THE STCA AND CANADA

The Safe Third Country Agreement (STCA) is a treaty between Canada and the US. It was implemented in 2004 and requires asylum seekers to claim in the first “safe” country they arrive in. This means that if a person goes through the US and attempts to claim at the Canadian border they will be “returned” or removed to the US.

When it was first implemented, the STCA loosely complied with international agreements such as the Geneva Convention and the Convention on Refugees by allowing for irregular claims by asylum seekers. Roxham Road (which stretches between New York and Quebec), was an irregular crossing point which complied with international responsibility and allowed asylum seekers to claim in Canada. In March 2023, this crossing was outlawed, closing crucial access points for the most vulnerable populations. What replaced it is known as the “14 day rule.” Once an asylum seeker has entered, they can only file an asylum claim after 14 days of being in Canada without being detected by law enforcement. This rule, by nature, encourages human smuggling and forces asylum seekers to traverse extremely dangerous terrain to enter Canada. 

The concept of the US being designated a “safe” country has been challenged many times in various levels of court given the socio-political environment in the US. 

TIMELINE

• December 5, 2002: Canada and the United States sign the Safe Third Country Agreement as part of the U.S.–Canada Smart Border Action Plan.
• December 2004: STCA enacted 
• November 29, 2007: The Federal Court of Canada rules that the STCA violates refugee rights, stating that the United States does not meet the conditions required to be considered a "safe country" under the agreement. 
• June 27, 2008: The Federal Court of Appeal overturns the 2007 decision, reinstating the STCA.
• February 5, 2009: The Supreme Court of Canada denies leave to appeal the Federal Court of Appeal's decision, effectively ending this legal challenge and allowing the STCA to remain in effect.
• July 2017: The Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches file a legal challenge in the Federal Court of Canada, arguing that the STCA violates the Canadian Charter of Rights and Freedoms  
• July 22, 2020: The Federal Court rules that the STCA is unconstitutional, citing that the agreement results in ineligible refugee claimants being detained by U.S. authorities, which violates Section 7 of the Canadian Charter of Rights and Freedoms.  
• April 15, 2021: The Federal Court of Appeal grants the Government of Canada's appeal, overturning the 2020 Federal Court decision. Consequently, the application of the STCA at Canadian and U.S. land ports of entry remains in effect.
• March 24, 2023: Canada and the United States announce the expansion of the STCA to apply to the entire border, effectively closing unofficial crossings like Roxham Road. These policy changes introduced the 14 day rule.
• June 16, 2023: The Supreme Court of Canada upholds the constitutionality of the STCA, ruling that the agreement does not breach Section 7 of the Charter of Rights and Freedoms. However, the Court refers the argument concerning potential violations of equality rights under Section 15 back to the Federal Court for further consideration

Despite these attempts, the STCA has remained

NOT “LOOPHOLES”

Many media outlets labeled these unofficial crossing points as "loopholes," using this narrative to push for stricter border closures. In reality, these routes were never loopholes—they were lifelines. For those with no other option, dangerous crossings like Roxham Road represented a path to safety and hope. These unofficial crossings existed because of Canada’s legal duty to uphold international obligations and provide asylum seekers with a chance at protection.

Both the 1951 Refugee Convention and the Geneva Conventions establish legal obligations for signatory states to provide accessible avenues for asylum seekers to claim protection. This means that policies which allow irregular claims regardless of the STCA are necessary to ensure compliance with international law and protect refugees from refoulement. It also means that the rules laid out in the STCA must be mindful of international obligations.

The obligations layed out in the Refugee Convention differ immesely from those in the STCA. The Convention does not recognize the idea of a “safe third country” and therefore the prohibits the penalization of asylum seekers for irregular entry so long as they have a well founded claim. The STCA, in many ways, disregards this, requiring unofficial crossings in order to comply with the Refugee Convention. 

Article 45 of the Geneva Convention prohibits transfering individuals to countries that could pose a danger to them (persecution, harm, etc). The US and Canada have vastly different policies regarding asylum seeking. As a result, there are a number of cases that would be accepted in Canada but denied in the US. However, under the STCA a large number of eligible newcomers get turned back to the US where they face guaranteed rejected claims, migrant detention in ICE facilities, and as of late are vulnerable to transfers to Guantanamo Bay. These obligations are why unofficial crossing points like Roxham Road existed.

In March 2023, the application of the STCA to the entire border posed a risk to violating the Geneva and Refugee Conventions. The 14 Day Rule was implemented as a means of maintaining an avenue for irregular asylum seeking. The rule is not a fair or equal replacement for Roxham Road and other unofficial crossing points as it offers a more dangerous journey and can force asylum seekers to turn to smugglers for help. The dangers created by the 14 day rule continue once asylum seekers have crossed the border, preventing access to potentially life saving healthcare.

When unofficial crossings were closed in March 2023, Canada committed to resettling 15,000 Colombian, Venezuelan, and Haitian nationals in the western hemisphere in efforts to mitigate the fallout caused by the policy change. This was facilitated through Safe Mobility Offices (SMOs), facilitated by the US. SMOs are online offices which allow individuals from preapproved nationalities to apply to claim refuge. The 15,000 figure was downgraded to 11,000 with the rest being allocated for Temporary Foreign Workers. It is unclear how many of the 11,000 have received positive decisions and arrived in Canada.  

The Safe Third Country Agreement is a dangerous and irresponsible agreement which endangers the lives of many marginalized individuals and families fleeing real persecution. It disregards the international agreements which for so long have acted as the moral compass of Canada’s immigration efforts. When we lose our morality we open ourselves up to dangerous and detrimental possibilities. 

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THE NEED FOR ADDITIONAL EXEMPTIONS: 

There are few asylum seekers who fall into the extremely limited category of exceptions to the STCA. Asylum seekers who meet this criteria must present themselves at the border and provide proof of meeting the exception requirements.

• Immediate family (parents, siblings)
• Unaccompanied minors
• Visa holders
• Public interest cases

The category of “public interest” is general, vague, and sets no clear precedent for CBSA officers to refer to. The US and Canada have different policies regarding asylum seeking. Due to this, there are a number of cases that would be denied in the US but accepted in Canada. Cases that generally get denied in the US:

• Domestic violence/gender-based persecution
• Gang violence 
• LGBTQ persecution

 Without a clear list of case-types to refer to, many cases eligible under the “public interest” category get denied entry and returned to the US where their claim will only be denied, resulting in detention and/or deportation. Knowing this, Canada must allow claimants who meet these criteria have their claim heard in a country which recognizes the danger in these case-types. 

THE REALITY OF OUR SYSTEM

Canada’s border and asylum policies are headed in a scary direction which has grave implications for our nation’s upholding of international law. Government policies are decorative and ineffective, focusing on deterrent, bandaid solutions instead of adjusting to make our reality work for Canadian society. Asylum seekers will continue to try to get to safety, Canada’s responsibility is to ensure there are safe avenues to claiming asylum.

Our current system is extremely dangerous and is arguably responsible for many horrific deaths. Our country should be a symbol of hope and opportunity - not danger and uncertainty. While publicly stating that Canada does not support smuggling of people, we are guilty of encouraging these tactics through our deterrent policies, creating more and more hurdles to accessing safety and penalising those who attempt it.

TAKE ACTION

While The Refugee Centre joins calls for the suspension of the STCA, recent conversations about closing the border altogether demands attention. For that reason, we are calling for:

• Expansion of the exceptions to the STCA to include cases that are not seen by the US system and take into consideration current political realities in the US.
• The creation of Canadian facilitated Safe Mobiity Offices (SMOs) to facilitate the arrival of asylum seekers. The eligible nationalities must be expanded to reflect the nationalities that cross irregularly at higher rates in Canada.

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