Canada has broken the law by barring asylum seekers from crossing the U.S. border at irregular entry points during the COVID-19 pandemic, a new court challenge contends.
The challenge filed Tuesday by the Canadian Association of Refugee Lawyers says the government is breaching its international obligations to refugees.
It alleges that by turning such asylum seekers back to face detention in the United States and potential deportation to their home countries — the Canadian government is exposing them to the prospect of torture, persecution and even death.
“We have launched this challenge to provide a voice to vulnerable people during the pandemic who are seeking Canada’s protection, and who face harsh consequences when turned back to the U.S. at our border,” says Maureen Silcoff, the association’s president and co-counsel in the case.
“Refugee claimants can be immediately jailed when handed over to U.S. border officers, and then face deportation to their country of origin without having had a chance to make their case in Canada. This is unlawful.”
According to the legal application against the justice, immigration and public safety ministers, Ottawa has issued 14 Orders in Council under the Quarantine Act to restrict traffic at the Canada-United States border in order to control the spread of the COVID-19 pandemic.
While those who arrive at an official port of entry are allowed to enter if they meet certain exemptions — such as having family members in Canada — others trying to cross through unguarded entry points, such as at Roxham Road in Quebec, are sent back to the U.S except for American citizens, stateless habitual U.S. residents or certain unaccompanied minors.
Silcoff said advocates have seen a number of cases in which prospective asylum-seekers have been turned back at the border and ended up being detained and facing deportation from the U.S.
Just last month, the Star reported on the case of Roberto Carlos Teran Rivera, a man from Nicaragua, and his failed attempt to cross the border to claim asylum and rejoin his wife in Canada. He was handed over to U.S. officials and has been detained pending removal.
The legal application alleges that the government has failed to consider “reasonable alternatives” for people seeking refugee protection in Canada in its border measures to curb the spread of the COVID-19.
Specifically, the legal challenge is asking that refugee claimants be allowed to enter and quarantine, like other many travellers whose entry is deemed essential.
“We have made exceptions for essential workers, actors, professional athletes and family members of Canadians and permanent residents, and many thousands of people have entered Canada at the U.S. border during the pandemic because we have deemed their travel is essential,” says Lorne Waldman, a co-counsel in the case.
“The least we can do for those seeking refugee protection at our border is ensure we abide by the law. This means they cannot be denied access to a fair hearing in our refugee system. Turning them back when they face jail in the U.S. jeopardizes this right.”
A spokesperson for Justice Minister David Lametti declined to comment on the case, citing the fact that the matter is active before the courts.