Issues notes: Standing Committee on Citizenship and Immigration—Study on the Conditions Faced by Asylum-seekers at Roxham Road (November 25, 2022)

Safe Third Country Agreement

Question period notes on asylum claimants, irregular migration and Safe Third Country Agreement

Proposed response

Asylum claims are governed in part by international treaties to which Canada is a signatory.

Those with a legitimate need for protection have a right to make an asylum claim.

The Canada Border Services Agency (CBSA) works with Immigration, Refugees and Citizenship Canada and the provinces to make sure refugee claimants are safe and have access to food, water and shelter while they wait for processing and other steps in the refugee claims process.

The Lacolle Regional Processing Centre was developed in 2017 in response to the unprecedented volumes of refugee claimants coming to Canada between ports of entry. Under emergency contracts, Lacolle was used as a temporary processing facility for refugee claimants.

The CBSA has an ongoing lease of the land and buildings used to manage the influx of refugee claimants at the border in Lacolle, Quebec.

Additionally, the CBSA is currently retrofitting a warehouse on site, which consists of the amalgamation of processing and waiting space within fixed infrastructure. The CBSA is considering other possible uses for the facility should refugee volumes diminish.

The CBSA spends $3 million per year for the processing and accommodation infrastructure for asylum seekers located in Saint-Bernard-de-la-Colle, Quebec.

Contingency planning if claimant volumes go up

The CBSA has contingency plans in place to deal with the possibility that we see higher numbers of refugee claimants crossing at ports of entry.

Plans include mobilizing resources between districts and regions. The CBSA is also developing a new processing model, leveraging recent innovations and considering arrangements to accommodate higher numbers of people awaiting processing, if needed.

Statistics from November 21, 2021 to October 10, 2022

51,539 individuals came to Canada to claim asylum. Of those, 31,758 arrived between official ports of entry and 19,781 arrived at an official port of entry.

Of the 19,781 individuals who arrived at an official port of entry to make an asylum claim, 4,311 met an exception under the STCA.

Background

Border security and integrity is a shared mandate between the CBSA and the Royal Canadian Mounted Police (RCMP). The CBSA is responsible for enforcement at official Canadian ports of entry (POEs), while the RCMP is responsible for enforcement between POEs. The RCMP then escorts people crossing between the ports of entry to the nearest CBSA port of entry. The closest port of entry to Roxham Road is Saint-Bernard-de-Lacolle.

The Safe Third Country Agreement (STCA) was signed in 2002 by Canada and the U.S. and has been in effect since December 2004. Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception. People who are not eligible to make an asylum claim at the land port of entry under the STCA are immediately returned to the U.S.

Since 2017, the Government of Canada has been in continuous contact with the U.S. Department of Homeland Security and U.S. State Department on issues related to our shared border, including our desire to modernize the STCA.

The STCA's objectives

The primary objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, and share the responsibility for protecting people who fit the official definition of "refugees".

The mandates behind the STCA

The CBSA and IRCC share a mandate of preserving the integrity of the immigration system. Together, the CBSA and IRCC administer the Immigration and Refugee Protection Act (IRPA), which governs the admissibility of people into Canada, and the identification, arrest, detention and removal of people who are inadmissible.

The STCA under the Quarantine Act

Without going against Canada's international obligations with respect to non-refoulement, (in other words, forcing asylum seekers to return to a country in which they would be at risk of persecution), the Order in Council (OIC) issued under the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) also supported the continued application of the Safe Third Country Agreement at designated land ports of entry in accordance with the IRPA. This means that those who met one of the narrow exceptions or exemptions in the OIC were permitted to enter and apply for refugee protection.

While the OIC contained a prohibition against entry for the purpose of making a refugee claim at any other location (including airports, marine ports, and between official ports of entry), the prohibition was not included in the current OIC which came into effect on November 21, 2021. Irregular migration has since resumed.

The OICs were allowed to expire on September 30, 2022, at 23:59 EST.

Who the STCA applies to

The STCA generally applies to asylum claimants who are seeking entry to Canada from the U.S. at a land port of entry. The Agreement does not apply to U.S. citizens and stateless persons residing in the U.S. or to those who arrive from the U.S. by air (with the exception of some people being deported from the U.S. through Canada), or by sea.

The Agreement does not apply to anyone who meets an Agreement exception, such as:

• people who have a family member in Canada
• unaccompanied minors
• people who hold a valid travel document issued by Canada or who are from a visa-exempt country for Canada but require a visa to enter the U.S.
• people who meet the public interest exception

It also does not apply to claims made by people who entered Canada between ports of entry.

Recent litigation: Federal Court of Appeal decision

The Federal Court rendered a decision on litigation challenging the STCA in July 2020 for the Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. case. The Court found that the STCA and section 159.3 of the Immigration and Refugee Protection Regulations violated section 7 of the Canadian Charter of Rights and Freedoms. The Government's appeal and the cross appeal were heard by the Federal Court of Appeal (FCA) in February 2021 and the decision was delivered on April 15, 2021.

The FCA upheld the validity of the Agreement and on June 14, 2021, the Canadian Council for Refugees et al submitted their application for leave to appeal against the FCA decision to the Supreme Court of Canada (SCC). On December 16, 2021, the SCC granted the application for leave to appeal.

The Appeal to the SCC (Case # 39749) was held October 6, 2022; judgement reserved. A decision could be rendered any time after the hearing, but is most likely to be rendered between six and 12 months following the hearing. The Department of Justice is currently conducting an analysis.

Background and modernization

Asylum claims are governed in part by international treaties to which Canada is a signatory including the Safe Third Country Agreement (STCA) which was signed by Canada and the United States (U.S.) in recognition that both countries share a mutual responsibility to protect human rights and fundamental freedoms.

The STCA has been in effect since 2004. Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception (in other words, people with family members in Canada, unaccompanied minors, holders of valid Canadian travel documents and people who meet the public interest exception).

The STCA applies to those making refugee claims at designated ports of entry, but not to those who enter between ports of entry. People who are not eligible to make an asylum claim at the land port of entry under the STCA are returned to the U.S.

Beginning in 2017, Canada has seen an influx of asylum seekers accessing the route to Canada at Roxham Road. While these volumes diminished with the onset of the COVID-19 pandemic in 2020, once the border restrictions under the Quarantine Act ended in 2021, the volumes resumed.

Managing irregular migration has been a key government priority and has been highlighted in the (then) Minister of Border Security and Organized Crime's 2018 mandate letter. This was re-affirmed in the Minister of Public Safety's mandate letter in 2019 and the supporting 2021 mandate letter of the Minister of Immigration, Refugees and Citizenship.

Modernizing the STCA has been a Government priority for several years. Minister Fraser's mandate letter directs him to continue to work with the U.S. to modernize the STCA. The Prime Minister confirmed publicly that this work with the U.S. is underway.

The Government is not in a position to publicly disclose details of bilateral STCA modernization discussions.

Asylum claimants

Asylum seekers: Quick fact sheet

(current as of November 18, 2022)

Asylum seekers: Intake

Removal of failed claimants

Serious inadmissibility grounds

Detention

Enrolled in an alternative to detention

Refugee claims and enforcement stats following visa lift (Mexico, Romania, Bulgaria)

The data in this fact sheet was produced by SPMU and the IRCC public website: Refugee claims by year

Direct back cases

Following ministerial approval, in August 2021 the Canada Border Services Agency (CBSA), in collaboration with Immigration, Refugees and Citizenship Canada (IRCC), began the resumption of refugee claim processing for persons who have been directed back to the United States as a result of the COVID-19 border measures implemented in March 2020.

Background

As a result of the COVID-19 pandemic, border measure were put in place to mitigate the spread of COVID-19, as such, Canada and the United States (U.S.) agreed to a two-pronged approach to manage the flow of asylum claimants at the border:

• Claimants who arrived at an official designated land and rail port of entry would be subject to the application of the Safe Third Country Agreement (STCA), and would be permitted to make a claim in Canada if they qualify for an exemption or exception to the STCA. If found ineligible to make a claim in Canada and removed to the U.S. as an ineligible claimant, they would be subject to binding obligations under the STCA, including respect for the principle of non-refoulement, and full and fair access to the American asylum system
• Claimants who arrive between designated land ports of entry, would be subject to the prohibition on entering Canada for the purpose of making a refugee claim, and would be temporarily directed back to the U.S. until the border measures no longer apply (exemptions include: citizens of the U.S.; unaccompanied minors; and stateless habitual residents of the U.S.)

The CBSA Direct Backs Business Resumption Plan, developed jointly with IRCC to allow for the return of claimants who were directed back to the U.S., included the following five steps:

1. Direct Back Identification (CBSA)
2. Case Review (CBSA)
3. First Contact with Claimant (CBSA)
4. National Interest Exemption Letter (NIEL) Issuance by Immigration, Refugees and Citizenship Canada (IRCC)
5. Scheduling the Claimant Return (CBSA). Multiple federal stakeholders were involved in the processing of between the POE (port of entry) claimants in the Quebec Region

The CBSA Regional Operations initiated contact with claimants who were directed back. CBSA can confirm that:

• 937 refugee claimants have been identified as a direct back case
• 655 individuals resumed their refugee claim in Canada
• 275 claimants remain outside of Canada
• 7 claimants have withdrawn their claim

Roxham Road crossing

Roxham Road: Timeline 2017 to 2022

2017: 18,836 irregular claimants

• January 2017 - Changes in the U.S. Governement leadership and migration policies
• July 2017 - A significant increase in irregular migration was experienced at Roxham Road
• Assistance from the Canadian Armed Forces and the Canadian Red Cross was required to manage volumes
• Tents were erected to accomodate claimants who were waiting to be processed

2018: 18,518 irregular claimants

• A Regional Processing Center was established near the Lacolle port of entry to process irregular claimants
• A daily average of 51 claimants were processed by the CBSA

2019: 16,136 irregular claimants

A daily average of 44 claimants were processed by the CBSA.

2020: 3,189 irregular claimants

• Border measures were put in place to reduce the spread of the COVID-19
• The Government of Canada implemented an Order in Council (OIC) - Prohibition of Entry into Canada from the United States to minimize the risk of exposure to COVID-19 in Canada. This resulted in claimants being directed back to the United States
• A daily average of 33 claimants were processed by the CBSA between January and March
• A total of 178 claimants arrived irregularly between April and December

2021: 4,095 irregular claimants

• The warehouse retrofit construction started for the purpose of centralizing all CBSA operation into one fixed infrastructure
• The OIC was lifted on November 21 and irregular migration resumed, surpassing pre-pandemic numbers
• A total of 578 claimants arrived irregularly between January 1 and November 20, 2021
• After November 21, 2021 a daily average of 88 claimants were processed by the CBSA

2022: 27,000+ irregular claimants

• A daily average of 100 claimants are processed by the CBSA, surpassing pre-pandemic volumes
• The CBSA continues to work with stakeholders, to monitor volumes and to implement strategies as required to ensure operational readiness
• Warehouse retrofit construction continues, completion is slated for end of year

Description of processing facilities at Lacolle

1. The St-Bernard-de-Lacolle Regional Processing Centre (RPC) was established in early 2018 following the unprecedented influx of asylum seekers which begun during the summer of 2017.

2. The Lacolle RPC is currently comprised of the following infrastructure:

• Modular complex – CBSA processing
• Trailers – CBSA processing and waiting areas
• Winterized camp – cafeteria, nursing stations, rooms (beds and cots), showers
• Vacant commercial building
• Industries Guay Ltée (IGL) warehouse (partial usage) – sections are still being renovated

3. The RPC is a secure processing area (in other words, Commissionaires) that ensures the safety of claimants and officers. If a claimant is determined to be high risk and needs to be detained, they are transferred to the Laval Immigration Holding Centre.

4. There are onsite food and humanitarian services available for persons during CBSA processing. L'agence service santé is on site at Lacolle to provide medical assessments when needed (in other words, accredited nurses) and meals to claimants.

5. Claimants are accommodated in climate controlled facilities with access to showers, washrooms, beds and transportation is provided to IRCC hotels or the Province of Quebec settlement and integration services when processing has been completed. Claimants are also provided with interpreter services when being processed by officers.

6. Following the resurgence of asylum claims which began in November 2021, the RPC was expanded to include the addition of the vacant commercial building for contingency planning in the event of a surge of claimants near the St-Bernard-de-Lacolle Port of Entry (POE).

7. In addition to the current temporary infrastructure, the IGL Warehouse onsite is being renovated to be used as an all-in-one refugee claim processing facility and eliminate the reliance on temporary infrastructure.

8. CBSA is estimated to complete the Infrastructure Normalization Strategy (renovations) by January 2023 and the new IGL Warehouse will:

• Host 156 seats in a waiting area, 23 officer workstations, 160 beds and humanitarian services
• Reduce CBSA's reliance on temporary accommodation on site and will be the only infrastructure used to process and accommodate refugees claimants at St-Bernard-de-Lacolle
• Result in the decommissioning of the temporary infrastructure

Lacolle regional processing centre: Map and photographs

This aerial photograph provides a visual breakdown of the structures required for processing at the St- Bernard-de-Lacolle RPC.

• Modular Complex (brown)
• Trailers (white)
• IGL Warehouse (red)

The Commercial building is situated closer to the St-Bernard-de-Lacolle Port of Entry.

Figure 1 - Text version

Lacolle Quebec border crossing site indicating scale and structures; and the Canada-U.S. border. Described in preceding and subsequent text

As pictured in the areal photograph on the previous slide:

• The IGL in red will eventually be the only infrastructure used to process and accommodate refugees claimants on site
• The Modular Complexe, in brown, is a large size trailer used to process claimants
• Trailer 1 is south of the Modular Complex and is used to process claimants
• The Old Commercial Building is closer to the Saint-Bernard-de-St-Bernard-de-Lacolle POE. It should be used as a last resort to increase the processing capacity

Pictures are also included at the end of the presentation.

Annex A – St-Bernard-de-Lacolle Regional Processing Centre

Orange: Regional Processing Centre
Green: Winterized Camp (Cafeteria, Nurses, Beds)

Figure 2 - Text version

At the top right of the site diagram is the Regional Processing Centre. This is the main building (IGL warehouse) at the facility, and contains a waiting area, cafeteria, nurse station and dormitories. Directly below the main building is the Modular Complex, where claimants are processed, as well as stand alone trailers with additional waiting space, isolation rooms, and office space for stakeholders, including the Public Health Agency of Canada.

To the immediate left of the main building is the diner, which houses the break and locker rooms for CBSA employees. In front of the diner are shipping containers used to store claimant luggage upon arrival.

To the far left of the site map is the winterized camp. It is made up of a series of 4-season trailers where claimants waiting to be processed by the CBSA can have temporary accommodations and access humanitarian services.

Annex B – Renovated IGL Warehouse

[Redacted]

PHAC and Regional Processing Centre

Figure 3 - Text version

Public Health Agency of Canada (PHAC) and Regional Processing Centre

COVID-19 PCR Testing by Biron (PHAC service Provider)

Modular Complex (CBSA processing)

CBSA Transportation provider

PHAC processing (Vaccination and Quarantine plan Evaluation)

CBSA processing and waiting area

Figure 4 - Text version

CBSA processing and waiting area

Modular Complex + 1 trailer (CBSA Processing)

Trailer used as waiting areas

IGL Warehouse (Infrastructure Normalization Strategy)

Winterized camp

Figure 5 - Text version

Winterized camp

Series of trailers behind a fence and connected by a road. 91 rooms, nursing station and cafeteria.

Roles and responsibilities at Roxham Road

Multiple federal stakeholders are involved in the processing of between the POE (port of entry) claimants in the Quebec Region. The Primary stakeholders on-site are:

Other federal stakeholders involved in procuring the processing and accommodation infrastructure at Roxham Road include:

5. Public Services and Procurement Canada (PSPC) – PSPC has the delegation to contract all CBSA lease agreements to help meet the operational and accommodation requirements to process claimants. The CBSA collaborates with PSPC through Real Property, Specific Service Agreement to contract lease agreements.

Processing map of irregular migration at Roxham Road

Figure 6 - Text version

Mapping the case processing process following an illegal entry at Lacollle Regional Processing Centre (RPC): Adjournment A 16(1.1.)

1. Criminal
   1. process begins when claimant enters Canada at Roxham Road
   2. claimant is arrested and processed by the RCMP
   3. Once the RCMP has completed the criminal process, the claimant is transferred to the CBSA for refugee processing
2. Administrative (processing)
   1. The CBSA receives and registers the claimant and prepares their file for processing
   2. The administrative examination (refugee processing) is completed by a Border Services Officer under section 16(1.1) of the Immigration and Refugee Protection Act
3. Adjournment
   1. If the claimant is considered low risk, that examination can be deferred to a later date

Contracting related to processing and accommodation infrastructure at Lacolle

Background

The Regional Processing Centre (RPC) was created in 2017 in response to an influx of asylum seekers coming through Roxham Road (not an official point of entry) located at Lacolle, Quebec. The RPC was created through multiple lease agreements, for both temporary and fixed infrastructure, to help meet the operational and accommodation requirements to process up to 150 asylum claimants per day. All leases were contracted under the Public Services and Procurement Canada (PSPC) delegation.

Since 2017, the Canada Border Services Agency (CBSA) has spent an average of $3 million per year for the processing and accommodation infrastructure for asylum seekers at the RPC in Saint-Bernard-de-Lacolle. In 2021, the CBSA approved a strategy to realize savings estimated at $1.1 million annually through changes to leases, goods and other services. A new 5 year lease was contracted by PSPC with ILG Ltée. (Pierre Guay) in August 2021 to consolidate previous leases and retrofit two existing buildings (337 and 339 ch. Guay, Lacolle). The retrofit project is set to be completed in December 2022 at a total budgeted cost of $4.5 million.

Key interventions regarding the Public Service

The CBSA continues to collaborate with PSPC through Real Property, Specific Service Agreement (SSA) to complete the RPC project by December 2022.

Key interventions regarding the Agency

The new lease will become effective at the completion of the RPC retrofitting project. Anticipated annual savings are expected to begin in the 4th quarter of 2022 to 2023.