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Protesters stand outside the Federal Court of Canada building for a hearing of the designation of the U.S. as a safe third country for refugees in Toronto in November 2019. THE CANADIAN PRESS/Nathan Denette

Whose travel is ‘essential’ during coronavirus: Hockey players or asylum-seekers?

There has been lots of talk about reviving professional sports from the COVID-19 shutdown. The NHL, NBA and Major League Baseball have all announced tentative plans. Canadian cities are competing to become hubs for a COVID-19 version of the NHL playoffs.

Personally, I’m a hockey fan. I’ve exhausted all the good online television, and I’d love to watch a few games. But the discussions about reopening professional sports reveals what we value during a global pandemic.

The Capital One Arena, home of the Washington Capitals NHL hockey club, sits empty in March 2020 after professional sports leagues suspended play during the COVID-19 pandemic. THE CANADIAN PRESS/AP, Nick Wass

Reopening professional sports means that players, coaches, support staff and media will travel to hub cities. For many, this will involve travelling internationally when many borders, including Canada’s, are closed to non-essential travel.

This raises the question: Whose travel is “essential?”

Borders closed

Consider that Canada has largely closed down its borders to asylum-seekers.

Prior to COVID-19, thousands of asylum-seekers from around the world crossed into Canada from the United States to claim refugee protection. Most crossed the border irregularly through unofficial ports of entry like Roxham Road in Québec to avoid being turned away at regular ports of entry due to the Canada-U.S. Safe Third Country Agreement (STCA), which applies only at official crossings.

These irregular border crossings were comparatively well-managed. Processing was in place. Security, criminality and health screenings could be conducted. Asylum-seekers were connected with support organizations and their refugee claims moved forward.

Kikome Afisa cries as she and others protest outside the Federal Court of Canada building for a hearing of the designation of the U.S. as a safe third country for refugees in November 2019 in Toronto. THE CANADIAN PRESS/Nathan Denette

Things were not, of course, perfect. With the election of U.S. President Donald Trump and the growth of racist and anti-immigrant rhetoric and policy, the numbers of asylum-seekers crossing into Canada increased substantially, causing pressure points in the system.

Refugee determination backlogs increased. Social services were stretched. But these problems were caused largely by inadequate and ineffectively allocated resources, an issue that was being actively addressed.

Dangerous crossings

More seriously, while most irregular border crossings were safe, some were not, leading to injuries and risks to life.

There were also legal problems. The STCA is based on the U.S. being safe for refugees. With increasingly harsh measures under Trump — detention, family separation, restricted interpretations of the refugee definition and the like — many argued that the U.S. was not in fact safe for refugees.

Read more: Children have been separated from their families for generations – why Trump's policy was different

A constitutional challenge on the subject is currently before the courts.

The biggest problem with the pre-COVID-19 irregular border crossings, though, was political. The governing Liberals faced pressure from the NDP, human rights organizations and law professors to suspend the STCA because the U.S. was not safe for refugees.

At the same time, the Liberals faced pressure from the Conservatives to expand the STCA to prevent irregular border crossings. The Conservatives accused Trudeau of failing to protect Canada’s borders against what was often described incorrectly as “illegal” migration.

Liberals in a bind

The Liberals, though, insisted that they could do neither.

They worried that suspending the STCA might mean more asylum-seekers coming to the country, creating further pressures on the system. They also wanted to avoid upsetting Trump during delicate negotiations over international trade.

At the same time, they correctly noted that expanding the STCA to cover irregular border-crossers could not be achieved without American agreement. This presents a serious obstacle because the U.S. has little interest in preventing asylum-seekers from leaving for Canada.

COVID-19 caused further challenges. In response to the crisis, the Canadian government shut down all non-essential travel to Canada. Dealing with such closures (and their economic fallout) while irregular border-crossers seeking asylum could continue to cross the border risked generating resentment that could be leveraged by political opponents.

Problem temporarily went away

But COVID-19 also offered an opportunity to make the political problem go away. Because the border was being closed to non-essential travel, all that needed to be done was to ensure asylum-seekers were captured by that closure.

The result? Asylum-seekers who present themselves to official ports of entry are turned back to the U.S. under the STCA, while asylum-seekers who attempt to cross the border irregularly to avoid the STCA are sent back for the duration of the COVID-19 crisis (likely never to return, since most will enter the American deportation regime).

That means that border crossings to seek protection against persecution and other human rights violations are being curtailed because they’re not essential travel, while it looks like border crossings to facilitate professional sports may be allowed.

So yeah, I’d like to watch some hockey. But I’d rather Canada live up to its international legal responsibilities to respect the right to seek asylum.

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