The Canadian government is trying to quash a legal challenge to its policy of turning back asylum-seekers entering the country between border crossings, saying the group bringing it lacks standing, even as it has granted a growing number of exemptions to the policy.
The parties were in court on Thursday arguing over who should be able to bring a case in the public interest.
Since March 2020, Canada has turned back at least 544 asylum-seekers trying to cross from the United States between ports of entry, government figures show.
The government says its policy is justified by the COVID-19 pandemic and the exemptions it has granted prove recourse is available.
Refugee lawyers said that these exemptions are inadequate, as at least one asylum-seeker was deported from the United States after receiving an exemption, and belie the policy’s justification.
“Refugee travel is not discretionary,” said Maureen Silcoff, a refugee lawyer and past president of the Canadian Association of Refugee Lawyers, which earlier this year challenged the policy.
The government argues that the association lacks legal standing and its challenge should be struck.
The association is neither the intended beneficiary nor the target of the rule and “has no real stake or genuine interest in the outcome of this litigation,” the government said in a court filing. It said asylum-seekers who have been turned back should bring the case.
Refugee lawyers said those asylum-seekers, some of whom end up in U.S. immigration detention, are poorly placed to challenge the policy.
Starting in July, Canada increased the number of National Interest Exemptions it issued to asylum-seekers who had been turned back, enabling them to enter Canada and file refugee claims.
Between March 2020 and July 2021, Canada had granted just eight such exemptions. By Oct 14, that number had risen to 159 exemptions, according to documents filed in court.
Canada’s immigration ministry did not respond to questions about the criteria for these exemptions.
Canada has a Safe Third Country Agreement with the United States under which asylum-seekers who present at a land border crossing are turned back. It has been challenged twice but upheld most recently this spring.
