The overblown fears of a migrant wave

There has been no shortage of grim headlines about Donald Trump’s plans for undocumented migrants in the United States — the threats to send families to internment camps, deport 12 million undocumented people and put an end to temporary protected status (TPS) for refugees in peril.

Many of those new stories in Canada have been about the prospects for a massive “surge” in irregular migration at the border — Roxham Road writ large. So it’s some comfort at least to know that one immigration expert thinks Canadians need to calm down.

“No, we’re not going to see the same border surge we saw in the past,” says Aisling Bondy, president of the Canadian Association of Refugee Lawyers.

“People seem to forget that the Safe Third Country Agreement [STCA] was changed.”

The treaty, signed in 2004, states that individuals seeking refugee status in either the U.S. or Canada must (in most circumstances) make their claim in the first of the two countries they arrive in.

In 2023, the U.S. and Canada revised the treaty to extend its provisions to unofficial ports of entry like Roxham Road. Currently, migrants can claim asylum in Canada if they can enter the country and stay undetected for 14 days (an option Ottawa is now reportedly considering eliminating), but that’s “really, really difficult to do,” Bondy says.

“And yet, people are going to try it at great personal risk because they have no other options and are desperate.”

The government says since the changes in 2023, the number of asylum claims from people crossing illegally has dropped from an average of 165 per day to 12.

Even if fears of a wave of irregular migrants turn out to be overblown, Canada still faces some hard choices on immigration over the next four years. If it plays its cards right, it might even reap some benefits.

For starters, Canada may have little reason to think the incoming Trump administration will consider the STCA sacrosanct.

“The STCA was in Canada’s interests from the beginning,” says Audrey Macklin, chair in human rights at U of T law. “It was never something the U.S. wanted or needed.

“And it’s vulnerable to politics.”

Under the terms of the agreement, either country can suspend it at short notice for up to a year or terminate it entirely with a year’s notice. She says she can see Trump doing either thing if significant numbers of people in the United States attempt to enter Canada.

“Ask yourself, why would Trump give political backing to an agreement that sends migrants back into the U.S.?”

The agreement might be in trouble even if Washington doesn’t kill it outright. When the Supreme Court upheld the treaty as constitutional last year, it said “safety valves”—exemptions built into it—can protect refugee claimants from being returned to dangerous conditions in the U.S.

“But the STCA doesn’t spell out what the exceptions are,” Bondy says. “We don’t know what the special circumstances are that would allow border officers to admit people to Canada.”

Certain profiles of claimants are recognized as having a claim to refugee status in Canada but not under U.S. jurisprudence. That includes women fleeing domestic violence, for example.

“We need clarity.”

The concept of “safety valves” may also become moot if Trump makes good on his promise to make life miserable for the undocumented prior to deportation by interning them.

“If the U.S. is no longer a safe country, the precondition for the STCA disappears and it becomes much more vulnerable to a court challenge here,” Macklin says.

Amending the agreement to apply it to unofficial border crossings amounted to creating “a government stimulus package for the people-smuggling business,” says Macklin. Any undocumented attempting to travel north to shelter under the 14-day rule ends up putting their lives in the hands of criminal networks — and hardening the border isn’t really a practical option, no matter how much money Ottawa spends on drones.

“Are we talking seriously about militarizing thousands of kilometres of border and keeping an agreement in place that is boosting the human smuggling business?” she says. “Do we really want more people freezing to death?”

In December, Ottawa announced $1.3 billion in spending as part of the fall economic statement. The push laid out in Canada’s Border Plan to bolster security comes as Trump threatens to impose 25 per cent tariffs on all Canadian imports, given his concerns about the flow of illegal migrants and drugs.

This week, just days before the presidential inauguration, the federal government announced that 60 new drones and two Black Hawk helicopters will be part of beefed-up border patrols, as will new aerial surveillance towers. Immigration Minister Marc Miller also said Canada will share more personal information about permanent residents who cross the border with U.S. officials.

The fate of the STCA notwithstanding, Canada needs immigration reform to prevent the system from becoming a political lightning rod in times of economic stress, says Eddie Kadri of Kadri Law, a Windsor-based immigration law firm.

“What we need most of all is for the government to abandon this pendulum approach to immigration, where it swings one way toward openness and then back toward cracking down,” he says.

“Canada needs immigrants. We can’t maintain our standard of living without them.”

The priority should be immigration, which will grow our economy and target shortages in the workforce, he says.

“That’s the only way we’re going to live up to our humanitarian responsibilities. Right now, public faith in the system is being eroded.”

Kadri says Canadian governments should strive to build up the infrastructure that supports immigration — things like health services and housing — while keeping the system flexible enough to respond to sudden shifts in the flow of migrants.

“Just linking [immigration] levels to housing starts alone is like looking at an incredibly complicated problem through only one lens,” he says.

“We need to ensure that real-time immigration policy can adapt quickly to address unique situations that arise or urgent circumstances that require flexibility.”

The immigration system and the courts that support it are also badly under-resourced. The Federal Court is warning that the number of immigration filings on its plate is set to increase by 50 per cent this year, all while reporting an annual budgetary shortfall of $35 million.

The backlog of unprocessed applications at Immigration, Refugees, and Citizenship Canada stood at 1,097,000 in September, an increase of 1.73 per cent over the previous month. Whatever else happens over the next four years, the pressure on the federal government to boost department funding and streamline the process for simple cases will be immense.

And Canada probably could do more to make room for American citizens looking to flee the incoming administration because they’re appalled by its policies — or fear they could be its next targets.

Evan Green, managing partner at Green and Spiegel and a specialist in citizenship and immigration law, has been getting inquiries from high-net-worth Americans interested in becoming Canadians.

“They may be Americans with a family history associated with war or persecution. They may be LGBT people and their families,” he says.

“Some are people with a well-founded fear that the new administration is going to go after them, persecute them, because that’s what Donald Trump said he’d do. The people I’m hearing from, they’re prominent. Public figures.”

During the last Trump administration, Green says Canada picked up many high-value tech workers from the U.S. who’d been prevented from taking jobs in the U.S. What we need now, he says, is a special immigration pipeline for “older people, people in the arts, the self-employed.”

“Canada has no pathway for them. For example, Meryl Streep would not qualify for immigration to Canada. Taylor Swift wouldn’t qualify,” Green says.

Canada should create a special immigration pathway like the 01 visa stream in the U.S., reserved for individuals who have demonstrated “extraordinary ability” in the sciences, arts, education, business or athletics.

“Canada doesn’t have that now,” he says. “There’s a real opening here for us to pick up some world-beating talent. This is a huge opportunity for Canada.”