FAQ: How refugee claimants seek asylum in Canada

Multiple provinces have seen a spike in the number of asylum seekers sneaking across the border between the United States and Canada.

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Last week, two men risked their lives and suffered severe frostbite trying to cross into Manitoba to seek refugee status in Canada, and experts are predicting an increase in the number of asylum seekers after Donald Trump's election win. 

The federal government is holding high-level talks to deal with a potential increase.

How does an asylum seeker become a refugee in Canada?

There are two ways refugees end up in Canada; one is for refugees to enter Canada and claim refugee status.

"Once a refugee gets into Canada — legally, illegally — and says, 'I'm claiming refugee status,' Canada has an obligation to process that claim and determine if that person is a refugee. Internationally and domestically, that's a legal obligation," said Shauna Labman, a law professor at the University of Manitoba who teaches immigration and refugee law.

Normally, border services will decide whether the claimant is eligible, and after that, it's up to the Immigration and Refugee Board of Canada.

The board will determine whether the person meets the United Nation's definition of a refugee, which is a person who has a well-founded fear of persecution based on their race, religion, political opinion, nationality or membership in a group, such as women or people in the LGBT community.

There's also an expanded criteria in Canada that includes "persons in need of protection," people who face the danger of torture, risk to their life or the risk of cruel and unusual punishment if they returned to their home country or the country they were living in.

Another option for refugees to come to Canada is through resettlement.

How does resettlement work?

Canada is oceans away from the places with high numbers of refugees, so we share responsibility with other countries for people who need a safe place.

Resettlement involves a person who has left their country and made it to another but that country can't protect them, repatriate them or find what is called a "durable solution."

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The United Nations refers some of those people to Canada to be settled here.

Resettlement also involves sponsorship or a blended VISA program.

"'If they can't stay where they are, they can't go home, then is resettlement what we need to be looking at?' That's the UN perspective. The reality is too much of the world refugee population is in protracted states without a durable solution," said Labman. "We're not actually resettling at the amount — or locally integrating or repatriating at the amount to solve the refugee problem, but ideally, that's the goal."

Why are people sneaking across the Canada-U.S. border to seek refugee status?

The Canada and the United States have a security deal called the Canada-U.S. Safe Third Country Agreement.

It says refugee claimants have to apply for refugee protection in the first safe country they arrive in, with some exceptions, including things like public interest and family.

"A lot of people who would get refugee status in Canada that can't get it in the U.S.," said Labman.

Alastair Clarke, a Canadian immigration lawyer who has been in the field for more than a decade, said people avoid border crosses because "they're worried that they're going to be turned away."

"When somebody is coming to Canada without any status and they go to a border, they have very limited rights. It's unfortunately all too common that people are turned away at the border for bad reasons," he added.

Clarke said immigration officers in Winnipeg, for example, may be more sympathetic than officers at the border. Also, they can get support from the community within Winnipeg.  Clarke said officers in the city of Winnipeg, for example, are more likely to allow an asylum seeker to make a refugee claim than officers at the border.

Clarke said the people crossing are vulnerable, in desperate circumstances and are trying to get to Canada however they can.

"When we get to the tribunal, and we talk about their case and we try to make a determination whether they fall into one of the categories of a refugee, how they came to Canada is relevant, but it's not the main focus of the hearing," said Clarke. "We're more interested in whether or not their life is at risk, whether or not they may be subject to torture and whether or not they fall within one of the definitions."

Why don't refugee claimants apply in the United States?

Many do. Canada and the United States apply roughly the same laws on the refugee claims determination process.

Clarke said a refugee claimant can claim in Canada if they have been denied in the United States, but the Immigration and Refugee Board of Canada will get a copy of the negative decision from the immigration judge in the United States.

He said the U.S. decision would have significant weight, but it would not be binding.

Some people will enter the U.S. and head to Canada to see refugee status, while others will apply and be denied in the U.S. before coming to Canada to try here.

Clarke added some claimants have been denied based on violating the Safe Third Country Agreement

How often are people sneaking across?

According to the Canada Border Services Agency, 410 refugee claimants were intercepted near the Emerson border crossing in Manitoba between April 1, 2016 and Dec. 8, 2016.

The CBSA says the majority were from Somalia.

Quebec has also reported a spike in the number of asylum seekers attempting to cross the border outside of a point of entry last year.