Smuggled migrant or migrant smuggler: erosion of sea-borne asylum seekers’ access to refugee protection in Canada

This paper argues that the criminalisation 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, although there have been only seven notable cases of boat arrivals in Canada from 1986 to the present, they have triggered significant reforms in Canadian refugee law. At the intersection of international criminal law, Canadian criminal law and Canadian refugee law, the criminalisation 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 the smuggling of refugees. Moreover, interpretive contestation of 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.