Refugee Watch "A South Asian Journal on Forced Migration" Issue NO.29 The Foreigner and The Right to Justice in The Aftermath of September 11 by Francois Crepeau Exclusion from Refugee Protection in Europe: An Attempt at Legal Conceptualization by Patrick Hoenig The Boundaries of Belonging: Reflections on Migration Policies into the Twenty-First Century by Alison Crosby Who Went Where and How are They Doing? Pakistanis and Indians Outside South Asia by Papiya Ghosh A Report by Women's League of Chinland on Hidden Crime Against China Women -Report I A Report by Uddipana Goswami on Muslim IDPs in Western Assam -Report II Bangladesh Minorities Increasingly at Risk of Displacement -Report III Book Review by Anita Sengupta Book Review by Samir Kumar Das The Foreigner and The Right to Justice in The Aftermath of September 11 by Francois Crepeau (Professor of International Law, Canada Research Chair in International Migration Law, Scientific Director, Centre for International Studies (CÉRIUM), University of Montreal) In January 2003, the Privacy Commissioner of Canada stated in his report for 2001-2002, to the Parliament, thati[i]: The Government is, quite simply, using September 11 as an excuse for new collections and uses of personal information about all of us Canadians that cannot be justified by the requirements of anti- terrorism and that, indeed, have no place in a free and democratic society… Now I am informing Parliament that there is every appearance that governmental disregard for crucially important privacy rights is moving beyond isolated instances and becoming systematic. This puts a fundamental right of every Canadian profoundly at risk. It is a trend that urgently needs to be reversed… Regrettably, this Government has lost its moral compass with regard to the fundamental human right of privacy. These are extremely hard words, when expressed by an officer of Parliament with a majority Government in the House. The Commissioner was referring to various acts or draft legislations of the government, all prepared in the aftermath of September 11th: . Canada Customs and Revenue Agency’s new passenger database; . the unrestricted access by Royal Canadian Mounted Police (RCMP) to all information that airline companies collect on their passengers and its transfer to foreign authorities under the Aeronautics Actii[II]; . dramatically enhanced state powers to monitor our communications, especially international ones; . a possible national ID card with biometric identifiers, as advanced by the Citizenship and Immigration Minister, on the model of that which has already been adopted for permanent residents; and . the Government’s support of precedent-setting video surveillance of public streets by the RCMP. Many of these measures would have never been accepted a decade ago. Why are considered acceptable today? A reason for this may be found in the fear of terrorism, exacerbated by the wars in Afghanistan and Iraq and also, up until recently, by the failure of the Middle East Road Map. There is another element of explanation which is not mentioned in official documents: in our collective mind, the persons who are targeted by anti-terrorist measures are essentially foreigners. « If you have nothing to hide, you have nothing to be afraid of »: this is the McCarthyist argument which is put forward everywhere by those who justify drastic measures taken in the fight against terrorism. According to them, the new measures will provide effective protection for good citizens who respect the laws from all these foreigners ‘who hate us’. The classical rhetoric of the distinction between “them” and “us” is operating here. The deterioration of the rights of foreigners in Canada, as in other western countries, originates from the idea that, when security is at stake, a foreigner should not necessarily enjoy the same fundamental rights as the citizen. This breach of the fundamental dignity of the person does not seem to be objected to by a large majority of our population, even if it has devastating consequences for the individuals and their families, as long as these persons are foreigners. In effect, on purely moral grounds, it is somewhat difficult to reconcile the wave of sympathy created by the Maher Arar affair with the almost total indifference, if not hostility, with which most foreigners are sent back to a potentially similar fate. What is at stake here is the fate of foreigners who risk their freedom, their security or their life when returned home, or simply the fact that they may be detained or deported on very slim basis. Is also at stake the fate of their families in Canada. Individuals are uprooted, families may be separated, children may be wrenched from the only world they have ever known. Decisions having such consequences should be carefully monitored. I shall first illustrate the erosion of foreigners’ rights, during the last decade and especially as it is related to the current security agenda, and then underline the fact that foreigners are not anymore considered as persons necessarily deserving of justice and dignity. 1. The Erosion of Foreigners’ Rights in Canada During the 1990s, immigration entered what Didier Bigo called the paradigm of internal security. Immigration was considered more and more as an issue related to criminalityiii[iii]. After the events of September 11th, the fear of terrorism led to the adoption of many new anti-terrorist measures and a reinforcement of the security-related policy apparatus in Canada and elsewhere. Immigration had entered the realm of national security. On October 12, 2001, the Minister of Citizenship and Immigration announced immigration measures to be integrated in the new anti-terrorist strategy.iv[iv] Two months later, the Canadian and U.S. governments issued the Joint Statement on Cooperation and Regional Migration Issues and the 30-point Action Plan for Creating a Secure and Smart Border.v[v] Under these instruments, Citizenship and Immigration Canada enjoys primary responsibility, on Canada’s part, for ten initiatives, among which are: . Administering the processing of refugees and asylum-seekers, including screening for security or criminal risks and sharing information; . Managing claims for refugee status and asylum, including by negotiating an agreement to manage the flow at land borders of individuals seeking asylum; . Developing compatible immigration databases, by automating existing exchanges of lookout information and developing parallel immigration databases for regular information exchange. Many of these measures are perfectly understandable improvements on previous practice. They are a necessary tool in the fight against international criminal activities, such as terrorism. However, it is clear that they do not aim at protecting more individuals from persecution in their home country. On the contrary, efficient border management includes making sure that fewer persons will be able to reach the border and ask for protection. No provision is made in these instruments for more fully-fledged implementation of the 1951 U.N. Convention relating to the Status of Refugees or other human rights obligations. Indeed, we shall see that they may infringe upon the fundamental rights and freedoms of foreigners in ways that we would not deem acceptable if they were applied to ourselves as citizens in Canada or to Canadian citizens abroad by foreign authorities. 1.1.Elimination of Appeals Available to Foreigners In Canadian immigration law, since the early 1990s, most forms of appealvi[vi] previously available to foreigners have been eliminated. Furthermore, one can obtain judicial review only after having obtained leave to apply for it. Judicial review is no longer de jure. The management of immigration files is certainly speedier, maybe more efficient, but human rights protection has been radically diminished. Since 2002, even Canadian sponsors of foreigners found to be inadmissible on grounds of “security, violating human or international rights, serious criminality or organized criminality” have been deprived of any right to appeal. 1.2. Reduction of Legal Aid The Canadian refugee determination system is considered one of the best in the world. Ministers like to say that Canada has “the Cadillac” of the refugee determination systems. Based on the Canadian Charter of Rights and Freedoms, this system is quasi-judicial and each refugee claimant has the right to a hearing with full interpretation and the right to counsel. However, it has never been deemed important, in Canadian law and policy, to provide sufficient legal aid to help refugees prepare their case. Although the refugee determination system is of federal jurisdiction, legal aid in such matters has been left to the provincial legal aid schemes without insuring some equalization. In Ontario, the average legal aid fee for a refugee determination case is still over CAN$1500. In Quebec, it is CAN$455, which represents three hours of work, if an interpreter is not required. In British Columbia, legal aid for refugee determination cases was totally eliminated in June 2003, although further negotiations resulted in the re-introduction of a limited service in March 2004. The importance of legal aid in criminal cases has been underscored, in order to help accused persons to defend themselves properly and ensure the legitimacy of any subsequent guilty verdict. If the worst mafia boss has a right to legal aid, why is it that, in refugee cases, when the consequences of an erroneous decision can be death, torture or prison,