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I’m afraid the government doesn’t want to stop the flow

“Designating the U.S.A. a ‘safe’ country and passing an order-in-council accordingly would stop the flow across the border. I don’t see this as a violation of the Safe Third Country agreement, but if it is, then we should unilaterally end the agreement,” he said. “But I’m afraid the government doesn’t want to stop the flow and hopes a large portion of the population will agree to keep the flow coming.”

Andrew House, a lawyer at Fasken and a former chief of staff to successive Conservative public safety ministers, called Bissett’s idea a “sound approach” but said that there is “virtually no possibility” of it being adopted by the Liberal government that dropped the legal appeal on refugees.

Howard Anglin, Jason Kenney’s former chief of staff when he was immigration minister, agreed that building on the existing designation of the U.S. as a safe third country would be legally possible but would likely face major practical problems. While the 1951 Refugee Convention ruled out asylum shopping, the U.S. is unlikely to take back claimants who don’t have legal status in the States, he said.

But Anglin said Canada could at least pass a regulation making anyone with legal status in the U.S. (either temporary or permanent) ineligible to claim asylum. It could include anyone who has been denied asylum in the U.S., after having gone through its asylum process.

“There is some risk the U.S. might consider this a unilateral expansion of the Safe Third Country agreement, and thus a violation of it, and that they could become difficult in administering it on their end, or even cancel it altogether,” he said. But, despite the likely outcry from refugee lobbyists, he said most Canadians would understand why Canada should not encourage asylum shoppers.