Safe Third Country Agreement

(See also the 2007 update.)

Despite wide reaching resistance in Canada and south of our border, the Canada-U.S. “safe third country” agreement was implemented on December 29, 2004. Canada now denies entry to refugee claimants who arrive via the U.S., and vice versa. Both governments argue that there is no need to offer a refugee hearing to asylum seekers who could have made their claim in a “safe” third country.

The problem with this argument is that the U.S. is not safe for many refugees. The U.S. detains asylum seekers more frequently than Canada, is more openly discriminatory in its treatment of Muslims and Arabs, and is less sympathetic to gender-based asylum claims. The December implementation date fell at a particularly bad time for refugees, with U.S. policy makers focused on security concerns and enforcement measures. It is expected that asylum reform will continue to be prominent on the U.S. legislative agenda, and that legislative changes may reflect an analysis linking refugees and terrorism. In this context, refugees face an increasingly uncertain future in the U.S.

Despite legislators’ focus on security issues, refugee advocates are concerned that the Safe Third Country Agreement will actually make the border less secure, pushing refugees to look for irregular ways of entering Canada, where they expect better treatment and a more sympathetic hearing. There is a strong potential for increased smuggling activity, exposing refugees to physical danger and economic exploitation.

While individual border officials are rising to the challenge and coalitions of service organizations are working hard to respond to the increased needs, there is a clear short-term need for new human resources to deal with the rush on the border. In the long term, careful monitoring of adverse affects on particular groups of claimants will be necessary to advocate effectively for the rights of refugees.

Is the U.S. Safe for Refugee claimants?

The problem with this Agreement is that the U.S. is not a safe place for refugee claimants. Its asylum law and procedures fall short of international law and do not provide the procedural safeguards to ensure adequate protection. For example, the decision of whether a refugee claimant has a credible fear of persecution is made by an officer of the same agency responsible for policing the border. This could lead to refugee claimants being denied protection, and being summarily removed from the U.S.

In addition, refugee claimants without identity documents must by law be detained, often in jails with criminals, without interpretation or access to state-funded legal counsel. The U.S. tends to detain people for immigration purposes much more frequently than does Canada, and in the year 2001 it was reported some 4000 minor-aged children were in detention, some in juvenile criminal facilities.

This Agreement denies what many believe to be a basic right; i.e. the right of a person in need of protection seeking it from the country where they believe they are most likely to get it. It also ignores other factors in choosing one's place of refuge, such as family and/or community ties, language ability, and cultural affinity.

Racial Profiling at the U.S. Border

Events taking place at the border post 9-11 heighten concerns that some refugees sent back to the U.S. will not be safe. U.S. border officials have interrogated, fingerprinted, harassed, photographed and detained Canadian citizens and landed immigrants of Middle Eastern and Muslim origin. The case of Maher Arar, a Syrian born Canadian citizen born detained by U.S. officials and deported to torture in Syria, has raised public awareness of the serious consequences of such racial profiling.
This begs the question: if U.S. immigration officials treat Canadian citizens of Middle Eastern and Muslim origin like criminals, how can Canada in good faith deem the U.S. to be a safe place for refugee claimants, a category of people without the protection of any government? Just as the Canadian Government must stand up to U.S. bullying tactics against Canadians, our Government must also protect the rights of the most vulnerable; the refugee claimants seeking protection at our border.

Differential Treatment of Gender-Based Claims

The Safe Third Country Agreement will negatively affect women with gender-based asylum claims. The treatment of gender-based persecution claims in the U.S. has not been consistent, and women who have been victims of violence are more likely to be recognized to be in need of protection in Canada than in the U.S.

The Canadian government has itself publicly acknowledged the unequal treatment given to refugee claimants in the US. In its 'Regulatory Impact Analysis Statement' contained in the Regulations to the Border Agreement, the government admits: “the proposed regulations will likely have differential impacts by gender and with respect to diversity considerations.”

A memorandum on the Citizenship and Immigration Canada website now attempts to refute claims that the Safe Third Country Agreement will negatively affect women with gender-based asylum claims. Yet the obvious contradiction between this and previous statements reveals the memorandum for what it is – a last ditch attempt to save face and preserve public faith in the humanitarian commitment of our government.

In reality, the Safe Third Country Agreement is an example of the Canadian Government's lamentable willingness to join a trend among industrialized nations, that of closing their doors to people seeking protection. This is in violation of our international human rights obligations, i.e. to uphold the right to seek asylum from persecution, as set out in the 1948 Universal Declaration of Human Rights, and the right not to be refouled, or forcibly returned, to a country where an individual faces serious harm. Nowhere in the 1951 Refugee Convention is there an onus on a person seeking asylum to claim in the first country in which they arrive.

For more information on the Safe Third Country Agreement see these external links:

 
Website design & development by Raised Eyebrow Web Studio