Safe Third Country Agreement

Classification: Unclassified

Branch/Agency: IRCC

Proposed Response:

• We are committed to protecting the safety of Canadians and keeping our border secure. At the same time, asylum seekers must be treated with compassion and afforded due process under the law.
• We continue to be in contact with the U.S. Government, including with the Department of Homeland Security and U.S. State Department, on issues related to our shared border, including the Safe Third Country Agreement.

If pressed on STCA litigation:

It would be inappropriate to comment on details of the consolidated cases as they are currently before the Court.

Background:

• The Safe Third Country Agreement (STCA), in effect since December 2004, requires that asylum claimants seek protection in the first safe country that they enter (i.e., either Canada or the U.S.). This concept is supported by the United Nations High Commissioner for Refugees (UNHCR).Therefore, claimants who are in the U.S. are expected to pursue their claim in the U.S., rather than seeking protection in Canada.  Similarly, those in Canada are expected to apply in Canada.
• The objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, reduce abuse and share responsibility for providing protection to those who meet the refugee definition.
• The STCA applies to asylum claimants who are seeking entry to Canada from the U.S. at a land port of entry. The Agreement does not apply to U.S. citizens or to those who arrive from the U.S. by sea or at an airport. It also does not apply to claims made by people who have entered Canada between the ports of entry. Persons who are not eligible to make an asylum claim at the land port of entry under the STCA are immediately returned to the U.S.
• The STCA contains several exceptions including: claimants with family in Canada; unaccompanied minors; holders of certain Canadian documents (such as visas or work or study permits); and public interest exceptions.
• Since 2017, asylum claimants have entered Canada irregularly (between port of entry) in increasing numbers to evade application of the Agreement, adding significant pressures to the in-Canada asylum system.
• The Government of Canada has been in continuous contact with the U.S. Department of Homeland Security and U.S. State Department, on issues related to our shared border, including our desire to modernize the STCA.
• At this time, we have not entered into formal negotiations on the STCA with the U.S.
• Immigration, Refugees and Citizenship Canada (IRCC) review and continually monitor the U.S., in accordance with the Immigration and Refugee Protection Act (IRPA) which outlines four factors to consider in designating a safe third country:
  1. whether the country is a party to the 1951 Refugee Convention and the 1984 Convention Against Torture;
  2. its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; 
  3. its human rights record; and
  4. whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.
• The purpose of monitoring is to ensure that the conditions that led to the initial designation of a country as a safe third country continue to be met.  
• In 2017, three applicants filed an application for leave and judicial review with the Federal Court challenging the STCA. The applications were consolidated.
• The hearing was heard November 4 to 8, 2019, and the Court has reserved its decision. While there is no timeline for when the Court will rule on the case, a decision is expected within six to 12 months.

Date modified:

2020-09-10