Academic journal article Review of Constitutional Studies

Insecure Refugees: The Narrowing of Asylum-Seeker Rights to Freedom of Movement and Claims Determination Post 9/11 in Canada

Academic journal article Review of Constitutional Studies

Insecure Refugees: The Narrowing of Asylum-Seeker Rights to Freedom of Movement and Claims Determination Post 9/11 in Canada

Article excerpt

Framing the Issues

Seventeen days after 9/11, the United Nations Security Council (UNSC) adopted a resolution that flagged the fact that persons who make refugee claims could be terrorists. The resolution called on states to take measures to ensure that refugee status is not granted to a person who has "planned, facilitated or participated in the commission of terrorist acts," and to ensure that refugee status is "not abused" by those involved in terrorist activities. (3) Given that the Refugee Convention excludes from protection those who have committed crimes against peace or humanity, as well as acts that are "contrary to the purposes and principles of the United Nations," (4) or for whom there are "reasonable grounds for regarding as a danger" to the host state's security, (5) this resolution was substantively redundant. It was also quite pointed.

Read modestly, the UNSC resolution was a call to states to ensure they were respecting their existing obligations. That is, if terrorists were being granted refugee status or otherwise being shielded through the refugee system, then states were not properly administering the Refugee Convention and needed to revisit their protocols to ensure that those involved in terrorism were identified and excluded. Given the context and timing, the resolution flags the need for states to be alive to the possibility that the asylum system can be a potential route for terrorists.

The UNSC resolution resonated in many ways with concerns that were identified in the United States about the adequacy of front-end screening processes. However, the American assumptions about risky persons went beyond asylum-seekers, and they also assigned blame. Many declared that the 9/11 terrorist attacks were made possible by Canada practicing weak border controls and being naive about risk. This perception may have been fueled by the then-recent story of Ahmed Ressam. Mr. Ressam, an Algerian citizen, tried to enter the United States from Canada in December of 1999 with explosives in the trunk of his car. His alleged target was the Los Angeles airport. Mr. Ressam had previously made an asylum claim in Canada, and was found not to be a refugee. However, his deportation was stayed. The reasons for the stay are not entirely clear. (6) There are indications that the stay was due to a decision to suspend deportations to Algeria, and because CSIS wanted to keep Mr. Ressam under surveillance. Canadian refugee decision-makers had not been duped, nor was Mr. Ressam dodging deportation through technical appeals or living underground. His presence in Canada reflected the exercise of high-order discretionary political decision-making. The threat he caused to the United States appears to reflect failures in CSIS surveillance. However, by 2001 his story--or parts of it--had nonetheless been "repeatedly cited as illustrative of the failings of Canadian refugee policy." (7) The singular fact that Mr. Ressam had once claimed refugee status in Canada displaced all other elements of the story in popular and political American imagination.

In the weeks following 9/11, the terrorists were consistently described as having gained access to the United States via Canada: that is, they were able to easily enter Canada in some fashion, and then take advantage of our lightly controlled shared border. (8) For example, on September 13th, a Boston Herald article indicated federal investigators believed "the terrorist suspects may have traveled ... by boat" from Canada, and a September 14th article in the Washington Post stated that two of the terrorists were known to have "crossed the border from Canada" into Maine, and that others may have entered through Maine as well. (9) More inflammatory conclusions were published in the New York Post, which stated that "terrorists bent on wreaking havoc in the United States" came through Canada because it is "the path of least resistance." (10) One of the more colourful characterizations of Canada's border practices as naive and insecure was offered by a former Senator for Colorado, who asserted shortly after 9/11 that "Osama bin Laden . …

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