Always Elsewhere: Constitutional Rights in CCR

Authors

Audrey Macklin, Faculty of Law, University of Toronto
Josh Blum

Abstract

The Canada-United States Safe Third Country Agreement (“STCA”) requires refugee claimants travelling overland to seek protection in the first country of arrival as between Canada and the United States. The Federal Court determined that the United States’ detention practices did not comply with minimum human rights standards, such that Canada breached section 7 obligations to the applicant refugee claimants by deflecting them back to the United States. The Federal Court of Appeal overturned the decision, and the Supreme Court of Canada dismissed the appeal. The authors review the CCR judgment and present it as a cautionary tale about how a court can evade its constitutional duty in practice without appearing to depart from its liberal-constitutional commitments. Importantly, the judgment affirms that section 7 is engaged by the refugee determination process. However, it shrinks from the implications of that recognition in two ways. First, the Court launders the Federal Court’s findings of fact to overturn the finding of a risk of abusive detention conditions in the United States. Second, the Court rules that routine violations directed by the operation of the law can be caught and corrected by “safety valves” – discretionary immigration status applications elsewhere in the Immigration and Refugee Protection Act (“IRPA”). This substitution of discretionary relief for the Court’s remedial power under section 52 of the Charter not only abandons refugees to statutory remedies that are, in fact, illusory. It also incentivizes governance through discretion (rather than law) as an instrument that more effectively insulates government from constitutional challenge. While the judgment in CCR might be understood as exemplary of immigration exceptionalism, it is too soon to know whether the attractions of governing through discretion, and specifically through safety valves, will extend into other fields of law. Those at greatest risk will be other marginalized groups whose constitutional claims are prone to being framed as matters of deservingness rather than right.

Citation Information

Macklin, Audrey and Blum, Josh. "Always Elsewhere: Constitutional Rights in CCR." The Supreme Court Law Review, Third Series: Osgoode's Annual Constitutional Cases Conference 5. (2026).
DOI: https://doi.org/10.60082/2563-8505.1003
https://digitalcommons.osgoode.yorku.ca/sclr-third-series/vol5/iss1/4

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

References

1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter the "Charter"].

2 [2023] S.C.J. No. 17, 2023 SCC 17 (S.C.C.) [hereinafter "CCR"].

3 Canada (Attorney General) v. Bedford, [2013] S.C.J. No. 72, 2013 SCC 72 (S.C.C.).

4 CCR, at paras. 72-73 & para. 127 (S.C.C.).

5 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [hereinafter "IRPA"].

6 Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, Can. T.S. 2004 No. 2 [hereinafter the "STCA"].

7 Convention Relating to the Status of Refugees (Geneva: July 28, 1951; entered into force April 22, 1954) 189 U.N.T.S. 137 [hereinafter "Refugee Convention"].

8 The silence of the Refugee Convention on this point is probably because there is no legal obligation or obvious reason why third states would admit non-citizen asylum seekers transferred from another state. See more generally: Audrey Macklin, "Disappearing Refugees: Reflections on the Canada-US Safe Third Country Agreement" (2005) 36 Columbia Human Rights L. R., at 365-426.

9 The STCA only applies at land borders, and so does not apply to asylum seekers who arrive by air or sea.

10 Sean Santen, "Keeping Countries Safe from Refugees - How the Canadian Courts Interpret International Law to Place Sovereign Rights Above Individual Rights" (2022) University of Toronto TSpace (LLM Thesis): "[D]espite the lofty principles articulated in the STCA's preamble, a U.S. State Department Official was more candid about Canada's motivation for the STCA during a 2002 Congressional hearing, explaining that Canada 'believe[d] it [the agreement] is important for reducing their asylum backlog.'", see online: https://tspace.library.utoronto.ca/handle/1807/125109.

11 EU member states were the first to embark on a safe third country agreement in the late 1980s through an agreement now known as the Dublin III Regulation. (Soon to be replace by the Asylum and Migration Management Regulation). Over the years, the Court of Justice of the European Union has occasionally halted transfers between member states on the grounds that the country of first arrival is not actually safe for asylum seekers. Recently, the Irish High Court ruled that the U.K. is not a safe third country under the Irish International Protection Act 2015 for purposes of returning asylum seekers who passed through the U.K. en route to Ireland: A & anor v. Minister of Justice, Ireland, and the Attorney General & anor, [2024] I.E.H.C. 164.

12 The same organizations previously brought a legal challenge that had been successful at the Federal Court before being ultimately dismissed on standing grounds by the Federal Court of Appeal in 2009: Canadian Council for Refugees v. Canada, [2008] F.C.J. No. 1002, 2008 FCA 229 (F.C.A.).

13 For a summary of the evidence, see Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795, 2020 FC 770, at paras. 30-34 (F.C.).

14 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795, 2020 FC 770, at para. 138 (F.C.). The F.C. noted there that it is not "the role of this Court to pass judgment on the U.S. asylum system" suggesting that Canada's choice to subcontract its refugee obligations to the U.S. asylum system under the STCA renders them beyond judicial review.

15 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795, 2020 FC 770, at para. 136 (F.C.).

16 Notably, although all of these provisions existed at the time of the prior challenge to the STCA, Canada made no mention of them and allowed that there is no discretion in implementing the STCA. This "blanket ineligibility" played a significant role in the previous judgment of the Federal Court that the regime was unconstitutional: Canadian Council for Refugees v. Canada, [2007] F.C.J. No. 1583, 2007 FC 1262, at para. 310 (F.C.).

17 An Officer of Immigration, Refugees and Citizenship Canada ("IRCC") may issue a TRP at their discretion "when justified in the circumstances". Applicants must provide passport photos, pay a fee of $229.77, provide evidence showing how they will support themselves in Canada and detailed evidence and arguments on why they should be issued a permit being otherwise inadmissible to Canada. A grant of a TRP is "highly discretionary and exceptional in nature": Singh v. Canada (Minister of Citizenship and Immigration), [2019] F.C.J. No. 803, 2019 FC 915, at paras. 17-18 (F.C.).

18 Permanent residence may be granted to a foreign national in Canada based on H&C considerations where circumstances would "excite in the mind of a reasonable person in a civilized community a desire to alleviate their misfortune": Kanthasamy v. Canada (Citizenship and Immigration), [2015] S.C.J. No. 61, 2015 SCC 61 (S.C.C.). H&C applications are typically brought on a foreign national's own request under IRPA s. 25(1). The possibility of H&C considerations granted "on the Minister's own initiative" under IRPA s. 25.1(1) rarely arises in practice, and had never been contemplated as a component of the STCA regime. The CBSA officers who administer the STCA have no jurisdiction to apply this provision as its discretion belongs solely to the Minister of Citizenship and Immigration.

19 Federal Court of Appeal jurisprudence has provided for a discretion of border enforcement officers under IRPA s. 48(2) to defer removal where the failure to defer will expose the applicant to the risk of "death, extreme sanction or inhumane treatment": Baron v. Canada (Minister of Public Safety and Emergency Preparedness), [2009] F.C.J. No. 314, 2009 FCA 81 (F.C.A.). There are no guidelines for these extra-statutory decisions and no requirement that applicants be told of their existence or that a decision be made prior to removal. They are usually accompanied by motions for a judicial stay based on the pending request. This process has significant shortcomings even for those with counsel and seeking deferrals from inside Canada after long periods in the country: Kathryn Tomko Dennler & Brianna Garneau, "Deporting Refugees: Hidden Injustice in Canada" (2022) Romero House, see online: https://romerohouse.org/wp-content/uploads/2022/08/Report-on-deportation.pdf

see also Feher v. Canada (Minister of Public Safety and Emergency Preparedness), [2019] F.C.J. No. 308, 2019 FC 335, at paras. 80-81 & 293 (F.C.).

20 Processing in-Canada claims for protection: Safe Third Country Agreement (STCA), Operational Instructions and Guidelines: In-Canada Claims for Refugee Protection, see online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publicationsmanuals/operational-bulletins-manuals/refugee-protection/canada/processing-claims-protectionsafe-third-country-agreement.html.

21 Kathryn Tomko Dennler & Brianna Garneau, "Deporting Refugees: Hidden Injustice in Canada" (2022) Romero House, see online: https://romerohouse.org/wp-content/uploads/2022/08/Report-on-deportation.pdf.

22 IRPA, s. 48(2).

23 IRPA, s. 50(a). To be precise, an "interim" stay would first have to be argued at the Federal Court exceptionally on extremely short notice to determine if a full stay hearing is warranted. If the interim stay is granted, the Court stays removal until a full hearing can be convoked on whether 1) there is a question to be tried; 2) the applicant will suffer irreparable harm if the stay is refused; and 3) the balance of convenience favours granting a stay: Toth v. Canada (Minister of Employment and Immigration), [1988] F.C.J. No. 587, 86 N.R. 302 (F.C.A.).

24 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795, 2020 FC 770, at para. 130 (F.C.).

25 Canada (Citizenship and Immigration) v. Canadian Council for Refugees, [2021] F.C.J. No. 322, 2021 FCA 72, at para. 123 (F.C.A.).

26 CCR, at para. 6 (S.C.C.).

27 CCR, at para. 8 (S.C.C.).

28 CCR, at paras. 7 & 72-73 (S.C.C.).

29 CCR, at paras. 118-120 & 126 (S.C.C.).

30 CCR, at para. 139 (S.C.C.).

31 CCR, at paras. 100-102, 116 & 147 (S.C.C.).

32 CCR, at paras. 148-164(S.C.C.).

33 CCR, at para. 160 (S.C.C.).

34 CCR, at paras. 179-182 (S.C.C.).

35 Audrey Macklin, "Disappearing Refugees: Reflections on the Canada-Us Safe Third Country Agreement" (2005) 36 Columbia Human Rights Law Review, at 365-426.

36 Safe Third Country Regulations, "Report of the Standing Committee on Citizenship and Immigration" (December 2002), see online: https://www.ourcommons.ca/Content/Committee/372/CIMM/Reports/RP1032292/cimmrp01/cimmrp01-e.pdf.

37 See discussion in Canadian Council for Refugees v. Canada, [2007] F.C.J. No. 1583, 2007 FC 1262, at paras. 291-304 (F.C.). The legislature did make exceptions to the agreement unrelated to a refugee's risk of refoulement or human rights abuses in the United States. The most commonly used of these include an exemption for refugees with close family in Canada and unaccompanied minors: Immigration and Refugee Protection Regulations [hereinafter "IRPR"] at s. 159.1-159.6.

38 See Factum of the Appellants in CCR, at para. 65, see online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39749/FM010_Appellant_Canadian-Council-for-Refugeeset-al.PDF.

39 Canada Border Services Agency, "Canada-U.S. Safe Third Country Agreement", see online: https://epe.lac-bac.gc.ca/100/201/301/ar_canadas_crimes_against_humanity/2006-2007/agency-agence/stca-etps-eng.html.

40 Processing in-Canada claims for protection: Safe Third Country Agreement (STCA), Operational Instructions and Guidelines: In-Canada Claims for Refugee Protection, see online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publicationsmanuals/operational-bulletins-manuals/refugee-protection/canada/processing-claims-protectionsafe-third-country-agreement.html.

41 CCR, at para. 77 (S.C.C.).

42 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795, 2020 FC 770, at para. 16 (F.C.). See also: Factum of the Appellants in CCR, at para. 18, online: https://www.scc-csc.ca/WebDocuments-DocumentsWeb/39749/FM010_Appellant_Canadian-Council-for-Refugees-et-al..PDF.

43 CCR, at para. 44 (S.C.C.) [emphasis added].

44 Notably, the Homsi family were ultimately granted permanent residence under their own request for H&C months later under IRPA s. 25(1) ("H&C - request of foreign national"), and not through the Minister granting an H&C under the Minister's own initiative under IRPA s. 25.1(1) ("H&C - Minister's own initiative"). Only the latter provision - IRPA s. 25.1(1) - is held out as a safety valve in the Supreme Court's judgment. In CCR, at para. 46 (S.C.C.), it seems to have been credited as resolving the Homsi family's situation even though IRPA s. 25.1(1) had no role in their case.

45 CCR, at paras. 45-56 &161 (S.C.C.).

46 CCR, at para. 160 (S.C.C.).

47 CCR, at para. 160 (S.C.C.).

48 IRPA, s. 48(2).

49 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795 2020 FC 770, at para. 96 (F.C.).

50 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795 2020 FC 770, at para. 137 (F.C.).

51 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795 2020 FC 770, at paras. 135-136 (F.C.).

52 CCR, at para. 116 (S.C.C.).

53 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795 2020 FC 770, at paras. 60-61 (F.C.). The Report "Contesting the Designation of the US as a Safe Third Country", by Amnesty International Canada and the Canadian Council for Refugees (May 19, 2017), at 38-41, also describes the same detention conditions as Ms. Mustefa endured, and, as noted in the F.C. judgment at para. 61, was the subject of an internal memo to the Minister of IRCC that was disclosed in the litigation.

54 CCR, in headnote & at para. 57 (S.C.C.). Among other defects in the monitoring process, it is notable that at the time of the Federal Court hearing in 2019, IRCC had not reported to GIC about the ongoing designation of the United States as a "safe third country" since 2009.

55 CCR, at para. 91 (S.C.C.): "Ms. Mustefa and one of the anonymized affiants stated that they were isolated pending the results of tuberculosis tests. The Federal Court judge's heavy reliance on this evidence suggests that she reached her conclusion on solitary confinement with respect to its uses for this public health purpose."

56 CCR, at para. 147 (S.C.C.).

57 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795 2020 FC 770, at paras. 106-109 (F.C.).

58 Housen v. Nikolaisen, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 46 (S.C.C.).

59 CCR, at paras. 100-101 (S.C.C.).

60 Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795 2020 FC 770, at paras. 106-109 (F.C.).

61 Housen v. Nikolaisen, [2002] S.C.J. No. 31, 2002 SCC 33, at para. 1 (S.C.C.). Moreover, the SCC judgment at para. 101 faults McDonald J. for not mentioning other immigration statuses available in the United States including Temporary Protection Status and Convention Against Torture protection even though these are not very plainly Convention refugee protections. These other statuses were not mentioned because they are irrelevant with respect to the non-refoulement protection at issue.

62 On the distortions to basic rule of law principles that courts have been willing to endure to resist imposing normal constitutional standards on immigration law, see Audrey Macklin, "Liminal Rights: Sovereignty, Constitutions and Borders", in Mark Tushnet & Dimitry Kochenov, eds., Research Handbook on the Politics of Constitutional Law (Northampton: Elgar Publishing Limited, 2023).

63 The latter would conflict with the Supreme Court's holding in R. v. Ferguson, [2008] S.C.J. No. 6, 2008 SCC 6, at para. 55 (S.C.C.), that: "[t]he presence of s. 52(1) with its mandatory wording suggests an intention of the framers of the that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies."

64 CCR, at para. 76 (S.C.C.).

65 Audrey Macklin, "Charter Right or Charter‑Lite? Administrative Discretion and the Charter" (2014) 67 S.C.L.R. (2d) 561. https://doi.org/10.60082/2563-8505.1300

66 Alison M. Latimer & Benjamin L. Berger. "A Plumber with Words: Seeking Constitutional Responsibility and an End to the Little Sisters Problem" (2022) 104 S.C.L.R. (2d) 143. https://doi.org/10.60082/2563-8505.1430

67 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.J. No. 66, 2000 SCC 69 (S.C.C.).

68 Alison M. Latimer & Benjamin L. Berger. "A Plumber with Words: Seeking Constitutional Responsibility and an End to the Little Sisters Problem" (2022) 104 S.C.L.R. (2d) 143, at 160. https://doi.org/10.60082/2563-8505.1430

69 Canada (Attorney General) v. PHS Community Services Society, [2011] S.C.J. No. 44, 2011 SCC 44, at paras. 112-114 (S.C.C.).

70 Rahool P. Agarwal, "Case Comment: Canada (Attorney General) v PHS Community Services Society" (2011) 20:2 Constitutional Forum 41, at 43. https://doi.org/10.21991/C9PT0F

71 CCR, at para. 9 (S.C.C.).

72 CCR, at para. 68 (S.C.C.).

73 A true safety valve in this context would be if Canada simply used its power to make public interest exemptions provided for under the STCA for those facing situations like the one-year-bar in the United States. Canada has only ever used this public policy exemption for persons convicted of an offence and facing the death penalty in the United States: IRPR, s. 159.6.

74 CCR, at para. 68 (S.C.C.).

75 It could only be relevant to s. 7 in determining whether a deprivation breached the principle of fundamental justice of gross disproportionality. In any other case, its most coherent place is in minimal impairment under s. 1 of the Charter. The Court in CCR held that safety valves can be considered in both the principles of fundamental justice analysis and s. 1, perhaps influenced by the potential relevance of after-the-fact cures to the s. 7 gross disproportionality analysis: CCR, at para. 76 (S.C.C.).

76 CCR, at para. 56 (S.C.C.): "To establish a violation of s. 7 of the Charter . . . a risk of such a deprivation suffices." See also: Carter v. Canada (Attorney General), [2015] S.C.J. No. 5, 2015 SCC 5, at para. 62 (S.C.C.).

77 Again, the situation may differ where the argument is based on another principle of fundamental justice, such as gross disproportionality. However, if fundamental justice is breached by a heightened risk that is arbitrary or overbroad, and absent a s. 1 justification, a s. 52 remedy should follow.

78 R. v. Appulonappa, [2015] S.C.J. No. 59, 2015 SCC 59, at para. 75 (S.C.C.). See also Montréal (City) v. 2952-1366 Québec Inc., [2005] S.C.J. No. 63, 2005 SCC 62, at para. 169 (S.C.C.), citing R. v. Smith, [1987] S.C.J. No. 36, [1987] 1 S.C.R. 1045, at 1078 (S.C.C.).

79 CCR, at para. 77 (S.C.C.).

80 Similarly, if any constitutional right is at stake in the decision, the most heightened duty of procedural fairness protection would be required on administrative law principles. To be meaningful, this assessment of the procedural fairness of any safety valves would have to include, for example, the totality of real world barriers to an individual realizing their right to be heard, and not only obstacles directly caused by the legislation, as suggested in CCR (CCR at para. 158, citing Little Sisters).

81 Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1, at paras. 113-128 (S.C.C.).

82 The judicial response must not be just to bolster these other processes, but to retain its focus on the source of the constitutional violation. A concern with "safety valves" is that constitutional judgments will turn into a "whack-a-mole" process of trying to build out other "curative" provisions not obviously before the court rather than focusing on the cause of the constitutional problem and the process as it exists and impacts Charter rights in the real world.

83 R v. Parker, [2000] O.J. No. 2787, 49 O.R. (3d) 481, at paras. 175-190 (Ont. C.A.); R. v. Morgentaler, [1988] S.C.J. No. 1, [1988] 1 S.C.R. 30, at 33-34 (S.C.C.). See also Brown v. Canada (Minister of Citizenship and Immigration), [2020] F.C.J. No. 835, 2020 FCA 130, at para. 80 (F.C.A.): ". . . the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision".

84 Canadian Civil Liberties Assn. v. Canada (Attorney General), 2019 ONCA 243, 144 O.R. (3d) 641, at paras. 111-115 (Ont. C.A.).

85 Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] S.C.J. No. 66, 2000 SCC 69, at para. 146 (S.C.C.).

86 CCR, at para. 162 (S.C.C.).

87 CCR, at para. 169 (S.C.C.).

88 Alison M. Latimer & Benjamin L. Berger. "A Plumber with Words: Seeking Constitutional Responsibility and an End to the Little Sisters Problem" (2022) 104 S.C.L.R. (2d) 143, at 160: "Indeed, the Little Sisters move - inadequately checked and limited - incentivizes an approach to legislation that directs more and more choices about implementation to the executive actors, shifting the axes of constitutional accountability in way that distort the relationship among the branches of government." https://doi.org/10.60082/2563-8505.1430

89 Processing in-Canada claims for protection: Safe Third Country Agreement (STCA), Operational Instructions and Guidelines: In-Canada Claims for Refugee Protection, see online: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publicationsmanuals/operational-bulletins-manuals/refugee-protection/canada/processing-claims-protectionsafe-third-country-agreement.html.

90 CCR, at para. 161 (S.C.C.).

91 After Singh v. Canada (Minister of Employment and Immigration), [1985] S.C.J. No. 11, [1985] 1 S.C.R. 177 (S.C.C.), the only law in this context to have been struck down was the security certificate regime in Charkaoui I and this related to detention: Charkaoui v. Canada (Citizenship and Immigration), [2007] S.C.J. No. 9, 2007 SCC 9 (S.C.C.).

92 Mason v. Canada (Citizenship and Immigration), [2023] S.C.J. No. 21, 2023 SCC 21, at paras. 104-117 (S.C.C.).

93 Audrey Macklin, "Liminal Rights: Sovereignty, Constitutions and Borders", in Mark Tushnet & Dimitry Kochenov, eds., Research Handbook on the Politics of Constitutional Law (Northampton: Elgar Publishing Limited, 2023); Jared Will, "Sidestepping the Charter, Again: Muting the Right to Habeas Corpus in Canada (Public Safety and Emergency Preparedness) v. Chhina", 2021 100 Supreme Court Law Review 142. https://doi.org/10.60082/2563-8505.1415

94 Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] S.C.J. No. 27, [1992] 1 S.C.R. 711 (S.C.C.).

95 Audrey Macklin, "The Inside-Out Constitution" in Jacco Bomhoff, David Dyzenhaus & Thomas Poole, eds., The Double-Facing Constitution (Cambridge: Cambridge University Press, 2020); Joshua Blum, "The Chiarelli Doctrine: Immigration Exceptionalism and the Canadian Charter of Rights and Freedoms" (2021) 1:1 UBC Law Review 62.

96 Supreme Court of Canada, Webcast of the Hearing of 2022-10-06, online: https://www.scc-csc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=39749&id=2022/2022-10-06--39749&date=2022-10-06.

97 The limited constraint on the sovereign power to exclude that states assumed when they voluntarily signed the Refugee Convention has provoked unending attempts to evade the obligation of non-refoulement. Indeed, that is the very purpose of the STCA.

98 Drawing on the theory of the dual state used to describe parallel legal regimes in fascist/authoritarian systems (especially Nazi Germany) that distinguish between citizen and enemy populations, some scholars ascribe to administrative law generally, and immigration law in particular, features associated with the prerogative state (as distinct from the normative state). See, e.g., Bas Schotel, "Administrative Law as a Dual State. Authoritarian Elements of Administrative Law" (2021) 13 Hague Journal on the Rule of Law 195 https://doi.org/10.1007/s40803-021-00156-4; Vlasta Jalucic, "Less than Criminals: Crimmigration 'Law' and the Creation of the Dual State", in Neža Kogovšek Šalamon, ed., Causes and Consequences of Migrant Criminalization (Cham, Switzerland: Springer 2020), at 69-87. https://doi.org/10.1007/978-3-030-43732-9_4

99 American Immigration Council, "After Day One: A High-Level Analysis of Trump's First Executive Actions", https://www.americanimmigrationcouncil.org/research/after-dayone-high-level-analysis-trumps-first-executive-actions, 22 January 2025.

100 National Public Radio, "Trump moves to limit refugee and asylum claims", https://www.keranews.org/2025-01-20/trump-moves-to-limit-refugee-and-asylum-claims, 20 January 2025.

101 See, e.g., N.D. and N.T. v. Spain, App no. 8675/15 and 8697/15 (ECHR Grand Chamber, February 13, 2020). The Grand Chamber of the European Court of Justice overruled a determination that Spain engaged in collective expulsion of Malian and Ivorian nationals who climbed the fence between Morocco and Spain in the heavily fortified Spanish enclave of Melilla. The men were summarily returned to Morocco with no individual consideration of their request for asylum. The Grand Chamber found, inter alia, that the men could have applied through "legal means" at a border crossing point, even though the evidence was clear that Moroccan authorities actively prevented such access by Africans in cooperation with Spain. See Report of the fact-finding mission by Ambassador Tomáš Bo ek, Special Representative of the Secretary General on migration and refugees, to Spain, 18-24 March 2018 [SG/Inf(2018)25] https://www.ecoi.net/en/document/1443311.html#CLEAN__Toc521315632.

102 Supreme Court of Canada, Webcast of the Hearing of 2022-10-06, see online: https://www.scc-csc.ca/case-dossier/info/webcastview-webdiffusionvue-eng.aspx?cas=39749&id=2022/2022-10-06--39749&date=2022-10-06.