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07/23/2018 12:53 EDT | Updated 07/31/2018 11:37 EDT

What’s The Difference Between Irregular, Illegal Border Crossers? A Lawyer Explains

As asylum seekers from the U.S. head north, it may be a good time to fact-check whether these are illegal border crossers after all.

When Canadians discuss the large influx of asylum seekers (i.e. refugee claimants) crossing the border into Canada from the United States, we tend to use the term "illegal" to describe them. However, the term implies that these asylum seekers have committed a crime and are therefore less deserving of due process, or at least our empathy. As a result, it may be a good time to fact-check whether these asylum seekers are illegal border crossers after all.

Dario Ayala / Reuters
A man that claimed to be from Syria is detained by an RCMP officer after he crossed the U.S.-Canada border into Hemmingford, Que. on March 2, 2017.

Irregular or Illegal?

The term "irregular" is sometimes used interchangeably with the term "illegal" when referring to these asylum seekers. However, there are subtle differences. The term "irregular" is merely used to describe a border crossing that is not made at a port of entry. On the other hand, the term "illegal" is used to describe a border crossing that is performed in violation of the law. Depending on the circumstances, an irregular border crossing may or may not be considered illegal.

Why do asylum seekers choose to be irregular border crossers?

A significant number of asylum seekers crossing the border into Canada from the United States do so irregularly (i.e. not at a port of entry). However, for the majority of these asylum seekers, there is no alternative.

On Dec. 5, 2002, Canada and the United States signed the Canada-U.S. Safe Third Country Agreement (the "Safe Third Country Agreement"); it became effective on Dec. 29, 2004. Under the Safe Third Country Agreement, persons seeking refugee protection must make a claim in the first country (either Canada or the United States) in which they arrive, unless they fall under one of the limited exceptions.

There are no offences described in the Criminal Code which would directly apply to a foreign national making an irregular entry into Canada.

As a result, the vast majority of asylum seekers in the United States who attempt to cross the border into Canada for the purpose of making a refugee claim will be turned back if they show up at a port of entry. However, the Safe Third Country Agreement does not apply to refugee claimants who enter Canada irregularly. If they are able to enter Canada without being processed at a port of entry, they are permitted to make a refugee claim.

Are irregular border crossings always illegal?

There are no offences described in the Criminal Code which would directly apply to a foreign national making an irregular entry into Canada. It is true there are offences relating to the use of a false document or a false identity. It is also true that asylum seekers are sometimes compelled to use a false document or a false identity in order to escape from their country of origin. However, most asylum seekers entering Canada from the United States would not need to present a false document or a false identity.

There are also offences described in the Immigration and Refugee Protection Act ("IRPA") which penalize immigration violations. The offence most likely to apply to an irregular border crosser would the general offence described in IRPA 124(1)(a). According to IRPA 124(1)(a), it is an offence to contravene a provision of IRPA (for which a penalty is not specifically provided) or to fail to comply with a condition or obligation imposed under IRPA.

Dario Ayala / Reuters
An RCMP officer watches as a man is checked by U.S. border patrol before he crossed the U.S.-Canada border into Hemmingford, Que. on March 2, 2017.

Under IRPA 18(1), every person seeking to enter Canada must appear for an examination to determine whether he or she has a right to enter Canada. Therefore, crossing the border at a location other than at a port of entry is technically a contravention of IRPA. However, IRPA 133 must also be considered.

According to IRPA 133, a person who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, may not be charged with an offence under IRPA or the Criminal Code relating to their entry to Canada, pending disposition of their claim for refugee protection or if refugee protection is conferred.

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In other words, any criminal prosecution relating to a refugee claimant's entry to Canada must be deferred until his or her claim has been adjudicated. If the refugee claimant is ultimately granted refugee protection, he or she cannot be prosecuted.

Conclusion

Since a bona fide refugee claimant who is ultimately granted refugee protection cannot be prosecuted under IRPA or the Criminal Code in connection with their entry to Canada, it cannot be said that these individuals are illegal border crossers, even if they are irregular border crossers.

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