A Double-Bind for Refugees: Shortcomings of the U.S.-Canada Safe Third Country Agreement
Trouble is brewing at the world’s longest territorial border which separates the United States and Canada. This almost 9,000-kilometre border is not merely a cartographic barrier, it also represents the last hope for millions of asylum seekers annually attempting to cross into the United States’ northern neighbour annually. Since 2004, the Safe Third-Country Agreement (STCA) has regulated the flow of migrants entering Canada from the US.[1] However, the STCA may have run its course, according to a Federal Court ruling handed down in June.[2]
A safe third-country agreement is an increasingly-used safeguard in international refugee law. Parties establishing such agreements regard each other as ‘safe’ for individuals seeking protection.[3] The Immigration and Refugee Protection Act,[4] the main Canadian legislative instrument guiding immigration policy, cites two requirements for a partner to qualify as a safe country: ratification of the Refugee Convention[5] and of the 1987 Convention Against Torture.[6] In this bilateral arrangement, Canada can expel any asylum seekers attempting to cross into the country back into the United States, as they have already entered a ‘safe’ country to lodge their claim or vice versa. However, certain caveats infiltrate this agreement, such as exceptions for family reunifications, minors, and the fact that these returns only apply at land points of entry.
The central premise of the STCA– making it viable within international law and the guidelines of the UN High Commission for Refugees (UNHCR) – is that each party is a ‘safe’ country and fairly processes asylum claims. Since its inception, the STCA has been badly received by NGOs and refugee protection organisations within Canada, warning that various factors of the US asylum system rendered it unsafe.[7] The agreement faced a legal challenge from a coalition of groups a few years later, in Canadian Council for Refugees, John Doe, et al. v Her Majesty the Queen.[8] Federal Judge Phelan found Canada in violation of her international legal obligations and constitutional standards. While the Court of Appeals ultimately reversed this judgement,[9] legal challenges against the STCA have not halted. In June, Federal Judge McDonald again ruled that the pact violates the Canadian Constitutional guarantees of life and freedom.[10] The focus of her judgement was not Canada’s internal immigration system per se, but the treatment of asylum seekers upon return to the United States..[11]
Section 7 of the Canadian Charter declares that everyone has the right to “life, liberty, and security of the person,”[12] with the assurance that these rights would not be rescinded unless necessary for fundamental justice.[13] A Muslim Ethiopian woman who lived in the US for several years as an undocumented refugee was principal applicant in this case. Fearful of Trump’s persecutory anti-immigration policies, she attempted to enter Canada at a land point of entry in 2017 and was turned away. US authorities detained her, placing her in solitary confinement for seven consecutive days. She described her experiences as traumatising, as she was placed in a prison with individuals who were serving criminal sentences, slept in severely cold cells, and was forced to eat meat she suspected was pork.[14]
Federal Judge McDonald maintained that handing over the woman to US officials violated her fundamental rights to life, liberty, and freedom, under Canadian law. It does not matter that the violations did not take place on Canadian soil – the fact that Canadian Border Services Agents turned her over to American authorities, who then detained her, was enough.[15] Following precedent from Singh v Minister of Employment and Immigration,[16] the fact that the applicant was physically in Canada was adequate to advance a Charter claim. Additionally, Attorney-General v Bedford clarified that a sufficient causal connection between the actions of Canada’s Border Services Agency and the applicant’s imprisonment effectively engages the Charter.[17]
This parallels the reasoning applied by Federal Judge Phelan in the 2007 legal challenge. Phelan concluded that the Charter operates at the Canadian border, and that the alternative, to force the claimant to enter Canada illegally, would be “pointless”..[18] Similarly, Justice McDonald employed a legal fiction, imagining the Canadian border (and laws applying in this territory) as travelling with the Ethiopian refugee into the United States. Erfat Arbel describes this ratio as a “shifting border,”[19] bringing claimants within the territory of constitutional security.
“A terrifying, isolating and psychologically traumatic experience,” Nedira Jemal Mustefa
The declaration of invalidity was suspended for six months to grant Parliament time to respond. Justin Trudeau’s Liberal government has already announced their intention to appeal the decision[20] . Nevertheless, it looks as though this legal saga will end differently than in Canada v Canadian Council for Refugees in 2008. President Donald Trump consistently vocalises his strict immigration policies and intentions to greatly diminish the flow of migrants traveling to the country. According to Cornell Professor Yale-Leorh, the policy of family separation at the US-Mexico border were enacted to deter migrants arriving to the United States.[21] Canada’s experience also differs starkly from other countries around the world, such as Turkey which hosts 3.6 million refugees.[22]
Regardless, Trump’s policies are merely reiterations of larger systemic flaws within the US asylum system. These shortcomings are beyond the scope of this article, but it is worth mentioning a few. The US Immigration and Nationality Act (1965) imposes a one-year deadline for all asylum seekers to file their claims.[23] With few exceptions available to those who miss the deadline, many asylum seekers are at risk of being refouled (returned) to their countries of origin. This harsh ruling applies even in instances of ignorance or if the asylum seekers possess genuine claims.[24] This presents a high-threshold for successful asylum claims, putting claimants at a higher risk of being indirectly refouled; indirectly, because the principle of non-refoulement is expressed in the UN Refugee Convention, ratified by the United States and Canada.[25] Moreover, critics accuse the United States of interpreting the Refugee Convention narrowly with regards to gender-based claims.[26] While sex is not recognised as a ground for protection in the Refugee Convention, Canada, alongside many other countries, recognises sex as a characteristic of a ‘social group’ that comprises women, and therefore a protected characteristic[27] Conversely, the US lacks clear parameters for whether they consider gender-based asylum claims, and there is a worrying disparity in approval rates between the US and Canada.[28] The territorial border between Canada and the US, in the context of refugees, is thus greatly jeopardised by US asylum policies. Canadian politicians likewise insist that Parliament cannot turn a blind eye to harsh treatments in the United States.[29]
Although the conclusion of this saga is yet to be decided, diplomatic tensions between the states will inevitably intensify if Ottawa's appeal is unsuccessful. Many politicians predict that the appeal is a ploy to buy time, and that the complexities of the case will lead it to the Supreme Court.[30] Possible renegotiations of the STCA might be permitting asylum seekers to submit claims to Canada while they are in the US and await their decision there, while granting them Canadian funds to access benefits like legal aid.[31] Christopher Sands and Taylor Jackson suggest that Canada should leverage her mutual inter-vulnerability with the US regarding increases in asylum seekers to negotiate long-term cooperative solutions.[32] But is developing a more robust catch-22 agreement for refugees the right thing to do? Covid-19, revealing the vulnerability of asylum seekers, has had a devastating impact across the continent, and has been weaponized to justify anti-migrant policies. Canada is at a critical juncture. It has an opportunity to pause political camaraderie and urge the US to abide by international standards. As asylum centres are shutting down and public resources are diverted to tackle Covid-19, asylum seekers escaping calamities are trapped between closed borders and desperation. Over the next few months, decisions made in Canada will have the impact of either heightening their plight, or relieving it.
Footnotes:
[1] Erfat Arbel, ‘Shifting Borders and the Boundaries of Rights: Examining the Safe Third Country Agreement between Canada and the United States’ (2013) 25 International Journal of Refugee Law 65, 65.
[2] Canadian Council for Refugees v. Minister of Immigration, Refugees, and Citizenship [2020] Federal Court 770
[3] Andrew F. Moore, ‘Unsafe in America: A Review of the U.S.-Canada Safe Third Country Agreement’ (2007) Santa Clara L Rev 201, 202.
[4] Immigration and Refugee Protection Act SC 2001, c27, section 102(2).
[5] Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (Refugee Convention).
[6] Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: resolution adopted by the General Assembly, 15 December 1989, A/RES/44/144.
[7] Rachel Gonzalez Settlage, ‘Indirect Refoulement: Challenging Canada’s Participation in the Canada-United States Safe Third Country Agreement’ (2012) Wisconsin International LJ 142, 151.
[8] Canadian Council for Refugees v. Her Majesty The Queen [2007] Federal Court 1262.
[9] Canada v. Canadian Council for Refugees [2008] Federal Court of Appeal 229, paras 82-92.
[10] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
[11] Canadian Council for Refugees v. Minister of Immigration, Refugees and Citizenship (n 2) para 140.
[12] Canadian Charter of Rights and Freedoms (n 8).
[13] Canadian Charter of Rights and Freedoms (n 8) , s 1.
[14] Canadian Council for Refugees v. Minister of Immigration, Refugees and Citizenship (n 2) para 96.
[15] ibid para 101.
[16] Singh v. Canada (Minister of Employment and Immigration) [1985] 1 SCR (Supreme Court of Canada) 177, para 35.
[17] Canada (Attorney-General) v. Bedford [2013] 3 SCR 1101, para 75.
[18] Canadian Council for Refugees v. Her Majesty The Queen (n 6) paras 47-48.
[19] Arbel (n 1) 80.
[20] Jim Bronskill, ‘Feds to appeal ruling that struck down Safe Third Country Agreement,’ Global News (21 August 2020) <https://globalnews.ca/news/7291026/safe-third-country-agreement-federal-appeal/> accessed on 11 September 2020.
[21] Canadian Council for Refugees v. Minister of Immigration, Refugees and Citizenship (n 2) para 63.
[22] UNHCR, ‘Global Trends: Forced Displacement in 2019’ (18 June 2020) <https://www.unhcr.org/5ee200e37/> accessed on 11 September 2020.
[23] Arbel (n 1) 73.
[24] Canadian Council for Refugees v. Minister of Immigration, Refugees and Citizenship (n 2) para 62.
[25] Refugee Convention (n 5) art 33.
[26] Moore (n 3) 240.
[27] ibid.
[28] ibid 241.
[29] Samantha Wright Allen, ‘’They are just buying time’: Lawyers weigh feds’ appeal of judgment suspending Canada-U.S. asylum agreement’ The Hill Times (2 September 2020) <https://www.hilltimes.com/2020/09/02/they-are-just-buying-time-lawyers-weigh-feds-appeal-of-judgement-suspending-canada-u-s-asylum-agreement/261888> accessed on 12 September 2020.
[30] ibid.
[31] Christopher Sands and Taylor Jackson, ‘The Coming Clash Over Migration Policy Between Canada and the United States’ in Yiagadeesen Samy and Howard Duncan (eds), International Affairs and Canadian Migration Policy (Palgrave Macmillan 2020).
[32] ibid 82.