Will Canada Suspend Its Safe Third Country Agreement With the United States?


This week, a Canadian federal court in Toronto will hear a challenge to the U.S.-Canadian Safe Third Country Agreement, which recognizes both nations as safe for refugees. Like Europe’s Dublin Regulation, the agreement, which went into effect in 2004, stipulates that refugees must claim asylum in their country of first arrival. In practice, its purpose is to limit the flow of people from the United States to Canada, which has a more permissive asylum system. It only applies to official border crossings, which means that those who enter Canada between official border posts will not be returned to the United States.

Human rights groups originally challenged the Safe Third Country Agreement in 2005 on the grounds that it abrogated the rights of an anonymous asylum-seeker in the United States who feared removal to Colombia, where the person would face persecution. The John Doe in the case never sought protection in Canada, given the perception that the third-county agreement would bar them from entry. The challenge was eventually denied by an appeals court.

The new challenge, brought by Amnesty International, the Canadian Council for Refugees, and the Canadian Council of Churches, revolves around the cases of people who were refused entry and claims that U.S. policies under President Donald Trump have fundamentally changed the situation. It cites Trump’s one-year bar on claiming asylum, removals of asylum-seekers to unsafe countries, unlawful detentions, the barring of asylum claims based on gender and gang violence, criminalizing asylum at the border, and inconsistent access for asylum-seekers to courts.

The challenge comes after an election that saw Canada’s ruling Liberals reduced to a minority government and in the midst of a two-year spike in asylum-seekers crossing into Canada from the United States. Since the spring of 2017, almost 50,000 people have claimed asylum at Roxham Road on the New York-Quebec border. Although the total is negligible in comparison to other refugee-receiving countries, it represents a doubling of yearly asylum claims over 2016. While only 23,894 people claimed asylum in 2016, 50,390 claimed in 2017, and 55,025 in 2018. Although the flow has steadied in the last six months, the political impacts of the trend—in particular straining Canada’s ability to house refugees and hear refugee claims, generating criticisms from opposition parties including the Conservatives, and raising questions about burden-shifting between cities and provinces—revealed Canada’s vulnerability to spillover from U.S. asylum policies.

As part of an 18-month research project to investigate the relationship between U.S. policies and irregular migration, our team at the University of Toronto and York University conducted one-hour interviews with almost 300 asylum-seekers from over 50 countries, all of whom crossed at Roxham Road. Roughly 40 percent had resided long-term in the United States before their journey to Canada. Their interviews show how U.S. policies push people northward.

Abdi, a 30-year-old man from Turkey, arrived in the United States in 2012 to study English and later worked at a Turkish consulate. He was fired because of social media posts he made after the attempted coup against Turkish President Recep Tayyip Erdogan in 2016, and his visa eventually expired. Abdi is HIV-positive, and he began to fear hospital visits. “After Trump,” he told us in January, “they were asking for ID and insurance. I told them I’m sick, but they said, ‘We’re trying to figure out if you’re illegal.’”

Abdi drifted between odd jobs, lived in his car, and ran out of money for anti-retroviral medication. One day, a close friend was deported to Turkey, he said: “Immigration police came to his house and took him. Just like that, he was gone.” Abdi felt he could no longer stay in the United States, and he knew that he would be arrested in Turkey. Although he had long been aware of the Roxham Road route into Canada, his friend’s deportation triggered his decision to try it. Abdi’s experience is typical.

Dana is 38 and from El Salvador. She left in 2006 with her son to join her husband in the United States, who had fled threats from Salvadoran gangs two years earlier. She found work, had a U.S. citizen child, and her older son was given protection under the Deferred Action for Childhood Arrivals program. Her husband was arrested in 2011 but was eventually granted a work permit. They felt a sense of normalcy.

“While Obama was deporting more, his humanitarian policies let people work if they didn’t have criminal records,” she said. But things changed after 2016, when Trump was elected: “If you got pulled over for a light out or something like that, they used to let you go. Now, they’re going to deport you.” Agents from U.S. Immigration and Customs Enforcement (ICE) officers started roaming their neighborhood. “In the factories we were all Latinos. They were rounding up people. It was a trauma for us,” Dana said. Her husband went to his yearly ICE check-in in 2017 and was told that his work permit would be allowed to expire. They went to a shelter for undocumented people and then made the trip to Canada. They were granted asylum in Toronto in late 2018.