What propels newcomers to Canada’s borders? How can we manage the humanitarian challenges and tap into the promise of new arrivals? The Star series Crossroads looks at the changing landscape facing migrants, law enforcement and policymakers. Third of three parts. Read Part 1 and Part 2

Jose Moncada Urbina gets emotional when he hears people talking about shutting down Roxham Road, the famous rural route in Quebec that opens Canada’s door to asylum seekers.

Sitting in his cosy Mississauga home, the Nicaraguan man can’t help but reflect on his own journey, fleeing police violence and political persecution — and imagining how life would have been different for his family now if they had been denied that lifeline to safety.

“To think that other people won’t have the same opportunity and chance that my family and I had,” pauses the 47-year-old man, tearing up, “makes me upset.”

A spike in irregular migration and U.S. President Joe Biden’s upcoming visit to Ottawa have put both Roxham Road and the Safe Third Country Agreement, our bilateral border pact with the U.S., in the spotlight. Critics say neither are working, but what are the alternatives and will they just create new problems?

Although irregular migrants have been crossing for decades at Roxham Road, one of many entry points along the 8,890-kilometre porous land border with the United States, it gained prominence — and notoriety — with the surge of foot traffic spurred by the anti-immigration agenda when Donald Trump became U.S. president in 2017.

Ottawa’s asylum ban against these border crossers during the pandemic halted the flow, but the influx returned as soon as the ban was lifted in November 2021. Last year, the RCMP intercepted 39,540 people who crossed between Canadian ports of entry. In January alone, already some 5,000 entered Canada in the same manner.

Under the Safe Third Country Agreement, Canada and the U.S. each recognize the other country as a safe place to seek refuge. It dictates that migrants should pursue their claims in the country where they first arrived.

But the policy does not apply to the woods and dirt roads — and waterways — between official crossings, which some say is a “loophole” that makes the measure ineffective in pushing back the border and stopping migrants from seeking asylum in Canada.

Prime Minister Justin Trudeau plans to raise the issue with Biden, and Canadian Immigration Minister Sean Fraser met this week with his White House counterpart.

While the Bloc Québécois and the NDP have called for the agreement to be suspended, the Conservatives want to close Roxham Road as the Liberal government continues its “renegotiation” of the treaty with Washington that started in 2018.

“Canada remains firmly committed to upholding a fair and compassionate refugee protection system that respects the rights of asylum seekers and safeguards the integrity of our border,” Bahoz Dara Aziz, Fraser’s spokesperson, told the Star.

“Irregular migration demands a focus on both the root causes in a migrant’s country of origin, as well as with the promotion of regular pathways and managed borders. This requires co-operation on the international stage, including with the United States on the Safe Third Country Agreement.”

Suspending it or “closing” Roxham Road could result in migrants using other irregular crossings, some of which place them in danger and affect local communities incapable of responding to the influx, said Aziz.

While no quick changes to the border treaty are expected, critics say it’s a root cause of irregular migration that Canada is seeing and something has to be done about it.

Ottawa could expand the rules to the entire border, which, in effect, would plug the opening at Roxham Road; cancel the agreement to allow migrants to orderly seek asylum at official crossings; or tweak the terms to adjust how wide or narrow the door should be open for refugees.

Each option, experts say, could have unintended consequences.

Extending asylum ban across the entire border

Irregular migration on the northern border has been a “less salient” issue for Washington, which saw immigration arrests from the southern border with Mexico top 2 million last year, said Susan Fratzke, senior policy analyst at Migration Policy Institute, a bipartisan think tank in Washington.

That explains the cold reception from the U.S. in response to Canada’s request. In a recent interview with the CBC, American ambassador to Canada, David L. Cohen, said changes to the Safe Third Country Agreement would do little to solve irregular migration.

Even if the White House is willing to renegotiate, Fratzke said it’s hard to predict if the number of irregular migrants to Canada will go up or down with the closure of Roxham Road because desperate migrants would find more perilous and surreptitious ways to come.

But expanding the asylum ban to the entire border could have an immediate political impact.

“It’s something that has a lot of appeal in terms of the messaging of it. This would send a message to people who are trying to cross that it is something that will no longer be as easy or as possible,” said Fratzke.

“Policymakers on both side of the border still need to be prepared for other incentives and unintended consequences it creates as regards to how people will behave. It certainly won’t in itself solve the problem.”

For decades, successive Canadian governments had pushed the U.S. to sign the pact because the flow of migrants at the Canada-U.S. border disproportionately came from the south to north as it was generally easier to first enter the U.S.

According to a U.S. House of Representatives hearing, in the year prior to the treaty taking effect in 2004, about 14,000 asylum seekers came through the U.S. to Canada but only about 200 went the other way.

The September 11 terrorist attacks in 2001 gave Ottawa a chance to push for the treaty, with Washington conceding to Canada’s lobby in exchange for more border security co-operation.

Fratzke said such bilateral treaties are built on signatories sharing similar asylum processes and immigration policies such as visa requirements.

The Dublin Regulation, a similar regime in Europe, was first established in 1990 but she said it is still rife with challenges with its implementation because systems and capacities of the member states are not always in sync.

“One of the reasons why you would implement something like a safe third country agreement is because the odds and conditions under which someone is being considered for asylum in one country are quite similar to those in another country,” said Fratzke.

“It’s fair to say that even within the context of the EU, where there is co-operation and alignment between countries’ asylum and migration systems, implementing an agreement based on safe third country principles has been difficult.”

And that’s a problem between Canada and the U.S., according to critics, who argue that the U.S. asylum system is cruel and inhumane, which makes it unsafe for refugees.

For it to work, both the Canadian and American governments must also do their equal part in preventing migrants from entering the other country, said University of Toronto law professor Audrey Macklin, who has studied the border agreement closely.

It did not help, for example, when the City of New York began providing free bus tickets to migrants heading north to claim asylum in Canada.

Before the border treaty was signed, said Macklin, experts and advocates testifying before Parliament had warned them about the anticipated disorderly irregular entries into the country, and that the rules would not deter people from coming.

Although the number of asylum claimants in Canada dropped by 23 per cent to 19,748 a year after the agreement was implemented in 2004, the decline was short-lived as migrants tried other ways to skirt the rules.

There were ebbs and flows through the years in response to global refugee crises and domestic policy changes such as visa requirements against certain refugee-producing countries. But it peaked at 64,030 in 2019 during the Trump era before the pandemic hit.

“It’s not just about extending the agreement so Canada can push people over the border. It would be asking the United States to develop an entire apparatus on its side,” said Macklin.

“How do you make people stop wanting to flee the country they’re in to get to a place that they think is better or safer? That’s the question. It’s not even in the United States’ control?”

Macklin points out that Canada could build a wall and invest billions of dollars in surveillance technology and hire border patrols but it costs far less to process asylum claims made by irregular migrants.

Scrapping Safe Third Country Agreement

When the Nicaragua government started using armed forces to crack down on protests against tax hikes and pension reductions in April 2018, it was the last straw for Moncada Urbina, a computer engineer, and his wife, Norma, a lawyer.

The couple joined peaceful demonstrations to condemn police violence and supported the young protesters trapped in university campuses by delivering them food, water and medical supplies.

As authorities began detaining and jailing dissidents and sympathizers, Moncada Urbina decided to seek refuge in Canada, where he has close relatives.

However, only he and his eldest daughter, Katherine, now 21, had a visa to Canada and they didn’t have time to apply for a travel document for his wife, Norma, 48, and their two other children, Allison, 16, and Daniel, 13.

Instead, with their American visas (except for Norma, who went into hiding), Moncada Urbina flew to Boston with the three teenagers and arrived at Roxham Road three days later, in September 2018.

“My children couldn’t cross at a port of entry without a visa. Roxham Road was our only option,” said Moncada Urbina, whose family was granted asylum in 2021, with his wife arriving this past November.

“If you shut down Roxham Road, people would pick more dangerous ways or use traffickers to come. It’s human nature for survival,” he said.

And that would be the last thing that Loly Rico would like to see happening.

The executive director of Toronto’s FCJ Refugee Centre said Canada has a more fair asylum system that processes cases faster and allows claimants to work while waiting for their hearings. With Biden’s administration continuing Trump’s policies, Rico said the push for irregular migrants to Canada won’t end anytime soon.

Scrapping the Safe Third Country Agreement would mean a return to the way things were managed before 2004, when asylum seekers could cross at any of the 100-plus land ports of entry in eight provinces.

Currently 99 per cent of irregular migrants cross through Roxham Road and in June the federal government started transferring them to Ontario and other provinces, housing them in hotels.

As of this month, 7,848 asylum claimants have been transferred to Ontario, including 702 to Ottawa, 1,028 to Windsor, 4,618 to Niagara Falls, and 1,500 to Cornwall. Since February, 113 have been transferred to Halifax, 38 to Fredericton and 25 to Moncton.

Between 2017 and 2021, Ottawa issued payments totalling $551.6M to cover housing costs of asylum seekers who arrived in the U.S. through irregular means: $374 million to Quebec, $144.1 million to Toronto, $17.1M to Ottawa, $8 million to Manitoba, $6 million to B.C., $2.2 million to Peel Region and $220,000 to Hamilton.

Abolishing the border agreement “is not going to open a flood gate but would distribute migrants more evenly across Canada,” said Rico, who with her late husband, Francisco Rico Martinez, fled El Salvador in 1990 under a program to grant asylum to those trapped in their own country that was spiked by the Harper government in 2012.

Toronto refugee lawyer Raoul Boulakia agreed.

“There’s no reason for irregular migration when you don’t have a safe third country agreement,” said Boulakia, who has seen migrants choosing to remain in the U.S. underground even if they would have met an exemption from the rules for asylum at a Canadian port of entry.

“By not having people go through irregular points of entry, we’re allowed to have a lot more flexibility to distribute where people are entering. People do have a higher likelihood of staying at where they arrive.”

In February, the Biden administration introduced new rules to deny asylum to migrants who show up at the southern border without first seeking protection in a country they passed through, said Boulakia, and that could help check the downstream of northbound migration.

Tweaking the terms of the border treaty

The Safe Third Country Agreement provides exceptions for some groups to make an asylum claim at Canada’s official crossings:

University of British Columbia law professor Efrat Arbel said the border agreement allows either country to make exceptions unilaterally.

“We have at our fingertips the ability to create a larger scope of protections through these exceptions that will result in greater efficiency, in saving resources, and a more principled, more progressive, more rights protecting approach to managing our borders,” said Arbel, who teaches refugee and constitutional law.

Ottawa could exempt migrants fleeing gender-based persecution or those from countries where Canada has a moratorium for removals due to wars or human rights violations, she said.

But at the end of the day, it’s a zero sum game that would simply divert migrants from one way to another to reach a safe destination as the displaced population worldwide continues to grow, doubling in the last decade to more than 100 million people.

Roxham Road is a byproduct of the global response to the refugee crisis, said Arbel.

“Through the deliberate acts of the Canadian government, there is no other point of entry. And combined with the fact that Canada is so geographically removed from the world conflict zone, it becomes impossible or practically impossible for migrants who are seeking protection to access Canada any other way,” she explained.

“These are measures that prohibit refugees and asylum seekers from meaningfully accessing rights protection based on how they enter or where they enter from, and not the reason why they are seeking entry.”

Macklin said the concerns over irregular migration do appear to be more about border control and possibly racism than the actual number of arrivals. She pointed to Canadians’ response to Ottawa’s special immigration measures that, in just over a year, welcomed 178,000 Ukrainians fleeing the Russian war.

“Nobody is hysterical about the numbers, it seems to me,” said Macklin. “It’s not about numbers, right? It’s about whiteness. Look, we have made it our choice and therefore, it’s OK.”

Last October, the Supreme Court of Canada heard the appeal by asylum seekers and rights groups to declare the Safe Third Country Agreement unconstitutional. A decision is pending.

“Oddly enough, if the federal government loses the Supreme Court appeal, it will actually solve the problem for them,” Macklin said.

Correction — March 14, 2003: This file has been updated to correct the names of the Bloc Québécois and Conservative Party.

Asylum claimants referred to Immigration and Refugee Board

2000: 37,748

2001: 44,640

2002: 33,426

2003: 31,872

2004: 25,526

2005: 19,748

2006: 22,920

2007: 28,496

2008: 36,856

2009: 33,153

2010: 23,130

2011: 25,315

2012: 20,472

2013: 10,465

2014: 13,800

2015: 16,592

2016: 23,350

2017: 47,425

2018: 55,388

2019: 58,378

2020: 18,500

2021: 24,127

2022: 60158

Sources: Immigration and Refugee Board of Canada and Statistics Canada

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