In December 2016, Razak Iyal (35) and Seidu Mohammed (24) attempted to cross irregularly into Manitoba from North Dakota. Before being rescued by a passing transport truck, they suffered severe frostbite that cost them their fingers. By June of this year, both men, originally from Ghana, had applied for refugee status in Canada.
Why did Iyal and Mohammed undertake such a perilous journey? The simple answer: to avoid Canada’s practice of retuning certain refugee claimants at border points to U.S. immigration authorities under the Safe Third Country Agreement (STCA).
Published in The Ploughshares Monitor Volume 38 Issue 3 Autumn 2017 by Sonal Marwah and Michelle Ball
The STCA, a bilateral agreement between Canada and the United States, came into effect in December 2004. It requires refugee claimants to make a claim in whichever of the two countries they reach first. Thus, those who are in the United States can only legally make a claim in the United States. Since the STCA came into effect, there has been a sharp decline in the number of refugee claims made at entry points to Canada (Arbel & Brenner 2013, p. 3).
Prime Minister Justin Trudeau has publicly declared that Canada welcomes all those fleeing persecution, war, and terror. We argue that immigration policies such as the STCA are a type of extraterritorial measure that attempts to prevent refugee claimants from entering Canada and, indirectly, forces them to take illegal and risky measures to enter Canada.
Such policies are at odds with our image of ourselves as a country “generous” to refugees and with our obligations under the 1951 Refugee Convention to not return asylum seekers to a third country if they will risk deportation to their home country. Canadians need to re-examine the legitimacy of immigration tools such as the STCA.
Why undocumented residents are fleeing the United States
Since the election of President Trump, a number of draconian immigration measures have been introduced in the United States. On January 25, 2017, Executive Orders “Enhancing Public Safety in the Interior of the United States” and “Border Security and Immigration Enforcement Improvements” called for the implementation of policies and practices that “prevent asylum seekers from meaningfully pursuing their claims” (Harvard Law School 2017, p. 1) and undermine legal protections for asylum seekers.
On January 27, Executive Order “Protecting the Nation from Foreign Terrorist Entry into the United States” suspended the national refugee admissions program for 120 days and imposed a travel ban on nationals of designated Muslim-majority states (Iran, Libya, Syria, Somalia, Sudan, and Yemen) (Parlapiano, Park & Peçanha 2017).
“The substance of…recent executive orders highlights [the Trump] administration’s hostility toward refugees and asylum seekers” (Harvard Law School 2017, p. 1), in particular Muslim refugees. Even though legal objections have been made to these measures, there is broad consensus among civil society actors, refugee lawyers, and academics that the United States was not, and certainly is not now, a “safe country of asylum” or “safe third country” for those fleeing persecution and violence in their homelands.
Paths to refugee protection in Canada
There are essentially two main ways in which asylum seekers can find protection as refugees in Canada. Outside our borders, Canada engages in a refugee resettlement process, in which refugees from asylum countries are admitted to Canada, up to the resettlement cap, which is decided by Canada. Canada’s resettlement cap for 2017 is 7,500 Government-Assisted Refugees (GARs), which is even below its annual average of 7,600 from 2000 to 2015 (CCR 2017a). Globally, less than one per cent of refugees have been resettled.
Canada also operates a refugee determination process for asylum seekers who make refugee claims at Canadian border points, or at an airport or seaport. But asylum seekers encounter many barriers. Due to Canada’s geographical distance from most refugee-producing countries, most refugee claimants will arrive by airplane. However, strict visa regulations, policies of airline carriers that prevent potential asylum seekers from boarding planes, and other immigration and security policies mean that many potential asylum seekers are intercepted before they reach Canada’s borders. Access to Canada via the United States is prevented by the STCA.
In section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA), a person entering Canada from a “designated country” is ineligible to have a claim for refugee protection considered by the Refugee Determination Division of the Immigration and Refugee Board (IRB). Canada has designated the United States the first and, to date, the only safe third country for refugee claimants. This means that claimants who attempt to cross from the United States to Canada at a U.S-Canada point-of-entry will be denied access to the refugee determination process in Canada and returned to the United States; exceptions may be made for those with documentation to enter Canada, those with family in Canada, unaccompanied minors, and those subject to the death penalty in the United States or a third country.
Measures such as the STCA, combined with Canada’s remoteness from most refugees, allow Canada the luxury of choosing the refugees who come here, but force refugee claimants in desperate situations to consider alternative migration channels to seek safety and protection here.
Effects of the STCA
Impact #1: Asylum seekers and refugee claimants stay in the United States
Legal challenges in the past have questioned whether the United States can be considered a “safe” country for asylum seekers. In 2007, the STCA was successfully challenged in Federal Court, but the decision was overturned in the Federal Court of Appeals the following year. This past July, Amnesty International Canada, the Canadian Council for Refugees, and the Canadian Council of Churches (CCR 2017b) announced that they were launching a new legal challenge of the designation of the United States as a safe third country for refugees.1
Canada’s Minister of Immigration, Refugees and Citizenship Ahmed Hussen continues to uphold this designation, arguing that the UN Refugee Agency recognizes the legitimacy of the refugee determination systems of both Canada and the United States, and that “there’s absolutely no need to tinker with the Safe Third Country Agreement” (Rose 2017).
In any case, the first and most obvious impact of the STCA is that those who might otherwise claim asylum in Canada are staying in the United States or are being returned to the United States, to go through the U.S. refugee determination system. But many refugee advocates see the U.S. system as flawed and deficient. For example, asylum seekers who have been in the United States for more than one year are banned from making a claim; immigration detention is not used as a last resort but as punishment; gender-based claims are not consistently recognized. Thus, it seems likely that more claimants in the U.S. system will be returned to their home countries.
We cannot know how many refugee claimants are choosing not to present themselves at entry points to Canada, but we do know that there was a significant drop in claims at the border after the STCA came into force. Statistics from the Canada Border Services Agency show that claims dropped from 6,000-14,000 per year before the STCA, to an average of 4,000 claims per year after. In 2011, there were only 2,500 claims (Arbell & Brenner 2013, p. 7).
While criticism of the U.S. refugee protection system is not new, recent events in the United States have led some to believe that protection for refugee claimants will not improve under the current system and may indeed deteriorate.
Impact #2: The STCA increases irregular crossings and vulnerability
Evidence is emerging to indicate that, since the election of Trump in 2016, there have been more irregular crossings into Canada and a greater need to protect refugee claimants.
In the first six months of 2017, there were 4,345 irregular border crossings into Canada, significantly more than the 2,464 crossings for all of 2016 (Markusoff 2017; Bruemmer 2017). When compared with the more than 300,000 immigrants welcomed into Canada each year and the hundreds of thousands of asylum seekers given refugee protection by developing countries in the Middle East and Africa, this number can seem insignificant. But we must remember that every number is a real person at risk.
There is also evidence that irregular migrants are making greater use of human smugglers. Not only does this practice cost a significant amount of money and cause much hardship, but it also puts individuals in more precarious situations.
Extraterritorial measures such as the STCA lead to escalations in dangerous behaviours, according to Janet Dench, Executive Director of the Canadian Council for Refugees; “the higher the fences created by interdiction,” the more migrants are “forced to turn to smugglers to help them overcome the barriers” (Arbel & Brenner 2013, p. 98). A 2012 report found that human smuggling into Canada from the United States had increased in 2011 by as much as 58 per cent over the previous year (Arbel & Brenner 2013, p. 2).
Impact #3: The “human costs” of the STCA
Many Canadians question if the STCA is a humane way of determining the right of an individual to claim asylum. Is forcing refugee claimants to risk their lives by crossing at irregular points of entry in line with Canada’s image and values of fairness?
During this past winter, asylum seekers found themselves in almost impossibly dangerous situations. In March, Mamadou, an Ivorian refugee, attempted to enter Canada at the Lacolle crossing in Quebec, but was denied because of the STCA. Mamadou then attempted an irregular crossing into Canada to file an asylum claim. Walking at night, Mamadou became disoriented and waded through deep water, eventually collapsing beside a road in Lacolle. If not for the intervention of an RCMP constable, Mamadou would likely have succumbed to already severe hypothermia and frostbite. This story illustrates two fundamental points about the STCA: it forces refugee claimants to make perilous attempts to cross the border and it punishes those who try to enter Canada through official channels.
Another story: Two Somali refugees made a long journey from Brazil, crossing many borders on foot, and arriving in Manitoba many months later. Usually such irregular migrations would end in a place such as Minnesota, where there is a large Somali community, but the Somali community in the United States fear deportation and urged the men to continue to Canada. “I am a black man, I am a Muslim, and I am a Somali. So in three ways, it is not possible for me to go to the United States,” one of the men, Ahmed Omar, told CBC News in February (Laventure 2017). Ultimately, Canada’s inland refugee claims system will decide whether these two Somali men have a legitimate refugee claim and can stay in Canada, but the two men were exposed to many dangers before they could access Canada’s refugee determination system.
Canada’s responsibility to protect vulnerable people
Canada is currently able to exert considerable control over the number and kind of immigrants who come here and, therefore, gain access to our refugee protection system. The STCA is only one in an array of tools that intercepts would-be refugees and excludes them from potential protection. With more individuals attempting irregular migration into Canada from the United States, and with refugee claimants fearful of the U.S. refugee determination system, we must carefully consider our responsibilities to these vulnerable individuals. If we want to be a country that provides safety to those in desperate need, we must question whether an agreement such as the STCA is fair or appropriate.
Thanks to Project Ploughshares intern Sebastian Murdoch-Graham for assistance with research.
Michelle Ball has a Master’s degree in International Migration and Public Policy from the London School of Economics. She works in the Violence Against Women sector in Toronto, and also assists groups engaged in private refugee sponsorship.
1. For more detail on the challenge, see AI & CCR 2017.
Amnesty International Canada & Canadian Council for Refugees. 2017. Contesting the Designation of the US as a Safe Third Country, May 19.
Arbel, Efrat & Alletta Brenner. 2013. Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion. Harvard Immigration
and Refugee Law Clinical Program, Harvard Law School, November.
Bruemmer, René. 2017. No need to fear influx of refugees into Quebec, UN says. Montreal Gazette, July 24.
Canadian Council for Refugees. 2017a. 2017 Immigration levels – comments.
—–. 2017b. Legal challenge of Safe Third Country Agreement launched. Media release, July 5.
Harvard Law School. 2017. The Impact of President Trump’s Executive Orders on Asylum Seekers.
Laventure, Lisa. 2017 “It was the happiest moment”: Asylum seekers who took risky Central American corridor cross into Canada. CBC, July 10.
Markusoff, Jason, Nancy Macdonald, Aaron Hutchins & Meagan Campbell. Down on the border. Twenty-four hours. Four provinces. Seven towns.
What one day on the Canada-U.S. line says about refugees, Canadian tolerance and Trump’s America. Maclean’s, July 11.
Parlapiano, Alicia, Haeyoun Park & Sergio Peçanha. 2017. How Trump’s Executive Order will affect the U.S. refugee program. The New York
Times, January 27.
Rose, Brenna. 2017. Safe Third Country Agreement to stay, pledges immigration minister. CBC News, March 29.