Slaw: On the Importance of Language

The post on the use of “irregular” versus “illegal” was originally published on slaw.ca:

If you are on this site, I can assume with reasonable confidence that you are already a wordsmith. I have always had an affinity for the label “wordsmith”, possibly because I am reminded of “blacksmith” and it conjures skills of which I have none. I do, perhaps, have some skills related to language, although I suppose this is also debatable. Notwithstanding, even from my humble position, I am both angered and ashamed by the comments of Ontario Minister of Social Services Lisa MacLeod and her dim view of the importance of language. In particular, her comments related to the Safe Third Country Agreement and the language used to describe those individuals who cross the border into Canada from the United States.

Language is important. The terms we use to describe how these individuals and families have crossed into Canada must be correct. And yes, there are correct terms to use and there are incorrect terms. In particular when we are dealing with a point of settled law within the Canadian immigration system. In my view, an elected official has the duty to learn and employ those correct terms so that she can understand the issues to deal with them.

In her words, as reported by CTV News:

“I just feel that it became more of a matter of rhetoric and who’s Canadian, who’s not; irregular, illegal,” MacLeod told reporters at a press conference in Ottawa. “The words around that became far more important than actually fixing the problem.”

The debate between irregular entry vs illegal entry is not new. I have published posts and given many interviews on CTV, CBC and other media outlets on issues related to the irregular crossings into Manitoba.

Typically, before I discuss the issues with reporters, we have a conversation to ensure that we are using the correct, legal terminology. Occasionally, the reporter will slip in an incorrect term and I find myself in an internal debate whether to interrupt and correct or to let it slide and try to inject the correct term in my answer so that acute listeners will catch the error.

I want to be clear on this point: refugee claimants entering Canada are not entering “illegally”. In an op-ed published in the Toronto Star by Osgoode Hall law students Jesse Beatson and Kylie Sier (who, no doubt, received good legal experience at PCLS):

“Irregular” is used by the Immigration and Refugee Board of Canada to describe border crossings “between ports of entry.” This is not about people trying to sneak across the border undetected, but about the right to seek asylum from persecution. The Universal Declaration of Human Rights protects this right. Importantly, the 1951 Refugee Convention and the 1967 Protocol, to which Canada is a signatory and which are incorporated into Canadian law, both recognize that refugee claimants should not be penalized for irregular entry to seek refuge.

They go on to explain:

Applying the term “illegal border crossing” to refugees is based on a misconception. Irregular entry is not an offence in the Criminal Code, and should not be labelled as such. The language of illegality also tends to violate the presumption of innocence. This is a principle that should inform ethical journalism.

In my view, it is even more important that our elected representatives use the correct terms and they understand the power & importance of language. If she is so keen on “fixing the problem”, perhaps she should realize that using incorrect language is part of the problem.

CBC National News: Loopholes

Alastair was recently interviewed by CBC The National news on the topic of loopholes in the immigration system. There have recently been reports of individuals who are crossing at the Ports of Entry into Canada using a loophole in the law that was not widely known. These individuals are helping family members enter Canada through the loophole.

For the full interview, click here to watch this clip from CBC News.

From an immigration perspective, this so-called loophole is not new. It has always been in the law; however, based on the chaos and anti-immigrant sentiment in the United States, the loophole was rarely used by immigrants and refugee claimants who were in Canada. Prior to the current situation in the United States where many people from around the world recognize the pro-immigrant culture of Canada, they realize how Canada is much different from the United States.

We expect that the numbers of individuals and families who are crossing the border into Canada to increase as long as the US Government continues its rhetoric that shows discrimination and anti-immigrant sentiment.

In the meantime, we will continue to fight for our clients and make sure that everyone has their rights protected.

We continue to implore the government to suspend or repeal the Safe Third Country Agreement (STCA). We have been calling for change for almost 2 years when it became clear that the Agreement, and the loopholes within it, are causing unnecessary danger and risk to people simply seeking safety.

CTV News: Detention of Children

Alastair Clarke was interviewed by CTV News on the recent issues of detention of children in the United States and its impact on individuals in Canada. Detention of children is, prima facie, horrendous and we thank CTV and the media for highlighting this issue. Based on recent events and the surrender of the Trump administration to reason, it seems that the advocacy was successful.

At this point, the detention of children is only one point in a series of issues that cast doubt on whether the United States continues to adhere to the assumptions that underline the Safe Third Country Agreement (STCA). As before, we implore the Canadian government to review the STCA and suspend the Agreement until the conditions in the United States are corrected.

Here is an excerpt from CTV News:

Alastair Clarke said one of the children recently held in detention in the U.S. is now in Winnipeg with her father, but Clarke said the girl’s mother has been separated from them and is now in hiding in their home country.

“These cases are heartbreaking,” said Clarke. “I recently had a two-year-old girl in my own office, screaming for her mother and the United States deported her mother back to Ghana.”

“She’s been separated, she doesn’t understand what’s going on,” said Clarke referring to the two-year-old girl. “So now her father, he is basically acting as a single father with her in Canada, is trying to number one: make his case for refugee status, number two: take care of this young child and number three: he is separated from the mother of the child. They’re not legally married which was part of the problem.”

The “zero-tolerance policy” has been condemned worldwide and on Wednesday U.S. president Donald Trump signed an executive order to keep migrant families together.

Under the policy, asylum seekers who illegally cross into the U.S. are charged with federal crimes and then separated from their children who are held in detention centres.

However, Clarke doesn’t see the policy, which has dominated headlines, causing a spike in the nu

mber of asylum cases in Manitoba or Canada.

To watch the segment, click on this link. Thank you to Josh and his cameraman who came to our office for the piece. Keep up the good work!

News: Separating Children

As reported, US authorities have been separating children from their parents as they enter the United States. Separating children is unjust and deplorable. The situation and the photos that have been coming out about this situation show the inhumanity and lack of protection for refugees, asylum seekers and immigrants in the United States. This is an example, among many, that the United States is not a safe place for immigrants and the short-sighted policies from the President’s office to the state level to the local level.

Here at Clarke Immigration Law, we meet clients on a daily basis with stories of the injustice and discrimination that they face in the United States. Canada is not perfect but we do our best to help everyone who comes through our door.

Recently, we met with a father who is taking care of his young daughter by himself as the mother was deported by US authorities. This has been reported by the Winnipeg Free Press. This case is heart-breaking. The refugee claimant needs to be focusing on building his case for the Refugee Protection Division; instead, he has been figuring out how to care for his young daughter and worry about the mother who is currently in hiding.

For more details on this case and how separating children may have an impact, check out the WFP article. Here is an excerpt:

“If I go back, I’m in trouble,” he said in his Twi language. Ben and Blessing and her mother, Rose, flew from Ghana to Ecuador last year and made their way by land to Mexico. When the family crossed at Tijuana into the U.S. to make a refugee claim, the men were separated from the women and taken to separate detention facilities. Ben had been carrying Blessing, and the father and daughter were sent to an Immigration and Customs Enforcement (ICE) lockup for men in California, he said. Rose, he discovered, was deported back to Ghana.

[…]

The danger he faced going back to Ghana, he said, was worse than their separation from Rose. He became Blessing’s main caregiver — a non-traditional role for men in Ghana, he said, and one that’s been a challenge. They headed for Canada, and on Jan. 20, they crossed the border into Quebec to ask for refugee protection. Ben said he heard good things about Winnipeg and he and Blessing boarded a bus heading west. He got social assistance and legal aid. His lawyer said no date has been set for their Immigration and Refugee Board hearing, but he hopes it’s soon.

“I have serious concerns about the father, the child and the mother,” immigration lawyer Alastair Clarke said.

“In my personal experience with the father and child, they have genuine fear of returning to their home country. He has limited support and extremely limited language skills. He is working hard to request the necessary documents for his case, but he clearly needs to focus on taking care of his daughter,” Clarke said. “I also have significant concerns about the health of the mother. Separating a mother from her young child is a tragedy.”

If you can assist Ben & Blessing or if you know of similar cases, please contact our office immediately. 

 

Tribunal Advocacy Training

For the 2nd time, Alastair will be providing a training session to lawyers, representatives and advocates on advocating on behalf of clients at the tribunal. In particular, we will cover best practices when dealing with cases at the Immigration and Refugee Board (IRB) – Western Region. This tribunal advocacy training session is being coordinated by the IRB and space is limited.

Details:

  • DATE: 12 June 2018
  • TIME: 11:30AM
  • ADDRESS: Legal Aid Manitoba Building, 4th floor

The deadline to RSVP is on 5 JUNE 2018 and space is limited. At the last training session, the room was completely packed and we had a good discussion. Since that time, there have been significant changes at the IRB, in particular how RPD hearings are scheduled and conducted. Two keys points that we will discuss:

  • Making an application to the RPD for Late Disclosure of Evidence
  • Making an application for submitting more than 100 pages of country condition evidence

The tribunal has been making changes to deal with the increasing numbers of refugee claimants in the Western Region. As advocates, we have a duty to best represent our clients and ensure they have the best chance of success with their applications. This tribunal advocacy training will include a section on Q & A with an experienced RPD Member.

Please note that this tribunal advocacy session is not a regular training session. This is the 2nd session in Winnipeg and the purpose is to increase the level of advocacy among representatives. The session is strictly confidential and all participants are encouraged to express any questions or concerns with the policies and procedures at the IRB.

CBC: Future of STCA

Alastair Clarke was recently interviewed on CBC The House podcast on the future of the Safe Third Country Agreement (STCA). Currently, this Agreement has been at issue based on the numbers of refugee claimants who have been coming north from the United States. Many of these people have been crossing “irregularly” around the Ports of Entry into Canada to access the inland refugee determination process, thus getting around the Safe Third Country Agreement (STCA).

As reported by the CBC:

Last year, more than 20,000 asylum seekers crossed illegally into Canada. The trend seems to be continuing this year, with about 5,000 crossing so far.

The government has been hard-pressed to find a working approach to this steady stream of migrants. Some of the ideas being floated include designating the entire Canada-U.S. border an official crossing, deploying more resources to popular spots for illegal crossings and addressing issues with the Safe Third Country Agreement (STCA).

[…]

Part of the issue with the agreement in its current form is that it was drafted at a time when both countries shared a similar view on refugees, said Alastair Clarke, a Winnipeg-based immigration lawyer.

But now Canada is “very distinct from the United States,” he told The House.

The model needs to be revised to account for changes in the politics of both countries, he said.

To read the full article, please click here. You can also access the podcast from the CBC website.

Note that Alastair has been calling for the Safe Third Country Agreement (STCA) to be repealed or suspended since Jan 2017 and he has published on this topic. The Toronto Star reported on this issue in Feb 2017. He also presented on this topic (STCA) at the Canadian Bar Association national immigration law conference in Toronto.

CBC News: Expedited Processing

CBC News Reporter Karen Pauls published a piece today on the expedited processing of claims at the tribunal. We have had success with these procedures and they are open to certain applications that are made to the tribunal. As noted in the article, the average processing time for these cases can take 14 to 18 months and there is currently a significant backlog of cases. Through the special processing, some clients are able to access these procedures so they do not have to wait.

An excerpt from the CBC News article on expedited processing is below. The full article is posted on their website.Expedited Processing

The Immigration and Refugee Board is clearing about 160 claims per month using an expedited process that eliminates the need for hearings in straightforward refugee claims for people from seven countries.

It’s a “win-win situation” – for the IRB, which is already facing a backlog of refugee claims as a result of the flood of asylum seekers walking over the border this year – and for the people filing those claims, says Winnipeg lawyer Alastair Clarke.

“For the claimant, they essentially get two kicks at the can and they potentially have an early positive decision. Secondly, for the tribunal, because they save resources. They don’t have to have a hearing, they don’t have to expend additional time to hear oral evidence, and they can review a case based only on the documents,” Clarke said.

“Our job is to do our best to make sure all the potential issues are dealt with in the supporting documents. And once it gets to an adjudicator, it’s up to him or her to decide whether or not what we’ve submitted is sufficient to meet the test.”

If you believe that your case is suitable for expedited processing, please contact our office and book a consultation. 

 

Strangers in New Homelands Conference – 3 Nov 2017

Please note that Alastair Clarke will be on a panel at the Strangers in New Homelands Conference at CanadInns Polo Park in Winnipeg. He will be discussing Immigration Policies, Practices, and Canada’s Refugee Determination Process with his panelists, the Western Region Assistant Deputy Chairperson of the RPD (Vancouver) Karin Michnick and Dr. Shauna Labman, Assistant Professor in the Faculty of Law and the University of Manitoba.

Some of the issues the panel will cover include:

  • current procedures of claiming refugee status in Canada
  • the Safe Third Country Agreement (STCA)
  • issues at the tribunal (IRB-RPD)
  • rights of appeal after a negative decision by an RPD Member
  • Overseas Protection
  • Private Sponsorships and refugees
  • Government Assisted Refugees
  • Secondary migration of resettled refugees

Questions are welcome and encouraged.

The program for the conference is 62 pages and we have included an excerpt below with details of the panel on Friday, November 3rd. If you would like a program (11MB), please contact that office. 

Here is a description of the Strangers in New Homelandsconference by the Conference Chair, Dr. Michael Baffoe:

We are delighted to welcome you all to the special tenth anniversary edition, of our annual conference, Strangers in New Homelands: Deconstructing and Reconstructing of ‘Home’ Among Immigrants and Refugees in the Diaspora.

This annual gathering of researchers, academics, and practitioners in the migration field, an idea mooted by Conference Chair Michael Baffoe (University of Manitoba), Dr. Lewis Asimeng-Boahene (Penn State University-Harrisburg) and Dr. Buster Ogbuagu (University of St. Francis, Joliet, IL) began modestly in 2008. The dream of growing that initial idea into a larger annual event bringing together critical stakeholders in the field of migration has really borne fruits and brought us to where we are today…ten years later. We are proud and satisfied for mooting this idea and, with the help of many of the people gathered here, especially members of the Conference Committee, for making this event a success.

This year’s conference is being held at a very critical time in world migration history. World migration is now a reality. The world has been witnessing unprecedented displacement and movements of people from their homes into other countries, especially to Europe seeking safety as well as better life conditions. The images of these mass movements are sometimes nerve-wrecking and difficult to watch. This is a new form of diasporic movement in which desperate people are challenging the existing national borders of nation states.

These challenges have brought out the best and worse in some of the nation states: some have received and welcomed these desperate people with open arms while others have shut their borders with barbed wires leaving the desperate people to their fate. Erecting barbed wires and pushing desperate people into the cold will not stop people from moving to seek new homelands. Driven by push-pull factors, the concept of geography of opportunity has taught us that erecting barbed wires or “beautiful walls” made of concrete or steel, would not solve the problem. It is therefore pertinent to find innovative ways for meeting these new challenges. As Karen Armstrong succinctly puts it, “our differences define us, but our common humanity can redeem us”. The societies into which the migrants seek to settle, and the migrants need each other for their mutual benefits. The diversity that migrants bring should therefore be seen as assets, which can enrich the host societies as well.

The exchanges of ideas and discussions that will take place at this conference will be essential for those who design and implement immigration and refugee policies and settlement, as well as those who provide services to, and work with, immigrant and refugee groups. These exchanges are more crucial than ever and we should continue to engage in these discussions as well as engage policy makers and governments to embrace the reality of world migration and the challenges and opportunities that the phenomenon offers.

For those of you who were here in previous years, we welcome you back to this tenth anniversary edition of this annual gathering. For those of you participating for the first time, we welcome you to this conference, and to the Province of Manitoba. We hope to see you all again at subsequent conferences until we solve, or at least attenuate, the lingering issues and challenges that confront migrants around the world every day.

Strangers in New Homelands Program (excerpt):
Strangers in New Homelands

IRB Wait Times

Based on the backlog at the tribunal, our clients have experienced significant wait times for their hearings to be heard and decided. The IRB has been overwhelmed by new cases. This has been well reported in the news. Currently, most cases at the IRB are being postponed for “administrative reasons”. Please note that this does not put the case at risk and counsel do not have the power to set new hearing dates. Where an applicant or claimant has an urgent situation, counsel can make a request to the IRB for consideration.IRB Wait Times

Global News was in our office reporting on this issue. In case you missed it, here is a link to the story.

A reporter from Global, Timm Bruch visited our office to get more information about the wait times at the IRB. Here is an excerpt from his story:

The number of asylum seekers in Manitoba waiting to hear if they can stay in their new homes is going up.

According to the Immigration and Refugee Board of Canada, 40,000 asylum seekers are currently backlogged to have their refugee claims heard.

The number has skyrocketed in recent years due to federal funding, staff limitations, and an intense influx of those coming to Canada through non-border crossings in recent years.

Based on our numbers, this is a very serious issue and we are working with staff at the IRB.

Clarke said Tuesday many of his clients are feeling anxious due to the uncertainty the delay brings.

“While he’s waiting and doesn’t know what’s going on, he’s worried about what might happen,” Clarke said. “He’s worried he might have to go back, he’s worried about his family in his home country.”

24,000 claims are processed each year — up from 20,000 previously — but the Immigration and Refugee Board said on Tuesday that it’s just not enough.

The winter months in 2016 brought an influx of asylum seekers to Manitoba’s borders, and the number in 2017 has already started increasing as the weather gets colder: 45 people have already crossed into the province this month, just ten days into October.

We work closely with the tribunal on all our files. For hearings and appeals, please let our office aware of your situation and we may be able to contact the tribunal. We treat every case as a unique situation and we advocate for our clients. We attend hearings at the IRB – all levels, including the RPD, the ID and the IAD – frequently and we assist clients with every type of immigration appeal.

If you or your contacts have upcoming hearings at the tribunal, please contact our office and we may be able to assist.

Free Presentation: Law in the Library

As part of the Law in the Library series, Alastair Clarke will be giving a free presentation to the public on October 19, 2017 at St. Boniface Library at 131 Provencher Boulevard. Everyone is welcome to attend.

Free Presentation

Topics:

Please note that we cannot give individual legal advice during this free presentation. The purpose of the presentation is for information purposes and to inform the public on changes to Canadian Immigration Law. We constantly talk to clients who hear wrong information or information that is out of date. The laws in Canada for immigration and refugees are constantly in flux. Our goal is to make sure that Manitobans understand the laws so they can avoid mistakes and they have clear expectations when they submit applications to IRCC or CBSA of any of the Visa Offices around the world.

For more information, check out the CLEA Website for more details and to RSVP.

CLEA’s Mission Statement:

CLEA is a charitable organization that provides legal information to Manitobans. We believe that legal knowledge is necessary for full and equal participation in our society.

CLEA develops programs and resources especially to work with communities where there are understood needs. These services help individuals better understand our legal system and how to resolve their legal issues.

Goals

Program Strategy

To meet the diverse information needs of our community, we have adopted the following objectives to help us plan our programs:

  • Individuals Focus To provide information about the law, legal system and sources of legal assistance in response to requests.
  • Intermediaries Focus To provide service providers and representative groups with information about: the law, legal system, sources of legal assistance and law reform.

Access to Justice Focus

To identify barriers and promote possible solutions to support a more equitable and accessible justice system that is responsive to the needs of Manitoba’s diverse communities.