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!

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.

Success rates: Why some refugee claimants may have better odds in Canada

FROM NEWS1130.com

WINNIPEG – Bundled against bone-chilling cold, asylum-seekers hoping to gain refugee status in Canada have been trudging through ditches and fields along the border with the United States.

Many have already had refugee or asylum claims turned down in the U.S. and feel they may have more success in Canada. That assumption, say some immigration lawyers, is correct.

“I think that there is a lack of access to justice (for claimants in the United States),” said Bashir Khan, an immigration lawyer in Winnipeg.

“In most of Canada, you do get … a legal-aid assigned lawyer. You’re not put in immigration detention, so you are able to make long-distance calls to gather evidence that your lawyer may tell you is needed.”

Alastair Clarke, another immigration lawyer in the city, said he has represented people who have been rejected in the United States but are accepted in Canada.

“It happens regularly,” he said.

“In the United States, there’s a much higher rate of detention … and when the individual is detained, it’s much more difficult for them to access counsel. They have limited rights to legal counsel for legal advice, and the counsel who do represent them are often lawyers who don’t specialize in (immigration).”

Read the full article…

Canada Immigration Lawyers: Asylum-Seekers Find More Success Here Than In U.S.

FROM HUFFINGTONPOST.CA

WINNIPEG — Bundled against bone-chilling cold, asylum-seekers hoping to gain refugee status in Canada have been trudging through ditches and fields along the border with the United States.

Many have already had refugee or asylum claims turned down in the U.S. and feel they may have more success in Canada. That assumption, say some immigration lawyers, is correct.

“I think that there is a lack of access to justice (for claimants in the United States),” said Bashir Khan, an immigration lawyer in Winnipeg.

“In most of Canada, you do get … a legal-aid assigned lawyer. You’re not put in immigration detention, so you are able to make long-distance calls to gather evidence that your lawyer may tell you is needed.”

Read the full article

Canadian lawyers call for change to Safe Third Country Agreement amid influx of refugees

FROM THESTAR.COM

The Canada-U.S. Safe Third Country Agreement bars refugees from seeking asylum in Canada after first landing in the U.S.

Immigration lawyers say they’ve received an influx of requests from refugees in the U.S. hoping to seek asylum in Canada — despite an agreement that makes it nearly impossible.

The Canada-U.S. Safe Third Country Agreement requires people to apply for asylum in the first country where they arrive, unless an immediate family member lives in the other country.

The Canadian government has faced pressure to repeal the agreement since President Donald Trump issued an executive order banning travel and immigration from seven Muslim-majority countries. But Canada’s government has so far refused.

Alastair Clarke, of Clarke Immigration Law in Winnipeg, said that’s a mistake. He said 10 new clients have been referred to him in the last week — some of whom crossed the border on foot, successfully bypassing border points so they could make their refugee claims once already in the country.

Read the full article…

Syrian Refugees

When the Refugee Sponsorship Support Program was launched on 28 Sept 2015, Clarke Law was one of the first law firms in Canada to join. The goal of the program was to help the government reach its target of bringing in 25,000 Syrian refugees as part of its campaign promise. Immigration and refugee lawyers across Canada have been working and volunteering their time to make sure the applications are processed quickly, without issues.

In Winnipeg, Alastair Clarke agreed to assist the South Osborne Syrian Refugee Initiative pro bono (this means that legal services are provided at no cost). We are assisting a group of families who are currently in Lebanon. The Syrian refugees have each faced extreme hardship while in their home country and they have managed to make their way to relative safety in Lebanon. Unfortunately, they are still not safe. We are working to bring them to Winnipeg where they will be far from the violence and out of reach from the Syrian operatives who are still threatening their safety.

Paula Leslie and other organizers have been working hard to raise the funds to make sure the Syrian families have support once they reach Canada. News agencies, including the CBC, have been reporting their efforts:

Matthew Lawrence

Event Organizer Matthew Lawrence

Close to 350 people packed the Park Theatre on Tuesday night for a sold-out fundraising concert to help bring Syrian refugee families to Winnipeg.

The South Osborne Syrian Refugee Initiative teamed up with Churchill Park United Church for the benefit concert, which featured performances by The Bonaduces, Sweet Alibi and DJ Co-Op.

Event co-organizer Matthew Lawrence said the goal is to raise a total of $90,000 “so that we can hopefully sponsor three families” who have relatives already living in the city.

“We just felt really compelled to take some action,” Lawrence said.

Benefit concert co-organizer Matthew Lawrence says the goal is to raise a total of $90,000 to help sponsor three Syrian refugee families with relatives already living in Winnipeg. (CBC)

“We started by thinking maybe we could just get involved in something else, but we kind of kept waiting and waiting and nothing was happening, so we decided, ‘Let’s just start something ourselves.'”

A GoFundMe campaign launched by the South Osborne Syrian Refugee Initiative has already raised more than $60,000. Lawrence said he hopes the concert will raise another $10,000.

To show their appreciation, the group recently posted a testimonial on their Facebook page:Syrian Refugees

Accolades to immigration lawyer Alastair Clarke for assisting us with our applications. Alastair generously provided his services pro bono through the Refugee Sponsorship Support Program. Given that SOSRI was completing the dozens of forms as representatives for the five principal applicants we had a number of questions on how to address certain issues that a sponsoring group ordinarily wouldn’t have (most sponsoring groups apply and have UNHCR families/individuals assigned to them with papers/documents/histories complete). The IRRC toll free question line has extremely long wait times! We were very fortunate to be able to simply email and/or call Alastair with any questions throughout the application process.

They also write:

Along with Alastair’s professional integrity and his breadth of knowledge it is clear that he cares deeply for the issues and people that he works with. If you need an immigration lawyer – look no further. Thank you Alastair – your time and efforts are appreciated.

This work is not done. We will continue to support this group, and other groups, to make sure their transition to Canada is without any issues.