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Article Canada: Asylum Claims along Entire Canada-US Border Now Subject to Safe Third Country Agreement

On March 24, 2023, in the context of the first official visit of U.S. President Joe Biden to Canada, both countries announced the implementation of an additional protocol to the Safe Third Country Agreement (STCA) that extends its application to the entire land border and much of the water borders between the United States and Canada. Previously, its application was limited to official ports of entry and transit airports. Canada also agreed to accept 15,000 migrants from the Western Hemisphere.

The STCA provides that persons seeking asylum must make that claim in the first country they reach, and that once a claim is adjudicated, the claimant cannot go to the other country and make another claim there, with the claimant being returned to the country they entered from. There are certain exemptions — for example, unaccompanied minors. The agreement was first implemented in 2004 after being signed in 2002 as part of the U.S.-Canada Smart Border Action Plan. Under the agreement, the United States is designated as a “safe third country” under section 102 of the Immigration and Refugee Protection Act (IRPA), and is based on four factors:

1. The United States being a party to the 1951 Refugee Convention and the 1984 Convention Against Torture.
2. Policies and review processes with respect to claims under the conventions.
3. The human rights record and independent judiciary of the United States.
4. The existence of an STCA.

To date, the United States is the only country designated as a “safe third country” under IRPA.

The additional protocol extending the application of the STCA to points between official ports of entry was negotiated in response to irregular border crossings by migrants at unofficial crossings, most notably Roxham Road at the Quebec-New York border south of Montreal. From January 2017 to December 2022, 81,148 refugee protection claims were made by irregular migrants, with the top five source countries being Haiti, Nigeria, Colombia, Turkey, and Pakistan. The migrants were intercepted at the border and then largely released into Canada pending adjudication of their claims. The government of Quebec expressed concerns at being forced to take in a disproportionate share of the migrants and providing them with social services. Quebec called on the Canadian federal government to renegotiate the STCA and lobbied the U.S. government to do the same.

The additional protocol was signed in Ottawa and Washington in March and April of 2022 respectively, but was not announced until the day before its entry into force following an exchange of diplomatic notes. According to news reports, the delay in its implementation came because of U.S. regulatory delays and the necessary multiagency consultations. The signing of the additional protocol was not announced by Canada to prevent a rush of asylum claims at the border before its entry into force.

The constitutionality of the STCA is currently before the Supreme Court of Canada, with the Canadian Council for Refugees arguing that Canada should have reviewed the inclusion of the United States as a “safe third country” because, in its view, “key aspects of US asylum law and practice are contrary to the Refugee Convention and other international human rights protections.” The appeal was heard in October 2022, with a decision forthcoming.

Michael Chalupovitsch, Law Library of Congress
April 6, 2023

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Chicago citation style:

Chalupovitsch, Michael. Canada: Asylum Claims along Entire Canada-US Border Now Subject to Safe Third Country Agreement. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-04-05/canada-asylum-claims-along-entire-canada-us-border-now-subject-to-safe-third-country-agreement/.

APA citation style:

Chalupovitsch, M. (2023) Canada: Asylum Claims along Entire Canada-US Border Now Subject to Safe Third Country Agreement. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-04-05/canada-asylum-claims-along-entire-canada-us-border-now-subject-to-safe-third-country-agreement/.

MLA citation style:

Chalupovitsch, Michael. Canada: Asylum Claims along Entire Canada-US Border Now Subject to Safe Third Country Agreement. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-04-05/canada-asylum-claims-along-entire-canada-us-border-now-subject-to-safe-third-country-agreement/>.