mmigration is increasingly preoccupying politicians, policy-makers and citizens around the world. For the most part, however, the focus has been on the economic impact and social integration of new migrants. The authors of this study, François Crépeau and Delphine Nakache, address an issue that is often overlooked: The legal framework through which we welcome newcomers, whether they are legal or illegal. More specifically, they examine the Canadian migration regime and the disparities between state migration controls (the state sovereignty paradigm) on the one hand, and international and national provisions to protect fundamental rights (the human rights paradigm) on the other. The authors suggest ways that these two apparently conflicting paradigms can be reconciled so as to ensure that migrants’ individual rights are duly protected.
Crépeau and Nakache look first at how migrants (including irregular migrants, defined, in this paper, as migrants who are in – or try to enter – a destination country without proper authorization) have benefited from increased protection of human rights since the Second World War. The right of asylum, the principle of nonrefoulement, procedural rights, the guarantee of an effective remedy, and equality and nondiscrimination provisions have all found new expression or renewed strength under modern constitutional and international human rights regimes. In Canada, the case law relating to the Canadian Charter of Rights and Freedoms has considerably expanded the Charter’s protection of individual rights and freedoms both for citizens and foreigners, especially with regard to section 7 (the right to security of the person) and section 15 (the right to equality).
But, paradoxically, say the authors, over the last two decades, migrants’ rights have in reality been eroded in the West, as their treatment has increasingly been considered an internal issue relating to border security. Visa regimes, carrier sanctions, and interdiction and interception mechanisms have been put in place to try to prevent undocumented migrants from arriving on our shores. Deterrent measures – for example, the elimination of refugee appeals, reduced legal aid, increased detention and penalties for migrant smuggling – have also been used to send a message abroad to discourage irregular migrants. Moreover, regional initiatives, such as the Canada-US Safe Third Country Agreement, have been established to serve as preventive and deterrent mechanisms.
Since 9/11, migrants’ rights have been further eroded. Irregular migration has become a focus of the new global security paradigm, which has been used to legitimize many measures that would have been considered inappropriate before. For example, the Canada-US Immigration Cooperation and Smart Border Action Plan allows for communication of passenger information, the use of enhanced biometrics and increased bilateral security cooperation. Measures aimed specifically at migrants have also been developed, such as the use of security concerns as grounds for inadmissibility, increased detention of suspects and security certificates.
Canadian courts will have to decide whether maintaining a distinction between the rights of foreigners and those of citizens is sustainable over the long term under our modern human rights regime, as foreign tribunals such as the British House of Lords have started to do. In other words, we must determine whether treating irregular migrants as second-class legal subjects – sometimes even as legal nonentities – is compatible with our core values. Crépeau and Nakache conclude that to deal with this question, we must first recognize that the principle of territorial sovereignty cannot be used to justify unlimited violations of individual rights and freedoms. They recommend using the existing mechanisms and structures of the international and national human rights system as guidelines to review Canada’s existing measures and inform future policies. With regard to the new Canadian security and migration legislation, the authors argue that judges should continue to hold Parliament accountable for respecting the high standards embodied in the Charter such as the right to life, liberty and security of the person; the freedoms of religion, association and expression; and the equality provisions.
In a period when alarmist media and politicians call for stricter border controls, detention of asylum-seekers, deportation of illegal migrants and other heightened security measures, judges have a critical role to play in making citizens understand that meaningful equality means protecting foreigners from human rights abuses to the same extent that citizens are protected.