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Impact of presidential election on U.S. and Canadian immigration: Part Two

Thursday, November 12, 2020 @ 8:38 AM | By Ravi Jain and Alexander Toope


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Alexander Toope
Perhaps the largest elephant in the room as it pertains to immigration and cross-border mobility between Canada and the U.S. is the COVID-19 pandemic. Since March, Canada’s executive branch has introduced a number of orders-in-council pursuant to the Quarantine Act, which have heavily restricted movement between the countries.

Under the orders-in-council, entry into Canada for non-essential travel has largely been banned, and foreign nationals in particular have been most negatively affected by the COVID-19 border restrictions. While there has been some loosening of the restrictions by allowing entry for the purposes of family reunification, compassionate reasons, and for many international students, it is hardly business as usual.

As the euphoria subsides for the Biden camp after their hard-fought victory, they will be left with the realization that the U.S. continues to be the epicentre of the pandemic. Canada on the other hand, despite rising cases, has managed to keep the pandemic somewhat under control, at least in comparison to our U.S. neighbours. As long as the discrepancy in COVID-19 cases between the U.S. and Canada continues, as is the current trend, it would be a tough decision politically for Canada’s governing Liberal Party to reopen the Canada-U.S. border, even if that continues to be what its U.S. counterparts seek.

The single most important action the new Biden administration could take that would greatly increase the likelihood of opening up the Canada-U.S. border, would be to bring their COVOD-19 cases down significantly. It remains to be seen if Biden’s COVID-19 policies, and adequate compliance with these policies from the U.S. population, will be enough to reduce cases such that opening up the border becomes viable.

Future of U.S.-Canada Safe Third Country Agreement

Another issue that will be front and centre on the immigration file on both sides of the border, is the future of the Safe Third Country Agreement (STCA). The STCA, which has been in force since December 2004, is a bilateral agreement between Canada and the U.S. that was created in part in an attempt to limit “forum shopping,” the notion that refugee claimants could claim asylum in both Canada and the U.S.

Under the STCA, subject to limited exceptions, individuals seeking asylum are required to make a claim in the first “safe country” that they arrive in. An exception to this general requirement is that claimants are not prevented by the STCA to enter Canada from the U.S. and claim asylum at unofficial ports of entry, such as Roxham Road in Quebec. These unofficial routes have been restricted during the COVID-19 pandemic but will likely be highly politicized over the next few years. The U.S. is currently listed as a “safe country” pursuant to the Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations, and similarly Canada is considered a “safe country” by the U.S under the STCA.

The constitutionality of the STCA is very much an open question, as the Federal Court of Canada in its July 22, 2020, decision of Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) 2020 FC 770 found that the STCA violated s. 7 of the Canadian Charter of Rights and Freedoms. The court pointed to evidence of the troubling state of immigration detention in the U.S., and the incidence of deportations to unsafe countries, calling into question the premise that the U.S. was a safe country for refugee claimants. The Canadian federal government announced in August that it would be appealing this decision, and the future of the STCA is in limbo pending the outcome of this appeal.

The legal validity of the STCA is only one factor, as there is also the question of whether the federal governments on both sides of the U.S-Canada border have the appetite to fundamentally alter the STCA, or whether they will seek to maintain the status quo for as long as possible. The Canadian federal government in its decision to appeal the Federal Court’s decision clearly took issue with the court’s reasoning, but it remains unclear if the government is willing to amend the STCA with its American counterparts.

It is unlikely that a Biden presidency will fundamentally alter the landscape to an extent that the U.S will suddenly become a haven for refugees, such that the question of whether the U.S. is a safe country would be put to rest. While Biden’s immigration plans are significantly more progressive than President Donald Trump’s, it is unlikely that all these plans will come to fruition. At the time of writing, it appears that the Republican Party will hold the Senate and thus likely try to block any progressive immigration legislation that the Biden administration would seek to advance.

Conclusion

Despite Biden’s election victory, the fact remains that nearly half of U.S. voters tacitly endorsed anti-immigration policies by voting for Trump. In contrast to the divisive politics surrounding immigration in the U.S., our nation’s pro-immigration culture, combined with concrete short-term and long-term immigration strategies, should convince people from around the world to continue to apply to immigrate to Canada.

This is the last of a two-part series. Read the first article: Impact of presidential election on U.S. and Canadian immigration: Part One.

Ravi Jain is a managing senior lawyer at Green and Spiegel LLP and a certified specialist in citizenship and immigration law by the Law Society of Ontario. Alexander Toope is an articling student at Green and Spiegel LLP in Toronto.

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