In Search of Asylum

Catherine Dauvergne probes the global pressures that are challenging the state of immigration laws in Canada and around the world.

Catherine Dauvergne is an associate professor and Canada Research Chair in migration law at UBC’s Faculty of Law. Her research is supported by grants from SSHRC, the Australia Research Council and Status of Women Canada.



This article was first published in
Frontier, a publication produced by the
Office of the Vice President, Research

Ignored within the confines of an obscure detention centre, five men of Muslim descent are being held without the possibility of trial. Their crimes have yet to be identified, much less substantiated. They received no warning, no warrant and certainly have no prospect of adequate legal defense. While incidences like this have surfaced internationally before, not many would believe this is currently the case in Canada.

Not long after Sept. 11, 2001, the Canadian government implemented anti-terrorism legislation that
effectively made it easier to detain non-citizens, using secret evidence, who are suspected of being related to terrorist organizations. Surprisingly, it is immigration legislation — not anti-terrorism law — that is being used to detain the five men indefinitely. This year, the Supreme Court of Canada will decide again on the constitutionality of these immigration laws. Until then, the five men must wait.

“If we send them back to where they came from, they’re likely to be tortured or killed. If we keep them here, it appears we don’t have enough information to put them on trial,” says Catherine Dauvergne, UBC associate professor and Canada Research Chair in migration law. Canada, it seems, is not unique in using its migration legislation to put citizens in indefinite detention. “It’s a crisis of liberal democracy to decide what to do with these people.”

Security politics in the realm of migration law is just one aspect of globalization and illegal migration that Dauvergne is researching. Since 2002, she has been investigating how migration laws around the globe have been shifting under contemporary social and political pressure due to globalization. Published in 2005, her book Humanitarianism, Identity and Nation: Migration Laws in Canada and Australia traces the links between immigration’s tradition of nation-building and the challenge of admitting people who do not reflect a country’s national interests.Delving deeper into the nexus of globalization and migration law, her newest findings will be documented in a forthcoming book, Making People Illegal: Globalization, Sovereignty and Migration Law, which will be published in 2007.

Traditional discourse surrounding globalization and law tends to revolve around economic law and the global accumulation and movement of capital. Dauvergne says globalization’s effect on immigration law is creating an important yet little-studied trend: fewer disadvantaged (ie: poor) people are seeking political asylum despite the fact that the number of displaced peoples has remained constant. One of the ambitions in her forthcoming book is to investigate why this phenomenon exists. “Over the past decade, most prosperous Western nations have been involved in cracking down on migration and [that’s] partially to do with a very successful legal maneuvering that makes it impossible to seek asylum,” she says. “States can then turn around and say there are fewer people than ever before that are seeking asylum when it’s really a product of efforts to legally define people out of the system.”

Each year, it is estimated that 30,000 people apply for refugee status in Canada. In addition, there are about 10,000 applications for humanitarian and compassionate exceptions, which are accepted or declined at the discretion of the immigration minister. This is the official “loophole” in Canadian immigration law, and there is almost no information on how or why decision-makers in Canadian immigration use this legal provision. Discovering the nature of these exceptions is an area that Dauvergne is currently dissecting in another research-project funded by the Social Sciences and Humanities Research Council (SSHRC).

But it is the stories of refugee claimants who don’t make it into Canada that make the biggest impression on Dauvergne. Her research takes her into the traumatic lives of refugee seekers. Many people come to Canada with the hopes of finding a better life but for one reason or another do not fit into the framework of Canada’s immigration legislation. “It’s very difficult to talk to people who you know have no legal redress and particularly if you believe them,” she says. “That’s a difficult point to bring across in public discourse. Just because you get rejected doesn’t mean you’ve done anything wrong.”

Much of Dauvergne’s research on migration law manifests itself into policies and recommendations that she hopes governments and agencies involved in immigration can take steps to implement. However, on a
broader scale, she hopes her research can contribute to a greater public discourse that will make people think differently about migration. “I’m keen on people being better informed of what Canada’s international commitments to refugees actually are. There’s a huge amount of misinformation about refugees that is produced almost daily in the Canadian press,” she declares.

Migration law has been Dauvergne’s life work since she graduated from UBC’s Faculty of Law about a decade ago. In addition to her book on globalization and research-project with SSHRC, she is filling her already-busy schedule with two more projects. Funded by the Australian Research Council, she is researching first-instance refugee decision-making in six countries with a colleague at the University of Sydney. She is also in the final stages of revising a collaborative report funded by Status of Women Canada entitled Gendering Canada’s Refugee Process that examines gender in the Canadian refugee determination process.

Dauvergne admits it’s sometimes hard to be an academic lawyer because there’s always the pull to become an advocate for refugee cases. But she shows no signs of forgoing her research for the life of a practicing lawyer. “There’s at least a decade of interest left for me,” she says. “I think immigration law is interesting because it is ignored [and] I’m interested in that place at the margin.”

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