This article originally appeared in the National Post.
By Christian Leuprecht and Guadalupe Correa-Cabrera, April 14, 2023
To stem the surge in irregular migration at Roxham Road, the U.S. and Canada recently extended their Safe Third Country Agreement (STCA), to apply between ports of entry as well. Under the renegotiated STCA migrants must apply to a Canadian agency before crossing from the U.S. into Canada, and vice versa.
Both countries can now turn back asylum seekers attempting to cross irregularly or without authorization. This “new deal” is good news for migrants and for the continent overall. In lieu of border disorder, it affirms three fundamental principles of a sustainable migratory system: the orderly processing of documented migrants, due process and the rule of law, as well as the efficient and effective use of scarce public resources.
Migrant advocates often argue that borders should be open: Whoever shows up at a border should be allowed to cross and lodge a claim. But who shows up is not random. Rather, Darwinian survival-of-the-fittest is fundamentally incompatible with a principled approach to the protection of refugees and asylum seekers. Instead of unequal access for those who can afford to pay, the STCA is an important step toward levelling the playing field for all vulnerable people in genuine need of protection.
Neither domestic nor international law offer an internationally accepted definition of “migrant.” To the contrary, the careless and indiscriminate use of the term ignores the democratic socio-political process that defines a non-citizen’s status, which determines conditions of admissibility that distinguish undocumented migrants from economic immigrants, refugees and asylum seekers. States have legal and moral obligations to immigrants and refugees, and to consider asylum claims. Under domestic and international law, these obligations differ by such criteria as human vulnerabilities, labour needs and other material and ethical considerations.
Public perception of queue jumping at Roxham Road challenges the legitimacy of a well-administered migration policy that is fair for the most vulnerable and grounded in the rule of law. Irregular migration puts at risk the integrity, sustainability and legitimacy of the social contract on which the domestic migratory regime is based. Such a contract preserves the integrity of a state’s borders and the successful political and economic socialization and integration of migrants, as well as social justice and the collective benefit of migration in fostering prosperity.
These are the three cornerstones for the legal regime that admitted a record one million newcomers (immigrants and non-permanent residents) to Canada in 2022. However, polls show that the impression that government is no longer able or committed to the orderly management of the state’s borders causes popular support for legal migration to decline and risks stoking nativist populism that calls into question the sustainability of the entire migratory system.
With population expected to grow by 2.5 billion in the Global South over the next 25 years, that system is coming under massive strain. The number of people who strive for asylum or refugee status in the Global North vastly exceeds the fiscal and social capacity of receiving countries. The current refugee system sprung up after the Second World War in an acknowledgement that certain people deserve temporary protection. Evidence in Canada and the U.S. shows that many asylum seekers today are not seeking temporary protection: their intent is to immigrate.
In a world where travel is relatively cheap and easy, refugee and asylum provisions have become a back door for economic immigrants who would not otherwise be admissible, and who do not qualify under exemptions that would allow them to lodge a claim at an official port of entry. In 2022, for example, 40,000 people crossed into Canada irregularly from New York at Roxham Road, whose location has made it a semi-unofficial port of irregular entry. Yet, almost half had entered the U.S. legally. At Roxham Road, 40 per cent who cross end up having their claims denied. Although the rate is above average, even failed claimants are unlikely to be removed.
For all intents and purposes, many are economic migrants. Claimants originate in countries marred by conflict, corruption and dire economic conditions: Central America, Venezuela, Cuba, Haiti. Sophisticated human smuggling networks, which fall under the UN Convention on Transnational Organized Crime, prey on their misery. Yet, it is not illegal for someone to avail of the services of a smuggler or even to commit identity fraud for the purposes of making an asylum claim. In fact, the UN Office on Drugs and Crime estimates the vast majority of people who try to make it to North America engage the services of human smugglers and what is now a $10-billion-a-year industry.
The STCA discourages irregular (asylum) or illegal entry (human smuggling) at Roxham Road. Claimants who fall under an exemption can still register their claims at Lacolle, Que., which is the closest point of entry. The only “new” element is that on either side of the border claims have to be registered at a formal port of entry. The renewed STCA manifests the open border paradox: co-operative bilateral and binational governance and border management is actually essential to advance mutual security, prosperity and democracy, while mitigating the exploitation of vulnerable migrants.
To be sure, the STCA is no silver bullet. Its effectiveness hinges on co-ordinated enforcement at and beyond the border, Canada stepping up to take a bilateral and trilateral approach with Mexico and the United States to help relieve despair at the U.S.-Mexico border, far-reaching reforms to the UN Convention on Refugees and to the U.S. asylum system, as well as greater access to legal migration pathways in the Global North, where jobs are aplenty and demand for unskilled labour is high.
Victims in need of protection should have equal opportunity to lodge their claim, offshore, while people on the move should lodge a claim in the first country where it is safe for them to do so. Instead of ideological turf wars over the STCA by critics intent on stigmatizing inequalities between the U.S. and Canadian systems, comprehensive reform of the North American and global migration systems is in order if such tragedies as the detention centre fire in Ciudad Juárez, Mexico, that killed 40 last month, and the eight migrants who drowned in the St. Lawrence River two weeks ago, are to be prevented.
Christian Leuprecht is Professor at the Royal Military College of Canada and Queen’s University, and a senior fellow at the Macdonald-Laurier Institute. His forthcoming book is Security. Cooperation. Governance: The Canada-United States Open Border Paradox. Guadalupe Correa-Cabrera is Professor in the Schar School of Policy and Government at George Mason University. Her forthcoming book is entitled Coyotes LLC: The Industry of Human Smuggling and its Transnational Crime Networks. Both are naturalized immigrants in Canada and the United States, respectively.
