Smuggled Migrant or Migrant Smuggler: Erosion of Sea-Borne Asylum Seekers’ Access to Refugee Protection in Canada
Paper submitted in partial fulfilment of the requirements for the Degree of Master of Science by Coursework in Refugee and Forced Migration Studies at the University of Oxford, 2014
57 Pages Posted: 17 Feb 2015
Date Written: 2014
This thesis argues that the criminalization of smuggling has undermined refugee protection for sea-borne asylum seekers. It is pivotal to consider the categorical differentiation of sea-borne asylum seekers in the Canadian refugee system because they have induced major changes to the Canadian refugee law. Although there have been only seven notable cases of boat arrivals in Canada from 1986 to the present, sea-borne asylum seekers have triggered significant reforms in Canadian refugee law. At the intersection of international criminal law, Canadian criminal law, and Canadian refugee law, the criminalization of smuggling has resulted in an inability of sea-borne asylum seekers to access refugee status because they have assisted other presumptive refugees during a voyage. This paper argues that the broad grounds of “ineligibility” for refugee status in Canadian refugee law and the broad concept of smuggling in Canadian criminal law erode access to refugee protection for sea-borne asylum seekers allegedly implicated in smuggling of refugees. Moreover, interpretive contestation on sea-borne asylum seekers’ complicity in smuggling in Canadian refugee law and the flawed assumption of the static identity of smugglers in international criminal law further undermine sea-borne asylum seekers’ access to refugee protection in Canada. Sea-borne asylum seekers who do not align with the assumption of passivity of smuggled migrants are discursively framed as smugglers. International refugee law may fail to provide protection for bona fide refugees because of the artificial distinction between the smuggler and the migrant in international and national criminal frameworks on smuggling.
Keywords: Smuggling, boat people, asylum seekers, refugee protection, Canadian refugee law, international criminal law
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