Refugees and the right to asylum

Monday, February 6, 2017
Photo: Anna Surinyach / MSF

We are currently experiencing the largest refugee crisis since the Second World War, according to the United Nations High Commissioner for Refugees. Individuals and families are fleeing their home countries due to persecution based on their ethnicity, nationality, religion, political opinion or membership to a particular social group. So far, thousands have died trying to reach safety. Yet, many do not see this crisis as an issue that affects them and for which everyone must take action.


What is the right to asylum?

The right to asylum is protected in Article 14 of the Universal Declaration of Human Rights (UDHR). However, the UDHR does not immediately create a legal obligation on states to implement its articles. To impose stronger legal obligations, the rights contained in the UDHR need to be part of a treaty. A treaty is a formal agreement between at least two countries in which they commit themselves to implement the obligations that it contains. The 1951 Convention Relating to the Status of Refugees is the treaty that builds on the right to asylum contained in the UDHR. The Convention is the key legal instrument that forms the basis of refugee protection around the world.

The Convention was a response to the Holocaust, intended to protect Europeans who became refugees prior to 1951. However, the 1967 Protocol Relating to the Status of Refugees removed the geographic and time parameters from the Convention. This means that states wanting to commit to protect all refugees must also sign and ratify, or accede to, the 1967 Protocol. As of January 2017, 145 states have committed to implement the Convention and 146 have committed to implement the Protocol in their territories. Canada became a party to both the Convention and the Protocol on June 4, 1969.


What is the principle of “non-refoulement”?

Article 33 of the 1951 Refugee Convention enshrines the principle of “non-refoulement”. This principle means that no state can return (“refouler”) a refugee who has reached its borders to a place where their lives or freedom would be threatened because of race, religion, nationality, political opinion or membership of a particular social group. Article 3 of the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 also protects the principle of non-refoulement. Canada signed the Convention Against Torture in 1985 and acceded to it in 1987. As a result, Canada is also legally bound by this convention.  


Two people stand in front of a Museum exhibit featuring two life jackets, a compass and an image of a ship at sea.
A Perilous Crossing looks at the story of over a million migrants and refugees who attempted to cross the Mediterranean in 2015 while fleeing war, persecution and instability.


What is the law in Canada?

In a country like Canada, an international treaty that has been signed and ratified or acceded to by the government does not immediately become law. The federal government must work together with the provinces and territories to pass a domestic law, or laws, in order to implement the international treaty and give it force of law in Canadian legislation. Several pieces of domestic legislation serve to implement Canada’s international obligations towards refugees into Canadian law. In particular, the Immigration and Refugee Protection Act, 2001 is the cornerstone of refugee protection in this country. Section 115 of the Act enshrines the principle of non-refoulement into Canadian law.

In the Singh v. Minister of Employment and Immigration (1985) decision, the Supreme Court of Canada also recognized that the rights contained in the Canadian Charter of Rights and Freedoms apply to and protect asylum seekers, regardless of their migratory status. Not everyone making a claim in Canada will be recognized as a refugee. Nonetheless, all need to be heard to guarantee that the principle of non-refoulement is respected. Canada does not have the same legal obligations towards refugees outside its borders. In order to be protected by the principle of non-refoulement, a refugee must have reached a Canadian border or Canadian soil.


What is the Safe Third Country Agreement?

According to the Canada-United States Safe Third Country Agreement (2004), a person is ineligible to make a refugee claim at the Canada-United States border because the United States is considered a “Safe Third Country.” This means that refugees who have arrived in the United States must make their claim in the United States and not in Canada. Over the years, many have argued that the Safe Third Country Agreement must be removed in order to ensure that no refugee will be sent back to face persecution or torture. In light of the global refugee crisis and current immigration policies in the United States, the Safe Third Country Agreement is being debated across the country by human rights activists, refugee organizations, legal scholars and immigration lawyers.


Why are people crossing the border in spite of the Safe Third Country Agreement?

The agreement applies to those making a claim at an official border crossing. However, if asylum seekers manage to cross in an open area and reach Canadian soil, they are entitled to a hearing. People who are arrested for crossing the border irregularly undergo a criminal record check. If they have a clean record, which means they have not been convicted of a serious offence and have not had previous claims denied in Canada, they are able to meet with a border officer and file a claim. Inadvertently, the agreement encourages asylum seekers to risk their safety in order to make their claims on Canadian soil, rather than present themselves at a border and be ruled ineligible to make a refugee claim.


Why doesn’t Canada penalize people who cross the border irregularly?

Many people mislabel asylum seekers, accusing them of “breaking the law,” being “illegal” and “jumping the queue ahead of real refugees.” However, international law recognizes that asylum seekers may need to enter a country without official documents or authorization. Terms like “illegal migrant,” “illegal immigrant,” and “illegal” criminalize the person, rather than the act of entering or remaining irregularly in a country. Article 31 of the UN Convention relating to the Status of Refugees prohibits governments from penalizing asylum seekers who enter or remain irregularly on their territory. This prohibition is reflected in Canadian law in section 133 of the Immigration and Refugee Protection Act.