It has been six months since President Donald Trump signed the executive order known as the “travel ban.” President Trump also suspended the United States refugee program. These changes sparked a sharp increase in the number of refugee claimants and illegal immigrants crossing the border into Canada illegally, many citing fears over their future in the United States.
These claimants chose to enter Canada illegally to dodge the provisions of the Safe Third Country Agreement, a law requiring refugees who arrive in the United States to make a claim there instead of in Canada.
Now that the United States Supreme Court has temporarily reinstated large portions of Trump’s executive order, there are renewed calls for Canada to suspend the Safe Third Country Agreement.
What is the Safe Third Country Agreement?
Following the 9/11 terror attacks, Canada developed a Smart Border Action Plan that included new laws regulating refugee claimants. As part of this plan, the United States and Canada agreed to the Safe Third Country Agreement. It became Canadian law under the Immigration and Refugee Protection Act in 2004.
Section 101(1)(e) of the Agreement provides that a person is ineligible to be assessed for refugee status if they came to Canada from a country designated as “safe” under the regulations. Canada and the United States both deem one another “safe” countries under their respective immigration laws.
Essentially, it means that a refugee has to make a claim in whichever of the two countries they arrive in first. If you disembark in the United States, you have make a claim there, not in Canada. Show up at a Canadian border crossing and you’ll be denied (unless you fall under a narrow exception.)
This was meant to better manage the flow of refugees into both countries.
Impact of the Trump Presidency
Since January 2017, Canadian police have arrested over 3,000 people crossing the border illegally. Since the would-be refugees arrived in the United States first, they cannot make a claim at a legal crossing, and this leads them to take the clandestine route instead.
Refugee and human rights activist groups in Canada began to denounce the Safe Third Country Agreement when this phenomenon began back in January. The Canadian Parliament debated the issue, but chose not to act. But the heat is back on now that the travel ban is up and running again.
Challenging the Agreement in Court
Some activists argue the United States should no longer be designated a “safe” country for refugees, which would essentially nullify the Agreement. Under s.102(1), the Governor in Council may determine whether a country is safe based on the four requirements:
- Whether the country is party to the United Nations 1951 Refugee Convention, and the 1984 Convention Against Torture;
- Whether the country has policies and follows its obligations under the above conventions;
- The country’s human rights record; and
- Whether the country shares responsibility with Canada with respect to claims for refugee protection
The United States is party to both UN agreements. It has an agreement with Canada to deal with refugee claims. That leaves one avenue of appeal: human rights.
According to the Canadian government, “The United States meets a high standard with respect to the protection of human rights. It is an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.”
In light of recent events, I’d bet some people would beg to differ.
The Supreme Court of Canada has already dismissed one case where someone challenged the United States’ designation as a safe country back in 2009. But new circumstances could mean a new challenge to the law in the future.