Originally Published in Forbes
Andy J. Semotiuk - September 18, 2020
A little noticed ruling by a Canadian Federal Court judge back on July 22, 2020, may eventually open the door for more American refugee claimants, including possibly undocumented immigrants in the U.S., to come to Canada in the future. The ruling held that the Safe Third Country Agreement between Canada and the United States violated the Canadian Charter of Rights and Freedoms, but gave the Canadian government six months to address the problem before the decision was implemented. The court ruled that the agreement violated the right of refugee claimants entering Canada from the U.S. “to life, liberty and security of the person” and therefore it was unconstitutional. If the agreement, adopted by both countries in 2004 to regulate the refugee system for people crossing the U.S.-Canada border were to cease, the result could strain the Canadian immigration system. That is because, in addition to the steady flow of refugees coming to the United States from places south of the U.S. border, as well as elsewhere, (at least before Covid-19 hit,) there are some eleven million undocumented residents living in the United States who could take an interest in a move northward, particularly if Trump is re-elected. Left unchallenged, the ruling would have opened the door for such individuals to leave the United States to ask for asylum in Canada.
The Safe Third Country Agreement is based on the principle that asylum seekers should claim refugee status in the first country they arrive in. It allows either country to reject a person's asylum application if they could have already been granted protection by another country. To date, the U.S. is the only country that is designated as a safe third country by Canada under the Immigration and Refugee Protection Act.”
In her judgement, Justice Ann Marie McDonald held the agreement was invalid because the United States no longer meets the designation as a safe country for refugees. The decision explicitly stated that the United States is no longer safe for refugees due to the risk of improper imprisonment, or even deportation.Thus, she stated, it is a violation of the Charter since by returning the claimants to the U.S. they risked being denied their freedom for simply making a refugee claim.
Although the judgement provided the government with six months before having to implement the decision, the groups that brought the case forward wanted the government to immediately stop the return of refugee claimants to the United States. "It is imperative that Canada immediately end the return of claimants to the U.S.," said Alex Neve, Secretary General for Amnesty International Canada, in a statement. He added, "The Safe Third Country Agreement has been the source of grave human rights violations for many years, unequivocally confirmed in this ruling. That cannot be allowed to continue one more day, and is of even greater concern now given the prevalence of COVID-19 in immigration detention in the United States."
However, the Canadian government reaffirmed that the agreement would stand at least until January 22, 2021 since the judgement has serious implications for Canadian immigration policy and practices. In a subsequent announcement on August 21, 2020, Bill Blair, the Minister of Public Safety and Emergency Preparedness, issued the following additional statement:
“Today, the Government of Canada filed an appeal to the Federal Court of Appeal as it has assessed that there are factual and legal errors in some of the Federal Court’s key findings. There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law.”
Since the Trump administration began tightening asylum rules, the agreement has come under concentrated scrutiny by its critics. Numerous Canadian immigration advocates have denounced the Third Country Agreement contending that the United States is no longer a safe haven for refugee claimants. However, there are other issues that also need to be addressed regarding this agreement. When enacting it, Canada and the United States agreed it would only apply to those presenting themselves at official border crossings. Consequently, asylum seekers who attempted to cross into Canada at ports of entry through legal channels were often barred and sent back to the United States, while others who arrived at so-called “irregular” or illegal border crossings, were allowed to stay.
The result, at least until Covid -19 hit, was an ongoing stream of asylum seekers arriving at “ irregular” crossings on foot, taxi and even busloads that had to be processed and accommodated by Canadian officials. This put Canada’s capacity to process the thousands of otherwise legitimate refugees in camps in Africa and elsewhere, under severe strain. Overseas refugee claimants often waited patiently for years in their camps to be processed, while those who were in the United States simply walked across the border into Canada at “irregular” crossings. Many Canadians regarded these latter entrants as abusing the country’s immigration laws.
Few people dispute that the agreement needs to be reviewed. In that regard, the Government of Canada has stated that it “remains firmly committed to upholding a compassionate, fair and orderly refugee protection system. The STCA remains a comprehensive vehicle to help accomplish that, based on the principle that people should claim asylum in the first country in which they arrive.”
For these reasons, it is not at all surprising that the Canadian government is appealing this federal court ruling. The decision of the Canadian courts, and indeed even the presidential election in the United States, will be important in determining the agreement’s ultimate fate. That in turn, will determine the degree to which Canada will see more refugee claimants arriving from the United States after the Covid-19 pandemic has lifted, particularly if Trump is re-elected.