Governing the Southern Border: The Politics and Policy of Irregular Border Crossing

By Declan Ingham and Ryan Phillips

The images of asylum-seekers being apprehended along our snowy southern border brought the issue of irregular immigration to the forefront of the Canadian political consciousness and has spurred a broader anti-immigrant backlash. Yet the headlines obscure the deeper story of both policy-makers and asylum-seekers managing and navigating complex Canadian and American immigration systems.  Anyone hoping to make sense of this topic must first understand the real scale of the problem, the context of how claiming asylum in Canada works, and the real drivers of irregular migration.

As a starting point, consider the numbers. Compared to total immigration figures, the officially reported number of irregular border crossers is low. Since the government first began tracking irregular border crossings in February 2017, until the most recent September 2018 data, there have been roughly 38,000 recorded irregular border crossers – an average of between 1500 and 2000 irregular crossers a month. Compare this against the nearly 300,000 total immigrants to Canada annually and these numbers look much less significant. The trend has also been toward reductions in irregular migration, with the number of irregular crossers peaking in the fall of 2017 and generally decreasing since then. Irregular crossers do not even account for a majority of asylum claims in Canada, with irregular crossers making up 36% of the 50,000 asylum claimants in 2017 and 41% of the 54,000 claimants in 2018. For context, between 2001-2016 there were roughly 26,000 asylum claims per year, with claims as high as almost 45,000 in 2001. While the current numbers are certainly high, they are not historically unprecedented.

“…the cost and resource strain of housing irregular asylum claimants during processing is becoming a burden to shelter systems in Ontario and Quebec.” 

So, if an overwhelming number of crossers is not the issue, then what is? First, the irregular nature of these crossings is contributing to a backlog of applications. Of the nearly 30,000 irregular crossers who have claimed asylum since early 2017, only about one sixth of those have been finalized, and only approximately 2,300 claims have been accepted. This irregular processing is immensely costly: the Parliamentary Budget Officer reports that the total cost of irregular migration will rise to $396 million in 2019-29 and each irregular migrant in 2017-18 cost $14,321. Second, irregular migration is heavily geographically concentrated with the overwhelming majority of irregular crossings occurring across Quebec’s southern border. Furthermore, the cost and resource strain of housing irregular asylum claimants during processing is becoming a burden to shelter systems in Ontario and Quebec.  The number of refugees in Toronto’s shelter system increased from an average of 459 per night in 2016 to nearly 3200 by mid-June 2018, resulting in a cost of roughly $64.5 million in the last two fiscal years according to a recent report. These costs are contributing to significant tensions between the governments of Quebec, Ontario, and the federal government. For example, Ontario Minister of Children, Communities, and Social Services Lisa MacLeod has blamed the issue on the federal government and demanded $200 million to cover the cost of housing refugees.

These issues have provoked a severe backlash in public opinion towards these particular asylum-seekers, shifting the conversation on immigration more broadly. Setting aside some extreme examples of this backlash, such as the attempted arson of a Toronto hotel housing refugees, polling data indicates that Canadians are broadly unhappy with how this issue has been handled. Angus Reid’s August 2018 polling has “two-thirds of Canadians (67%) calling the current situation a ‘crisis’” and a similar number (65%) believing that “Canada has received ‘too many’ irregular crossers for the country’s authorities and service providers to handle.”  Awareness of this issue was the highest of any topic polled in 2018 between January and August. Equally concerning is a decreasing sense of generosity, with nearly six-in-ten (58%) Canadians believing that “Canada is ‘too generous’” to people who cross the border irregularly.

Given that the irregularity of these crossings is so central to both the problems on the ground and to the extent of the political backlash, its helpful to understand the forces driving these asylum-seekers to cross the border outside the normal ports of entry. At the heart of this issue is the Safe Third Country Agreement signed between Canada and the United States in 2004. Originally intended to deter “asylum-shopping”, it requires refugee claimants to seek protection in the first safe country in which they arrive. In practice, this means that those leaving the United States and trying to cross into Canada at officially designated sites (official land border ports of entry) cannot claim asylum.  This is laid out officially in The Immigration and Refugee Protection Act which requires that “every person seeking entry to Canada must appear for an examination at a port of entry to determine whether that person has a right to enter Canada.” (s.18).

“Generally, when asylum-seekers cross the border, they are arrested, screened for security purposes, and then turned over to the Canada Border Services Agency to claim asylum…”

Generally, when asylum-seekers cross the border, they are arrested, screened for security purposes, and then turned over to the Canada Border Services Agency to claim asylum, as laid out in this government backgrounder.  Yet there is a conflict between this procedure and Canada’s role as a signatory to the 1951 Convention Relating to the Status of Refugees, which requires Canada to abide by three norms: non-discrimination, non-penalization, and non-refoulement.  The latter principles declare that “refugees should not be penalized for their illegal entry or stay”, up to accepting breaking immigration laws and that “no one shall expel or return a refugee against his or her will”. So, while irregular border crossing is undesirable, Canada does have an obligation under international law to process these claims.  

Country of origin data for irregular border crossers helps explain what might be driving the flow of migrants.  Two countries, Nigeria and Haiti, represent more than 60% of irregular border crossers. While the US used to be considered a highly desirable place to immigrate, an increasingly hostile environment for immigrants is pushing asylum claimants north.  Nigerians fleeing the violence in their home country are entering the US on travel visas with the express purpose of travelling to Canada. Haitians have been fleeing the US after Donald Trump’s administration terminated a special protected status program that allowed Haitians to live and work in the US legally. In both these cases, the potential claimants would not be eligible to claim asylum in Canada at an official port of entry according to the Safe Third Country Agreement and so have attempted to skirt this issue by crossing the border outside official ports of entry.

While backlash and frustration confuse this issue, the core problem is not an overwhelming number of migrants, but rather the irregular nature of the migration and an institutional structure poorly suited to handle the needs of particular groups of asylum seekers. A shifting American political climate and changing U.S. immigration polices have contributed to creating this flow of people seeking refuge in Canada, however, the incentive structure created by the Safe Third Country agreement leads these people to cross the border at unofficial points of entry.  Ultimately, policy action on this file will require carefully balancing Canada’s humanitarian and international obligations with the need to normalize and re-structure the asylum claiming process.

The analysis in this article is drawn from a presentation put forward by the winning team at the Munk School’s Fall Policy Case Competition, whose members included Master of Public Policy candidates Ryan Phillips, Marcia Filgiano, Natalie Gdyczynski and Declan Ingham.

Declan Ingham is 2020 Master of Public Policy candidate at the University of Toronto’s Munk School of Global Affairs and Public Policy with an Honours Bachelor of Social Sciences from the University of Ottawa. With a view to transforming the Canadian policy environment, Declan studies social, urban, economic, and labour policy alongside foreign affairs, electoral politics, and political philosophy. When not studying public policy or politics, Declan is busy living it by exploring Toronto and waxing poetically on the topics du jour.

Ryan Phillips is a 2020 Master of Public Policy Candidate at the Munk School of Global Affairs and Public Policy and a Junior Fellow at Massey College. He holds a Bachelor of Commerce with a Specialization in Finance and Economics from the University of Toronto. His policy focus is social policy, with a particular interest in the impact of technological change on labour markets and income inequality. In his free time, Ryan enjoys exploring the city’s art museums and looking for the city’s best slice of pizza.