The Value of the Immigration Lawyer in the Age of Anti-Immigration Populism

By Jacqueline R Bart, BartLAW Canadian Immigration

Jacqueline Bart discusses the role of the immigration lawyer in a world of ever-increasing anti-immigration populism.  

image of Jacqueline

A Delicate Balance

The world cannot function without the movement of peoples for business, employment, family and investment purposes. Nations compete to attract foreign global talent and endeavour to create the most competitive immigration programmes to promote investment and job creation. With the rise of globalisation has come the rise of the immigration lawyer.

However, it is not globalisation that has led to the growth of immigration law defence work, but rather the controls and integration requirements that governments have sought to put into place in order to protect nationals from unemployment, criminal acts, disease, terrorism, human trafficking, human smuggling and overuse of the public purse. These bars to immigration have become ever more complex. The pace of proliferation of immigration rules (and their exemptions) continuously accelerates. Nations seek regulatory balance between globalisation, nationalism, humanitarianism, admissibility controls and protection of the public. These competing immigration interests have become more and more incendiary as the pace of internationalisation and ease of travel accelerates, in addition to the deep fear (and sometimes hatred) of foreigners. These factors have led to anti-immigration protectionism and the rise of far-right populist politicians.

The delicate immigration balance that nations strike is based on four major immigration-related components (fig 1).

Each of these components affects the manner in which each nation’s immigration programmes are designed. Immigration policy is dependent on the level of nationalism and integration, which is determined by a nation’s unique economy, culture, politics, geography, ideology, religion, language and ethnic mix. Each nation will strike a different balance depending national circumstances. An overpopulated nation may have a lower tolerance for immigration than a nation with vast unused territory. A wealthy nation with strong humanitarian values may have a greater tolerance for humanitarian and refugee immigration then a poor totalitarian nation. A pro-trade nation may have a greater tolerance for semi-skilled foreign workers than an anti-trade jurisdiction. Whether the nation is pro-trade or anti-trade may also hinge on that nation’s leadership and current political sentiment.

Liberal nations which respect freedom, tolerance, equality and individual rights will incorporate more permissive and less nationalistic immigration policies and programmes. The focus will be more humanitarian and less on assimilation. They will expand programmes which will allow for greater family reunification, refugees, protection for children and other humanitarian and compassionate protections, such as human trafficking and people smuggling controls and measures to protect foreign workers and immigrants from abuse, exploitation and harassment.

Ultimately, in order for a legal jurisdiction’s immigration programme to be considered viable by its population, they must perceive an acceptable level of degree of immigration control. When nationals believe that their immigration programmes are out of control and/or there is a lack of the appropriate level of nationalism and integration, anti-immigrant sentiment will arise. Again, these beliefs are based on the unique mix of national circumstances at that point of time.

Control relates to who foreigners are, and how they may enter and for how long, which leads to the visa, entry, admissibility and removal/deportation immigration policies. Control also relates to public protection against disease, criminality, security, terrorism, in addition to the protection of the public purse (medical, welfare, education, infrastructure, security, integration and other costs).

Economic integration is the most valuable and respected form of integration for most jurisdictions. Foreigners are generally appreciated, in all but highly nationalistic countries, if their entry leads to substantial investments, employment opportunities for nationals and the importation of specialised knowledge and skills. Some jurisdictions require full assimilation; others, a fusion of nationalities, cultures and ethnicities (ie, a “melting-pot”). Liberal nations accept a multicultural and diverse immigration approach (traditionally, for example, Canada).

A nation may have strong global talent and humanitarian immigration programmes. However, if nationals perceive a lack of foreigner entry controls and/or integration, anti-immigration sentiment and far right populist leadership will rise in the nation. Against this political backdrop emerges the rule of law, immigration defense work, judicial intervention and legal reform.

Levels of nationalism/integration Economic programmes
  • Economy
  • Geography/territory available
  • Politics
  • Culture (assimilation, melting pot or multiculturalism
  • Ideology
  • Religion and tolerance
  • Language
  • Ethnicity
  • Diversity and inclusion
  • Demographics
  • Work permits (intra-company transfer, high skilled,
    global talent, trade, labour shortage)
  • Skilled immigration
  • Business immigration
  • Other investment and job creation programmes
Immigration protections and controls
Humanitarian and compassionate immigration programmes
  • Immigration Volume
  • Visa and entry controls
  • Medical and criminal admissibility
  • Removal
  • Deportation
  • Disease
  • Terrorism
  • Public purse
  • Family unification
  • Humanitarian classes
  • Compassionate/discretionary 
  • Refugees and protected persons

Refugee Law (Canada) as an Example and Why Corporate Immigration is Important in the Refugee Context

When the Refugee Convention was signed in 1951, the prohibitive cost of travel and the movement of people was substantially more limited than it is now. The likelihood of a foreigner entering Canada to apply for refugee status was low. Today, facile and low-cost travel enables foreigners to enter Canada with greater ease, even when faced with visa and eTA controls. In an effort to close the refugee floodgates, signatories to the 1951 convention have created legal constructs to limit the application of the convention. For example, in Canada, we have a “safe third country” agreement with our only neighbour to the south, east and west: USA. The “safe third country” agreement, which was signed in 2004, requires refugee claimants to apply for refugee status in the first nation they enter (ie, either USA or Canada), otherwise, they are barred from applying for refugee status in the other jurisdiction. The agreement makes exceptions for people who have relatives in Canada, people who make a claim at an airport or inland office, and children. The “safe third country” agreement does not prevent refugee claims from individuals who enter Canada from a non-border crossing. The supposed “loophole” prevents refugees who cross the Canada-US border illegally, from being turned away – instead, they are arrested and able to start a refugee claim process in Canada. Since the American election, there has been a substantial increase in refugee claims through non-border crossings. Some Canadian politicians are now advocating for the closure of this “loophole” in an effort to maintain control over our borders – but what these politicians fail to realise that the “loophole” is in fact, compliant with the 1951 Convention to which Canada is a signatory. Under the 1951 Convention, Canada has an obligation to protect individuals entering Canada who are fleeing persecution within the meaning of the Convention. Another example of a mechanism designed to limit the protections of the 1951 Convention is the recent agreement between Europe and Turkey.

Sadly, in Canada, many border or non-border refugee entries will result in deportation. For that reason, lawyers should, as a general rule, not advise a client to make a refugee claim, unless other immigration programmes have been fully considered. Skilled worker, business and corporate immigration programmes offer facile immigration solutions for semi-skilled, skilled and business people. It allows them to travel outside their new country and seek additional opportunities to improve their future. Refugee status is limiting until permanent residence and citizenship is obtained. Until permanent status is obtained, travel is generally forbidden and the limitations and uncertainty of a claimant’s status can generate stress, depression and medical problems. In the event of a refused claim, attaining non-immigrant or immigration status from Canada or another jurisdiction will become extremely difficult. Refugee status is generally the least practical of all immigration programmes and should only be recommended when all other immigration solutions have failed.

 The Rule of Law and the Ennoblement of Immigration Lawyers

There is no question that nations must place appropriate controls to protect their nationals and that integration be facilitated for foreigners. However, both control and nationalism/integration must be accomplished within the bounds of domestic and international law. Without respect for the rule of law, a nation becomes uncivilized. The strongest indicia of a civilized society is whether it bestows vulnerable foreigners with rights and freedoms similar to those of its own citizenry. Immigration lawyers are ennobled to protect the domestic and international rights and freedoms of foreigners. In addition to the human rights, family reunification and humanitarian and compassionate advocacy that we do, we also help integrate foreigners into our countries through various investment and global talent admission programs. We protect foreigners from far-right nationalism and unreasonable integration requirements that affect their fundamental rights and freedoms and advocate for unbiased, fair, reasonable and independent decision making.

No one can protect the world legal order better than lawyers and judges. We know how the law operates in practice and can improve our world through ongoing teaching, writing and advocacy for national and international legal reform. We apply morality, fairness and reasonableness in our practices every day. Lawyers in Canada are “officers of the court” and are required to promote justice and the effective operation of the judicial system. We must act in the best interests of our clients, while simultaneously pursuing the legitimate interests of all parties and the general good of society. Immigration law incorporates almost every other area of law including business, corporate, human rights, criminal, health, family, trade, child, refugee, international, contracts, tax, litigation, administrative, constitutional and employment law. Immigration lawyers help real people with their most personal aspirations. We deal with emotions, even in the most corporate of immigration cases.

It is anticipated that global warming will eventually lead to substantially greater levels of drought and starvation and other environmental disasters resulting in the flight of entire societies. As immigration controls become ever more sophisticated in an attempt to close these “floodgates” in climactically cooler climates, immigration lawyers will face new challenges in upholding basic and internationally recognised rights and freedoms. We have witnessed the denigration of the judiciary for enforcing legal principles against unreasonable executive immigration controls. Our work has never been more important and complex – and that importance and complexity will continue to grow. The protection of the independence of the judiciary and the defence of the defence (ie, protecting our immigration law colleagues and judges nationally and internationally from harassment or persecution) will remain important elements in our fight against anti-immigration populism and the backlash against diversity and inclusion.

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