Canadian High Court Reaffirms Safe 3rd Country Pact With America

One of the key pieces of the immigration puzzle for the U.S. and Canada is the Safe Third Country Agreement. Under that agreement, refugee claimants are required to request refugee protection in the first safe country they arrive in. The agreement was signed to manage refugee claims in a coordinated and efficient manner while discouraging abuse and ensuring the fair treatment of individuals seeking protection. More specifically, it was designed to prevent forum shopping and to avoid wasting resources on duplicated claims filed in the two jurisdictions. Recently the terms of the agreement were put to a test when the Supreme Court of Canada was called on to consider the way the United States treats refugees and questioned the fairness of its system.

Eight refugee claimants from Ethiopia, El Salvador, and Syria, and several advocacy groups, challenged the agreement back in 2017, alleging that the U.S. poses a risk of detention, return to persecution or torture in other countries, and other rights violations. The claimants also feared gender-based violence from gangs in their countries of origin. The case escalated all the way to the Canadian high court that recently made its decision.

Canadian Supreme Court Supports Agreement

In an 8-0 ruling, the Supreme Court upheld the agreement by ruling that it does not violate the Charter rights to liberty and security, and also has safety valves that permit some people to make their claims in Canada. In defending the agreement, the Canadian federal government argued that Canada and the U.S. are “two democratic countries with a shared commitment to human rights and the rule of law,” and that the agreement “enables both countries to strengthen the integrity of the institution of asylum and the public support on which it rests.” Apparently, that argument found favor in the high court. As to whether the agreement abrogated women’s rights to equality under Canada’s Charter of Rights and Freedoms, that matter was sent back to a lower court for a later ruling.

When the agreement was first challenged in Canadian courts in 2017, America was under the Trump administration. At the time, the pact did not cover thousands of migrants who crossed into Canada at Roxham Road in Quebec and other irregular places that were not official entry points. The agreement was expanded in March of this year to cover all border crossings. But back in 2017 and thereafter, many Canadian jurists had growing apprehensions about the way refugees were being treated in the United States under the Trump presidency.

Some Concerns

For example, the Trump administration introduced a “travel ban” that restricted entry into the United States for citizens of several predominantly Muslim-majority countries potentially diverting refugee flows towards Canada as individuals sought alternative avenues for protection. It introduced the “Remain in Mexico” policy (officially known as the Migrant Protection Protocols), which required certain asylum seekers to wait in Mexico for their U.S. immigration court hearings again increasing the likely flow of asylum cases to Canada. The Trump administration also sought to end the Temporary Protected Status (TPS) program for El Salvador, Haiti, Honduras, and Sudan leading to concerns that affected individuals might seek refuge in Canada. These and more generally the less supportive measures being implemented by the U.S. administration against migrants in America at the time were alarming many pro-immigrant voices here and in Canada.

In essence, the Canadian Supreme Court case was a test of the level of civility witnessed in the United States during the Trump years and thereafter. The issue boiled down to whether or not America remained a democracy, whether it honored its international obligations, and whether it respected the human rights of immigrants in its midst. Could America be relied on as an equal partner when it came to respecting due process in dealing with refugee claimants? These issues were more acute when President Trump was in power but receded in significance with the election of the Biden administration.

Still Hope For America

It is important that the Canadian Supreme Court ruled unanimously in favor of upholding the Safe Third Country Agreement as if to reaffirm Canadian faith in America. An important point made by a lower court earlier in the Canadian legal proceedings was that the evidence of abuse of migrants coming to America was too thin yet to draw broad negative conclusions about the entire U.S. system. In a sense, that is what many observers of the American treatment of migrants coming across the southern border feel today as well. There is still hope that America can get it right. But more effort and goodwill are needed from all sides.