The Canada‒United States Safe Third Country Agreement (STCA) sets out the rules of refugee/asylum claims between Canada and the United States. This agreement stipulates that a refugee must claim asylum in the first country in which they arrive, either Canada or the US, and precludes their entry into the neighbouring country unless they qualify for an exemption. Several challenges have been raised to the agreement, particularly since July 2017 due to concerns about human rights protections in the US after the election of President Donald Trump and his executive orders on immigration. In July of 2020, a Canadian federal court judge ruled that the STCA is in violation of Canada’s Charter of Rights and Freedoms, and therefore unconstitutional.
What Is the Safe Third Country Agreement?
Refugee claimants, a legal term interchangeable with the term asylum seekers, flee their countries in hopes of safety and protection abroad and claim refugee status in the country of arrival. Governed by the 1951 United Nations Convention relating to the Status of Refugees, refugee status is a matter of both international and domestic law and Canada has a robust system of refugee claim adjudication, immigration laws, and policies.
However, when refugee claimants first arrive in either the US or Canada and then proceed to make a refugee claim in the other country, they are generally prevented from doing so because of the STCA.
The STCA garnered significant media attention in 2016 and 2017. The agreement governs the movement of refugee claimants when they attempt to cross the Canada-US border.
The precursor to the STCA first appeared in Canada (as a “safe third country” clause) in the 1988 amendments to the Immigration Act of 1976. This allowed Canada to designate another country as a “safe country,” in order to deny access to a refugee claim for those who enter Canada via a “safe country.”
After the terrorist attacks of 11 September 2001, Canada and the US signed the STCA, specific to the two countries. It took effect on 29 December 2004.
There have been numerous legal challenges to the STCA on the grounds that the United States’ refugee policies are not safe for all refugee claimants. The 2007 case of a Colombian national, only known as John Doe, was brought to court by the advocacy groups Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches. The challenge resulted in a Federal Court ruling that said the STCA violated the right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms, and the right to equality under section 15 of the Charter.
However, the Federal Court of Appeal reversed this decision, saying the Federal Court had no authority to issue rulings on "wide swaths of US policy and practice." The appeal decision said that the relevant issue for Canadian courts was whether the Canadian Cabinet acted in good faith when it implemented the STCA in 2004. According to the Federal Court of Appeal: "Two weeks before (the STCA took effect) . . . the UNHCR representative in Canada, reiterated before the House of Commons Standing Committee on Citizenship and Immigration that 'we consider the U.S. to be a safe country' . . . Given the position of the UNHCR, the main supervisory body in relation to refugee protection, it cannot be suggested that the (Cabinet) was not acting in good faith, when it designated the US as a country that complies with its Convention obligations."
The advocacy groups behind the challenge sought to appeal the case further to the Supreme Court of Canada, but in 2009 the country's highest court declined to hear the matter. As a result, as of 2017, the STCA remains in force.
A new constitutional challenge was launched on 5 July 2017. This time, the three advocacy groups are asking the Federal Court to strike down the STCA based on the case of a refugee claimant from El Salvador who was denied the ability to make a refugee claim in Canada. As of September 2017, the applicants have applied to the Federal Court to hear the case, and the court will determine whether it can proceed to a full hearing in the coming months.
The United Nations High Commissioner for Refugees (UNHCR), the UN agency responsible for managing refugee movements and resettlement, had expressed concern about STCAs in general (around the time of the drafting and implementation of the Canada-United States STCA), arguing that such agreements may directly or indirectly violate the principle of non-refoulement. Non-refoulement is a principle of international law under the 1951 Convention Relating to the Status of Refugees that protects refugee claimants from deportation to countries where they would be at risk of persecution. The right to flee a country and seek protection from persecution is an internationally recognized human right.
Current Issues in the United States
Current political events in the United States have prompted refugee advocates to question the legality of the STCA.
President Donald Trump and Executive Orders on Immigration
In 2017, following the election of President Donald Trump in the United States, various groups in both Canada and the US, such as the Canadian Civil Liberties Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Amnesty International, and the Harvard Immigration and Refugee Clinical Program, have called for the STCA to be scrapped.
According to these civil rights organizations, there are a number of ongoing issues with the US asylum system that pose significant risks to refugee claimants; all these issues were recognized by the initial decision of the Federal Court in 2007, but not by the subsequent ruling of the Federal Court of Appeal. For example, there continue to be significant protection gaps in the US, such as its overbroad treatment of terrorism and its inconsistent and arbitrary jurisprudence on gender-based persecution. As a result, civil society organizations have called for the immediate suspension of the STCA.
The executive orders on immigration from the Trump Administration are of particular concern. Media attention has focused especially on two executive orders, from 27 January 2017 and 6 March 2017, that seek to restrict the ability of people from designated Muslim-majority states to travel to the US. According to the Harvard Immigration and Refugee Clinical Program, two other executive orders (Executive Order 13768: Enhancing Public Safety in the Interior of the United States and Executive Order 13767: Border Security and Immigration Enforcement Improvements), both issued on 25 January 2017, specifically call for the implementation of policies which may undermine legal protections for refugee claimants, in contravention of the United States’ international obligations, including those under the Convention Relating to the Status of Refugees and the Convention against Torture.These policies include expanding immigration detention, separating families, terminating the practice known as “catch and release” that allows for the regular release of certain undocumented people before deportation hearings, and increasing access-to-justice concerns.
Since these executive orders were enacted in 2017, Canada has seen a steady number of refugee claimants crossing the border. In 2017, the Royal Canadian Mounted Police intercepted 7,500 asylum-seekers from January to July 2017.These numbers are high when compared to the total of 2,464 who crossed irregularly in all of 2016.
There are statutory exceptions to the STCA for refugee claimants arriving in Canada via the United States. A person can still claim refugee status at the land border if they have a family member living in Canada — such as a spouse, legal guardian, parent, sibling, or certain extended family members living in Canada; if they are an unaccompanied, unmarried minor (see Child Migration in Canada); if they have a valid visitor visa; and a few other limited grounds. A number of refugee claimants were in the news for crossing the frozen Manitoba border early in 2017, and at least one has been successful in obtaining refugee protection in Canada. However, the border has proved deadly to one refugee claimant attempting to cross into Canada, a 57-year-old woman from Ghana who died trying to cross the border in May, 2017.
United States’ One-Year Bar on Claiming Refugee Status
The “one-year-bar” is a provision in the United States’ Immigration and Nationality Act. This bar requires refugee claimants to apply for asylum within one year of entry into the United States unless they qualify for one of two exceptions: they can demonstrate the high legal standard of “changed circumstances which materially affect the applicant’s eligibility for asylum” or “extraordinary circumstances relating to the delay in filing.”
In 2010, former UN High Commissioner for Refugees and current Secretary-General António Guterres, found the US’s filing deadline “diverg[ing] from international standards” and said that it “makes it more difficult for many asylum seekers to establish their need for protection.” The UNHCR has since urged the US to repeal the “one-year-bar,” especially for all children with claims. According to legal scholars in the US, these rules have a disproportionate effect on vulnerable refugee claimants, such as women fleeing gender-based and sexual violence, LGBTQ+ claimants, and others who are particularly vulnerable, resulting in serious access-to-justice concerns. In addition, according to the Canadian Council of Refugees, the US also has a record of inconsistent recognition of gender-based claims. For example, almost 33,000 sexual violence claims have not been investigated by the Department of Homeland Security, with only 247 investigations opened.
United States’ Detention of Refugee Claimants
The Executive Orders on immigration have also increased the practice of detaining asylum seekers, creating serious access-to-justice concerns. According to Immigration and Customs Enforcement (ICE) (the Department of Homeland Security’s enforcement arm), as of May 2017, detentions increased by nearly 40 per cent compared to the same period last year. According to the Canadian Council for Refugees and Amnesty International, only 14 per cent of refugee claimants that are detained in the United States have access to counsel, and the 12-hour time limit on immigration detention is routinely exceeded. Not having access to counsel presents serious issues in the refugee claim process, particularly for refugee claimants who are vulnerable by virtue of their age, gender, sexual orientation, or who are suffering with mental health issues.
The United States’ immigration detention regime also fails to comply with their obligations under international refugee law, as well as applicable norms of international human rights law, including obligations under the International Covenant on Civil and Political Rights and international law norms regarding the treatment of children.
Turning away Claimants at the US-Mexico Border
Since July 2016, Customs and Border Protection agents in the United States have been turning back many refugee claimants at official United States border crossings from Mexico without giving them any opportunity to claim asylum, a phenomenon that is leading some asylum-seekers to conduct dangerous, irregular crossings into the US.This practice of denying refugee claimants access to the United States asylum adjudication system contravenes domestic and international refugee law, and is also against the principle of non-refoulement; therefore, people are returned to their country of origin without a thorough assessment of the risks of persecution that they face.
The Canadian Government Response
Despite criticism, the Canadian Government views the STCA as “an important tool for Canada and the U.S. to work together on the orderly handling of refugee claims made in our countries.” According to Ahmed Hussen, Canada’s Minister of Immigration, Refugees, and Citizenship Canada (IRCC), "There's absolutely no need to tinker with the Safe Third Country Agreement." The IRCC has publically stated that “Similar agreements are used by countries around the world to control pressures on asylum systems,”and the government is committed to protecting its border with the United States. Conservative opposition politicians have also called for the STCA to remain in force, with one politician arguing for the deployment of the Armed Forces to police the Canada-US border.
In 2017, the STCA remained a live issue due to ongoing changes to the US immigration regime. These included the threat that temporary protection orders for Haitian nationals could end in January, and the September rescinding of the Deferred Action for Childhood Arrivals (DACA) policy granting the children of undocumented migrants the ability to remain in the US.
In July of 2017, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches joined a group of asylum seekers in launching a federal court challenge of the STCA. They argued that the US did not constitute a “safe” country for all refugee claimants.
On July 22, 2020, Canadian Federal Court judge Ann Marie McDonald ruled that the STCA is in violation of Canada’s Charter of Rights and Freedoms, and therefore unconstitutional. She suspended her decision for six months to give Parliament an opportunity to respond to the ruling, which can be appealed to the Federal Court of Appeal and, if required, the Supreme Court. As such, the SCTA remains in force until January of 2021.