by Aditya Rao
Since the election of President Trump, small border towns across Canada have seen thousands of asylum seekers cross into Canada. In May of last year, a woman died in the cold while trying to cross the border. This January, the small town of Emerson, Manitoba saw a man cross from the United States into Canada in the dead of winter and lose three fingers to frostbite. He was the third such case since 2016. These crossing have only increased since President Trump’s announcement that he would end Temporary Protected Status (TPS) for nationals of certain countries. Why would asylum seekers crossing the border risk life and limb, pay large sums of money, and attempt to cross at unmanned, unofficial border crossing instead of regular ports of entry? The answer is the Safe Third Country Agreement (STCA). Due to current American immigration policies, the STCA is problematic for Canada’s humanitarian and international obligations and is being challenged by Canadian advocates in court.
Signed in December 2004, the STCA requires that asylum seekers seek protection from the country they arrived in first – either Canada or the United States. Premised on the idea that the United States is a “safe third country,” the agreement applies to all asylum seekers entering Canada who present themselves at a land port of entry, subject to some exceptions such as if the asylum seeker has a close relative in Canada, or if they are an unaccompanied minor. When an asylum seeker who does not qualify for one of the exceptions presents themselves at the border, the CBSA officer must issue an “ineligibility” finding against the claimant and send them back to the US. An ineligibility finding precludes a claimant from making a refugee claim in Canada if they ever find themselves inside the country at a later date.
But the STCA has a loop hole: it only applies to asylum seekers who present themselves at a land port of entry, or a regular border crossing. It does not apply to individuals who cross elsewhere along the 3,987 miles of border between the contiguous United States and Canada, and it does not apply to individuals who are already inside Canada, regardless of where they were before.
Crossing the border – Irregular, not illegal
It is important to note that it is not illegal in Canada to cross the border without permission to seek refugee status. Those that suggest otherwise are wrong. There exists a statutory exemption under section 133 of the Immigration and Refugee Protection Act in Canadian law for migrants who are crossing into Canada without authorization for the purpose of seeking asylum. In the spirit of Article 31 of the Refugee Convention, it is intended to recognize that refugees often must cross international borders without permission to flee persecution. The use of the term irregular is, therefore, deliberate.
Challenging the STCA
Migrant rights advocates are concerned about this agreement because United States may not actually be a safe country to which Canada should return refugee claimants. In 2007, Amnesty International Canada (Amnesty), the Canadian Council for Refugees (CCR) and the Canadian Council of Churches (CCC) challenged the STCA in court, asking for the decision to designate the United States as “safe” to be judicially reviewed. They argued, among other things, that the operation of the STCA could result in the refoulement by the United States of refugee claimants who wish to seek asylum in Canada.
The Canadian Federal Court sided with Amnesty, CCR and CCC, finding that if refugee claimants were returned to the United States under the STCA, there would be a serious risk of refoulement by the United States due to harsher asylum laws in the country. In particular, the court pointed to the United States’ “one-year bar” which requires that asylum seekers apply for asylum within one year of arrival, with a few exceptions. The court found that the bar violates the United States’ obligations under the 1951 Refugee Convention and the Convention Against Torture, while disproportionately affecting claims based on gender and sexual orientation.
The Federal Court found that the alternatives available to people who fell outside of the one-year bar were insufficient. If the one-year bar applies, asylum seekers can still apply for “withholding of removal”. However, this is a higher standard to be met than under an asylum claim, making relief difficult to obtain and resulting in people deserving of protection not receiving it. The court found the United States’ application of the narrow definition of “particular social group” too difficult to establish, particularly when making gender-based claims. In short, the STCA has the effect of violating the rights of refugee claimants at Canadian ports of entry as guaranteed to them under the Canadian Charter of Rights and Freedoms.
The government successfully appealed this decision. The appellate court ruled that the question was not whether the government’s decision itself was correct, but rather whether they complied with their statutory obligations in making it. Finding that the Canadian government acted in good faith when designating the United States as “safe,” the appellate court ruled that the United States’ actual compliance with the law was irrelevant. The appellate court also held that the constitutional rights violation finding was done in error, as the harm argued was hypothetical given that the litigant in question was still in the United States and had not approached the border.
The Supreme Court denied leave to appeal this decision. Notably, these decisions were all before Donald Trump became President of the United States.
The Current Challenge
Since the election of President Trump in the fall of 2016, the total number of asylum claimants in Canada more than doubled from 23,930 in 2016 to 50,405 in 2017. With the scheduled end of some nations’ TPS, concerns abound that border crossings will increase.
Efforts to challenge the STCA ramped up in the effort to allow migrants seeking protection to access Canada’s refugee status determination system at ports of entry, rather than be forced to precariously trek through unpatrolled border crossings. Over 200 Canadian law professors wrote an open letter in early 2017 to Minister Ahmed Hussen, calling for the suspension of the Agreement. In the US, a February 2017 report from Harvard Law School argued that it is “wrong and unfounded” to think the United States is safe. In May 2017, Amnesty and the CCR submitted a 52-page brief to the Government of Canada outlining how US asylum and detention policies violate the rights of asylum seekers.
Amnesty, CCR and CCC also launched a second lawsuit. Like in the 2007 litigation, this lawsuit is premised on refugee rights violations arising from the inadequacies of the US asylum system. In 2007 the applicants challenged the STCA alongside an individual litigant who alleged potential harm had he been turned away from the border. This time the challenge includes a litigant who was, in fact, found ineligible at the border: A Salvadoran woman with a gender-based claim concerned that being returned to the US could mean refoulement.
The factum (not available electronically) relies on the 2007 Federal Court’s uncontroverted factual findings regarding the one-year bar and the inadequate protection for gender-based claims. It also points to policy changes under President Trump Executive Orders that have resulted in the widespread use of immigration detention in a manner that treats asylum seekers as criminals. The United States already detains hundreds of thousands of migrants each year.
As Harvard Professor of Law Deborah Anker argues, the Interior Enforcement Order “calls for criminal prosecution and detention of all persons with immigration violations, including people who enter without inspection.” She notes that because asylum seekers must be physically present in the US to seek protection and often do not have proper documentation, their immediate detention is, in effect, penalization. This, she argues, is in violation of US obligations under Article 31 of the Convention referenced earlier.
Another Trump Executive Order has already raised refoulement concerns because it explicitly requires the Department of Homeland Security to ensure that asylum seekers entering at a land border “are returned to the territory from which they came pending a formal removal proceeding.” As Professor Anker noted, asylum seekers who are returned to Mexico may then risk further refoulement to persecution.
The United States’ expedited removal process, which the Federal Court in 2007 found ran afoul of international norms by using detention as a penalty, also raises concerns. With President Trump’s changes, the practice is set to expand. Whereas it originally applied to noncitizens entering the United States within the past two weeks and within 100 miles of the border, it may now apply to individuals throughout the country who fail to show continuous presence over the past two years.
The STCA is ostensibly meant to make it easier for the two countries to manage refugee flows. However, in practice, advocates are concerned that the agreement puts refugees at risk and operates to offload responsibility from one country to the other. As University of Ottawa law professor Jamie Liew argued, the STCA “delegates Canada’s assessment of whether or not we should authorize entry of a foreign national into Canada to another country: the United States.” She argues that Canada ought to make its own determination as to who is deserving of protection.
Proponents of STCA contend that the suspension of the STCA would open the floodgates of asylum claims and that Canada should act, instead, to make it more restrictive by reducing exceptions and returning even those crossing into Canada irregularly to the US. However, as the numbers above show, the existence of the STCA does not deter border crossings. Indeed, even if the “loophole” were closed such that irregular border crossers were also sent back to the US, how would Canada patrol its 3,987-mile border to find every single person crossing at unofficial locations in farmers’ fields or through dense forest? Broadening its applicability would most likely have the perverse effect of pushing asylum seekers underground in Canada rather than risk removal to the United States.
It is unclear how the legal arguments might play out in court this time around, within the context of the United States’ current immigration policies. It is, however, certainly clear that suspending the STCA removes the incentive for asylum seekers to avoid official border crossings. This would lift the burden off of small border towns that deal with the irregular crossings and would show confidence in Canada’s own refugee status determination process.
And besides, even if the United States was safe once, it certainly isn’t now.
Aditya Rao is completing a joint JD and MA from the University of Ottawa’s Faculty of Law and Carleton’s Norman Paterson School of International Affairs. He is the 2018-2019 articling student at Amnesty International Canada and is on twitter at @aditrao.