Canada Upholds Safe Third Country Agreement with U.S.

Today the Supreme Court of Canada upheld the Safe Third Country Agreement between the United States and Canada. Under the agreement, people who request asylum at the U.S.-Canada border can be turned away by immigration authorities under the shaky premise that both the United States and Canada are safe for refugees, and individuals should apply for protection in the first country they reach. Since the agreement’s inception in 2004, most asylum seekers entering Canada through official ports of entry have been sent back to the United States. The countries recently expanded the agreement’s application to individuals forced to cross between ports of entry, allowing even more people to be denied the opportunity to seek asylum in Canada.

Canadian refugee advocates have brought multiple lawsuits challenging the legality of the Safe Third Country Agreement. Professor Karen Musalo, Director of the Center for Gender & Refugee Studies (CGRS), has appeared as an expert witness in this litigation, providing testimony on the U.S. government’s failure to protect refugees against refoulement (return to persecution). In 2020 a trial court ruled the agreement unconstitutional, finding it to violate asylum seekers’ rights to “life, liberty, and security” under the Canadian Charter of Rights and Freedoms. The Canadian government appealed, and the court’s decision was set aside.

“It is hard to understand how the Canadian high court could uphold the agreement, which is based on the premise that the United States is a safe third country for asylum seekers,” CGRS Director Professor Karen Musalo said today. “By no objective assessment can the United States be considered a ‘safe country’ for people seeking safety. The Biden administration has embraced policies that deprive refugees of their right to seek protection, resulting in their unlawful return to countries where they face persecution and torture. Last month the administration unveiled its most far-reaching attack on asylum yet, a sweeping ban that precludes most people seeking safety at the U.S.-Mexico border from protection, in violation of our laws and treaty obligations to refugees. That policy has been roundly denounced by the UN Refugee Agency and is the subject of a legal challenge brought by CGRS and our partners.”

“Those lucky few who are able to avoid the new asylum ban encounter due process violations and other barriers at every step of the U.S. asylum process,” Musalo continued. “The Biden administration has introduced policies that fast-track deportations of refugee families and children and has doubled down on the incarceration of those seeking safety. As a result of the administration’s inaction, which has failed to address years of adverse adjudication of gender claims, U.S. asylum law also remains woefully out of step with international standards and lags behind Canadian law when it comes to the protection of women and girls fleeing gender-based violence. The Canadian Supreme Court has sent the case back to the trial court to consider this issue and decide whether the Safe Third Country Agreement violates gender equality rights. CGRS will continue to support our Canadian colleagues in their pursuit of justice for people seeking refuge from gender-related persecution and other human rights abuses, who deserve a fair and meaningful opportunity to seek asylum.”