In Canada: who is really essential?
The one group of people for whom movement is most essential is the group most immobilized by this pandemic.
Even in a pandemic, borders cannot be hermetically sealed. But the pandemic has reconfigured the basis for exception in revealing ways. The label ‘essential’ has become the stamp on the notional permit that authorizes movement. We now think of workers in health care, sanitation, public transportation and the food and agriculture industries as essential. Let me stretch the idea of essential for present purposes.
As most states, including Canada, have moved to close borders in response to the pandemic, citizens have remained free to re-enter their countries of nationality. But it bears noting that citizens who exhibit any symptoms of COVID-19 illness are inadmissible. Some scholars contend that admission of citizens is legally essential, given that s. 6(1) of the Canadian Charter of Rights and Freedoms guarantees to citizens the right to enter and remain in Canada, but the issue has not been litigated; its constitutionality would turn on whether the limitation could be ‘demonstrably justified in a free and democratic society.’ So far, bio-status trumps status, even citizenship status, and it applies whether the symptomatic individual travels by air, sea or land.
The government’s recognition of [non-symptomatic] citizens’ right to enter is unremarkable; more noteworthy were the Prime Minister’s repeated public announcements urging Canadians abroad to return to Canada as soon as possible.
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Why the exhortations to return? One might interpret this as a romantic appeal to the Canadian diaspora: in this time of crisis, one can and should return to the protective embrace of the homeland. After all, one need not look far across space or time to observe the xenophobia and hostility directed at actual or perceived ‘foreigners’ scapegoated as vectors of disease and danger. The timeless message is that a non-citizen is always an outsider, and an outsider is always vulnerable when bad things happen and people look for someone to blame. The only truly safe place to be is the homeland. The obverse effect of this us/them trope is revealed in China’s refusal to permit the evacuation of Chinese nationals who possessed a second citizenship or resident status by those other states. China does not recognize dual nationality, and seemed to operate on the idea that nationals owe a patriotic duty to remain during a crisis.
A less sentimental view is that the Canadian government anticipated the global shutdown of international travel, and wanted to avoid the prospect of untold thousands of Canadian citizens stranded abroad and calling on the Canadian government to evacuate them. Consular assistance (including repatriation) is not a right according to the Canadian government. It is a discretionary benefit that the government may confer or deny. Yet citizens continue to expect and even demand it. In many circumstances, including a global pandemic, the political cost of withholding consular assistance would be exorbitant – even more than the enormous economic cost of organizing evacuations. And so, the government tried to minimize the demand by encouraging people to return on their own while still able to do so.
Not all countries beckon all their diaspora back with equal enthusiasm. Close to home, thousands of students from China attend Canadian universities as international students, yet China is discouraging their return to China over the summer months, ostensibly to minimize the risk of reintroducing COVID-19 into China. Apparently, Chinese citizens abroad owe a patriotic duty to stay away during a crisis.
Beyond admitting citizens, Canada’s pandemic border policy also permits the entry of permanent residents and other non-citizens who already lawfully reside in Canada (e.g. international students, temporary foreign workers). One should understand the inclusion of those residing in Canada with temporary status in relation to a trend over the past dozen years of reducing the proportion of economic immigrants admitted as permanent residents in favour of two-step immigration schemes that require them to endure a period of temporary status. This has resulted in the dramatic increase in the proportion of non-citizens who reside in Canada on temporary permits. In the past these people would have been admitted as permanent residents.
The policy doubtless results in many families still facing separation, though perhaps to a lesser degree than in other countries
In addition, immediate family members of members of these classes will be admitted ‘for an essential purpose,’ if they obtain written authorization from Canadian immigration authorities. According to comparative data, Canada currently has the most expansive policy of any state regarding the admission of resident non-citizens and their families. In rough terms, the circle of inclusion is drawn around those for whom Canada is functionally ‘home’. The immediate family members of these resident non-citizens are potentially admissible, but must still justify their travel to Canada as ‘essential,’ a term whose interpretation will fall to the discretion of immigration officials.
The policy doubtless results in many families still facing separation, though perhaps to a lesser degree than in other countries. Why the relative openness? Over 20% of Canada’s population was born abroad, and immigration is written into the historic nation-building narrative. Even though non-citizens have no currency in the political marketplace, they are virtually represented by descendants of immigrants and naturalized citizens. It is plausible to suggest, without exaggeration, that creating some exception for the immediate family of those who have made Canada home was politically essential, even if not legally required.
When Prime Minister Trudeau first announced a suspension of inbound travel from other countries, the exception for travelers from the United States was portrayed as a glaring instance of irrational favoritism. But as the exception was narrowed to exclude tourists and ordinary business visitors, the reason became apparent: North American economic integration makes the traffic of goods (including food and health equipment) from the United States vital to Canadians. US truckers, with no legal status in Canada, become essential workers to Canada, and are exempted from the fourteen day quarantine period applicable to other border crossers.
American truckers are not the only non-citizens who have become economically essential to Canada. Canada admits thousands of seasonal agricultural workers each year to work in orchards, greenhouses and farms. This annual circulation is orchestrated through state-to-state agreements Canada signs with Mexico and Jamaica, as well as through private contracts. Most workers return year after year on work permits that tie them to particular employers for a stipulated duration. The work requires long hours of hard physical labour and is poorly paid. Respect for occupational health, safety and employment standards by employers is uneven, and exploitative practices by unscrupulous employers are all too common. It is labelled a seasonal program, but many of the programs operate virtually year-round ; the ritual of rotating workers out preserves the pretense that demand for the labour is time-limited.
In the initial iteration of the pandemic travel restrictions, seasonal agricultural workers were barred from entry, because no matter how long they actually work in Canada per year or cumulatively over many years, they are precluded from ‘residing’ in Canada. Their exclusion rekindled a familiar debate about the nature of the work. Although frequently denigrated as ‘unskilled labour,’ employers denied access to Mexican and Jamaican farm labour (ironically) insisted on recognition of the skill, speed, strength and efficiency of seasonal agricultural workers, capabilities that were not instantly replaceable with local labour. Employers reiterated the refrain that Canadians – even in the face of unprecedented COVID-19-induced unemployment rates – would not perform the arduous, low-paid work. Once again, the allegation that foreign workers steal Canadian jobs was decisively refuted. In order to sustain agricultural food production in Canada, seasonal agricultural workers became economically essential to Canada.
Once again, the allegation that foreign workers steal Canadian jobs was decisively refuted
But upgrading the work to essential does not make the workers essential. Seasonal agricultural workers remain temporary and insecure. Will upgrading the slogan ‘good enough to work, good enough to stay’ to ‘essential to work’ resonate more strongly? Early reports suggest not. Inadequate quarantine and social-distancing arrangements and demands by Canadian employers to commence work immediately underscore workers’ ongoing precarity. The Jamaican government has amplified their nationals’ vulnerability by requiring Canada-bound workers to sign a waiver of any liability on the part of the Jamaican government if they contract COVID-19 while employed in Canada. This illustrates the hollowness of depending on one’s own state for protection in a world of post-colonial economic inequality. The health of seasonal agricultural workers matters most to states of origin and destination for instrumental reasons. They might infect Canadians, or become unable to produce food for Canadians, or send money home. The work of seasonal agricultural workers is essential to Canada; their remittances are essential to Jamaica. The workers themselves remain dispensable. Within days of their arrival, seasonal agricultural workers reported that they were housed in cramped conditions, pressured to commence work immediately, and unable to socially distance on the job or in their residences. COVID19 outbreaks followed.
Border control in a time of pandemic has jostled the hierarchy of Canada’s immigration regime. Biological markers of contagion trump any status, even citizenship. Functional residence counts, even if status is temporary. The necessity of certain forms of labour takes priority over status or education and class-based valorization of skill. But these are disruptions, not transformations, and some things do not change.
At the bottom of all migration hierarchies are asylum seekers. Canada initially protected access by asylum seekers to refugee protection, subject to the same fourteen-day isolation period as other international travelers. It earned the praise of the UNHCR for doing so. No doubt, this posed challenges insofar as arriving asylum seekers may not have had a place in Canada to wait out the fourteen-day quarantine. But, in any case, the Canadian government subsequently flip-flopped. On 21 March, it banned all asylum seekers arriving overland via the United States from making asylum claims in Canada. It instituted a ‘direct back’ policy that would permit deflected asylum seekers to come back when the border closure ended, assuming they had not been detained and/or deported by the United States in the interim. A month later, Canada restored the status quo ante for asylum seekers who ask for protection at a designated Port of Entry at the Canada-US land border. This means that they could ask for protection, but the Safe Third Country Agreement (STCA) renders most asylum seekers ineligible, except for those who meet the narrow exemptions under the STCA (one of which is family connections in Canada).
The work of seasonal agricultural workers is essential to Canada; their remittances are essential to Jamaica. The workers themselves remain dispensable
However, those who are apprehended while entering between designated Ports of Entry remain banned under the pandemic policy, and will be returned summarily to the United States, for its part, appears to be pursuing a practice of summarily expelling asylum seekers, and so the fate of deflected asylum seekers remains uncertain.
The entry of asylum seekers is neither politically nor economically essential to Canada. Arguably, it is legally essential, insofar as Canada violates its obligations under the UN Refugee Convention by deflecting refugees back to a country (United States), that may in turn refoule them.
Mobility is essential to refugees, but refugee mobility is not essential to states. And to the extent that the pandemic has propelled foreigners to return ‘home,’ refugees (and stateless people) have no home, if by home one means a place of safety, security and protection. We know that refugees, whether confined in overcrowded camps or in precarious make-shift shelters, are especially vulnerable to COVID-19. So, the one group of people for whom movement is most essential – literally essential – is the group most immobilized by this pandemic. Some things have not changed.
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