Ecuador opens its borders to universal citizenship: a step forward on the way to equality of peoples?

In principle, open borders might tend toward the respect of international equality; but in practice it does not necessarily provide more equality for vulnerable populations. It can actually enable profiteers to benefit from less supervised borders and trick desperate people into leaving their home for the American dream. Opening borders may not be enough: if an immigrant finds himself inside the country but excluded from the local community, like those who do not have papers in Ecuador, he may not be illegal but he is not legal either. Future experiences of open-borders may be more positive, who knows; but the Ecuadorian situation can hardly be called a success.[i]

Borders are quite representative of the current state of international affairs: each state, as the supreme authority, decides who comes in and who gets to stay on its territory. Some countries are lucky, like Canada: being very attractive to most, Canada can pick and choose as it pleases. For immigrants, coming to Canada generally means an important improvement of living conditions and revenue. Thus, Canada has strict immigration policies that allow it to discriminate against immigrants that may not be as “desirable” for the Canadian society.

Now this raises the question: are borders and discriminatory immigration legitimate? Is it possible to administrate a country without borders? Does international equality require open borders? If a country suddenly changes its policy and opens…

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Israel’s other refugee question

This past August, visiting Israel for the first time and staying with a friend in south Tel Aviv, I was immediately struck by the number of African faces I saw in her neighbourhood. These Africans, I was informed, were migrants mostly from Eritrea, Darfur, and Southern Sudan (now the Republic of South Sudan) who were seeking protection in Israel under the 1951 Refugee Convention. You see, until that point, my knowledge of Israel’s refugee issues extended only to the question of the right of return of the Palestinians expelled in 1948 and their descendants. As a “final status” issue in Palestinian-Israeli negotiations and one that cuts to the core of the national identities of both factions, it is easy to understand how this new class of African refugees can escape the attention of human rights lawyers and advocates abroad.

I was in Israel taking part in a program on law and internal diversity, a partnership of McGill and the Hebrew University of Jerusalem, so thankfully I was able to explore Israel’s refugee policies in greater detail in a course on migration and diversity. For conceptual clarity, an asylum seekers is a person who is making a claim under the Refugee Convention and and a refugee is one whose claim has been accepted by the receiving country. It is notoriously difficult to collect statistics on migration flows,…

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A “Nation-Building” Approach to Immigration Policy

On September 23, 2010, a newly formed organization known as the Center for Immigration Policy Reform, organized a press conference in Ottawa geared at criticizing Canada’s present immigration policies.[1] Canada’s current trend of opening its doors to a quarter of million immigrants each year is, as the Center argues, creating a large burden on the country’s social services as well as exacerbating unemployment. The Center’s comments, while potentially insidious to some, do call for an examination of the manner in which Canada structures its immigration policies. To fend off the types of criticisms brought forward by the Center, immigration policies must demonstrate that immigrants are becoming contributing members of society, which in turn values their contributions. One step in this direction would be would re-orient they manner in which Canadians view their own society. Rather than viewing Canada as being “neutral” towards new immigrants, we may choose to actively advocate the “nation building” characteristics that Canada can offer to all individuals.

One of the shortcomings of liberal political theories of the state is the assumption of its “ethnocultural neutrality”, the notion that a state does not favour any particular ethnicity or culture within its boundaries. Discourses on minority rights and multicultural citizenship have called to question this presumption of neutrality.[2] Every society tries to promote what Professor Will Kymlicka calls a “societal culture” – certain cultural values…

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The unbearable burden of proof: the re-victimization of gay asylum-seekers by the courts

In early December, the government of the Czech Republic came under fire from European Union and international human rights observers when it became known that the country was still using “phallometric” tests for ascertaining the homosexuality of gay asylum seekers[1]. The antiquated test requires the applicants to be strapped to a device which measures their levels of sexual arousal in response to stimuli. In the Czech case, the applicants were shown heterosexual porn; if they became aroused by a man and woman having sex they were deemed not gay, and therefore, not eligible for asylum. This type of test is most likely to offend the sensibilities of the public; its absurdity and harm to basic human dignity is glaringly obvious. However, a more pervasive and systemic form of judicial discrimination against gay asylum-seekers continues to take place. Canada is among many refugee-receiving nations that are still assessing the legitimacy of these men’s claims on the basis of stereotypes and unreasonable, and at worst dangerous, expectations of the claimants.

The process for determining the asylum seeker’s admissibility is “deceptively simple”[2]: the judge must determine first, whether or not the claimant is gay, and second, whether they are, or they will be, in danger of persecution. Refugees claiming asylum on the basis of persecution related to sexual orientation fall under the residual category of “membership of…

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The UN for the Declaration of the Rights of Indigenous Peoples Finally Signed by Canada

The United Nations Declaration on the Rights of Indigenous Peoples adopted on September 13th 2007, which ‘establishes a universal framework of minimum standards for the survival, dignity, well-being and rights of the world’s indigenous peoples’ [1] was finally signed by Canada on November 12th, 2010. [2] Canada has unashamedly hailed itself as being a protector of human rights. The truth is that Canada has an embarrassing human rights record and this signing can be seen as a pivotal moment in Canadian history. Canada has continually missed the mark by failing to address Aboriginal concerns and grievances. Often times, we as Canadians pride ourselves in upholding tenets of human rights and conservation of freedom. When we speak of human rights violations, images of the developing countries and the “others” over “there” come to our minds; seldom do we think of the grave injustices committed against people right here. Considering the reluctance and at times, inaction of the Canadian government to address human rights concerns, it is important to reflect upon the history of the struggle of Aboriginals in Canada [3]and upon the effect of signing the Declaration.

The Canadian Constitution states that there are three founding nations of Canada. They are the French, British and First Nations; however, the latter is not equally recognized in Canadian…

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Between sovereign states, good fences don’t necessarily make for good neighbours

Israeli Prime Minister Benjamin Netanyahu announced this week that he intends to expedite the construction of his country’s contentious security barrier. Right, you’re probably thinking, that’s old news. Israel has been building the wall in the West Bank for eight years now. That’s not the barrier I’m referring to though. I’m talking about the proposed 266-km fence which Israel plans to start building in the coming weeks along its border with Egypt. Its primary purpose, according to Israeli government sources: to keep out African asylum-seekers .[1]

There are currently around 25,000 African asylum-seekers in Israel, predominantly from the war-torn countries of Sudan and Eritrea, with hundreds more arriving monthly. They began arriving in significant numbers around the year 2000, with massive increases beginning in 2005 as the Egyptian government found itself unable to cope with the tens of thousands of refugees residing on its territory and initiated harsh and often violent crackdowns. Israel, as the only Western country with a land border with an African state, was an attractive option for many given its proximity, strong economy, government-sponsored education, and rule of law. Israel, with an already-delicate demographic balance, has been thoroughly overwhelmed by the number of claimants coming into the country (more, relative to its population, than virtually any other Western country), and is undertaking major reforms to its (previously non-existent) asylum system. To date, a miniscule…

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The Romani People and the Free Movement Directive

On July 28, 2010, Nicolas Sarkozy announced the deportation of Romani people of Romanian and Bulgarian citizenship. More than 8, 300 Roma have been deported from France so far in 2010, up from 7, 875 in 2009. Other European states have also instituted similar policies regarding the Roma. Italy has been publicly attacking the Roma since 2007, when President Silvio Berlusconi demanded the fingerprinting and deportation of Roma communities. Since the summer, Denmark has sent back 23 Roma and Sweden expelled 50. Last year, Germany sent more than 100 Roma back to Romania.

These deportations occur in the face of progressive protections of movement and residence for citizens of EU member states. In 1992, the Maastricht Treaty established a concept of citizenship which challenged traditional borders by conferring the right of member states citizens to move and reside freely within the EU. The  Free Movement Directive (2004/38/EC) of 2004 allowed for further integration of European citizens.

How does the deportation of the Roma figure within the Free Movement Directive (FMD)? The statute’s preamble explains that, “the free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers [...]”. Residence is to be exercised, “under objective conditions of freedom and dignity, [and] also granted to their family members, irrespective of nationality”.

The FMD grants a Right of entry (art.…

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The Securitization of Immigration and Refugee Law in the United Kingdom

In describing governance trends in the United Kingdom today, Ian Loader contends that certain issues or “threats” are taken out of the realm of democratic politics and “securitized” by government.[1] Refugee and asylum law in particular, is an issue that has been increasingly securitized over the past decade since the ‘9-11’ attacks in the US in 2001 and the ‘7-7’ attacks in the UK in 2005. Evidence of this trend can be detected from the analysis of a recent press statement from the British Home Office:

Asylum applications for the last three months of 2009 were the lowest since the early 1990s. Net migration is down, and the new UK Border Agency is increasingly successful… We are making the UK a more hostile place for illegal immigrants by issuing foreign nationals with ID cards, checking those who apply for visas against watch lists and fining those who employ illegal workers.[2]

There is nothing inherently wrong with a dip in asylum applications occurring within the UK. In fact, the decreasing amount of refugees in the UK probably does correlate with a global downturn in the total number of refugees.[3] Yet, it is strange that this press statement focuses on this dip in correlation to the UK Border Agency’s (UKBA) attempt to create a more  “hostile” atmosphere for those seeking to migrate to the UK.…

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Hope still lingers as Canada ratifies the UN Convention on the Rights of Persons with Disabilities

Canada ratified the UN Convention on the Rights of Persons with Disabilities, on March 11^th, one day before the official opening of the Paralympic Games in Vancouver. This long-awaited ratification made Canada the 78^th nation to have adopted the Convention.[1] In addition to requiring provincial governments to update a number of laws, the document imposes a fundamental shift of the focus from institutionalization to integration of people with disabilities. Further, the convention will empower individuals to challenge laws and policies, deemed in conflict with the convention. The UN Convention on the Rights of Persons with Disabilities has important implications in Canadian immigration and refugee law. How far can its remedial stretch extend in offering hope to disabled immigrant and refugee applicants who seek permanent status or asylum in Canada?

The blatant exclusion of people of disabilities from immigration to Canada on the basis of disability stems back to the 1910 Immigration Act which altogether banned the immigration of people with mental disabilities. The 1927 Immigration Act expanded the basis for refusal to entry to Canada to physical disabilities as well. The subsequent amendment of the Act in 1976, introduced a less blatant discriminatory provision. Under this Act, people with disabilities could be excluded from immigration because they might place “excessive demands” on health or social services. This practice acquired a new dimension with the passing of the 1985 Immigration…

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An Interview with South African Refugee Lawyer Fatima Khan

Professor Fatima Khan is a refugee lawyer and the Executive Director of the University of Cape Town Refugee Law Clinic. The clinic is funded by United Nations High Commission for Refugees (UNHCR), the University of Cape Town, the Atlantic Philanthropies and the Sigrid Rausing Trust. The clinic houses a centre for applied research, and has provided legal assistance to refugees and asylum seekers since 1998.  Ms. Khan lectures on Refugee Law to undergraduate and graduate students at the University of Cape Town, and is currently editing and co-authoring a bound volume that will analyze refugee legislation in various global jurisdictions.

[You may stream or podcast a 20 minute interview with Ms. Khan here]

Philip Duguay: You are a scholar who studies interpretation of international refugee law across various national jurisdictions. Where does South Africa lie on the spectrum in terms of its acceptance and implementation of the 1951 UN Convention on the Status of Refugees? In other words, how much weight does the Convention carry in South African case law?

Fatima Khan: The Convention carries a lot of weight in terms of South African law. The entire Convention has been accepted into South African law. However, I must say that South African refugee law is far more progressive and advanced than the…

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