TEMPORARY VISA VERSUS REFUGEE STATUS REFORM By Joe Bissett (Article)

Joe Bissett

  TEMPORARY VISA VERSUS REFUGEE STATUS REFORM

The beginning of the twentieth century ushered in the increased need for global travelers to obtain a visa before entering another country for a temporary period. The visa is a means of pre-screening to ensure that people who may be inadmissible for health, security or criminal reasons are prevented from arriving at a port of entry. On the other hand, it is also a means of facilitating the entry of people who are genuine visitors without intentions of remaining permanently. Although possession of a visa is not a guarantee of entry it speeds up examination procedures upon arrival.

Canada exempts citizens of most of the developed countries including the United States and the European Community from requiring temporary visas but occasionally is compelled to impose a visa requirement on a friendly country, some of whose citizens prove to be abusing their visa exempt status. This can cause problems.

Forcing visitors from a friendly country to acquire a temporary visa is interpreted as an unfriendly act and damages relations between the two countries. Moreover, it is not in any nation’s interest to slow down tourism and inhibit trade by placing restrictions on travel. There is also a risk the affected country may reciprocate by demanding that visiting Canadians have temporary visas.

 Despite these drawbacks the use of the temporary visa has been the method of choice by successive Canadian governments to stop the flow of visitors from countries whose citizens have shown to be abusing visa - free privileges. The abuse has been widespread and has been directly related to Canada’s generous asylum system.

 Canada permits anyone from any country who has entered the country to apply for refugee status and the Supreme Court has ruled that asylum claimants are entitled to due process of law guaranteed by the Charter of Rights and Freedoms. This has meant, in practice, that the system for dealing with asylum applications became entangled in long drawn out legal procedures, effectively paralyzing expeditious decision making. Even if after months- if not years –a negative decision was made on the claim for refugee status, the individual was seldom removed.

 The word soon spread that entering Canada and applying for asylum was an almost iron - clad guarantee for permanent residence – not to mention: free housing, medical care, welfare, and legal costs, while waiting for a decision from the Immigration and Refugee Board. The first group of individuals who arrived as tourists in 1980 and then promptly applied for asylum were Sikhs from India and when the numbers kept increasing the Government was forced to impose a temporary visa requirement on India. This action stopped the flow but did not improve relations with India.

 Since 1980 there have been a number of other “friendly” countries whose citizens entered as visitors but then applied for asylum, including: Pakistan, Portugal, Turkey, Brazil, Bulgaria, Jamaica,Trinidad and Tobago, Costa Rica, the Czech  Republic, Slovakia, Hungary, and Mexico. Again, Canada reacted by imposing a temporary visa on these friendly countries. As was to be expected, the countries concerned did not welcome this decision, which they regarded as an unfriendly act. Some, reacted by imposing temporary visas on Canadian travelers and others such as the European Union, threatened to do so.

  The use by Canada of the temporary visa proved to be an effective, if blunt, measure to stop potential asylum seekers from reaching Canadian territory but this was always done as a desperate last step and after many thousands of bogus asylum seekers have already entered.

 In 1980 Canada received 1600 asylum claims by 1988 the number had reached 45,000 and it is estimated that close to one million claims have been registered in the past 30 years. In 2008, asylum claims were filed by citizens of 188 different countries, including 22 of the 27 countries of the European Community and 2,300 claims from the USA.

 Canada was not alone in experiencing the asylum seeker phenomenon of the 1980s when thousands of people from the developing countries began to move into the industrialized countries of Western Europe and North America. Most of these travelers gained entry and then applied for refugee status as they were entitled to do under the 1951 United Nations Refugee Convention. It is estimated that from 1980 until the end of the 1990s over 5 million asylum claims were registered in Western Europe and North America. The numbers accelerated at great speed - in 1980 Western European countries had 20,000 asylum claims - by 1992 the number had risen to 560,000. Germany alone had 438,000 claimants that year and 322,000 in 1993.

All of the Western European countries reacted to the overwhelming numbers by enacting stricter methods for dealing with asylum seekers. Germany reacted quickly in 1993 despite having to change their 1949 Constitution and passed new and tough asylum laws. The most common feature of the new laws was the designation of certain countries as “safe” for refugees and prohibiting asylum claims from individuals coming from those countries.

 Normally, those countries chosen for designation were ones that were were democratic, followed the rule of law, had a good human rights record, and were also signatories of the UN Refugee Convention. The designation measure was not only effective in stopping the flow but had the added advantage of avoiding the need to use the temporary visa requirement; thus maintaining good relations with the “designated” country.

Notwithstanding the success of the EU countries in stemming the flow of asylum seekers successive Canadian governments refused to enact legislation adopting the “safe country” provision. Indeed any attempt to reform our out –dated and dysfunctional asylum system was fiercely resisted by a powerful refugee lobby composed of refugee advocates such as the Canadian Council for Refugees, immigration lawyers and consultants, and a multitude of NGOs and agencies (described by the Department of Citizenship and Immigration as “stake holders”.) These “stake holders” were often supported by a compliant media wanting to demonstrate sympathy for anyone claiming asylum despite evidence that only a small percentage were found to be genuine refugees.

Finally, after a quarter of a century of tolerating a dysfunctional and seriously flawed asylum system that had damaged our bilateral relations with many countries, that was terribly costly to the Canadian tax payer and was a threat to our ability to control our borders the Government decided reform was essential.

In June 2012, the Minister of Citizenship and Immigration, Jason Kenney, passed new refugee legislation that incorporated the “safe country” provisions similar to those in use among the EU countries. There can be little doubt that it was the outcry by Mexico, the Czech Republic and Hungary, backed up by threats by the European Community of retaliation over the use of the temporary visa imposition that played a part in convincing the Government to act.

 The new law had an almost immediate effect in reducing the asylum seeker intake. In 2012 the flow of asylum seekers was cut in half from 20,000 asylum claims registered compared to 9,700 in 2013. Moreover, the average waiting time for a claim to be heard by the Refugee Board in 2012 was twenty months – in 2013 it was reduced to two months. In the three previous years 25% of the asylum claims were filed by claimants from “designated countries” but in 2013 that number had been reduced to 8%.

The reform –long overdue –should now enable Canada to play a more useful role in assisting the United Nations High Commissioner for Refugees in his efforts to care for and protect the over 43 million refugees under his care. As well, it is doubtful Canada will be forced again to impose temporary visas on friendly countries.

       THIS ARTICLE WAS FIRST PUBLISHED IN DIPLOMAT APRIL-JUNE 2014

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