Asylum Claimants, Irregular Migration and the Safe Third Country Agreement
Issue
As of November 21, 2021, pandemic border restrictions under the Quarantine Act that prevented foreign nationals from claiming refugee status after entering Canada between land ports of entry are no longer in effect. As a result, asylum seekers are once again accessing the route to Canada at Roxham Road in Saint-Bernard-de-Lacolle.
Response
- The CBSA is committed to preserving the integrity of the immigration system, a mandate it shares with IRCC. The CBSA works with other government departments, such as the RCMP, to keep the border secure and support orderly border management.
- During this pandemic, the Government of Canada had an agreement with the U.S. to direct back any foreign national seeking to enter Canada between Ports of Entry.
- Pandemic border restrictions implemented under the Quarantine Act preventing foreign nationals from claiming refugee status after entering Canada between land ports of entry expired on November 21, 2021.
The Safe Third Country Agreement (STCA):
- Since 2004, the STCA between Canada and the U.S. has helped both governments better manage access to the refugee system for foreign nationals crossing the Canada-U.S. land border.
- The STCA requires refugee claimants to request refugee protection in the first safe country they arrive in unless they qualify for an exception to the Agreement.
Statistics for 2021 since November 21, 2021:
- 1,208 individuals came to Canada to claim asylum. Of those, 606 arrived between official ports of entry and 602 arrived at an official port of entry.
- Of the 602 individuals who arrived at an official port of entry to make an asylum claim, 81 met an exception under the STCA.
Background
Border security and integrity is a shared mandate between the CBSA and the RCMP. The CBSA is responsible for enforcement at official Canadian ports of entry (POEs), while the RCMP is responsible for enforcement between POEs.
The STCA was signed in 2002 by Canada and the U.S. and has been in effect since December 2004. Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception. People 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.
Since 2017, 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.
The STCA’s objectives
The primary objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, and share the responsibility for protecting people who fit the official definition of “refugees”.
The mandates behind the STCA
The CBSA and Immigration, Refugees and Citizenship Canada (IRCC) share a mandate of preserving the integrity of the immigration system. Together, the CBSA and IRCC administer the Immigration and Refugee Protection Act (IRPA), which governs the admissibility of people into Canada, and the identification, arrest, detention and removal of people who are inadmissible.
The STCA under the Quarantine Act
Without going against Canada’s international obligations with respect to non-refoulement, the Order in Council issued under the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) also supported the continued application of the Safe Third Country Agreement at designated land ports of entry in accordance with theIRPA. This means that those who met one of the narrow exceptions or exemptions in the OIC were permitted to enter and apply for refugee protection.
While the OIC contained a prohibition against entry for the purpose of making a refugee claim at any other location (including airports, marine ports, and between official ports of entry), the prohibition was not included in the current OIC which came into effect on November 21, 2021.
Who the STCA applies to
The STCA generally 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 and stateless persons residing in the U.S. or to those who arrive from the U.S. by air (with the exception of some people being deported from the U.S. through Canada), or by sea.
The Agreement does not apply to anyone who meets an Agreement exception, such as:
- people who have a family member in Canada;
- unaccompanied minors;
- people who hold a valid travel document issued by Canada or who are from a visa-exempt country for Canada but require a visa to enter the U.S.; and
- people who meet the public interest exception.
It also does not apply to claims made by people who entered Canada between ports of entry.
Recent Litigation - Federal Court of Appeal decision
The Federal Court rendered a decision on litigation challenging the STCA in July 2020. The Court found that the STCA and section 159.3 of the Immigration and Refugee Protection Regulations violated section 7 of the Canadian Charter of Rights and Freedoms. The Government’s appeal and the cross appeal were heard by the Federal Court of Appeal (FCA) in February 2021 and the decision was delivered on April 15, 2021.
- The FCA allowed the Government’s appeal, dismissed the appellant’s cross appeal, and dismissed the legal challenges brought against the STCA regime. The practical effect of the decision is that the STCA remains in effect with no changes at this time. On June 14th, 2021, the Canadian Council for Refugees et al submitted their application for leave to appeal against the FCA decision to the Supreme Court of Canada (SCC). The SCC decision is pending.
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