A 'safe country' dilemma for Canada

Understanding the recent wave of migrants crossing into Canada requires an explanation of the Safe Third Country Agreement. Celine Cooper lays out its origins, impact and the various reasons many are now calling for its repeal. 

By: /
July 25, 2018
Minister of Public Safety and Emergency Preparedness Ralph Goodale, right, tours the US-Canada border in Hemmingford, Quebec, as seen from Champlain in New York, on August 21, 2017. REUTERS/Christinne Muschi

Is the United States a safe country for refugees?

The question isn’t new. But the rapidly evolving political, legal and policy context for asylum seekers in the United States under President Donald Trump has lent it an unprecedented urgency. 

Following Trump’s election in 2016, increasing numbers of migrants began crossing overland from the US between official ports of entry to seek refugee protection in Canada. 

Today, the challenge of irregular migration has become a pressure point for the federal Liberal government. It is straining intergovernmental relations between Ottawa and the provinces, particularly Quebec, Ontario and Manitoba, where the majority of refugee claimants are arriving or settling. The opposition Conservative Party has been vocal in its criticism of what it perceives as Prime Minister Justin Trudeau’s lax approach to border management, security, what it calls “illegal” migrants and a refugee “crisis.”  

Last week, Ontario Premier Doug Ford, Quebec Premier Philippe Couillard and Manitoba Premier Brian Pallister issued a joint statement calling on the federal government to fully compensate each of the provinces for service costs related to irregular migrants, and to ensure the timely adjudication of refugee claimant hearings.

Also last week, on July 18, Trudeau announced a cabinet shuffle that included Liberal MP and former Toronto Police Chief Bill Blair, previously the government’s point person on marijuana legalization, being named to the newly created position of Minister of Border Security and Organized Crime Reduction. Blair was one of several people to address a lengthy House of Commons immigration committee meeting on the issue Tuesday.

His new role is one sign among many that the broader issues of immigration and public safety are being twinned, and taking on heightened importance ahead of the 2019 federal election.

But, as tensions over the issue continue to bubble up, a key question is this: why are refugee claimants entering Canada irregularly from the US in the first place?

What is the Safe Third Country Agreement?

The Safe Third Country Agreement between Canada and the US has been in effect since December 2004. In the wake of the 9/11 attacks, the two countries entered into wide ranging discussions around border control. In exchange for agreeing to cooperate on information sharing and other enhanced border security measures, the US consented to enter into a STCA with Canada.

The agreement was Canada's initiative. Since migrant flows generally move from south to north, the STCA, the government argued, was in Canada’s interest, and originally sought as an additional measure to control its own borders.

Both Canada and the US are parties to the 1951 UN Refugee Convention, and, in principle, are obligated to provide asylum to individuals who meet the definition of a refugee fleeing persecution. The STCA is premised on the understanding that both countries will process refugee claimants fairly, in accordance with their legal commitments under the UN convention as well as their own domestic laws.

Prior to the agreement, an asylum seeker could request refugee protection upon arrival at any port of entry to Canada — be it an air or marine port, on land, or one of many inland Canadian immigration offices. Under the STCA, refugee claimants are obligated to apply for asylum in the first country in which they arrive. Canada is required to turn away asylum seekers coming from, or via, the US who attempt to enter Canada at official border crossings, and vice versa.

But there’s a loophole: since migrants who enter Canada at official crossings will be sent back to the US, people have an incentive to cross at locations in between designated ports of entry, where they won't automatically be sent back and their claims will be heard.

Canadian border
A Royal Canadian Mounted Police vehicle is seen near a sign at the US-Canada border in Lacolle, Quebec, on February 14, 2018. REUTERS/Chris Wattie

Tracking irregular migration

In late 2016, organizations in Manitoba began reporting a slight uptick in refugee claimants, mainly from Ghana and Somalia, coming across the border irregularly from the US to claim asylum in Canada. The media began to pick up on stories of people risking their lives to cross between official checkpoints near Emerson, Manitoba, in the harsh Canadian winter, walking at night through farmers’ fields, losing fingers and limbs to frostbite. The public began paying attention.

In 2017, RCMP officers apprehended and processed 20,593 asylum seekers crossing overland into Canada between designated ports of entry from the US. Approximately 90 percent of them were on their way into Canada via an unofficial border crossing at Roxham Road, which runs between Champlain, New York, and Saint-Bernard-de-Lacolle, Quebec. Irregular crossings spiked in August of 2017 with 5,712 people entering mainly into Quebec, prompting the province to open Montreal’s Olympic Stadium for temporary housing. Since Jan. 1, close to 9,000 migrants — many of them families with small children — have walked across the Canadian border and claimed asylum so far. But recent statistics suggest that numbers of irregular crossings into Canada are starting to subside.

Janet Dench is the executive director of the Canadian Council for Refugees (CCR). She spoke to OpenCanada last year when the irregular migration flows from the US to Canada started attracting wider media attention. She argued that people are choosing to cross into the country irregularly, rather than at official border crossings, specifically because of the STCA — an argument made by several other refugees advocates recently, including University of Toronto professor Audrey Macklin in a widely circulated opinion piece in The Washington Post. The incentive to cross irregularly — and thus unsafely — is a problem, argued Dench.   

“There’s no logical reason for people to do that except to avoid the effect of the Safe Third Country Agreement,” she said. “And this effect was absolutely known when the agreement was signed. It was part of the discussion leading up to it.” 

A turn of events in the US

In Canada, there is mounting pressure from refugee advocates, academic and legal experts, and a number of prominent civil society organizations — including the CCR, the Canadian Association of Refugee Lawyers (CARL), Amnesty International and the Canadian Council of Churches  for Canada to revisit or suspend the STCA with the US. 

Calls to repeal the STCA existed long before Trump came to power, in part because of procedural and outcome discrepancies for asylum seekers between the two countries. For example, Canada has officially recognized gender-based persecution under the definition of a refugee since 1993 while the US does not. Refugee claimants in Canada also have greater access to government-funded services and can apply for work and student authorization while their claims are processed.

"This effect was absolutely known when the agreement was signed."

However, many advocates say an increase in nationalist and anti-migrant rhetoric and a general erosion of human rights protections and refugee protections in the US under Trump are spurring migrants to seek asylum in Canada.

Trump’s 2017 executive order — officially the Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States — banning Syrian refugees and the entry of nationals from six majority-Muslim countries re-ignited the debate about whether Canada should remain a party to the STCA. After a number of protests and legal challenges, in late June of 2018 the Supreme Court upheld the latest version of the ban, which suspends the granting of immigrant and non-immigrant visas to applicants from Syria, Libya, Iran, Somalia and Yemen. It also includes limited sanctions against North Korea and Venezuela.

More recently, the treatment of migrants in the US, many of whom are fleeing from human rights abuses in Central America, has deepened the debate around whether the US can be considered a safe country for refugee claimants.  

In April, the Trump administration announced stronger measures to prosecute people attempting to cross into the country illegally through its southwest border. US Customs and Border Protection (CBP) noted that in April, 38, 243 individuals were apprehended between ports of entry on the southwest border and 40, 338 in May. Blaming an increase in illegal migrant crossings and Congress’s failure to pass legislation supporting Trump’s wall along the US-Mexico border, Attorney General Jeff Sessions declared a “zero tolerance” policy and called for anyone caught crossing into the US anywhere other than at official ports of entry to be prosecuted. (CBP reported that the number of people being apprehended between ports of entry on the southwest border in June had dipped to a total of 34,114 individuals.)

Prior to enactment of this policy, many people accused of illegal entry who did not have a criminal record were referred for civil deportation proceedings. This did not always mean the separation of children from their families. Under the new policy, however, more than 2,300 children, including toddlers, have been separated from their parents. Images of children being kept in wire cages in detention centres have prompted a global outcry.

Sessions also stated that people fleeing from gang violence or domestic abuse should not qualify for protection under the asylum law.

US migrants
Immigrant children, many of whom have been separated from their parents under a new "zero tolerance" policy by the Trump administration, are shown walking in single file between tents in their compound next to the Mexican border in Tornillo, Texas, US, on June 18, 2018. REUTERS/Mike Blake

These policy measures are examples of why the US should no longer be considered a safe country for asylum seekers, argues Lobat Sadrehashemi, president of CARL.

“[Gang violence and domestic abuse] are two groups of claimants that Canada regularly accepts. We accept that in some circumstances their home countries are not able to protect them from those serious risks,” she explained in an interview. “It’s clear that those groups would not be safe in the United States, and they’re at risk of being sent back to their home countries, where they are facing persecution and other risks on their life.”

When one country knowingly returns asylum seekers into a country that does not, will not or cannot protect refugees as required under international law, that first country arguably becomes complicit in their persecution.

In late June, Trump signed an executive order to end the practice of separating children from their parents. This doesn’t go far enough, argued Sadrehashemi. “We’re still talking about mass detention of children, they’d just be with their families.”

“The US is now not meeting its responsibilities under international refugee law because it’s failing to differentiate between asylum seekers as a specific category of migrants,” she continued.

Furthermore, the UN Refugee Convention prohibits penalizing refugees for entering a country unlawfully. “In fact, it is legal to do that so long as you present yourself for asylum immediately,” said Sadrehashemi. If your claim is ultimately successful, then the convention holds that entering the country irregularly will not be held against you. 

A growing consensus

“I think it’s increasingly questionable whether we can consider the US a safe third country or a safe country for asylum seekers,” said Craig Damian Smith, associate director of the Global Migration Lab at the University of Toronto’s Munk School of Global Affairs. “But not just asylum seekers. I mean undocumented people, people with temporary protected status, people with DACA [Deferred Action for Childhood Arrival]. In that sense, we’re talking about estimates in the upwards of 12 or 13 million people in the US. From an irregular migration perspective, that’s quite troubling.”

His insight helps to explain that while the majority of migrants crossing overland across the southwestern border between the US and Mexico are coming from Central America, the top five birth countries of asylum seekers in Quebec — where 90 percent of irregular claimants are arriving into Canada — are Haiti, Nigeria, the United States, India and Saudi Arabia. In other words, migrants arriving in Canada are not just those fleeing their country of origin directly, but also include those who now feel threatened in the US. Many believe that they may have a better shot at obtaining asylum — with a view to permanent immigration status — in Canada than in the US.

When people with temporary protected status or asylum seekers who have made it to the US begin to see that US policy makes them feel unsafe, and decide they need to do something about it, Damian Smith said, they have a few choices.

One option is to engage in large-scale civil disobedience. He doesn’t think this is something we’re likely to see. “There are very few undocumented people that want to out themselves by becoming politically active, with a view that if you do that, very often they’re harassed or deported.”

This means considering different migratory choices. “They could go underground, which is what a lot of undocumented people already are,” he explained, “or they can choose a domestic migration option. In the context of the US, that would probably mean moving to a sanctuary jurisdiction. And then they can choose international movement. That could mean going back to their home country — which, for many of these people, is manifestly not an option — or it could mean going to a third country.”

There is concern that if the numbers of irregular crossings continue to increase, problems of exploitation, accidental deaths and profiteering may increase as well. Already, people are risking their lives to cross to Canada in the winter, or taking taxis to the border at highly inflated prices.

Damian Smith stopped short of saying that the STCA should be scrapped altogether, but noted that the weight of evidence suggests that the agreement “is in a pretty dangerous place.”

“I don’t think, at this point, we can confidently say that the US would be able to deal with their claims fairly or that [refugees] wouldn’t be sent back to danger,” he says.

Canadian policy under the microscope

When it comes to Canadian refugee policy, there is no guarantee that asylum seekers will be allowed to stay if their claims do not meet the legal requirements. They do, however, have the right to procedural justice.

Managing borders is essentially a federal responsibility. The asylum system is characterized by an interaction between Immigration, Refugees and Citizenship Canada (IRCC), Canada Border Services Agency (CBSA) and the Immigration and Refugee Board of Canada (IRBC). But the process is complicated and expensive, and the bulk of day-to-day settlement challenges falls on municipalities and provinces to address.

Those arriving into Canada must file a claim with the IRBC. Claimants can remain in Canada for at least as long as it takes the IRBC to determine whether they qualify as refugees. Currently, this can take up to two years.

While they wait for the board’s decision, they have access to government services, including social assistance, education and health care. In June, Ottawa announced $50 million in new funding to go toward temporary housing for asylum seekers in Canada. The province of Quebec will receive $36 million, Ontario will receive $11 million and Manitoba, $3 million. The Ad Hoc Intergovernmental Task Force on Irregular Migration has also indicated that $74 million of the $173 million allocated in the last federal budget to manage irregular arrivals at the border will be used to ramp up the processing of refugee claims by the IRBC. 

Nevertheless, temporary housing for refugee claimants in Montreal and Toronto is stretched to the limit. In Toronto, shelters are at capacity, and college dorms — where hundreds of claimants and their families are being housed temporarily — have set an Aug. 9 deadline to vacate.

There are increasing calls for Canada to do more to stem the tide of irregular migration, and to deal with the backlog of cases. According to reportsas of May 31, 2018, there were about 57,235 cases pending. In Ontario, the recently elected Progressive Conservative government under Ford charged Trudeau with creating a “mess” by welcoming “illegal border-crossers.” He said the pressure placed on local resources was the federal government’s fault, and insisted that Ottawa foot the bill for all costs.

In turn, Trudeau suggested Ford didn’t understand Canada’s legal responsibilities under the 1951 UN Refugee Convention. Federal Immigration Minister Ahmed Hussen also criticized Ford’s approach, saying his vocabulary around “illegal” migrants was inaccurate.

The federal Conservative opposition has called repeatedly on the Trudeau government to close the loophole by allowing the STCA to be applied along the entire length of the Canada-US border, not just at official border crossings. This measure would require Canadian officials to return most people back to the US to make a claim there. Critics of this plan suggest that it could incentivize smugglers and criminal networks who profit from interdiction measures to circumvent the STCA, putting asylum seekers at additional risk.

For his part, Hussen has said he has no intention of “tinkering” with the STCA, however, according to The Globe and Mail, Public Safety Minister Ralph Goodale told reporters this week that he and Hussen have asked the US for a review of the agreement.

"We need to increase the capacity of the immigration and refugee board permanently."

“I think the increasing funding for decision makers at the refugee board was a good move,” said Sadrehashemi. “There’s a recognition that we have increased numbers and we have to deal with that. But, ultimately, given now what we’re hearing out of the US, there has to be a re-evaluation of whether we really can continue to say that we’re confident that they can process these things in our stead, because that’s the whole point of the agreement.”

Despite the Trudeau government’s attempts to foster a positive relationship with Trump, the state of Canada-US relations is currently in a deep chill. There are disputes on major issues, notably related to trade and the economy. But many advocates see no reason why the US would object to Canada exercising its option for a temporary withdrawal from the agreement.  

What would be some of the implications of scrapping the STCA?

“First, it would mean more orderly border crossings, because people would be able to just go to land borders instead of having to cross irregularly. It would also be easier for the Canadian government to plan for the kinds of numbers we might see,” argued Sadrehashemi.

Damian Smith agreed that stopping irregular border crossings would have a positive outcome. But he noted that it could also potentially incentivize more people to start coming — something that would require significantly more resources. “We don’t know if that’s true or not, and that’s a really difficult political and humanitarian calculation to make.”

He believes Canada should aim for a durable solution.

“It needs to be dealt with in a rational and proactive way, not by using financial stop-gap measures,” said Damian Smith. “We need to increase the capacity of the immigration and refugee board permanently, and not have this backlog. We need to increase the number of shelter spaces permanently, because in Ontario and Quebec, asylum seekers are going to college dorms, emergency shelters, new Red Cross shelters. We need to put the federal and provincial monies toward building permanent capacity rather than ad hoc reactive measures.”

He also cautioned against calling this a crisis. “Crises are political constructions. We have the money, we’re a rich state, we’ve seen these numbers before. What’s unique now is the global political context around thinking about migrants and refugees, and we know that right-wing parties emulate one another across states.”

This broader global context, and how it may play out in Canada, is a factor to consider by those advocating for and possibly enacting policy changes in future, or for anyone looking to understand the issue from an international perspective.

Quebec, where the majority of asylum seekers are entering irregularly, is gearing up for its next provincial election on Oct. 1. The next federal election is in 2019. Could moves to repeal the STCA polarize political debate, and shift the momentum toward a more critical approach to immigration in general?

“It gives us a really epically troubling calculus between offering protection as is our moral duty and obligation under international law,” said Damian Smith, “and then worrying about the long-term effects of how irregular migration can be mobilized by populist politicians.”

The good news? “Canada is way ahead of the game in terms of civil society,” he continued, “in terms of reception capacity, in terms of experience and in terms of our legal system.”

“Across Canada we see a lot of popular support for immigration and providing asylum…we have this kind of culture of refugee protection that’s a large part of our identity,” he explains. “We have institutions and groups like the Canadian Council for Refugees, the Metropolis Conferences, the Canadian Association of Refugee Lawyers. We have advocacy groups.  We have a settlement sector which most states don’t have.”

Sadrehashemi holds a similar view: “Often we see refugees and migrants being used as a tool to elicit fear, and the idea that we have to be careful and the numbers are going to grow and we [must] protect Canada. Those sentiments can be used, and have been used, in previous elections. But ultimately, Canada has international obligations, and obligations under Canadian law as well, to provide protection when people come to our country and seek it. That’s the right thing to do.”