A lawyer explains why river-crossing asylum-seeker was allowed to stay in Canada

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This article was published 01/10/2015 (3442 days ago), so information in it may no longer be current.

When asylum-seeker Yahya Samatar swam down the Red River into Canada, he didn’t enter the country in the usual way.

But as a refugee, a person with a well-founded fear of persecution as the Immigration and Refugee Board ruled Wednesday, he cannot be punished for entering Canada illegally.

In a question-and-answer format (edited for length and clarity), University of Manitoba immigration law Prof. Shauna Labman explains why.

She spoke to volunteers Wednesday night at the Immigrant and Refugee Community Organization of Manitoba about changes to Canada’s immigration policy. Her audience included Samatar, who helps out with its after-school program.

The law professor said afterwards profiling Samatar’s case now is important, “not just because of the spectacular river crossing but because it is important for people to recognize our legal responsibility to asylum-seekers even as we are wanting to help desperate refugees overseas.”

FP: Samatar travelled through safe countries like Brazil and the U.S. Shouldn’t he have stayed there? Isn’t the U.S. considered a safe third country?

SL: Bilateral or multilateral agreements can be made between countries that essentially bar access to a state’s asylum procedures because claimants have travelled through a safe third country en route.

Canada and the U.S. have a Safe Third Country Agreement, negotiated as part of a package of post 9/11 measures. Essentially, designating a third country as safe signifies that the country will provide protection under the refugee convention. I should add that the designation of the U.S. as “safe” has not been without criticism or legal challenge.

In Yahya’s case however, the agreement does not apply. It applies only if you make a refugee claim at a land port of entry. (He entered Canada and then made his refugee claim from inside this country).

FP: If Samatar had showed up at the border trying to get into Canada, he wouldn’t be allowed in. He snuck into Canada and was allowed to stay and have a hearing. How is this fair or right?

SL: You could argue this two ways:

a) it is not fair he got in, or

b) it is not fair he wouldn’t have been allowed in at the border.

The Safe Third Country Agreement does create this unfair treatment… It is an example of an obstacle the government puts in place under the justification of security but it forces/promotes/incentivizes illegal entry and/or smuggling, which the government then indicates it is cracking down on.

FP: The Immigration and Refugee Board (IRB) member who approved Samatar’s refugee claim Wednesday said he wasn’t bound by the U.S. decision that rejected it. Should he be?

SL: This ties back to the question of why he didn’t stay in the U.S. — they rejected him.

Canada, through the IRB, makes its own decision on whether someone meets the refugee or person-in-need-of-protection definition. Samatar would not have been eligible to claim protection in Canada had he been recognized as a refugee in the U.S. or another country.

Even where the United Nations High Commissioner for Refugees (UNHCR) has recognized someone as a refugee and granted them refugee status, UNHCR status is not determinative of Canadian eligibility for resettlement to Canada and Canadian law guides the visa officer’s decision on resettlement.

It makes sense that Canada makes its own decisions.

FP: Legally or constitutionally, why should Canada care about and provide protection to people like Samatar?

SL: Canada does not have to care about Yahya Samatar but does have a legal obligation not to refoule (send back) a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.

This obligation comes from the 1951 Convention Relating to the Status of Refugees (Article 33), which Canada signed in 1969… Basically, what this comes down to is that by international agreement, many countries have recognized that if refugees arrive on their territory they will not be sent back…

The key thing I think people miss or forget sometimes is that Canada made an international promise, incorporated into our own laws, to protect people like Yahya.

Non-refoulement is a legal obligation on the state, whereas resettlement is something the state takes on voluntarily.

carol.sanders@freepress.mb.ca