Current immigration developments in the United States call for a closer look at the place of the Canada-U.S. Safe Third Country Agreement (STCA) in Canada’s refugee policy. The United States’ restrictive executive orders on immigration and deportation raids have raised much concern among immigration and refugee advocates, and fear in refugees and asylum seekers. As immigration tensions rise in the United States, many refugees set their eyes on Canada. Thus, it is important to know what the STCA means for refugees who may seek refugee in Canada from the United States.
The STCA refers to a policy brought into force by Canada and the United States in 2004, to regulate refugee mobility in both countries. The agreement specifies that Canada and the US regard each other as safe for refugees and asylum claimants. The United States is the only country Canada has designated as a “safe country” under the Immigration and Refugee Protection Act.
Canada trusts that the US government can make fair determinations on each asylum case received. Therefore, refugees who claim asylum in the US cannot do so in Canada, except in certain cases.
Why was the Safe Third Country Agreement instituted?
According to the signatories, the STCA was established to maintain the integrity and efficiency of the asylum and refugee system in Canada and the United States. The government alleges that the agreement ensures predictability and a firmer control over asylum cases. The idea is that it would be difficult to regulate cases of illegal border crossing, if asylum seekers do not go through the proper routes to file their applications. The government holds that illegal immigration may disadvantage immigrants and refugees who go through the legal, and sometimes arduous, refugee determination process.
Other proponents of the STCA claim that the agreement prevents “queue-jumping” among refugees, especially in this period of heightened uncertainty and fear among refugee communities in the U.S. The main fear is that some asylum seekers may take advantage of the current political situation to obtain refugee status in Canada. This fear finds its roots in the contention over whether asylum seekers can fully justify that their safety will be under threat if sent back to their home country.
Immigration, Refugees and Citizenship Canada (IRCC) does not favour suspending or repealing the STCA. IRCC stated that “the STCA remains an important tool for Canada and the US to work together on the orderly handling of refugee claims.” The government maintains that illegal crossings are still prohibited, and the United States still has a seemingly fair asylum evaluation system.
If the STCA ensures efficiency in asylum assessments, why do some call for its revocation?
Since it came into effect into 2004, the STCA has faced many (legal challenges). In 2006, Amnesty International, the Canadian Council for Refugees, and the Canadian Council of Churches challenged the designation of the U.S. as a safe country for refugees. The case suffered a setback when the Supreme Court declined to hear it. A lack of substantial evidence of the STCA’s adverse impact on asylum seekers also contributed to the court’s decision.
In February 2017, about 22 Canadian law schools began compiling information to be used to challenge the STCA in court again. Many refugee advocates hope that with more substantial evidence of the STCA’s impact on asylum seekers and refuges, the chances of a legal victory will be higher than in 2006.
Citizens for Public Justice, Amnesty International, The Quebec Association of International Lawyers, and the BC Civil Liberties Association are among many organizations that have called on the government to revisit the place of the STCA in Canada’s asylum program.
Refugee advocates in Canada call for the suspension or revocation of the STCA because they fear the United States may no longer be safe for refugees. They argue that the U.S. government’s recent restrictive executive orders on immigration and refugees are enough reason to suggest that the country may be unsafe for refugees. One executive order, (which many critics see as constituting a travel ban), placed a 120-day admission moratorium on all refugee applications.
Although the Canadian government notes that the United States still meets all criteria for the STCA (e.g. a good human rights record), refugee advocates argue that this is more rhetorical than realistic. They raise human rights concerns over the impact of the travel ban on refugees and asylum seekers. The societal anti-immigration rhetoric the executive order engenders raises fears over refugees’ human rights and safety. There have been many recorded cases of xenophobia and racism against refugees and migrants who are visible minorities.
Refugee advocates are very concerned that the STCA does not allow asylum seekers who may choose to find refuge in Canada access to needed supports. This is troubling, especially in a country many consider to be welcoming and hospitable.
Why has there been a rise in the number of people crossing into Canada?
Individuals flee the United States for a number of reasons. Most recently, certain policy changes and anti-immigration sentiments have caused select groups to feel that their lives could be at risk if they remain in the United States. For some, this is a result of a fear of deportation to a country they feel is unsafe, dangers posed by gang or domestic violence, the expiration of resident status, and so on.
Due to the terms of the STCA, for most individuals fleeing the US to be considered for refugee status they must enter outside an official port of entry. In doing so, these individuals can legally make a refugee claim and begin the process of gaining refugee status in Canada.
If the STCA were to be revoked, individuals would have the opportunity to make their refugee claims at official border points in an orderly manner, and avoid the risks associated with unofficial crossings.
Is it illegal to cross into Canada at an unofficial border point?
Under Canadian and International refugee law, an individual in search of protection may violate immigration laws in order to seek asylum. The 1951 UN Refugee Convention, along with Canada’s Immigration and Refugee Protection Act, state that refugees attempting to enter Canada and gain protection must not be penalized in the process. While some politicians and journalists have continually referred to this process as “illegal,” when an individual has a well-founded fear of persecution, this movement is not in fact illegal, but is better referred to as “irregular”.
Do individuals who cross at irregular border points slow down the resettlement process for other refugees?
Canada has multiple streams for granting asylum, and those who make land-based claims go through a separate channel than those who are resettled internationally. Those that arrive as Government-Assisted Refugees, Privately-Sponsored Refugees, or Blended-Visa Office Referred Refugees are identified by the UNHCR, individual citizens, or a combination of both. Those that make claims from within Canada or upon arrival, instead notify an Immigration or Border Services Officer of their situation, and then begin the process of being considered for refugee protection by the Immigration and Refugee Board (IRB).
What is CPJ doing to raise awareness on STCA issues?
CPJ has long believed that the Safe Third Country Agreement conflicts with Canada’s position on non-discrimination and equality. It does not give asylum seekers the opportunity for a fair hearing on their cases in Canada.
Canada and the United States do not share the same principles on the determination of asylum cases. Although they are not covered under the Convention Relating to the Status of Refugees, asylum seekers who are victims of gender-based violence are more likely to receive a fair hearing in Canada than in the United States.
Asylum seekers who arrive in Canada from the U.S. are denied a hearing at the border, because the STCA is very restrictive on the kinds of cases that can be assessed once one is denied by the United States.
CPJ also believes the United States’ immigration policy discriminates against refugees on a religious and national identity basis. In short, Canada can no longer rely on the United States to provide refugee claimants with a fair hearing on their asylum cases. CPJ has written to the Minister of Immigration, Refugees, and Citizenship, asking him to revoke the STCA.
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