Increased Vulnerabilities: A Criticism of North American Refugee Policy

Maia RotmanMaia Rotman, 2L, IHRP Summer Fellow (Toronto/Mexico)

In recent months, it has been difficult to miss the headlines reporting the migration crisis in Europe—a crisis often described as on a proportion not seen since the Second World War. With news outlets continuing to publish contentious headlines warning of “waves” of “illegal” migrants “invading” Europe, the political response has been varied but largely inadequate. Literal and metaphoric walls continue to be built to keep “undesirables” out, resulting in people using increasingly irregular methods of transit, more fatalities, more people in unlawful detention, and more people vulnerable to human trafficking. Countries across the globe are now faced with the dilemma of abiding by international human rights law while maintaining their sovereignty and control over their borders.

During the summer of 2015, I travelled to Mexico with supervising lawyer, Kristin Marshall, as part of an IHRP-project funded by the Elton John AIDS Foundation. Our aim was to critically examine recent changes to Canada’s refugee policies, specifically Canada’s policy of designating certain countries as “safe,” which are labeled “Designated Countries of Origin” (DCOs). Nationals from DCOs seeking asylum in Canada are subject to expedited asylum procedures. They lose access to appeal at the Refugee Appeal Division if their claim is denied (this was struck down as unconstitutional in July 2015 by the Federal Court, but the government is currently appealing the decision), and they are not entitled to a statutory stay of removal while seeking leave for judicial review. Essentially, these policies make accessing asylum in Canada more difficult for claimants from DCOs than for claimants from other countries due to the assumption that individuals from DCOs are safe from persecution in their country of origin.

Our investigation sought to take issue with this assumption. Not every individual from a DCO is safe from persecution, and we sought to highlight this by looking at human rights violations in Mexico against people from certain high-risk groups. This included HIV-positive individuals, members of the LGBTI community, sex workers, intravenous drug users, victims of gender- based violence, street-involved people, and indigenous peoples. These individuals, made invisible by their marginalization from the mainstream narrative of Mexico, could legitimately need asylum in Canada. However, it is more unlikely for their claims to succeed as Canada designated Mexico a “safe” country in December 2012.

Our investigation found that human rights violations against minorities are rampant and the accountability of state authorities in Mexico is practically non-existent. This reflects the misguided nature of Canada’s DCO system. We also found that Mexico is also dealing with its own migration “crisis” and it is dealing with it poorly.

The International Organization of Migration estimates that about 150,000 people migrate to Mexico annually, although some NGOs believe that number could be double. Although Mexico is a signatory to the Refugee Convention and the 1967 Protocol Relating to the Status of Refugees, authorities detain migrants without offering the option to apply for asylum, and in fact, actively dissuade potential claimants from seeking asylum. If claimants begin the asylum process, they are not offered legal representation nor provided with an interpreter, and they become subject to the whims of an arbitrary and inconsistent system.

Without the option of accessing asylum in Mexico, most migrants attempt to cross into the United States. However, due to pressure from the United States to curb migration flows, Mexico launched Programa Frontera Sur in 2014. Ostensibly created to protect migrants and to ensure a secure southern border region, the result has instead been a sharp increase in detention and increased danger for individuals transiting through Mexico. In 2014, Mexican authorities detained over 100,000 migrants, a 35% increase from the year previous.

Mexican authorities have been pushing migrants off “The Beast,” the northbound cargo train traditionally used by migrants to travel across the country, causing sometimes-fatal injuries. Migrants are forced to take more irregular and dangerous routes through the country, via precarious modes of transportation, through small towns where they do not have access to shelters or services. They are vulnerable to violent abuse, extortion, and forced involvement in gang activity – often the very activities many were seeking to escape in the first place. Female migrants, particularly transgender women, are especially vulnerable to abuse: they will likely be raped on average five times during their journey through Mexico.

Our fieldwork highlighted that migrants are yet another unsafe population in Mexico. Our fieldwork also highlighted the dangers of closing borders as a means to control mobility. Europe may be dominating the news right now, but North American policies designed to manage migration are not a model of best practice, and are only serving to make already vulnerable populations more vulnerable. 

Photo Caption: Map on the wall at a Casa del Migrante (Migrant Shelter) in Tapachula, Mexico showing distances from Tapachula to New York, Los Angeles, Houston and Chicago (Photo credit: Maia Rotman)