Are asylum seekers walking across the border into Canada actually breaking the law?

Since the start of 2017, there's been a marked increase in the number of people arriving in Canada from the U.S. to seek asylum.

OTTAWA – Since the start of 2017, there’s been a marked increase in the number of people arriving in Canada from the U.S. to seek asylum.

More than 1,000 people have filed refugee claims at the Quebec-U.S. border since January, compared with about 200 during the same time last year. In Manitoba, at least 107 people have filed asylum claims at the border since January, compared with 45 in the first two months of last year.

Some of those claimants entered Canada at official “ports of entry” – formal border crossings where hundreds of thousands of people each year present their travel documents to border officers for inspection before being allowed into the country.

“What we’re seeing now is that people are crossing illegally trying to seek asylum here in Canada, risking life and limb.” – NDP immigration critic Jenny Kwan.

“What is happening at our border right now is illegal.” – Conservative MP and leadership candidate Erin O’Toole.

But hundreds of others entered Canada between those points of entry, trudging over farm fields in blowing snow or picking their way along marked but rocky paths before being intercepted by an RCMP or border security guard.

Is that – as Kwan, O’Toole and others have characterized it – illegal?

Spoiler alert: The Canadian Press Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of “no baloney” to “full of baloney” (complete methodology below).

This one earns a rating of “a little baloney.” Here’s why.

Two pieces of legislation explicitly govern the entry of foreign nationals into Canada – the Immigration and Refugee Protection Act, or IRPA, and the Customs Act.

The Customs Act requires that anyone arriving in Canada enter “only at a customs office designated for that purpose that is open for business” and present themselves to an office to answer questions.

That act, however, is broadly understood to focus on the movement of people in relation to goods and the payment of duties; it’s the IRPA that governs asylum-seekers.

It also says that foreign nationals must appear for an examination to determine whether they have a right to enter the country. That depends on whether they have or are eligible for the appropriate documents – a visa, for instance. If they don’t, they can be charged, and fined or imprisoned if convicted.

But IRPA also contains an exception: anyone who comes into Canada and claims refugee protection can’t be charged with any offences under immigration law or certain Criminal Code sections “pending disposition of their claim for refugee protection or if refugee protection is conferred.”

That exception is the most important element in these cases, suggests Jamie Liew, a refugee law expert at the University of Ottawa.

“It’s reflecting our commitment in international human rights and refugee law that persons fleeing persecution should not be punished for the way in which they flee, i.e. the way in which they may enter other countries’ borders in order to seek safe haven,” she said.

“This principle has been around for quite some time.”

The principle is rooted in two international treaties – the Universal Declaration of Human Rights, which says everyone has the right to seek asylum in other countries from persecution, and the 1951 UN Refugee Convention.

Article 31 of the convention says states cannot impose penalties on refugees who enter or are present in those states “without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”

The vast majority of genuine refugees have no choice but to cross borders irregularly, said Sharry Aiken, an expert in refugee law at Queen’s University.

“The refugee convention was inspired by the realities around the world and the fact that refugees are the one exception that we make when it comes to crossing borders in an illegal manner,” Aiken said.

“We say, as long as you come with the intent of seeking asylum, we give you a ‘get out of jail free’ card.”

Toronto immigration lawyer Guidy Mamann said that while the convention applies, it doesn’t overrule Canadian law.

“That does not mean that the way they are entering is legal,” he said. “That does not erase the illegality.”

Because the asylum seekers can’t be charged under immigration law until after their claim has been decided, what they are doing shouldn’t be described as illegal, said Liew.

“It’s inaccurate in accordance with our legal rules, but secondly, it paints a wholly unfair picture of what is actually happening,” she said. “People are fleeing dangerous and perilous situations and people are making very dangerous decisions risking limb and life.”

During a recent technical briefing on the issue, both the RCMP and Canada Border Services Agency repeatedly used the term “illegal” in reference to the crossings.

For his part, Public Safety Minister Ralph Goodale often uses the term “irregular,” but has also acknowledged those crossing in this manner initially do face legal repercussions immediately and could face more down the line.

The Immigration and Refugee Protection Act clearly lays out what someone needs to do to gain lawful entry into Canada.

The hundreds of people crossing at unofficial border points are breaking that law by showing up without the proper documentation to enter the country and by doing an end-run around an official border entry point.

However, an immediate claim of asylum protects them from being arrested and charged, both by the terms of the IRPA and the UN’s 1951 Refugee Convention.

For these reasons, the claim that what’s happening at the border is illegal contains “a little baloney”: the statement is mostly accurate but more information – context, in this particular case – is required.

The Baloney Meter is a project of The Canadian Press that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale:

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