The legal challenge to the Safe Third Country Agreement: What’s at stake?

Sonal Marwah Featured, News

By Sonal Marwah and Deborah Mebude

On July 5, the Canadian Council for Refugees (CCR); The Canadian Council of Churches (CCC), of which Project Ploughshares is an operating division; and Amnesty International (AI) launched a case in the Federal Court of Canada to challenge the designation of the United States as a “safe third country” for refugees as this designation pertains to the Safe Third Country Agreement (STCA) between Canada and the United States under the Immigration and Refugee Protection Act (IRPA) and the Regulations.

The three organizations joined an individual litigant who wanted to be allowed to make her refugee claim in Canada. After being targeted by a gang for over a decade in El Salvador, she fled to the United States with her daughters and has strong reasons to believe that she may not receive protection in the United States if she has to file her refugee claim there, rather than in Canada.

What is the Safe Third Country Agreement?

The STCA is a bilateral burden-sharing agreement whereby refugee claimants who travel through the United States to Canada are not eligible (with some exceptions) to make a refugee claim at the Canadian border. The assumption is that they can access a fair and full refugee status determination process in the United States. (The Agreement also applies to the reverse situation, in which refugee claimants go from Canada to the United States.) The STCA, which came into effect on December 29, 2004, is enforceable only at land Ports of Entry (POE) and does not apply at airports, seaports and to claims made inside Canada.

The litigants (three organizations and the individual) are asking the federal court to strike down the STCA on the grounds that the United States does not fully comply with obligations to refugees under the Refugee Convention. In particular, the legal challenge questions the compliance of the United States’s non-refoulement obligations (Article 33), and the Convention against Torture (Article 3). As well, they argue that the application of the Agreement violates refugees’ rights under the Canadian Charter of Rights and Freedoms, specifically the right to life, liberty, and security of the person (section 7) and to non-discrimination (section 15). The court challenge is currently in its preliminary stage.

The STCA has concerned and frustrated refugee advocates, refugee claimants, activists, academics, practitioners, and NGOs since it came into effect. In 2007, the CCR, CCC, and AI legally challenged the STCA. The Federal Court ruled that the United States was not safe for refugees, but the decision was overturned by the Federal Court of Appeal on technical grounds.

The new legal case is raising the same constitutional challenges to the designation of the United States as a “safe third country” for refugees, against the background of the further deteriorating environment for the safety and rights of refugees under President Trump.

The “war on immigrants”

Soon after Donald Trump became U.S. president, refugees, Muslims, and Central Americans were politically targeted in three Executive Orders, which expanded detention facilities, allowed arbitrary detention with limited or no access to legal counsel, prioritized the identification and arrest of undocumented migrants and their transferral to detention centres and expedited removal, and outlined the building of a wall along the border with Mexico. These actions have been deemed by some a “war on immigrants.”

In reaction, there has been a sharp increase in the number of refugee claimants crossing the border into Canada irregularly (i.e., not at POEs). Refugee claimants who present themselves at a POE are at high risk of being immediately returned to the United States. Once they return, their visas may be invalidated and they may be detained and subjected to removal proceedings. But crossing irregularly into Canada is no easy feat, especially in winter. Last year, two men from Ghana lost their fingers to frostbite after they crossed into Manitoba. Individuals are also employing human smuggling networks, which have their own serious hazards.

Loss of Temporary Protected Status

Now, concern is growing that there will be a second influx of refugee claimants to Canada, sparked by the Trump administration’s announcements that will end the Temporary Protected Status (TPS) for select nationalities. This decision will affect tens of thousands of people now living in the United States, some of whom have lived there for decades.

The U.S. Department of Homeland Security assigns a TPS designation to select countries experiencing armed conflict, natural disasters, or other humanitarian crises. TPS provides no pathway to permanent residency. Instead, individuals return to the immigration status they had prior to the implementation of the TPS designation. Countries that currently hold TPS designations are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria, and Yemen.

On November 6, Homeland Security announced that it will terminate the TPS designation for 2,500 Nicaraguans on January 5, 2019, and 60,000 Hondurans on July 5, 2018. On November 20, it announced that the 58,000 Haitian citizens living and working under TPS in the United States are expected to leave by July 22, 2019. Sudanese and Salvadorans could be next. People still in the United States after these dates will be stripped of any protection and subject to deportation.

The new reality of being forcibly displaced, yet again, is being faced by as many as 300,000 vulnerable individuals.

In Canada, the backlog of refugee claims has grown significantly. Several thousand Haitians have already made their way north. Of the 10,790 claims made between March and September 2017 by irregular border crossers that were deemed eligible by the Canadian Border Services Agency (CBSA) and referred to the Refugee Protection Division for determination, only 592 claims (5.5 per cent) have been finalized. This backlog is excepted to grow.

“What if” scenarios for Canada

Public Safety Minister Ralph Goodale has stated that Canada’s police and border guards (RCMP and CBSA) have prepared contingency plans for a variety of “what if” scenarios. Canadian officials have taken proactive measures to discourage irregular border crossings to Canada and to counter misinformation about Canada’s refugee process and system. At border crossings, there are plans to install heated trailers to replace Canadian Armed Forces tents that have been used to house migrants and refugee claimants.

Government officials and the 12 Canadian consulates in the United States have planned outreach efforts to affected communities. Prime Minister Justin Trudeau recently indicated that “entering Canada irregularly is not an advantage,” and that immigration rules will be enforced to protect against security risks. This announcement set a different tone from the Prime Minister’s famous tweet in January: “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.”

Significance of the STCA legal challenge

In the aftermath of 9/11, the STCA was formulated as part of a 30-point Smart Border action plan to improve border security and cooperation between Canada and the United States.

Before the United States was designated a “safe third country,” refugee claimants presented themselves at a border POE in an orderly process to ask to apply for refugee status. The Canadian government knew who was entering the country and from where. Now officials are concerned about potential new influxes of an unknown number across unprotected borders, as not all irregular border crossers will notify officials of their arrival. And refugee claimants are forced to make often dangerous irregular crossings to enter Canada. One must ask: what purpose is served by imposing such additional risks upon already vulnerable individuals?

Refugee and immigrant advocacy groups and human rights defenders are gravely concerned about protecting the safety and rights of refugees. Only a few refugee claimants are able to reach Canada directly from their home countries. Canada should not be putting obstacles such as the STCA in the path of vulnerable individuals, which violate their right to make a refugee claim.

We cannot directly affect political events in the United States. In Canada, we can and should raise our voices to state loudly and clearly that the rights and dignity of refugees must be respected. The legal challenge of the STCA ultimately highlights two fundamental concerns for Canada: that every refugee claimant fleeing persecution should have access at the border to the Canadian refugee status determination system (access to justice), and that Canada should treat refugees on its frontiers with fairness and humanity.

Deborah Mebude, Citizens for Public Justice, deb@cpj.ca

For further information:

Federal Court grants organizations standing in legal challenge of Safe Third Country Agreement

Why we are challenging the USA as a “safe third country” in the Federal Court of Canada

The Safe Third Country Agreement: Is the bilateral agreement putting refugees at risk?

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