Canada sued over COVID-era policy that turns away asylum seekers at US border
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Canada sued over COVID-era policy that turns away asylum seekers at US border

The Canadian government is being sued over its pandemic-era policy of turning back asylum seekers attempting to enter the country at official border crossings.

The Canadian Association of Refugee Lawyers (CARL) filed a legal challenge on Tuesday against the Federal government’s decision to restrict access through the Canada-US border, citing in a statement “the severe harm faced by refugee claimants” who have been denied access and turned away.

Under section 4 of the order, those claiming refugee status are “prohibited from entering Canada from the United States” while the threat of the pandemic continues. The order has been renewed monthly since its initial ascension in March of last year. Canada’s Border Services Agency has turned away 387 asylum seekers since.

Canada says the policy is a necessary public health measure, but the policy appears to have had unintended consequences. The US has deported at least one asylum seeker according to CARL’s lawyers, while others are currently being held in detention centers.

“Refugee claimants can be immediately jailed when handed over to the US border officers, and then face deportation to their country of origin without having had a chance to make their case in Canada,” says Maureen Silcoff, president of CARL. “This is unlawful.”

CARL says the Canadian government is not doing its part to ensure that those turned away are not being deported, and by doing so has failed to abide by Canada’s obligations to protect refugees. The UNHCR website reiterates Canada’s responsibility, potentially leading those seeking asylum to be misinformed. The order states Canada sees “no reasonable alternatives to prevent the introduction or spread of the disease.” However, persons traveling to Canada who are not asylum-seekers have to be placed into a 14-day quarantine if traveling by land. CARL argues that the same protocols should apply.

“We have made exceptions for essential workers, actors, professional athletes, and family members of Canadians and permanent residents, and many thousands of people [that] have entered at the Canada US border during the pandemic,” says Lorne Waldman, a CARL lawyer.

Burundian Apollinaire Nduwimana attempted to cross into Canada in October through Roxham Road, a popular site for asylum seekers trying to avoid the Safe Third Country Agreement (STCA) between Canada and the US.

Under Article 4 of the STCA, a person claiming refugee status when entering either country from the other falls under the responsibility of the country in which they landed first. The 2002 agreement has come under scrutiny by those who view the designation of the US as “safe” for refugees as a misnomer, and who see the agreement as potentially violating a refugee’s fundamental human rights under the Canadian Charter of Rights and Freedoms. Nevertheless, the STCA was recently upheld by the Canadian Federal Court of Appeals.

Nduwimana wanted to avoid being turned back under the STCA according to his lawyers, only to be turned back under the new policy. US authorities attempted to deport him to Burundi, a country to which Canada is currently deferring deportations, citing a humanitarian crisis. Nduwimana was allowed to enter Canada under an exemption and has now filed a refugee claim.