Parliamentary Committee Notes: Asylum Claimants, Irregular Migration and the Safe Third Country Agreement

Date: April 28, 2022
Classification: Unclassified
Fully releasable (ATIP)? Yes
Branch / Agency: SPB, IEB / CBSA

Proposed Response:

Asylum Claimants:

Safe Third Country Agreement:

Statistics from November 21, 2021 to April 26, 2022:

Background:

Border security and integrity is a shared mandate between the CBSA and the RCMP. The CBSA is responsible for enforcement at designated Canadian POEs, while the RCMP is responsible for enforcement between POEs. The RCMP then escorts people crossing between the POE to the nearest CBSA POE. The closest POE to Roxham Road near Montreal is Saint-Bernard-de-Lacolle.

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 a claim for refugee protection at the land POE 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, and provides the legal foundation for Canada’s refugee and asylum system. Continued investments in the asylum system have been provided through recent Budgets.

The STCA under the Quarantine Act

Without going against Canada’s international obligations with respect to non-refoulement, (i.e. forcing asylum seekers to return to a country in which they would be at risk of persecution), the Order in Council (OIC) 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) supported the continued application of the STCA at designated land POEs 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 POEs), the prohibition was not included in the OIC that came into effect on November 21, 2021.

Who the STCA applies to

The STCA generally applies to refugee claimants who are seeking entry to Canada from the U.S. at a designated land POE. 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 STCA does not apply to anyone who meets an exception, such as:

It also does not apply to claims made by people who entered Canada between POEs.

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 upheld the validity of the Agreement and 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). On December 16, 2021, the SCC granted the application for leave to appeal.

Contacts:

Approved by: Scott Millar, Vice-President, Strategic Policy Branch
Approved by: Scott Harris, Vice President, Intelligence and Enforcement Branch

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