03/19/2012 01:26 EDT | Updated 03/20/2012 01:35 EDT

Human Rights Watch Attacks Mandatory One-Year Detention Of Illegal Immigrants In Tory Anti-Smuggling Bill


OTTAWA — The mandatory one-year detention of illegal immigrants proposed under the Tories' new anti-smuggling bill violates basic human rights and breaches Canada’s international legal obligations, says Human Rights Watch.

The international rights advocacy group headquartered in New York is urging Canadian MPs to vote against the bill, which it claims punishes victims as young as 16 who lean on human smugglers to escape persecution, rather than the criminals themselves.

“Canada should go after people who profit from human smuggling, not people fleeing persecution," Bill Frelick, Human Rights Watch’s refugee program director, wrote in a blog for The Huffington Post Monday.

Bill C-31 would violate international human rights laws by allowing for a year of mandatory detention without review for certain groups of people, including 16 and 17 year olds, Frelick argued.

“Subjecting 16- and 17-year-old children to mandatory, unreviewable detention backtracks on Canada’s commitments to children,” he said.

“Even though the government is now proposing to eliminate mandatory detention for children under 16, if their parents are detained, the children will either be detained with their parents or separated from them for a year. Either way, the situation would have damaging effects on a child.”

Bill C-31, which was tabled in February, mandates 12 months of imprisonment without warrant or review for foreign nationals, age 16 or older, whose entry into Canada is deemed to be "irregular" by the immigration minister.

Human Rights Watch stressed its concerns in a letter to MPs last week. The international organization said the federal government’s efforts to crack down on human smuggling contravenes Canada’s obligations under Article 31 of the UN’s Refugee Convention, which prohibits imposing penalties on refugees on account of their unlawful entry. The Conservatives plan to ban illegal migrants from applying for permanent residency status for five years.

Human Rights Watch also said measures in the bill limiting the right of appeal for refugee claimants from countries deemed “safe” would not adequately protect those fleeing persecution.

These individuals could be removed from Canada before the Federal Court rules on their status, Human Rights Watch said, meaning that “by the time the court might reverse a denial of asylum, the refugee would already have been subjected to persecution back home.”

“We believe it is impossible to make a blanket determination that any country is safe for everyone and would never produce a refugee,” Frelick said.

In an interview with The Huffington Post Canada, the NDP’s immigration critic Don Davies agreed with Human Rights Watch. The Tories’ bill not only breaches many international obligations, but violates the Charter of Rights and Freedoms as well, he said.

“I guarantee there will be lawsuits. Lawyers across the country have already said they will take this legislation to court,” Davies said.

The omnibus legislation is plagued with problems, he added, likely because it was drafted in haste for “political and ideological reasons.”

Bill C-31 not only includes the federal government’s effort to combat human smuggling but also scraps earlier refugee reform legislation that was amended by opposition parties when the Conservatives had a minority government.

“The number one criticism of C-31 is that it throws that out the window, for no reason,” Davies said, adding that opposition MPs believe in reforming the refugee system but in a fast and fair way.

The Tories have touted their anti-smuggling bill as a crucial step in deterring more Tamil migrants from arriving on British Columbia’s shores and queue-jumping the immigration system. The government has limited debate on the bill but that didn't stop the NDP from bringing forward an amendment last Thursday that would scrap the bill entirely.

Immigration Minister Jason Kenney’s spokesman Kasra Nejatian told HuffPost the government is pushing full steam ahead with their plans to combat immigration fraud.

“I am surprised that Human Rights Watch cares more about keeping bogus asylum seekers in Canada longer than providing faster protection for legitimate refugees, which Bill C-31 will do. And I am disappointed that the NDP has reflexively adopted this ignorant and extreme position” said Nejatian in an email.

“As for Human Rights Watch's legal position, it does not take a lawyer to recognise that ideological ipse dixit is not an argument, and political preferences are not binding law."

Nejatian said he would let the NDP "take the side of far-left law professors."

"We will side with Canadians who have common sense to see that it is a problem when we receive more 'refugee' claims from democratic, rights-respecting European countries than from Africa or Asia," he said.

Human Rights Watch countered Nejatian assertions, saying it has documented racist and xenophobic violence directed against Roma and migrants in a number of EU member states, including Italy, Greece and Hungary.

Davies said he was disappointed by the Minister’s use of the word ‘bogus’ refugee and that most claimants who arrive on Canada’s shores illegally are still refugees.

“Imagine that you’ve just left Sri Lanka, you’ve just left a civil war, you may have witnessed your family members being murdered, maybe you’ve been raped, you end up hoping on a ship. You come here, with the clothes on your back, you have no money and you don’t speak English. And I say, ‘Ok, you have 15 days to write out your case about why you’re a refugee,' " Davies said. "You may be traumatized, you may have psychiatric issues you, obviously you’re going to have a fear of authority, you’re going to have trouble trusting, sometimes there are cultural issues, there’s plain human issues in telling a stranger that you’ve been raped. Then if you don’t put down the entire story and then something changes, they say that you were dishonest. It’s a tough test to make.”

In 2009, the vessel Ocean Lady arrived on Canada’s West Coast carrying dozens of Sri Lankan migrants.

Ten months later, the MV Sun Sea arrived carrying 492 Sri Lankans refugees who had boarded in Thailand.

So far out of the 550 refugee claimants, only four people have been determined to be inadmissible to enter Canada, Davies said, and none for terrorism-related concerns.

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