End “Safe Third Country Agreement” with the US

Canada and the United States (US) signed the “safe third country agreement” (STCA) in 2002, an agreement that came into effect in 2004. Under the agreement, refugees seeking asylum are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception. Many believe that the US' refugee policies and practices no longer comply with the 1951 Convention Relating to the Status of Refugees and violate the human rights of refugees. Canada must condemn the Trump administration’s anti-immigration policies and inhumane treatment of asylum seekers, and adapt its own policies in adherence with international refugee law. As well, Canada has a moral and legal obligation to grant "safe third country" status only to countries which properly respect the rights of asylum seekers.

Overview

Canada and the United States (US) signed the “safe third country agreement” (STCA) in 2002, an agreement that came into effect in 2004. Under the agreement, refugees seeking asylum are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception.[i] To date, the US is the only country that is designated as a “safe third country” by Canada under the Immigration and Refugee Protection Act (IRPA).  As such, an individual who has applied for asylum in the US cannot subsequently apply for asylum in Canada. From the beginning, the agreement has been controversial since it assumes that Canada and the US treat asylum seekers equivalently even though both countries have different refugee policies. Under Canadian law, only countries that respect human rights and offer a high degree of protection to asylum seekers can be designated as a safe third country. In addition, the IRPA requires a continual review of all countries designated as safe third countries.

Many believe that the US' refugee policies and practices no longer comply with the 1951 Convention Relating to the Status of Refugees and violate the human rights of refugees. The call to end the STCA did not start with the Trump administration; immigration lawyers, professors and advocates in Canada have been campaigning for the suspension or repeal of the agreement since it was first signed in 2002.[ii] According to the STCA, “either party may terminate this agreement upon six months written notice to the other party” or can suspend the agreement for three month periods.[iii]

There is a loophole in the agreement created by the fact that would-be refugees crossing into Canada from the US are barred from making asylum claims only at official border crossings.  As such, from 2016-2019, many would-be refugees were being accepted as refugees in Canada because they were coming through “irregular” border points.[iv] Crossing the border irregularly to avoid getting sent back to the US is more dangerous to refugee claimants due to the potentially dangerous physical conditions. To prevent refugees at "irregular" border points, in early 2019, the Minister of Border Security, Bill Blair sought to amend the STCA.[v] Blair wanted RCMP officers to transport “irregular” border crossers to the nearest legal port of entry to be processed under the STCA, so they can be returned to the US. Blair believed closing this loophole would discourage people from using “irregular” border crossings and would make the agreement workable while still protecting refugee claimants.

In April of 2019, Trudeau proposed amendments to the IRPA buried in a 392-page budget bill.[vi] These proposed amendments would change would-be refugee ineligibility to make an asylum claim if they have already done so in another country that the federal government considers “safe” for migrants and that shares intelligence with Canada. These countries include the ‘Five Eyes’ security partners; the UK, the US, New Zealand and Australia.[vii] The proposal of these amendments is to halt this so called “asylum shopping.”

Questions for Federal Candidates

  • Do you believe that under the Trump administration, the US should be considered a “safe third country” that respects human rights and offers a high degree of protection to asylum seekers?
  • Even if you believe that the US is still a "safe third country," would you agree with a formal review of the US as a "safe third country"?
  • What do you believe should be done about refugees crossing the border at "irregular" border points?
  • Do you believe any amendments to the STCA are necessary?

If elected:

  • Will you work within your caucus to call on the government to review the designation of the US as a “safe third country?”
  • Will you work within your caucus to address the practical challenges posed by the STCA?
  • Will you work within your caucus to help protect asylum seekers coming from the US?

Supporting Points

  • 1951 Refugee convention. Article 31 of the 1951 Convention relating to the status of refugees’ states that “a refugee should not be punished for illegally entering a country if they are arriving directly from a country where they were under threat.”[viii] The Trump administration's “zero tolerance” immigration policy and practice continues to incarcerate virtually all asylum seekers without exception[ix]; therefore, it is in direct violation of the Convention. The Convention specifies that governments can incarcerate would-be refugees only for legitimate reasons and only on a case-by-case basis. The Trump administration treats virtually all asylum seekers as illegal and potentially criminals.
  • Violation of Canadian Charter Rights. The proposed amendments put forth through Trudeau’s omnibus parliament budget bill proposes a pre-removal assessment to see if would-be refugees face any demonstrable or immediate danger if deported; however, this limits the legal right of an asylum seekers’ right to a full hearing.[x] Once the bill receives Royal Assent, an asylum seeker can be deported without a hearing, which could violate the Canadian Charter as affirmed by the supreme court case Singh v. Canada. The supreme court determined that Charter rights extend to everyone physically on Canadian soil.[xi] The Canadian Council for Refugees warned that these provisions would place would-be refugees at a greater risk of being sent back to their countries of origin where they could face persecution.[xii]
  • Inhumane and discriminatory US practices. On several occasions, the Trump administration has sought to impose inhumane and discriminatory practices on refugees that reflect grave disrespect for human rights. In early 2017, Trump issued an executive order for a travel ban for seven Muslim-majority countries, which left many stranded at ports of entry around the world.[xiii] In late 2017, Trump ended a "temporary protection status" which affected 330,000 immigrants to America.[xiv] In mid-2018, Attorney General Jeff Sessions cancelled an immigration policy accepting asylum seekers who feared for their lives on the basis of domestic and gang violence.[xv] Also in 2018, the US practiced a policy of separating families at the border who were seeking asylum.[xvi]
  • Campaign to end STCA. Refugee and immigration advocates including Amnesty International Canada, the Canadian Council for Refugees, and the Canadian Council of Churches have called on Canada to rescind the STCA. In 2007, Federal Court of Canada judge Michael Phelan struck down the STCA because he believed it violated Canada’s Charter of Rights and Freedoms, the 1951 Geneva Convention on Refugees, and the Convention Against Torture.[xvii] However, the federal court of appeal reversed the decision because the non-profit organizations who launched the lawsuit were not considered to have legal standing. However, in 2017 the Federal Court granted the organizations public interest standing. The lawsuit is still in the preliminary stages and a hearing is scheduled for early 2019.[xviii]

Recommendations for Canada

  • Canada ought to review the legal grounds of the US as a “safe third country.”
  • Canada must condemn the Trump administration’s anti-immigration policies and inhumane treatment of asylum seekers, and adapt its own policies in adherence with international refugee law.
  • Canada has a moral and legal obligation to grant "safe third country" status only to countries which properly respect the rights of asylum seekers.

 

[i] Citizenship Canada. (2016, June 23). Canada-U.S. Safe Third Country Agreement. Retrieved from https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html

[ii] CANADIAN COUNCIL FOR REFUGEES, CANADIAN COUNCIL OF CHURCHES, AMNESTY INTERNATIONAL AND JOHN DOE V. CANADA (CHALLENGE TO THE CANADA-USA SAFE THIRD COUNTRY AGREEMENT). (2019, March 13). Retrieved from https://www.amnesty.ca/legal-brief/canadian-council-refugees-canadian-council-churches-amnesty-international-and-john-doe-v

[iii]Desmarais, A. (2018, July 16). Analysis: Debunking Canada's responsibility to the United States under the Safe Third Country Agreement. Retrieved from https://ipolitics.ca/2018/07/16/analysis-debunking-canadas-responsibility-to-the-united-states-under-the-safe-third-country-agreement/

[iv] Walkom, T. (2018, June 21). The reality of scrapping the Safe Third Country Agreement. Retrieved from https://www.thestar.com/opinion/star-columnists/2018/06/21/the-reality-of-scrapping-the-safe-third-country-agreement.html

[v] Globe editorial: The right move to fix the border, but what took so long? (2019, March 18). Retrieved from https://www.theglobeandmail.com/opinion/editorials/article-globe-editorial-the-right-move-to-fix-the-border-but-what-took-so/

[vi] Refugee advocates 'shocked and dismayed' over asylum changes in budget bill. (2019, April 09). Retrieved from https://www.thestar.com/news/canada/2019/04/09/refugee-advocates-shocked-and-dismayed-over-asylum-changes-in-budget-bill.html

[vii] Harris, K. (2019, April 10). Liberals move to stem surge in asylum seekers - but new measure will stop just fraction of claimants | CBC News. Retrieved from https://www.cbc.ca/news/politics/refugee-asylum-seekers-border-changes-1.5092192

[viii] Convention relating to the Status of Refugees. Retrieved from https://www.ohchr.org/en/professionalinterest/pages/statusofrefugees.aspx

[ix] Nerenberg, K. (2018, June 23). Trudeau must end the safe third country agreement with the U.S. Retrieved from http://rabble.ca/news/2018/06/trudeau-must-end-safe-third-country-agreement-us

[x] Nerenberg, K. (2019, April 11). Retrieved from http://rabble.ca/news/2019/04/trudeau-government-panders-fears-invasion-refugees

[xi] Urback, R. (2019, April 11). Changing Canada's asylum laws is nothing but a crass political calculation by Trudeau: Opinion | CBC News. Retrieved from https://www.cbc.ca/news/opinion/asylum-law-1.5093200

[xii] Harris, K. (2019, April 10). Liberals move to stem surge in asylum seekers - but new measure will stop just fraction of claimants | CBC News. Retrieved from https://www.cbc.ca/news/politics/refugee-asylum-seekers-border-changes-1.5092192

[xiii] Editors. (2017, January 29). Immigration ban fallout: What you need to know. Retrieved from https://www.usatoday.com/story/news/politics/2017/01/28/trump-moves-past-day-refugee-ban-putin-more-executive-orders/97181992/

[xiv] Trump has ended Temporary Protected Status for hundreds of thousands of immigrants. Here's what you need to know. (2019, February 21). Retrieved from https://www.afsc.org/blogs/news-and-commentary/trump-has-ended-temporary-protected-status-hundreds-thousands-immigrants

[xv] Benner, K., & Dickerson, C. (2018, June 11). Sessions Says Domestic and Gang Violence Are Not Grounds for Asylum. Retrieved from https://www.nytimes.com/2018/06/11/us/politics/sessions-domestic-violence-asylum.html

[xvi] Associated Press in McAllen, T. (2018, June 17). Separation at the border: Children wait in cages at south Texas warehouse. Retrieved from https://www.theguardian.com/us-news/2018/jun/17/separation-border-children-cages-south-texas-warehouse-holding-facility

[xvii] Desmarais, A. (2018, July 16). Analysis: Debunking Canada's responsibility to the United States under the Safe Third Country Agreement. Retrieved from https://ipolitics.ca/2018/07/16/analysis-debunking-canadas-responsibility-to-the-united-states-under-the-safe-third-country-agreement/

[xviii] The US is less safe than ever for refugees, evidence filed in court challenge shows. Retrieved from https://ccrweb.ca/en/media/safe-third-court-challenge-july-2018

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