Illegal immigration to Canada

The use of the term irregular or illegal is disputed when referring to the act of crossing the Canada–United States border outside of a point of entry (POE) to claim asylum.[1]

Entering Canada outside of a POE is not an offence under the Criminal Code or Immigration and Refugee Protection Act (IRPA); regulations under IRPA only require that a person seeking to enter Canada outside a POE to "appear without delay" at the nearest entry point.[2] While entering Canada outside of a port of entry may represent an unlawful act, section 133 of IRPA requires that charges related to any offences associated with entering Canada are stayed while an entrant's claim is being processed in accordance with the Convention Relating to the Status of Refugees.[3] If the Canadian government grants refugee status, any charges are stayed permanently.[2] Claimants may face charges for other unlawful activity, or background checks may determine the claimant has a criminal history or presents a national security risk, which are outside the scope of the section 133 staying of charges and may result in denial of a claim.[3]

The Government of Canada, including the Immigration and Refugee Board (IRB), use the term irregular to refer to these border crossings.[4][5] Refugee organizations, the Liberal Party of Canada, and the New Democratic Party also use this term.[1] The Conservative Party of Canada, in contrast, use the term illegal, with the justification that entering outside of a port of entry is a violation of the Customs Act.[3] The Royal Canadian Mounted Police use neither word, instead using the term interceptions.[6]

Canada is signatory to the 1951 UN Convention Relating to the Status of Refugees, and within Canada, the Immigration and Refugee Protection Act (IRPA) is the legislation that governs the flow of people.

IRPA, established in 2003, outlines the ruling, laws, and procedures associated with immigrants within Canada. It provides officers of the Canada Border Services Agency (CBSA) with the authority to detain permanent residents and foreign nationals if any of the individuals have violated the rulings of the Act. Roughly 12,600 individuals who were living in Canada including 1,900 criminals who violated this Act and either posed a high risk to Canada or were illegal immigrants who were deported in the year of 2006–07.[7]

Article 31 of the UN Refugee Convention says that receiving countries may not penalize refugees for how they enter a country as long as they present themselves “without delay” to authorities and show “good cause” for their presence.[8] Illegal entry is not an offence in Canada's Criminal Code, however Immigration and Refugee Protection Regulations 27 (2) says that anyone who does not enter at a port of entry must check in “without delay” at a border point.[9] As clarified by James Hathaway, founding director of the University of Michigan's program in refugee and asylum law, “If someone a) comes forward voluntarily, and b) explains that the reason they crossed the border illegally was they were looking for protection, it’s clear as a bell: You may not under any circumstance penalize them.”[10] An asylum seeker would be considered in violation of IRPA if they cross at an unofficial border point, and does not promptly go to a port of entry and doesn't file a refugee claim. In addition to potential criminal charges if a refugee seeker' asylum is rejected.[10]

Canadian Immigration Stamp

Canada has an immigration program that is established for every migrant wishing to live in Canada. This program seeks individuals who will have the highest chances of providing positive input into the Canadian economy.

As of 2017, Canada has a number of immigration programs through which migrants can legally enter Canada:

• Federal Skilled Worker
• Canadian Provincial Nominee Program
• Canadian Business Immigration
• Canadian Experience Class
• Family Class Sponsorship

The new Federal Skilled Worker Program (FSWP) measures the capabilities of individuals who are required to meet a passing mark, in order to have their application accepted. Currently, the passing mark is 67 out of 100 in six categories: education, work experience, language, age, arranged employment, and adaptability (e.g., any previous work or education acquired within Canada).[11]

In addition, migrants may legally enter and apply for temporary resident status under the terms and conditions of the UN Convention Relating to the Status of Refugees of which Canada is a co-writer and signatory. It is this class of entrant that draws the most controversy.

From January 2017 to March 2018, the Royal Canadian Mounted Police intercepted 25,645 people crossing the border into Canada illegally. Public Safety Canada estimated that another 2,500 came across in April 2018 for a total of just over 28,000, of which 1,000 had been removed from Canada. Federal government ministers expected that "close to 90 per cent" of asylum claimants would be rejected.[12]

The last audit of the Canadian population was performed in 2004 that indicated approximately 36,000 more individuals over a span of 6 years became illegal residents within Canada.[7] These statistics are considered inaccurate because Canada does not record the information of illegal individuals leaving the country, but it is the last authentic value provided. A federal government draft report from 2001 included an estimate of 100,000 illegal immigrants then residing in Canada.[13]

In the 1980s, large numbers of Brazilian foreign nationals would arrive in Canada claiming refugee statuses. They would then reside until the end of their refugee process which allowed them to study, work, and collect social benefits. Canada noticed the large trend and imposed a requirement in 1987 of Brazilian foreign nationals needing to attain a visa in order to arrive in Canada, making it a little more difficult for many to immigrate.[14] During their stay, these foreign nationals would develop the skills to pass the Canadian immigration tests, and become Canadian legal citizens. Those who would not pass the citizenship tests would either leave back to Brazil, or continue to live as illegal residents.

In 2008, Auditor General of Canada Sheila Fraser found that the Canada Border Services Agency (CBSA) had lost track of 41,000 individuals who had been ordered deported.[15] In cases, individuals can be allowed a temporary access into Canada with a Temporary Resident Permit as long as they do not pose an obvious threat to Canadians. The permit can be issued by the CBSA or a border service officer for a cost of $200 per permit; the CBSA issued 13,412 permits in 2006. Permits allow legal residency for a period ranging from one day to three years. During this time period, the legal documents are gathered for individuals to be deported back to the country they emigrated from. This procedure at times could create challenges such as retrieving the legal documentation for deporting, hence the Temporary Resident Permits are provided enough time for such obstacles to be overcome efficient and effectively.

Temporary facilities for processing asylum seekers at border between Lacolle, Quebec and Champlain, NY, in 2017

In 2017, after U.S. President Donald Trump had enforced American laws against illegal immigration in the U.S., immigrants leaving the U.S. and entering Canada increased. Quebec saw 75% of the resulting crossings from the U.S. for Canada, and Programme régional d’accueil et d’intégration des demandeurs d’asile (PRAIDA) helped 1,174 asylum seekers in July 2017 compared to the 180 people during the previous year.[16] Montreal had to re-purpose its Olympic Stadium to house the immigrants.[16]