The Safe Third Country Agreement was struck down yesterday in Federal Court. The U.S. was the only country under the Immigration and Refugee Protection Act designated as a safe country.

The agreement stated that a refugee has to request asylum in the first country they arrive in (with some exceptions).

Criteria used to asses a country under the Act include:

Factors

(2) The following factors are to be considered in designating a country under paragraph (1)(a):

(a) whether the country is a party to the Refugee Convention and to the Convention Against Torture;

(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;

(c) its human rights record; and

(d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Michael Phelan, J. decided that the U.S. failed international standards for protecting refugees, and conventions against torture.

Importance

The agreement was an essential part of the U.S.–Canada Smart Border Action Plan.

When the agreement was first enacted, (then) Deputy Prime Minister John Manley said,

…the practice of asylum shopping by refugee applicants by allowing their return to the last safe country from which they came.

But the agreement was not without its detractors.

Chris Owens, director of a refugee shelter in Buffalo, NY, Vive La Casa, said in 2002,

I think we’re going to see on the U.S.-Canadian border a situation which we have seen for many years on the U.S.-Mexico border and that is hundreds of thousands of people crossing illegally, many of them in terrible danger as they cross.

Owens’ prediction came true this past summer with a Mexican refugee crisis in Windsor.

U.S. Failed Canadian Arar

The case was filed by the Canadian Council for Refugees, the Canadian Council of Churches, and Amnesty International, as well as an individual complainant seeking asylum.

They cited the Maher Arar case as an example of the treatment refugees could face at the hands of U.S. authorities.

The executive-director of the Canadian Council for Refugees said,

Unfortunately the Canadian government, like many governments, is looking for ways to reduce the number of refugees that claim protection here.

The Canadian Council for Refugees also produced a statement against the agreement, which can be found below.

10 REASONS WHY SAFE THIRD COUNTRY IS A BAD DEAL

On 29 December 2004, Canada closed the door on most refugee claimants seeking protection at the US-Canada border. Under a deal between the two countries, the United States was declared a “safe third country” for refugees. The Canadian Council for Refugees thinks this is a bad deal for refugees and for both Canada and the US. Here’s why:

ONE: The US is not safe for refugees because of the risk of detention
The agreement forces claimants to seek protection in the United States, a country that is not necessarily safe for refugees. Thousands of asylum seekers, including children, are held in detention in the US, for months and even years, often in jails alongside convicted criminals. Those who are detained have reduced chances of getting refugee protection, because it is difficult for detainees just to make a phone call, let alone get the help they need to present their refugee claim adequately. There have recently been widely publicized abuses of detainees in US immigration jails.

TWO: The US is not safe for refugees because some refugees are denied protection
The US does not always give protection to refugees who need it. In the past, numerous claimants have been recognized as refugees in Canada after having been refused in the US, because of more restrictive rules and interpretation of the refugee definition. Eligibility rules in the US mean that claimants who apply after having been in the US for over a year are denied a hearing. Unlike Canada, the US law does not offer protection to people who face a risk to their life or of cruel and unusual treatment or punishment. If Canada turns away a refugee who is subsequently deported by the US back to persecution, Canada will bear a part of the responsibility for whatever harm comes to the refugee.

THREE: The US is not safe for refugees because of discriminatory practices
US policies and practices discriminate against some refugees and immigrants on the basis of their nationality, ethnicity or religion. For example, the US detains Haitian claimants based on nationality. People from mainly Muslim countries are also particularly at risk of detention.

FOUR: The US may be about to get even less safe for refugees
The situation for refugees in the US may well be about to get worse. The US Congress is considering a number of anti-refugee provisions. The House has already passed these measures as part of the REAL ID Act.

FIVE: The US was not safe for Maher Arar
Despite being a Canadian citizen, Maher Arar was deported by the US to torture. If the US is not safe even for someone with the relative protection of a Canadian passport, how can we think that it is safe for refugee claimants who have no government to protect them?

SIX: The agreement makes the US-Canada border less secure
Before the safe third country agreement, refugee claimants presented themselves at the border in an orderly process, and were interviewed and given a security check. Now refugee claimants needing Canada’s protection will have to seek ways to cross the border irregularly. This was the experience in Germany when rules were changed in a similar way: overnight claimants stopped making a claim at the border and appeared inside the country. The principal beneficiaries of the safe third country agreement will be smugglers and traffickers.

SEVEN: Refugee claimants may face danger trying to enter Canada
Irregular border crossings are often dangerous for migrants: each year many die attempting to cross borders around the world. Are we prepared to see an increase in casualties at the border as desperate refugees seek Canada’s protection?

EIGHT: The agreement makes the refugee determination process more complicated
The agreement is difficult to implement. There is no easy way to determine which claimants are entitled to claim in Canada under the terms of the agreement. As a result, instead of spending time on the important question of whether the claimants need protection, Canadian officials have to divert resources to determining whether the claimants meet the exceptions in the agreement.

NINE: Canada is giving the US a say over our resettlement program in exchange for the agreement
In exchange for signing this deal, the US is being given a say in which refugees are resettled to Canada, as part of an originally secret side-deal. By allowing the US to refer refugees for resettlement, Canada is giving up its right to decide which refugees are most in need of resettlement. Ironically, the US now has more power to identify refugees for resettlement than Canadian immigration officers, who under the new law cannot consider refugees for resettlement unless they have been referred.

TEN: Canada is slamming the door on refugees
The goal and the effect of the agreement is to reduce the number of refugees who can claim refugee protection in Canada. By implementing this agreement, Canada joins a sorry group of countries that take the “Not in my backyard” approach to refugees. Even before the introduction of the safe third country agreement, 2004 was set to be the year with the lowest number of refugee claims in Canada in 6 years. Canada receives less than one quarter of one per cent of the world’s refugees. Why should we reduce our share even further?

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During the Second World War, Canada denied protection to Jewish refugees fleeing Nazi persecution. The slogan from that period was “None is Too Many!” – the answer given by a Canadian official when asked how many Jewish refugees Canada would take. The Canadian Council for Refugees calls the US-Canada agreement a “None is too many” agreement because it is about keeping refugees out, just as we closed the door on Jewish refugees in the 30s and 40s.

February 2005

Thanks to Ali Ahmed of Osgoode Hall for the heads up.