Ploughshares presents: The Canada-U.S. Safe Third Country Agreement: What’s at stake?

Sonal Marwah Americas, Archived Events, Forced Displacement and Migration Leave a Comment

On April 10, to commemorate the 33rd anniversary of Refugee Rights Day in Canada, which is celebrated on April 4, Project Ploughshares and the Commission on Justice and Peace of the Canadian Council of Churches (CCC) co-hosted a public engagement on “The Canada-U.S. Safe Third Country Agreement: What’s at stake?” in Waterloo. The objective was to learn about, and reflect on, Canada’s responsibility and obligations to refugees and refugee claimants.

Published in The Ploughshares Monitor Volume 39 Issue 2 Summer 2018 by Sonal Marwah

On April 4, 1985, the Supreme Court of Canada ruled that the Canadian Charter of Rights and Freedoms protects the fundamental rights of refugees. The Court examined section 7 of the Canadian Charter, which states, “Everyone has the right to life, liberty and security of the person,” and decided that “everyone” includes those seeking refuge at our borders. They recognized that refugees, even if they are non-citizens and have not been legally admitted to Canada, cannot be deprived of “fundamental justice”—just like everyone else in Canada.

The Court determined that the interests at stake for a refugee—the risk of returning to a place where persecution or torture threatened—are of such a fundamental nature as to require an oral hearing. This ruling became known as the “Singh decision,” in recognition of six citizens of India and a Guyanese citizen of Indian heritage, who had made separate refugee claims in Canada.

Now, each April 4 is an opportunity to examine the state of refugee rights in Canada.

Four experts and practitioners from the United States and Canada explored facets of the Canada-U.S. Safe Third Country Agreement (STCA), a 2004 bilateral agreement that seeks to prevent (with exceptions for those with family members in their destination country, unaccompanied minors, and stateless persons) refugee claimants who land first in the United States from making a claim in Canada, and those that land first in Canada from making a claim in the United States. At the heart of the agreement is the understanding that each country is “safe” for refugees.

A brief summary of each presentation follows:

 

Erin Simpson is a lawyer specializing in refugee and immigration law and counsel for the STCA federal challenge.

Refugees and claimants in the United States have come under acute threat from the new anti-immigrant laws and policies initiated by the Trump administration. But among the greater numbers of people approaching the Canadian border because of the current U.S. political climate are some who always intended to come to Canada. They might have had temporary status or were undocumented in the United States. But the STCA effectively deprives a large class of refugee claimants to Canada from accessing the rights recognized in the Singh case and in the international Refugee Convention.

In July 2017, the Canadian Council for Refugees, Amnesty International, and The Canadian Council of Churches launched a still ongoing legal challenge of the designation of the United States as a safe third country for refugees under the STCA. The litigants 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, they argue that 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).

 

Alex Vernon is a professor of Law and Director of the Immigration Law Clinic at the University of Detroit Mercy.

Under the conditions of the STCA, asylum seekers from the United States who approach the Canadian border are interviewed, held, and then returned by the Canada Border Services Agency to the United States. But the system currently operating in the United States denies claimants basic rights.

Most claimants turned back at the Canadian border are held in U.S. immigration detention centres, which are often crowded and unpleasant. Those who want to claim asylum are confronted by obstacles in accessing counsel and risk being sent back to their country of origin, no matter the level of danger.

Women who bring gender-based persecution claims can face even more challenges. Evidence suggests that the one-year window, during which asylum seekers must file claims, has created a disproportionate hardship for female asylum seekers, who file late claims at a rate more than 50 per cent higher than men. Many are not initially aware that spousal abuse can even be grounds for a refugee claim.

Late in 2017, President Trump decided to end the Temporary Protected Status (TPS) designation for immigrants from a number of countries, including Nicaragua, El Salvador, Sudan and Haiti, with a variety of upcoming dates. This means that these groups will lose their U.S. status and face deportation. And if they try to go to Canada at border checkpoints, they face the possibility of being automatically sent back to the United States.

 

Eunice Valenzuela is a member of the executive of the Canadian Council of Refugees and a Refugee Specialist at the K-W Multicultural Centre.

Refugee claimants face “harrowing journeys to Canada.” Among the most afflicted are those who escape their home countries to avoid gender-based persecution. To get to Canada, these resilient women and men, boys and girls must deal with threats and trauma, often gender-based.   And when they reach Canada, their legal status is often uncertain.

 

Peter Noteboom is General Secretary of The Canadian Council of Churches.

Canadian churches are deeply engaged with refugees. Many congregations sponsor refugees, supporting them before and after they arrive. Many advocate for the just treatment of refugees. Canadian churches do this because such acts are an integral part of their faith story.

Early in its life, The Canadian Council of Churches assisted refugee migrants through a travel loan repayment fund and by making community connections for refugees when they reached Canada. Thus began a key element of Canada’s private refugee sponsorship program, in which sponsors assume responsibility for the care of refugees in their first year of arrival.

From the 1970s to the 2000s, the churches, through the Inter-Church Coalition for Refugees, focused on refugee rights, including the 2005 charter challenge to the Safe Third Country Agreement.

In 2017, The Canadian Council of Churches determined that it is the duty of the Government of Canada to uphold the fundamental principles of justice laid out in the Charter of Rights and Freedoms. On this basis, the CCC joined the second legal challenge of the STCA.

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