The Often Fine Line Between Asylum Seeker and Smuggler

Adrienne Boyd

Third Year Law Student in the Program in Refugee and Asylum Law at University of Michigan Law School

 

[Was the refugee applicant] a people smuggler

        or was [he] himself a smuggled person[?]

This question, posed by the Immigration Refugee Board of Canada in X(Re) [2011] 86097 IRB, captures a legal quandary now being considered by the Supreme Court of Canada (SCC). In February of this year, the SCC heard four cases[1] of sea-borne asylum seekers found to be ineligible for refugee protection because they helped other refugees come to Canada illegally.[2] This is the first time in the history of international refugee law that the highest court of a country will address this issue. The cases call into question the depth and breadth of Canada’s human smuggling laws, and whether Canada’s law comports with the country’s obligations under the Refugee Convention. The Court’s ultimate decision will have a tremendous impact on both refugee claimants and those who assist asylum seekers entering Canada.

 

Individuals are inadmissible and, subsequently, ineligible for refugee status in Canada based on involvement in people smuggling,[3] but the Immigration and Refugee Protection Act does not define smuggling. In applying the law, Canadian courts have adopted incongruous approaches for assessing an asylum’s seeker’s culpability for people smuggling.

 

Amnesty International argues people smuggling “should be interpreted consistently with Canada’s international human rights obligations contained in… the Refugee Convention.” Under international law, people smugglers are those who assist individuals in crossing borders for their own material gain. A broader definition may “penalize refugees for having assisted others, and expose them to a risk of refoulement, contrary to articles 31 and 33 of the Refugee Convention” respectively.

 

Article 31, however, may not offer the clear protection that advocates’ suggest. The Refugee Convention and 1969 Protocol provide criminal immunity for smuggled migrants for their own illegal entry, but “the treaties are silent on asylum seekers who assist other [presumptive] refugees in crossing borders illegally.” Furthermore, the UN Protocol against Smuggling offers no conclusive answer. By virtue of Article 5 of the Protocol, “a person cannot be charged with the crime of smuggling for having been smuggled. This does not mean that he or she cannot be prosecuted for having smuggled others.” While article 3 of the UN Protocol against Smuggling is intended to exempt “humanitarian smugglers” from criminal culpability, article 6(2)(b), which dictates the crime of acting as an accomplice in smuggling, raises the possibility that humanitarian smugglers acting in good faith may still be liable for smuggling under international law. Thus, there is a path by which asylum seekers, who assist in smuggling others seeking protection, may be viewed as criminally culpable, and therefore barred from refugee status in Canada.

Ultimately, current Canadian law, international refugee law, and international criminal law all draw a concerning dichotomy between smugglers and smuggled migrants, and fail to appreciate that migration is a dynamic experience. In reality, “migrants may become smugglers during the migratory journey.” Current law has created a protection gap in which the criminalization of smuggling undermines protection for asylum seekers.

The SCC will provide the final word with respect to the issue of the smuggling provision’s possibly over inclusive language and help determine how those who assist refugees entering the country for humanitarian reasons should be treated by the justice system. While we await the decision of the Supreme Court of Canada, it may behoove refugee advocates and researchers to examine the issue of smuggling in greater depth and contribute further literature on the subject so that decision makers better understand the nuances of current migration practices and properly differentiate between humanitarian assistance and people smuggling.

[1] B306 v. Minister of Public Safety and Emergency Preparedness [2014]; Hernandez v. Minister of Public Safety and Emergency Preparedness [2014]; J.P., et al. v. Minister of Public Safety and Emergency Preparedness [2014]; R. v. Appulonappa [2014].

[2] The cases under consideration involve people connected to the arrival of ships full of Sri Lankan migrants off the coast of B.C. The first ship arrived in 2009 with 76 Sri Lankan Tamils aboard; the second ship came in 2010 with 492 migrants. The events “prompted a national debate about Canada’s existing refugee and human-smuggling legislation, and spurred the government into promising a crackdown.” Those who worked on the ships were arrested and charged as human smugglers.

[3] Paragraph 37(1)(b) of the Immigration and Refugee Protection Act states:

A permanent resident or a foreign national is inadmissible on grounds of organized criminality for engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

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