Is the USA Still a Safe Third Country? Canadian Council for Refugees v. Canada (Citizenship and Immigration)

In 2002, Canada and the United States established the "Safe Third Country Agreement" (STCA) as a bilateral treaty. This agreement states that refugee claimants must seek protection in the first country they enter after leaving their home country. Recently, the Supreme Court of Canada addressed concerns regarding the Immigration and Refugee Protection Regulations (IRPR) - designating the United States as a safe third country and its impact on the rights of refugee claimants. Let's take a closer look at this issue….

Background

The STCA, incorporated in Canada's Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR), requires refugee claimants to seek asylum in either Canada or the United States, depending on where they first arrive.

*There are exceptions to this rule.

If a claimant arrives at a land port of entry from a "safe third country," they are ineligible to claim refugee status in Canada. The logic here is that the USA is a safe country to claim refugee status in. Therefore, there is no need for a refugee to enter the US and then come to Canada to apply for refugee status - and visa versa.

The Case:

Canadian Council for Refugees v. Canada (Citizenship and Immigration) challenged the legitimacy of this STCA. The appellants in this case are refugee claimants who arrived in Canada in 2017 from the United States. They argued that the IRPR designating the United States as a safe third country violates their rights under the Canadian Charter of Rights and Freedoms. They claimed that Canadian immigration officers return refugees to the United States without considering whether their rights, including those related to non-refoulement and detention, will be respected. They also raised concerns about the denial of refugee status for women facing gender-based persecution in the United States.

Court Proceedings:

In 2020, a Federal Court judge ruled that the Regulation violated section 7 of the Charter, which guarantees liberty and security of the person. The judge found that there were risks of refoulement, detention, and poor detention conditions faced by claimants returned to the United States. However, the Federal Court of Appeal set aside the judgment, stating that the challenge should have targeted Canada's action or inaction in reviewing the United States' designation as a safe third country. The Supreme Court considered the case and made its decision.

Supreme Court's Decision:

The Supreme Court partially allowed the appeal. Justice Kasirer stated that the Regulation designating the United States as a safe third country does not violate section 7 of the Charter. However, he acknowledged the concerns raised about the treatment of refugee claimants in the United States, including the risk of detention and certain detention conditions. He also recognized that there may be a risk of refoulement due to certain U.S. policies.

The Way Forward:

Justice Kasirer emphasized that the legislative scheme is acceptable because it provides ways for Canada to consider refugee status claims in situations where ineligibility under the scheme would lead to deprivations of liberty or security of the person. These "safety valves" include discretionary exemptions based on humanitarian and compassionate or public policy grounds, ensuring compliance with the principles of fundamental justice. Although there may be instances where administrative decision makers do not appropriately apply these safety valves, the legislation itself remains valid. In such cases, individual administrative and Charter relief options are available.

Author:

Chantel Hamel, BA, RCIC

Work Cited:

https://www.scc-csc.ca/case-dossier/cb/2023/39749-eng.aspx#cdnlaw