Refugee Policies Should Be Evidence-Based

by Susan McGrath

Photo: 2010 Legal Observers/Flickr

Canadian policy-making on refugee issues is ignoring the evidence of leading researchers in the field. Empirical research that would improve refugee legislation and the practices of our refugee determination system is being overlooked to the detriment of refugees and the Canadian public.

A key example is the immigration detention process.

Professor Delphine Nakache of the University of Ottawa recently completed a detailed 100-page report on the Canadian immigration detention system managed by the Canada Border Services Agency. The research methodology was comprehensive including site visits, key informant interviews, and a review of government reports and academic literature. Ms. Nakache drew on key international and domestic legal principles to review Canadian practices and looked at statistics on who is detained and on the system’s cost.

Her research raises a number of concerns about the current system including its legality and practices.

Ms. Nakache points out that international human rights law requires that immigration detention should be the exception rather than the rule; must be in accordance with the law and not arbitrary; and that the detention conditions be humane.

Her findings are disturbing. Refugee claimants including women, children, and people with mental health issues are being detained in prisons across the country including high-security prisons where they must wear prison uniforms, may be handcuffed and shackled when moved for medical treatment, and their access to legal counsel and communications is severely limited.

CBSA detention facilities are not sufficient for the number of people that they choose to detain so local, provincial, and federal jails are being used resulting in inconsistencies in services and jurisdictional tensions.

Ms. Nakache’s efforts to determine how many refugee claimants were being detained were not successful because of the inadequacy of CBSA statistics; they do not distinguish between refugee claimants and those whose claims have been denied nor do they count minors detained with their parents.

She found inconsistencies in decisions made by CBSA officers across the country; the likelihood of being detained appears to depend on the port of entry where the asylum seeker arrives.

Similarly, she was unable to comment on the cost effectiveness of the system because of the lack of available, up-to-date data. The information she did uncover suggests that detention is very expensive. The cost of detaining the 492 men, women, and children from the MV Sun Sea is over $22 million. Treating these people as regular claimants would have been considerably cheaper and certainly more humane.

Canadian system not charter compliant

Ms. Nakache’s study builds on the 2011 work of U.K. researcher Alice Edwards who studied international law governing detention and provided a critical overview of existing and possible alternatives to detention drawn from research in five countries including Canada.

She concludes that there is no empirical evidence to give credence to the assumption that the threat of being detained deters irregular migration or discourages persons from seeking asylum. Threats to life or freedom in an individual’s country of origin are likely to be a greater push factor for a refugee than any disincentive created by detention policies in countries of transit or destination.

She also found that over 90 per cent of refugee claimants and people awaiting deportation comply with the terms of their release from detention and that the alternatives to detention are a significantly cheaper option.

Australian researcher Amy Nethery confirms that two decades of immigration detention in Australia have not deterred asylum seekers arriving by boat. The rise and fall in the numbers of arrivals correspond with the rise and fall of people movement globally.

In addition to being ineffective, detention is extremely expensive and is harmful to those detained. A recent systematic study of refugee claimants in detention by Janet Cleveland and colleagues at McGill University shows that even short-term detention has a negative impact on the health of both adults and children that may persist long after release.

The evidence shows that the Canadian detention system is flawed and not compliant with the Canadian Charter; detention is not a deterrent to people seeking refuge and is detrimental to their well-being; and, alternatives to detention are cheaper, effective, and more humane. But the CBSA continues to detain on average 5,000 men, women, and children every year. The proposed bill, C-31, Protecting Canada’s Immigration System Act allows for refugee claimants who arrive in groups to be subjected to mandatory detention for up to a year.

Government policy-making should be based on empirical evidence not false, misleading, and often egregious assumptions about the motivations and behaviour of people legally seeking the protection of our country. The perils of ignoring such knowledge are too great — legally, socially, and economically.

Canada has a strong network of academic and practitioner researchers across the country working on forced migration issues, and they are linked with international colleagues. The Centre for Refugee Studies at York University has been producing leading research for almost 25 years and is hosting the global refugee research network of over 1,000 members. The now-defunded Canadian Metropolis project has five university-based research centres across the country with over 600 researchers focused on migration and settlement issues.

The March 9 virtual conference of the Canadian Association of Refugee Lawyers brought together 250 academics and practitioners from six different sites across the country to debate the proposed refugee legislation.

The upcoming May conference of the Canadian Association for Refugee and Forced Migration Studies at York University is to feature over 120 research presentations.

Canadian policy-makers have a rich resource of refugee research to draw on and our refugee policies and practices need this knowledge and expertise if they are to be legal and humane.

Susan McGrath is the director of the Centre for Refugee Studies at York University. This article was first published in Embassy Magazine.

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