Paul Sancya/AP Photo
The Blue Water Bridge joining the U.S. and Canada at Port Huron, Michigan
On Wednesday, a Canadian federal court in Toronto ruled that the “safe third country agreement” between the U.S. and Canada violates Canada’s Charter of Rights. The bilateral pact requires that asylum seekers must apply for asylum in the first country where they arrive. It was first signed in the aftermath of the September 11 attacks as part of the U.S.’s effort to secure borders. It also means asylum seekers can’t seek protection in Canada if they come from the U.S.
The judge’s ruling pointed to the abuse asylum seekers experience in U.S. Immigration and Customs Enforcement (ICE) detention—especially as a result of being expelled from Canada because of the agreement. “Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa”—one of the plaintiffs—“in its efforts to adhere to the STCA,” Justice Ann Marie McDonald wrote.
Nedira Jemal Mustefa, a Muslim woman from Ethiopia, first arrived in the U.S. on a visitor’s visa for medical treatments. During her time in the U.S., attacks back home against her ethnic group, the Oromo, intensified, making it dangerous for her to return. But she did not fit any immigration or asylum category under U.S. law, so she was unable to seek asylum in the U.S.
Mustefa traveled north to Canada for refugee protection. But under the agreement, she was returned to the U.S., where she was immediately detained at Clinton County Correctional Facility in New York state.
Another family, a Salvadoran woman and her two daughters, faced gang violence, sexual violence, and persecution in their home country. The family, who are anonymous in the lawsuit, fled to the U.S. in November 2016, where they were also immediately detained and informed that they would be deported.
Released from the detention center prior to deportation, the family fled to Canada, seeking to make a refugee claim, but they were told their claim was ineligible under the safe third country agreement. Only a “stay of removal” order from the same judge allowed them to remain in Canada.
“When I read [the judge’s] comments that say ‘it shocks the conscience,’ that’s what we were all hearing in the courtroom,” said Janet Dench, executive director of the Canadian Council for Refugees, one of the groups behind the lawsuit. “How could your conscience not be shocked?” CCR was joined by Amnesty International and the Canadian Council of Churches in suing over the agreement.
The evidence, Dench said, came from a collaboration with partners and advocates in the U.S. who shared the horrors of the U.S. asylum system—particularly the detention system. “This treatment in the U.S. shocks the conscience of Canadians,” Dench continued, “What does it do to Americans?”
Evidence included in the lawsuit cited “routine detention in inhumane conditions” and the possibility of family separation imposed “to deter migrants from entering the US.” The ruling also pointed out that when asylum seekers are placed in detention, it’s more difficult for them to access counsel for success in court. The U.S. immigration system, by deporting asylum seekers, risks making Canada responsible for “refoulement”—meaning that because Canada returned asylum seekers to the U.S., which then deports those individuals, Canada, too, is responsible for their persecution and deportation under international law.
“The ruling was a pleasant surprise—not because the outcome was surprising based on the evidence, but because of the politics,” wrote University of Toronto law professor Audrey Macklin in an email.
The same advocates challenged the agreement in 2007, but were unsuccessful on a technicality. This time, advocates told me at the trial in November 2019, the plaintiffs included nine asylum seekers denied protection under the agreement, in addition to the human rights groups on the case.
The border agreement has a conspicuous loophole: Only asylum seekers who pass through official ports of entry into Canada are subject to the agreement’s guidelines. To evade the agreement, asylum seekers seeking safety in Canada via the U.S. have instead passed through farm fields in Manitoba or more famously via Roxham Road in Quebec. Prior to President Donald Trump taking office, so few people sought asylum in Canada from the U.S. that Canada did not keep official numbers. But since 2017, more than 40,000 asylum seekers have trekked north this way, fleeing Trump’s America.
Member of Parliament Jenny Kwan, an opposition figure who holds the “shadow cabinet” political post for immigration, refugees, and citizenship, called the decision an “important and significant victory for the rights of asylum seekers.” When the Prospect spoke with her last November during the trial, she emphasized that she would prefer to see the Canadian government suspend the agreement, rather than advocates’ having to litigate its demise. “Clearly, in my view, what’s happening in the U.S. indicates that the U.S. is no longer a safe third country,” she told the Prospect at the time.
The judge’s ruling pointed to the abuse asylum seekers experience in ICE detention—especially as a result of being expelled from Canada because of the agreement.
“The reality is that countries really are able to act with impunity and there’s no accountability and there’s nothing that has bite,” said Dench. “You can make complaints to international human rights bodies … [such as] making complaint to the Inter-American Commission [on Human Rights], but those findings don’t have force of law and the U.S. in particular is known for being resistant to listening to the judgments of other countries, even in a kind of collegial way.”
One of the Canadian government’s arguments defending the agreement was that without it, immigration would dramatically increase. But in the ruling, the judge pointed out that Canada has handled fluctuating immigration numbers in the past, and that, given the agreement’s loophole, the agreement hasn’t ended up preventing asylum seekers from making their way to Canada anyway.
“But the problem there is the politics,” says Craig Damian Smith, a researcher on migration and immigration at Ryerson University. “You have an American president that doesn’t give a shit about Canada but cares when he doesn’t get his way on immigration or international politics. And if he views this as a judgment on his policies, there’s the risk—just based on his track record with Mexico, Honduras, and Guatemala—that if he doesn’t get his way on an immigration matter there could be some retributive policies.”
Damian Smith noted that the only time Canada has remarked on American immigration policies was after the travel ban in January 2017 when Prime Minister Justin Trudeau tweeted, “Welcome to Canada.” After that, “the government just shut its mouth in terms of public pronouncements and … just worked kind of behind the scenes with the civil servants at DHS,” he added.
Canada’s welcoming attitude toward immigrants is well known, but Damian Smith pointed out that the country’s natural borders—two oceans and the United States as its southern border—insulate Canada from experiencing the level of migration that the U.S. or European Union states experience. Such a welcoming attitude includes, for example, four levels of appeal for asylum seekers. “Canada can’t have the level of checks and balances and the protection of rights that we have and comparable numbers to the EU states or the U.S.,” Damian Smith said. “How do you do that if everyone in the U.S. decides they want to claim asylum in Canada?”
The judge’s ruling won’t take effect for another six months, and it’s possible the government could appeal the decision. Such a delay is routine for Canadian courts when they strike down a policy matter.
The Canadian Council for Refugees and Amnesty International, two of the groups that sued the government over the agreement, have both asked the government not to appeal. “It’s very likely the government will appeal,” said Dench. “But maybe the U.S. can solve the whole problem by just withdrawing from the whole thing,” referencing the two countries’ ability to pull out of the pact, thus making the litigation moot.
But in the meantime, the pact remains in effect for the next six months. “The convenience of the government is valued highly compared to the real harms of the people affected,” she said.
