The Canada‒United States Safe Third Country Agreement (STCA) is a treaty between Canada and the United States. It sets out the rules of refugee/asylum claims. This agreement stipulates that a refugee must claim asylum in the first country in which they arrive, either Canada or the US. This generally prevents refugee claimants’ entry into the neighbouring country. (See Canadian Refugee Policy.)
Several challenges have been raised against the agreement. This was particularly the case after the election of President Donald Trump and his executive orders on immigration. Critics raised concerns about human rights protections in the US. In July 2020, a Canadian federal court judge ruled that the STCA is in violation of Canada’s Charter of Rights and Freedoms, and therefore unconstitutional. The decision was later overturned in April 2021 by the Federal Court of Appeal. (See Court System in Canada.)
What Is the Safe Third Country Agreement?
Refugee claimants (or asylum seekers) flee their countries in hopes of safety and protection abroad. They often claim refugee status in the country of arrival. Refugee rights are partly governed by the 1951 United Nations Convention relating to the Status of Refugees (see United Nations). Refugee status is a matter of both international and domestic law. Canada has its own elaborate system of refugee claim adjudication, immigration laws and policies. (See Canadian Refugee Policy; Immigration Policy in Canada.)
One such policy is that of having safe third countries. The precursor to the modern-day STCA first appeared in Canada in 1988. The “safe third country” clause was found in the 1988 amendments to the Immigration Act of 1976. This allowed Canada to designate another country as a “safe country.” This allowed the government to deny the right to claim refugee status for those who enter Canada via a “safe country.” (See Canadian Refugee Policy; Immigration Policy in Canada.)
After the terrorist attacks of 11 September 2001, Canada and the US signed the STCA. It took effect on 29 December 2004. The STCA prevents refugee claimants who first arrive in either the US or Canada to make a refugee claim in the other country. The agreement essentially governs the movement of refugee claimants when they attempt to cross the Canada-US border. There are certain exceptions to the STCA for refugee claimants arriving in Canada via the US. A person can still claim refugee status at the land border if they have a family member living in Canada. Unaccompanied, unmarried minors can claim refugee status (see Child Migration in Canada). Migrants with a valid visitor visa can also do so.
Criticisms and Previous Legal Challenges
The United Nations High Commissioner for Refugees (UNHCR) is the UN agency responsible for managing refugee movements and resettlement. The UNHCR expressed concern about STCAs in general. The agency argued that such agreements may violate non-refoulement. Non-refoulement is a principle of international law under the 1951 Convention Relating to the Status of Refugees. The principle protects refugee claimants from deportation to countries where they would be at risk of persecution. (See also Deportation from Canada.) The right to flee a country and seek protection from persecution is an internationally recognized .
There have been numerous legal challenges to the STCA. These are often 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 the Federal Court ruling that the STCA is unconstitutional. (See also Constitution Act, 1982.) The STCA was deemed to violate the right to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms. For the Federal Court, the STCA also infringed on the right to equality under section 15 of the Charter.
However, the Federal Court of Appeal reversed this decision. Its ruling stated that the Federal Court had no authority 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. The Federal Court of Appeal pointed out that a UNHCR representative stated to the House of Commons that the US was a “safe country” before the STCA took effect. As such, the government likely did not act out of bad faith when designating the US as a country that complies with the Refugee Convention.
The advocacy groups behind the challenge sought to appeal the case to the Supreme Court of Canada. However, the country's highest court declined to hear the matter in 2009. As a result, the STCA remained in force.
Recent Issues in the United States
Recent 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, former Donald Trump became the President of the United States. That year, the Trump Administration implemented a number of executive orders to restrict immigration and refugee claims. (See also Immigration to Canada; Refugees to Canada.) Media attention has focused especially on two executive orders, from 27 January 2017 and 6 March 2017. These orders sought to restrict the ability of people from designated Muslim-majority states to travel to the US. (See also Islamophobia in Canada.) Two other executive orders (Executive Order 13768 and 13767) called for the implementation of policies which could undermine legal protections for refugee claimants. These orders were viewed as contravening the United States’ international obligations — including those under the Convention Relating to the Status of Refugees and the Convention against Torture. These policies included expanding immigration detention and separating families. (See also Immigration Detention in Canada.) They also sought to end the practice known as “catch and release” that allowed for the regular release of certain undocumented people before deportation hearings. (See also Deportation from Canada.)
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.
In 2010, former UN High Commissioner for Refugees António Guterres found the US’s filing deadline “diverg[ing] from international standards.” He stated 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. These include women fleeing gender-based and sexual violence and LGBTQ+ claimants. (See also LGBTQ+ Refugees in Canada.) This results in serious access-to-justice concerns. According to the Canadian Council of Refugees, the US does not consistently recognize gender-based asylum claims.
United States’ Detention of Refugee Claimants
The Executive Orders on immigration have also increased the practice of detaining asylum seekers. This creates serious access-to-justice concerns. According to the US’ Immigration and Customs Enforcement (ICE), as of May 2017, detentions increased by nearly 40 per cent compared to the same period the previous year. According to the Canadian Council for Refugees and Amnesty International, only 14 per cent of refugee claimants that are detained in the US have access to counsel. Moreover, the 12-hour time limit on immigration detention is routinely exceeded. Not having access to counsel presents serious issues in the refugee claim process. This is particularly the case for refugee claimants who are vulnerable by virtue of their age, gender, sexual orientation, or who are suffering with mental health issues.
Detention conditions for asylum seekers have been criticized. The Department of Homeland Security received over 33,000 complaints linked to sexual and physical violence between January 2010 and July 2016. Only 247 investigations were opened.
Turning away Claimants at the US-Mexico Border
Since July 2016, Customs and Border Protection agents in the US have been turning back many refugee claimants at official US border crossings from Mexico. Often, this provides migrants no opportunities to claim asylum. The phenomenon then encourages some asylum-seekers to conduct dangerous, irregular crossings into the US. The practice of denying refugee claimants access to the US’ asylum adjudication system contravenes domestic and international refugee law. It is notably against the principle of non-refoulement. This is so as people are returned to their country of origin without a thorough assessment of the risks of persecution that they face.
Critics of the US treatment of Asylum Seekers
According to civil rights organizations, the ongoing issues with the US asylum system pose significant risks to refugee claimants. The US’ immigration detention regime is criticized for failing to adhere to international refugee law and norms of international human rights law. These include obligations under the International Covenant on Civil and Political Rights and international legal norms regarding the treatment of children.
Various groups in both Canada and the US called for the STCA to be scrapped. These groups included the Canadian Civil Liberties Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, Amnesty International, and the Harvard Immigration and Refugee Clinical Program.
The Canadian Federal Court recognized the issues in the US’ treatment of asylum seekers in 2007. However, the Federal Court of Appeal‘s subsequent ruling did not. Nonetheless, civil society organizations have called for the immediate suspension of the STCA.
Increased Irregular Migration to Canada
Since President Trump’s executive orders were enacted, Canada has seen an increased number of refugee claimants crossing the Canada-US border. In 2017, the Royal Canadian Mounted Police intercepted 20,593 asylum-seekers. (See Refugees to Canada.) These numbers are high when compared to the total of 2,464 who crossed irregularly in 2016. (See Irregular Immigration and Canada.)
These asylum seekers cross the Canada-US border irregularly. This means they avoid entering Canada through an official border crossing. Instead, they enter via an unofficial point of entry and then legally claim refugee status. They thus bypass the STCA as they are now within Canada. Usually, these irregular migrants are intercepted by the RCMP at areas like Roxham Road.
A number of refugee claimants were in the news for crossing the frozen Manitoba border early in 2017. 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 died trying to cross the border in May 2017.
Canadian Government Response
Despite criticism, the Canadian Government views the STCA as “an important tool for Canada and the US to work together on the orderly handling of refugee claims made in our countries.” According to Ahmed Hussen, Canada’s Minister of Immigration: "There's absolutely no need to tinker with the Safe Third Country Agreement." Canadian immigration authorities publicly stated that “Similar agreements are used by countries around the world to control pressures on asylum systems.” Furthermore, the government is committed to protecting its border with the US.
Recent Court Cases
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. However, her ruling was overturned by the Federal Court of Appeal in April 2021. The STCA therefore remained in effect.