Refugee Protection and the Canada-U.S. Safe Third Country Agreement

By Myrna El Fakhry Tuttle

 Reposted from LawNow 43(4) with permission.

The right to be protected from persecution is an international human right. Under Canada’s immigration laws, a person in Canada can claim status as a Convention Refugee or as a Person in Need of Protection.

Article 1(2) of the United Nations 1951 Convention Relating to the Status of Refugees (the Convention Refugee) defines a refugee as:

“a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. “

Article 97 of the Immigration and Refugee Protection Act (IRPA) defines a Person in Need of Protection as “a person who faces a danger of torture, risk to life or risk of cruel and unusual treatment or punishment, if he or she returns to their country of nationality or country of residence.”

Canada is a signatory to the Convention Refugee which has been incorporated by Part 2 Divisions 1&2 of the IRPA. There are two ways to seek refugee protection in Canada: either at a port of entry (airport, seaport or land border) or at an Immigration, Refugees and Citizenship Canada (IRCC) office (see: Claiming Refugee Protection – 1. Making a Claim, online: Immigration and Refugee Board of Canada).

In 2002, Canada and the U.S. signed an agreement called the Safe Third Country Agreement (STCA) allowing both countries to work together on managing refugee claims. STCA came into effect in 2004. Article 1 of the STCA defines refugee status claim as “a request from a person to the government of either Party (Canada or the U.S.) for protection consistent with the Convention Refugee, the Torture Convention, or national laws of each Party.”

The STCA does not apply to Canadian or U.S. citizens or who, not having a country of nationality, are habitual residents of Canada or the United States.

Article 4 of the STCA provides that the Party of the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry. According to article 1, country of last presence means that country, being either Canada or the U.S., in which the refugee claimant was physically present immediately prior to making a refugee status claim at a land border port of entry.

According to the provisions of the STCA, individuals who seek to enter Canada across the U.S. land border can no longer make a refugee claim. Since refugees have access to the U.S. immigration system, they do not need to apply for refugee status in Canada.

Individuals are required to seek refugee protection in the first safe country in which they arrive, unless they qualify for one of the exceptions mentioned in the STCA. Article 4 mentions four types of exceptions:

  • refugee claimants who have a family member in Canada;

  • unaccompanied minors under the age of 18;

  • individuals holding a valid Canadian visa; and

  • those who have been charged with or convicted of an offence that could subject them to the death penalty in the U.S. or in a third country.

Under the terms of the STCA, refugees who first arrive in the U.S. and then seek entry to Canada at a land border of entry, will basically be rejected and will be sent back to the U.S. They must ask for protection in the first safe country they reach, which is the U.S. in this case.

A safe third country is a country where individuals, passing through that country, are deemed safe and are allowed to make refugee claims. Subsection 102(2) of the IRPA outlines the criteria for designating a country as a safe third country.

Section 102 of the IRPA allows the designation of safe third countries for the purpose of sharing responsibility for the consideration of refugee claims. A country that is a Party to and complies with the Convention Refugee (particularly article 33) and the Convention Against Torture (particularly article 3) and that maintains a good human rights record may be designated as a safe third country.

The United States is the only designated safe third country. It was designated by the Governor in Council. According to section 159.3 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], the U.S. was designated as a country that complies with the Convention Refugee and the Convention Against Torture, and is a designated country, and therefore is a safe country.

The IRPA in section 102(3) requires the continuing review of the designation of the U.S. as a safe country, to ensure that the U.S. complies with its international obligations.

Usually, individuals come from the U.S. to Canada through an official port of entry, but in recent years thousands of people have come from the U.S. by land, crossing at places other than official ports of entry to avoid being sent back to the U.S. under the STCA. The reason for the irregular crossing is that they believe the U.S. is not a safe country anymore.

In order to be returned to the U.S., individuals should seek entry to Canada at an official port of entry. Article 4 of the STCA talks about refugee claims made at a land border port of entry between Canada and the U.S. Therefore, it does not apply to those who arrive from the U.S. and enter Canada at a location other than a port of entry.

The STCA only applies to people entering from the U.S. at official ports of entry. That means that those who cross through an official port of entry, they usually are returned to the U.S. While those who cross irregularly have the right to seek refugee protection. They are not denied entry to Canada and they are not sent back to the U.S. Moreover, individuals who come form the U.S. and cross the border outside an official port of entry, will be considered for refugee status because Canada is a party to the Convention Refugee.

Article 31 of the Convention Refugee states that receiving countries may not penalize refugees for illegal entry or presence, as long as they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Section 133 of the IRPA provides that someone who has claimed refugee protection, and who came to Canada directly or indirectly from the country in respect of which the claim is made, can’t be charged with an offence under the IRPA and the Criminal Code of Canada, pending disposition of their claim for refugee protection or if refugee protection is conferred.

Article 27(2) of the Regulations states that a person who seeks to enter Canada at a place other than a port of entry must appear without delay for examination at the port of entry that is nearest to that place.

Individuals who cross irregularly are allowed to enter the country and are given the right to start the refugee claim process. However, they get that right after making dangerous journeys and putting their lives at great risk especially in the winter. Since it is the only way that they can enter Canada without being sent back to the U.S., many individuals are taking the risk of crossing unsafe borders. If people know that they will be returned to the U.S. once they arrive at an official point of entry, then they are going to cross irregularly between points of entry, even if there is a risk, in order to avoid that from happening.

Critics of the STCA have been calling on the government to repeal, suspend or even expand it in order to provide more protection to those who are trying to cross the border irregularly.

According to Article 10 of the STCA:

  •  either Party may terminate this Agreement upon six months written notice to the other Party;

  •  either Party may, upon written notice to the other Party, suspend for a period of up to three months application of this Agreement. Such suspension may be renewed for additional periods of up to three months; and

  • the Parties may agree on any modification of or addition to this Agreement in writing.

If the STCA was terminated or suspended, individuals would have the chance to seek refugee protection at regular ports of entry without risking their lives by crossing between ports of entry. If individuals are using unofficial places to cross in order to be allowed to enter the country without being sent back to the U.S., then what is the purpose of having the STCA?