Canada–United States Safe Third Country Agreement

Where the agreement is in effect

The Safe Third Country Agreement applies only to refugee claimants who are seeking entry to Canada from the United States:

Exceptions to the agreement

Exceptions to the Safe Third Country Agreement are based on principles that take into account the importance of family unity, the best interests of children and public interest.

There are four types of exceptions:

Despite qualifying for one of the exceptions outlined above, refugee claimants must still meet all other eligibility criteria of Canada's immigration legislation. For example, a person seeking refugee protection will not be eligible to make a refugee claim in Canada if he or she has been determined to be inadmissible to Canada on grounds of security, violating human or international rights, or criminality.

Following U.S. executive orders

Shortly after inauguration, U.S. President Donald Trump signed Executive Order 13769, which suspended the United States Refugee Admissions Program and banned travel from seven African and Middle Eastern countries; Executive Order 13768, which revoked eligibility for federal funding for sanctuary jurisdictions; and Executive Order 13767, which directed that a wall be built along the Mexico–United States border.

Safety of U.S. for asylum seekers

According to Deborah Anker, the director of Harvard Law School's immigration and refugee clinical program,

"The United States is not a safe country of asylum, and that is for several reasons. The new executive orders provides for mass detention of refugees and other immigrants seeking asylum on a mere suspicion of violating the immigration laws. And refugees and immigrants, I should note as well, are subject to arrest now by any state or local official not just trained immigration officers. So anybody can be picked up and sent to any detention centres, even a remote detention centre, away from her family, away from their lawyers and a place where they would have access to asylum. The other major aspect of this program that is deeply problematic is that it provides for expedited removal of anybody who's arrested in such a manner, expedited removal throughout the United States. Before, expedited removal was applied within the area of the border, our southern border with Mexico. Now it is throughout the United States."

Calls for suspension

In response to Executive Order 13769, immigrant and civil rights advocacy groups in Canada called for the federal government to suspend the Safe Third Country Agreement. These groups included Amnesty International, the Canadian Civil Liberties Association, the Association québécoise des avocats et avocates en droit de l’immigration, the British Columbia Civil Liberties Association, the Canadian Association of Refugee Lawyers, the Canadian Council for Refugees, and a group of 200 law professors from universities across Canada.

Emergency parliamentary debate

On January 30, 2017, Jenny Kwan (New Democratic Party critic for Immigration, Refugees and Citizenship) proposed an emergency debate on "President Trump's ban on immigration and travel from seven countries in the Middle East and North Africa".

During the debate, the New Democratic Party called on the government to immediately suspend the Safe Third Country Agreement, citing that "Canada can no longer have confidence that the American refugee system is providing a safe haven for those who face persecution". The Official Opposition Conservative Party of Canada stated that they would not oppose a suspension of the agreement, while the Green Party of Canada voiced support for suspending the agreement.

Ahmed Hussen, speaking as Canada's Minister of Immigration, Refugees, and Citizenship, claimed that the conditions of the Safe Third Country Agreement continued to be met. The governing Liberal Party of Canada did not communicate any plans or intentions to suspend the agreement.

Compliance with international law

Safe third country agreements are not explicitly mentioned in the 1951 Convention Relating to the Status of Refugees or the 1967 Protocol Relating to the Status of Refugees. Instead, their legality is derived from Article 31 of the convention, which states that a refugee should not be punished for illegally entering a country if they are arriving directly from a country where they were under threat. The Office of the United Nations High Commissioner for Refugees (UNHCR) itself has cautioned against interpreting safe third country agreements too broadly, though it acknowledges that they may be acceptable in some circumstances. Such ambiguities have led some legal professionals in Canada to question the legality of the Canada–United States Safe Third Country Agreement.

Dangerous border crossings

As of February 2017, increasing numbers of refugees have been crossing the Canadian border from the US other than at a Canadian border crossing point. This is in order to avoid the effects of the agreement, which requires refugees presenting at a border crossing to be turned back to the United States. In some cases, these refugees have received amputations due to frostbite and concerns have been raised that some refugees may freeze to death on their way across the border.

Julie Taub, an immigration and refugee lawyer, claims that, since the introduction of the agreement in late 2004, the Canada Border Services Agency has lost its capacity and would be "overwhelmed" if the agreement were repealed.