustrates a conviction-based position that is oblivious to consequences: suspending the STCA would likely increase the risk that Canada’s asylum system would collapse. Many migrants worried about their status in the US would be tempted to try their chances at obtaining asylum by crossing the border into Canada.
As a quasi-judicial body established by Parliament, the IRB can only function in an independent manner and adopt its own procedures to the extent allowed by the enabling legislation. Yet we should be skeptical of so-called efficiency measures introduced by the IRB to speed up decision-making and to reduce the asylum claim backlog. We cannot ignore that fast-tracking for the IRB has generally meant rubber-stamping to accept claimants without an oral hearing.
As pointed out in a recent commentary by lawyer James Yousif, the incentive to produce positive decisions is much greater if the IRB is trying to speed up overall decision-making and reduce its backlog:
At an asylum hearing, if the board member determines that the evidence meets the legal test for refugee status, a positive decision can be rendered immediately, read into the audio recording of the hearing, and the file swiftly closed. The board member will have almost no further work on the file, no decision to write, and the IRB scores a plus-one finalization. By contrast, negative decisions rejecting a claim of asylum require much more time and effort. Invariably, they must be written with great precision and care, because a negative decision will likely be appealed and closely scrutinized by immigration lawyers and adjudicators at the Refugee Appeal Division and the Federal Court of Canada.
It is astonishing how the IRB’s chairperson was allowed to issue instructions for a so-called “File Review” process that institutionalizes a list of countries and claim types that can be quickly accepted without a hearing. Canada has indeed moved far from the original individual persecution standard that underlies the Refugee Convention.
Expanding ineligibility
A practical approach if we are to limit referrals to an asylum hearing at the IRB would be to expand the application of the ineligibility provision in section 101 of IRPA. For example, a logical change given our continued reliance on responsibility-sharing with the US would be to limit the exceptions in article 4(2) of the STCA, which currently include an expansive definition of family (uncles, nieces, grandparents, etc.).
If the general objective is to limit asylum claims so that the IRB can address its backlog and to ensure the system is not overburdened in the future, then the government should be exploring STCA-type treaties with our allies and partners so that we can designate additional countries under section 101(1)(e) of IRPA. Although this provision has existed for years, it has only been used to designate the US. It is time for the government to actively explore adding other countries to the list, such as European Union members and the United Kingdom.
Yet the government’s decision in 2019 to remove all countries from the “Designated Countries of Origin” list is an example that reflects the reluctance to restrict access to full asylum hearings. Just as rigorous visa policies are being reimplemented, the list should be reestablished with the goal of preventing IRB asylum hearings for citizens of western democracies. Such limitations would conform with international obligations and constitutional requirements to the extent that the foreigners come from a safe country and a pre-removal risk assessment is offered (including an oral hearing if necessary).
If we are serious about expanding the ineligibility clauses provided for in section 101 of IRPA, then the government should consider introducing the Internal Flight Alternative concept as one of the initial ineligibility criteria. According to this more restrictive approach, claimants who can reasonably move to another part of their home country (where they would not be persecuted) should be provided with a pre-removal risk assessment but not necessarily access to an IRB hearing.
Incomparably high recognition rates
Even if access to full IRB hearings can be limited and timelines reduced, changes to adjudication will be necessary if we do not want Canada to be perceived as an overly generous outlier. What is the point of investing in quicker decision-making at the IRB if broad interpretation results in the vast majority of claimants approved?
At over 80 per cent, Canada must recognize that it has incomparably high recognition rates that follow from its generous interpretation of various notions in the Refugee Convention. This is the logical outcome following decades of university teaching and scholarship that has trained our future lawyers to expand protection by interpreting terms such as “refugee” or “persecution” in the most open way possible.
With its particularly lenient procedures and interpretations, Canada has clearly become an outlier that attracts a disproportionate number of asylum claimants. The only way to harmonize recognition rates and become less of an outlier will be to address how our procedures diverge from peer countries.
Nothing in domestic or international law requires decision-making to be conducted by a quasi-judicial body such as the IRB. After making decisions on claims for almost forty years and developing the most progressive guidelines, it is time to acknowledge that the general context has evolved. An approach that may have been manageable decades ago is no longer sustainable if we consider the practical consequences.
A starting point for reining in the IRB will be to establish legislative parameters regarding its guidelines and instructions. The decision-making body should not be interpreting norms independently, but rather in a manner established by Parliament.
It is not by chance that the Refugee Convention establishes a framework that leaves much to state discretion. This fundamental treaty also deliberately avoids subjecting state practice to an international supervisory body, contrary to other human rights treaties. Given that democratic legitimacy is simply too important for a sensitive issue involving territorial sovereignty, it is understandable that national jurisdictions were left as the ultimate arbitrators on norm interpretation. By having Parliament align our procedures and decisions with our peers, we will be able to reassess whether further changes are needed to the IRB.
Concluding thoughts on international collaboration to reconceptualize asylum
Immigration and asylum tend to be polarizing topics that make it difficult to have a respectful and constructive exchange of ideas. Given our current predicament, we cannot continue ignoring that the asylum system we established relies on a fundamental hypocrisy: we pretend that we are open, but we use visas to limit numbers. Being upfront about our actual commitments does not mean we are heartless, particularly if the supposed commitments have been loudly broadcasted without serious thought to consequences.
Singh established that asylum seekers in Canada who risk being returned to a dangerous country benefit from a right to a hearing if they claim protection. The corollary is equally important if we are to explore creative solutions to Canada’s asylum problems: there cannot be a Charter violation if asylum seekers are sent to a safe country. Although it will disappoint advocates and academics, the future of a sustainable asylum system will inevitably involve extraterritorial procedures and an extension of the safe third-country idea. We need to properly grasp basic legal constraints to make sure these procedures are as fair and humane as possible.
These conceptual readjustments can be made without abandoning our commitment to a humanitarian approach to global displacement. As soon as the IRB’s backlog and new asylum claims are under control, the government would have space to consider the possibility of more ambitious refugee resettlement targets in the future. A rebalanced Canadian approach would allow the focus to return to this form of controlled migration, so that containment strategies do not represent the central response to the world’s displaced populations.
While a values-based realism would represent a significant departure from the sloganeering and hypocrisy that allowed our previous approach to proceed uncontested for decades, it could allow Canada to be a leader in exploring solution-oriented international cooperation. To the extent that our allies are dealing with similar challenges, we all have an interest in coordinating our responses to ensure the most effective and humane system possible. By building a coalition with our allies, we could contribute to redesigning an international asylum system that places emphasis on extraterritorial procedures. The European Union and the United Kingdom, along with the US, are clearly looking for new approaches that address asylum along these lines.
Reforming asylum becomes easier with intergovernmental collaboration, particularly if we all use our leverage with the world’s main body that helps refugees and asylum seekers: the Office of the UN High Commissioner for Refugees (UNHCR). We created UNHCR in 1950, and by emphasizing in its statutory mandate that it is supposed to work with governments to provide protection to refugees, we have an institutional vehicle that can be used to promote international reconceptualization from a governmental viewpoint.
Instead of exploring these types of innovations in the past, we allowed UNHCR to become a bloated agency that has difficulty justifying why its work cannot be conducted by aid agencies and NGOs. Even worse, we provided funding that it has used for decades to advance maximalist asylum positions encouraged by advocates and academics. To the extent that UNHCR funding is essentially based on voluntary contributions, pressure can be exercised so that it can revise its maximalist positions and focus on finding solutions that involve more extraterritorial processing.
To sum up, we would be wise to use this moment of dysfunction with our asylum system to enact serious reforms that go well beyond the tinkering of recent decades. The IRB’s historic backlog gives us no alternative but to rethink the whole system and to clarify the purpose of asylum from a values-based realistic perspective. By returning to basic principles, we will develop clarity of vision that is no small task in a polarized environment complicated by many loud interest groups.
With this in mind, we recommend the following:
- To the extent that university research on asylum law and policy is almost exclusively focused on expanding the rights of asylum seekers and increasing their protection, the government should encourage more diversity by considering ways to fund alternative research that explores innovative new approaches that balance the rights of migrants with the legitimate interests of states.
- Given the recent doubling of the IRB’s resources and personnel, the government should explore alternative measures to bring the current backlog under control and to prevent the system from being overburdened in the future.
- The government should explore limiting the number of future asylum claims deferred to the IRB by expanding the ineligibility provisions in section 101 of IRPA.
- After almost forty years of operation, the government should consider a significant overhaul of the Immigration and Refugee Board. Respecting international and domestic legal obligations does not require a quasi-judicial body that can act independently, so alternative models should be explored to bring our asylum adjudication more in line with systems used by peer countries.
- The government should seek international collaboration involving our allies and partners, as well as the UN High Commissioner for Refugees, to develop extraterritorial procedures for asylum claims.
While our allies are undergoing similar problems with their own asylum systems, we have to realize that Canada has found itself in an outlier position because of its tendency towards overly-generous interpretation of the relevant norms. In this sense, we have no choice but to rein in the system: concepts need to be reconsidered, which will allow for procedures and structures to be changed. Ideally, we would then be able to leverage international collaboration in reconceptualizing asylum in a manner that finds the appropriate balance between the dignity of migrants and the legitimate interests of states.
About the author
Michael Barutciski is a professor at York University’s Glendon School of Public and International Affairs and a senior fellow at the Macdonald-Laurier Institute.
