While initiating operational and policy changes in 2017, the German government also acknowledged that “there are ways to negotiate and improve an agreement on safe third countries that will work more effectively in the mutual interest of both countries.” 101 This is consistent with early signs in the 1990s and early 2000s that Canada was still open to further discussions with the United States on asylum, STCA and related issues.102 In 2019, the Prime Minister publicly directed the ministers concerned to continue working with the United States. on a new border enforcement strategy and the modernization of the STCA.103 However, as one researcher argued, “Canada must also consider the possibility that the United States will ultimately not want to change the agreement, even if it expresses a willingness to renegotiate.” 104 Since 1989 and the coming into force of the 1987 legislation discussed above, the federal government has monitored the number of refugee claims filed in Canada. These applications in Canada can be made either at a port of entry into canada or, within Canada, to an official of the Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC).76 Persons crossing the border between ports of entry are usually intercepted by the Royal Canadian Mounted Police (RCMP) and taken to a CBSA or IRCC office. to make a claim.77 The RCMP does not take enforcement action “against refugee claimants under section 133 of the Immigration and Refugee Protection Act.” 78 For that reason, those who cross the border between ports of entry are generally referred to as irregular frontier workers. As noted earlier, the Canada-U.S. Safe Third Country Agreement applies only to refugee claimants who wish to enter Canada at land ports from the United States. However, in 2008, the Federal Court of Appeal reversed this judgment and concluded that the designation of a safe third country cannot be subject to judicial review as long as the federal Cabinet duly considers the four factors referred to in section 102(2) of the IRPA66 and accepts that the country concerned is safe.67 In addition, Cabinet`s obligation to: The ongoing review of the STCA must be specific to all four factors and not necessarily to U.S. compliance in absolute terms. Finally, the Federal Court of Appeal found that there was no factual basis for assessing the Charter claims because the refugee claimant in question had not attempted to enter Canada. In 2017, the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International Canada, along with a Salvadoran woman with her children,70 filed another lawsuit in federal court over the designation of the United States as a safe third country for refugees. The organizations argued that the U.S. asylum system and immigration detention regime do not meet the required international and Canadian legal standards, particularly since the Trump administration took office in January 2017.71 They argued that this situation entails a significant risk of detention and illegal return to a country where an asylum seeker would be persecuted (rejected) and other rights violations.
The CCR continues to urge the Canadian government to withdraw from the Safe Third Country Agreement. The CCR participated in a legal challenge to the classification of the United States as a safe third country shortly after it came into force. The Federal Court ruled that the United States is not a safe third country, but the decision was overturned on appeal for technical reasons (see here for more information). In addition to meeting the exemption criteria under the agreement, asylum seekers must continue to meet all other eligibility criteria of the relevant immigration legislation for the country in which they are applying for status. While refugee claimants entering Canada at official border crossings are usually returned to the United States, they would not be returned if they were crossing at locations between designated ports of entry; In this case, their demands will be heard, and many immigration experts see this as a loophole in the deal. [6] [7] Section 102 of the Immigration and Refugee Protection Act (IPA) allows for the designation of safe third countries for the purposes of shared responsibility for refugee claims. Only countries that respect human rights and offer asylum seekers a high level of protection can be classified as safe third countries. This concept has continued to expand and evolve over time, notably through the Dublin Convention, which was originally ratified by the first 15 members of the European Union (EU) and entered into force in 1997. Under the Dublin Convention, all EU Member States have been designated as safe countries for refugees. The Dublin Convention established comprehensive criteria for determining which country would be responsible for examining asylum applications. The general rule of the Dublin Convention was that the first country into which an asylum seeker entered is responsible for assessing the application.
However, as in the case of the Canada-USA Stca, this general rule was subject to several exceptions, including for situations where the applicant had close family members in another EU country. The aim of the Dublin Convention was to reduce the number of asylum seekers in several countries, including for economic or other reasons unrelated to their need for protection.44 Since the Dublin Convention, there have been two new iterations of legislation, the most recent being the 2014 Dublin III Regulation. The objective remained the same, namely to identify “the EU country responsible for examining an asylum application on the basis of a hierarchy of criteria such as family unity, possession of residence documents or visas, illegal entry or stay and visa-free entry”. 45 Despite all these political and operational changes, the main topic of public discourse is the future of the Canada-U.S. stca. Since 2017, there have been many calls for his suspension, while others have lobbied for his claim, regardless of how a refugee claimant enters Canada.97 Given the Federal Court`s finding that the STCA is unconstitutional, the STCA will expire in 2021. However, it is possible that the government will succeed in its appointment or that Parliament will pass new laws that could open up opportunities to renegotiate a constitutional version of the agreement. The Federal Supreme Court`s 2020 conclusion that the STCA is unconstitutional has the potential to permanently terminate the agreement. Nevertheless, it is possible that a version of the STCA will continue to exist, either because of a successful appeal to a superior court or through new laws that are constitutional. The following section aims to clarify several issues related to Canada and the United States. STCA which have been the subject of public debate in recent years, including the number of asylum seekers and the possible renegotiation of the agreement. .