Research publications

Contents

• Executive Summary
• 1 Introduction
• 2 The Canada–United States Safe Third Country Agreement
  • 2.1 Rationale for the Canada–United States Safe Third Country Agreement
• 3 The Concept of a Safe Third Country
  
  • 3.1 Emergence of the Safe Third Country Concept in Canada
  • 3.2 International Application of the Safe Third Country Concept
• 4 Challenges to the Canada–United States Safe Third Country Agreement since Implementation
  • 4.1 Review of the Implementation of the Canada–United States Safe Third Country Agreement
  • 4.2 Stakeholder Perspectives
  • 4.3 Legal Challenges
• 5 Current Context and Policy Considerations
  • 5.1 Data and Recent Policy Changes
  • 5.2 Potential Renegotiation of the Canada–United States Safe Third Country Agreement
• 6 Conclusion
• Notes

Executive Summary

Refugees are people who flee their countries because of a well-founded fear of persecution. Once refugees arrive in another country and seek asylum, international law protects them from being sent back to face serious threats.

Of course, not all asylum claims are successful. Some asylum seekers may not meet the legal definition of a refugee. In other cases, errors or unfairness occur in a country’s assessment of the asylum claim. For various reasons, some asylum seekers pass through multiple countries and make a claim in more than one of them.

Among countries with similar legal standards, separately evaluating the same person’s claims may be considered inefficient. To avoid this, some countries have agreements requiring people to claim asylum only in the first “safe” country they enter. In 2002, Canada and the United States (U.S.) agreed to this type of system, through what is known as the Safe Third Country Agreement (STCA).

As a result of the STCA, most people who come to Canada via the U.S. are prevented from claiming asylum in Canada. There are some exceptions, including that the STCA applies only at official land border crossings.

However, beginning in 2017, more asylum seekers began crossing the border into Canada through unofficial border crossings, avoiding the application of the STCA and allowing them to proceed with a claim for asylum. This resulted in renewed advocacy by some to broaden the STCA so that these types of crossings would be included. Others argued for the STCA to be suspended so that Canada would assess asylum claims independently of U.S. decisions.

In response to the COVID-19 pandemic in 2020, Canada imposed new temporary measures restricting claims by those who enter Canada between official land border crossings.

In July 2020, the Federal Court of Canada found the STCA to be unconstitutional following a claim by the Canadian Council for Refugees and other applicants. The federal government appealed this decision, and in April 2021, the Federal Court of Appeal set aside the judgment, allowing the STCA to continue. The Supreme Court of Canada then agreed to hear the subsequent appeal.

1 Introduction

Canada’s cooperation with the United States of America (U.S.) on matters relating to people claiming refugee protection has been a subject of significant debate over the past several decades.1 This paper provides an overview of the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, commonly referred to as the Canada–U.S. Safe Third Country Agreement (STCA).2 It examines the fundamental aspects of the STCA, the historical and international context of the safe third country concept, and the legal challenges that the STCA has faced since its implementation. It also considers potential changes to the agreement in light of recent increases in irregular border crossings, the temporary border closure during the COVID-19 pandemic and an ongoing challenge to the constitutionality of the STCA.

2 The Canada–United States Safe Third Country Agreement

In refugee law, a “safe third country”3 is a country in which an individual who passed through could have made a claim for refugee protection. According to the Government of Canada, only countries that respect human rights and offer a high degree of protection to refugee claimants may be designated as safe third countries.4

As part of the U.S.–Canada Smart Border Declaration and associated 30-Point Action Plan,5 Canada and the U.S. signed the STCA in December 2002, and it came into effect in December 2004. The agreement provides that persons seeking refugee protection must make a claim in the first of the two countries they arrive in, unless they qualify for an exception.

The exceptions to the STCA are found in Article 4 and fall into four general categories: the unaccompanied minor exception; family member exceptions, such as having a spouse or parent who is already a citizen or permanent resident; document holder exceptions, such as having a valid work or study permit; and public interest exceptions, such as facing the possibility of a death sentence in the U.S.6 For refugee claimants entering Canada, qualifying under one or more of these exceptions simply means that Canada – rather than the U.S. – will assess the claim. In addition, refugee claimants must still meet all other eligibility criteria7 of Canada’s immigration legislation. For example, a person seeking refugee protection will not be eligible to make a refugee claim in Canada if that person is inadmissible to Canada on grounds of security, human or international rights violations, or criminality.8

The STCA applies only to refugee claimants who are seeking entry to Canada from the U.S. at a land port of entry.9 Individuals making a claim in either country will not be removed to another country until a determination of that person’s claim has been made.

The authority for the Canada–U.S. STCA stems from section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA), which outlines the criteria that the Minister of Immigration, Refugees and Citizenship must use to designate a country as a safe third country. To date, the U.S. is the only country that Canada has designated as a safe third country under IRPA.

IRPA requires that the federal government continually review countries designated as safe third countries to ensure that the conditions leading to the original designation continue to be met.10 For example, a pattern of human rights violations by a safe third country could lead to a change in its designation. According to the latest directives issued in June 2015, the minister must review, on a continual basis, the factors listed in section 102(2) of IRPA with respect to the U.S.11

2.1 Rationale for the Canada–United States Safe Third Country Agreement

Due to their geographical proximity and high level of interdependence, Canada and Mexico directly feel the effects of the American border policies, which in the 1990s and early 2000s led to “the idea of a North America security perimeter.”12 While Mexico was “deemed unsuitable for a such a project,”13 Canada and the U.S. started exploring the possibility of establishing a security perimeter around the two countries. The 11 September 2001 (9/11) attacks on the U.S. accelerated these discussions, reinforced the importance of border security and highlighted the corresponding challenges of ensuring the efficient flow of people across the Canada–U.S. border. In a December 2001 joint Canada–U.S. Statement on Common Security Priorities, the implementation of a safe third country agreement was highlighted as part of a commitment to border security.14 The statement claimed that by allowing either country to return a refugee claimant to the other country for assessment, asylum systems would be able to focus on genuine refugees in need of protection.15

The federal government’s news release announcing the coming into force of the Canada–U.S. STCA in 2004 stated its objective as follows:

[T]o create an effective measure of control, necessary to better manage access to Canada’s refugee determination system. In fact, the agreement will enhance the orderly handling of refugee claims and strengthen public confidence in the integrity of the asylum systems of both countries.16

At that time, the federal government was concerned by the number of refugee claimants coming to Canada from the U.S. It was noted that approximately one-third of all refugee claims in Canada from 1995 to 2001 were made by refugee claimants known to have arrived from or through the U.S.17 Individuals making claims for protection in multiple countries was also a matter of concern18 in a context in which the government felt there were “significant pressures on asylum systems in developed countries.”19

3 The Concept of a Safe Third Country

Academic research shows that, especially since the end of the Cold War, countries have introduced increasingly restrictive migration policies and measures that aim to discourage the arrival of foreign nationals on their territory. These policies and measures include the imposition of visas and externalized border management practices.20 The safe third country concept demonstrates that borders are not static; they are “developed and retooled through legal decision making.”21 Borders respond to unique issues and policy objectives for a particular geography and population. The safe third country concept is applied on a transnational scale, requiring states to collaborate and share information to implement their migration enforcement practices.22

In response to these externalization trends, in 1996, the United Nations High Commissioner for Refugees (UNHCR) published an analysis of the safe third country concept. It included factors that countries should consider before determining that a refugee can legally be returned to a purportedly safe country. These factors include whether the third country has ratified and is in compliance with international refugee and human rights instruments, in particular the principle of non-refoulement;23 the third country’s readiness to permit refugee claimants to remain in the country while their claims are examined on the merits; the third country’s adherence to basic human rights standards for the treatment of refugee claimants and accepted refugees; and the third country’s demonstrated willingness to accept returned refugee claimants and consider their claims fairly on the merits.24

The UNHCR concluded that when these factors are given due consideration, such formal agreements can be advantageous for countries. For example, the safe third country concept could “reduce the misuse of asylum procedures, in particular multiple claims, as well as minimize the risk of the destabilizing effect of irregular movement of refugee claimants.”25 However, it warned that

unilateral application of the safe third country concept, in the absence of a multilateral responsibility-sharing framework, may result in countries closer to the regions of origin being overburdened.26

The UNHCR recalled that it is “in the interest of the international community to provide effective protection to refugees and to promote and find durable solutions for them,” based on more equitable and just responsibility-sharing.27

3.1 Emergence of the Safe Third Country Concept in Canada

In 1985, in Singh v. Minister of Employment and Immigration, the Supreme Court of Canada declared that the legal guarantees to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (the Charter) apply to everyone physically present in Canada, regardless of their immigration status.28 The Court also declared that refugee claimants have the right to an oral hearing of their protection claim before being either accepted into Canada or deported.29 As such, the Singh decision drastically changed Canada’s immigration and refugee system. The federal government introduced several legislative measures in 1987 that “sought to clear-up the backlog of refugee claimants in Canada and reduce the amount of time required to adjudicate an application for refugee status.”30 It also established the Immigration and Refugee Board of Canada (IRB), an arm’s-length administrative tribunal that adjudicates refugee claims.

As part of those legislative measures, Bill C-55, An Act to amend the Immigration Act, 1976 and to amend other Acts in consequence thereof, was introduced in the House of Commons, bringing forward the concept of a safe third country in Canadian legislation. Originally, under the safe third country principle, the bill had proposed that refugees arriving in Canada be excluded from the determination procedure and expelled if they failed to come directly to Canada from their state of origin.31 However, amendments were introduced to

limit its application to persons who would actually be allowed to return to the intermediate country, or who would at least be allowed to have their refugee claims decided on the merits in the intermediate state.32

This was to respect Canada’s international legal obligations towards refugees, including the principle of non-refoulement.33 Bill C-55 came into force in January 1989. This introduced the concept of a safe third country in the Immigration Act, 1976, but in order for it to take effect, the federal government had to list the countries considered safe in the regulations. It did not do this.

In the same way that Bill C-55 set the legislative basis for the designation of a country as safe for the purposes of refugee adjudication, it was argued that it also “laid the groundwork for expanding the legal realm of ‘Canada’ for refugee applicants,” by pushing out Canada’s borders and “foreclosing any asylum adjudication for a country deemed safe or on behalf of an individual transiting through a safe country.”34

In the early 1990s, the Canadian and American governments started discussions about a possible safe third country agreement between the two countries. In November 1995, both governments publicly released a “preliminary draft Agreement ‘For Cooperation in Examination of Refugee Status Claims from Nationals of Third Countries.’”35 In undertaking a study on the issue, the House of Commons Standing Committee on Citizenship and Immigration (the committee) acknowledged that the refugee advocacy community opposed the preliminary draft agreement, but stated that “the underlying premises of the Agreement are sound” and exceeded the essential standards set out by the UNHCR.36 In addition, the committee stated that

the exceptions to the general rules, in particular the recognition of the importance of family and the residual discretion reserved by each country to accept any refugee claim presented to it, provide sufficient flexibility and opportunity for humanitarian considerations to mitigate any harshness that might otherwise arise in its application.37 [Emphasis in the original]

However, due to ongoing legislative changes to asylum law in the U.S. and to immigration and refugee law in Canada, the finalization of the agreement was delayed.38 In 1996, the U.S. adopted its Illegal Immigration Reform and Immigrant Responsibility Act. Canada’s new Immigration and Refugee Protection Act received Royal Assent on 1 November 2001.

The attacks of 11 September in the U.S. led to renewed negotiations.39 In December 2001, Canada and the U.S. signed the Smart Border Declaration and its associated 30 Point Action Plan to enhance the security of our shared border while facilitating the legitimate flow of people and goods, which envisioned a safe third country agreement between the two countries.40 In the same month, the committee recommended that Canada and the U.S. continue developing joint initiatives to ensure safe, secure and efficient border practices. It also recommended that

[w]hile maintaining Canada’s commitment to the Refugee Convention and our high standards in respect of international protection, the Government of Canada should pursue the negotiation of safe third country agreements with key countries, especially the United States.41

This culminated in the current Canada–U.S. STCA, which was signed in December 2002 and came into effect in December 2004.

3.2 International Application of the Safe Third Country Concept

Canada and the U.S. were not alone in pursuing these types of agreements during this period.42 One of the most significant precursors to the Canada–U.S. STCA was the 1985 Schengen Agreement, which was initially signed by France, Germany, Belgium, Luxembourg and the Netherlands.43 The Schengen Agreement sought to gradually abolish controls at the shared borders of these five countries. With respect to refugees, Article 29 of the Schengen Agreement provided that only one country would have responsibility for processing any given refugee protection application, and that the responsible country would be determined by the criteria set out in Article 30. In cases in which the criteria were not applicable, the default would be that the country in which the claim was first lodged would have responsibility for assessing it.

This concept has continued to expand and evolve over time, including through the Dublin Convention, which was initially ratified by the first 15 members of the European Union (EU), entering into force in 1997. Under the Dublin Convention, all EU member states were designated as safe countries for refugees. The Dublin Convention established comprehensive criteria to determine which country would be responsible for assessing refugee claims. The general rule under the Dublin Convention was that the first country that a refugee claimant entered would be responsible for assessing the claim. However, as with the Canada–U.S. STCA, this general rule was subject to several exceptions, including for situations in which the claimant had close family members in a different EU country. The aim of the Dublin Convention was to reduce the number of refugee claimants seeking asylum in multiple countries, including for economic or other reasons unrelated to their need for protection.44 Since the Dublin Convention, there have been two new iterations of the legislation, the most recent being the 2014 Dublin III regulation. The aim remained the same, namely to identify “the EU country responsible for examining an asylum application, by using a hierarchy of criteria such as family unity, possession of residence documents or visas, irregular entry or stay, and visa-waived entry.”45

In 2020, the European Commission proposed a new Pact on Migration and Asylum that aims “to make the system more efficient, discourage abuses and prevent unauthorised movements,” including through increased cooperation in terms of capacity building and operational support.46 While the criteria for determining the EU country responsible for examining an asylum application would remain unchanged, the EU member states agreed to implement “a voluntary, simple and predictable solidarity mechanism designed to support” their most affected counterparts “by offering relocations, financial contributions and other measures of support”47 to ease the pressures caused by the large numbers of asylum seekers, refugees and other migrants.

Finally, in 2019, the U.S. signed asylum cooperative agreements with Guatemala, Honduras and El Salvador,48 a first for the U.S. since signing the STCA with Canada. These new agreements allowed the U.S. to send certain asylum seekers at the U.S.–Mexico border back to Guatemala, Honduras and El Salvador to seek asylum there, rather than allowing them to apply for asylum in the U.S. However, those agreements were short-lived because in 2021, after the inauguration of a new administration, the U.S. suspended these agreements and initiated the process to terminate them.49

4 Challenges to the Canada–United States Safe Third Country Agreement since Implementation

With the entry into force of the STCA between Canada and the U.S. in December 2004, both governments faced several challenges. As stipulated in the agreement itself, a review of its implementation had to be conducted within the first year. In addition, the STCA has been the subject of criticism and several legal challenges since its implementation, as detailed below.

4.1 Review of the Implementation of the Canada–United States Safe Third Country Agreement

The STCA required that Canada and the U.S., in cooperation with the UNHCR, conduct a review of the agreement and its implementation no later than a year after its coming into force. Accordingly, the UNHCR assessed the implementation of the STCA and examined how effectively its objectives were being met.

Released in June 2006, the UNHCR report provided a generally positive assessment of the STCA but raised some concerns for both countries to address. The primary areas of concern were as follows:

(1) lack of communication between the two Governments on cases of concern; (2) adequacy of existing reconsideration procedures; (3) delayed adjudication of eligibility under the Agreement in the United States; (4) in some respects, lack of training in interviewing techniques; (5) inadequacy of detention conditions in the United States as they affect asylum-seekers subject to the Agreement; (6) insufficient and/or inaccessible public information on the Agreement; and (7) inadequate number of staff dealing with refugee claimants in Canada.50

The Canadian government responded to the UNHCR’s recommendations in November 2006, stating that it had “accepted, in whole or in part, 13 out of the 15 new or outstanding UNHCR recommendations.”51 The two unfulfilled recommendations were the creation of an administrative review mechanism for “cases that may have been erroneously found ineligible” and the “broadening [of] the interpretation of Article 6 to include … vulnerable persons who do not fall under any of the exceptions” to the STCA.52 In both cases, the government argued that the existing mechanisms were sufficient and effective in ensuring a full and fair refugee determination process that captured all types of refugee claimants. In October 2007, in response to a parliamentary study, the federal government reiterated that most of the UNHCR’s recommendations had already been implemented and that others would be implemented in the future.53

4.2 Stakeholder Perspectives

As noted in the impact statement accompanying the regulations designating the U.S. as a safe third country (the regulations),54 some stakeholders, particularly non governmental organizations, have consistently opposed the Canada–U.S. STCA on principle. These stakeholders argue that refugees should have the right to choose where to seek protection, noting that the United Nations (UN) Refugee Convention does not require refugees to apply to the first safe country in which they arrive. There are a number of reasons a refugee claimant might choose to apply for refugee protection in a country other than the one of first arrival. Some of those reasons include the existence of extended family or support communities and language or cultural affinities in the country of choice. Further, some countries may have a broader interpretation of the refugee definition to the benefit of a particular population, such as people seeking protection on the basis of sexual orientation.55

Other concerns raised when the regulations were pre-published centred on whether the U.S. is in fact a safe country for refugees, as well as the perceived narrow scope of the exceptions and the potential for the STCA to increase incentives for irregular entry into Canada. While the final version of the regulations included some changes to the exceptions, the other concerns have persisted. For instance, a 2013 report prepared for the Harvard Immigration and Refugee Law Clinical Program found that refugee claimants have resorted to smugglers to help them circumvent the Canada–U.S. STCA.56

Academics have also raised concerns about the STCA, which is seen as:

“pushing the border out,” to a distinct legal end where “Canada seeks to avoid its legal obligations, and in doing so, weakens the legal protections available to asylum seekers, under domestic and international legal instruments.”57

Proponents of safe third country agreements suggest that such agreements are required to prevent those looking for refugee protection from “shopping” for a specific or preferred destination country. According to a researcher from the Centre for Immigration Policy Reform, the safe third country concept is based on the following principle:

[I]f someone flees their country of origin, they should seek sanctuary in the first safe country they are able to reach. If, however, they choose to move on to somewhere else to seek asylum, it indicates that their primary concern was not to reach safety but rather to be allowed to seek asylum and remain permanently in countries where there are generous benefits, high rates of acceptance, etc. In this regard they are considered to be “asylum shoppers.”58

This justification is based on the premise that “asylum shopping” is equivalent to manipulating the international refugee system, and refugee claimants who are willing to manipulate the system may be less than truthful or genuine about their need for protection.59

Such stakeholders have argued that the Canadian government did not go far enough with the STCA. For instance, it has been suggested that the STCA is flawed because there are too many exceptions to it.60 Further, it was argued that the Canadian government should enter into safe third country agreements with other countries as well, such as the United Kingdom, France and Germany.61

4.3 Legal Challenges

While the UNHCR’s 2006 assessment of the STCA found that the U.S. sufficiently upholds its international obligations with respect to refugees,62 advocates have pointed to differences between the two countries to argue otherwise. Their concerns include migrant detention conditions in the U.S., U.S. restrictions on refugee claimants’ ability to work pending hearings, and the U.S. interpretation of the Refugee Convention and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).63 For example, stakeholders in the mid 2000s pointed to different acceptance rates for refugee claimants from certain countries, such as Colombia, as well as the stronger protections Canada affords to victims of gender-based persecution.64 Advocates have also suggested that refugee claimants in Canada have more access to legal aid, and to social assistance, if needed.65 These claims have surfaced through multiple legal challenges over several decades.

The constitutionality of the safe third country provision was first challenged in 1989, immediately after the amended Immigration Act, 1976 came into force and more than a decade before the Canada–U.S. STCA was implemented. In Canadian Council of Churches v Canada,66 the Supreme Court of Canada disallowed the challenge on the basis that the Canadian Council of Churches lacked standing. In other words, the Court held that this type of challenge would have to come from refugee claimants who believed their rights had been violated, rather than by an organization seeking to make arguments on behalf of the public interest.

One year after the STCA came into effect in 2004, a second challenge was brought by the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, along with a Colombian refugee claimant in the U.S.67 These groups argued that the regulations designating the U.S. as a safe third country were invalid and unlawful, primarily because the U.S. does not comply with certain aspects of the Refugee Convention and the Convention against Torture. They argued that as a result, the STCA violates administrative law principles, the Canadian Charter, and international law.

In 2007, this argument was upheld by the Federal Court, which found that the designation of the U.S. as a safe third country was invalid.68 This was based on a finding that the U.S. was not in compliance with its international obligations, such as non-refoulement, and that the application of the safe third country rule unjustifiably violated refugees’ Charter rights to life, liberty and security of the person (section 7) and to non-discrimination (section 15). The Court also found that the federal Cabinet had failed to comply with its obligation to ensure continuing review of the status of the U.S. as a safe third country.

However, in 2008, the Federal Court of Appeal overturned this ruling, concluding that so long as the federal Cabinet gives due consideration to the four factors set out in section 102(2) of IRPA69 and accepts that the country in question is safe, the designation of a safe third country is not reviewable by courts.70 Moreover, Cabinet’s obligation to continuously review the STCA must be directed specifically at the four factors, and not necessarily at the compliance of the U.S. in absolute terms. Finally, the Federal Court of Appeal concluded that there was no factual basis to assess the Charter claims, since the refugee claimant in question had not attempted to enter Canada.

A related challenge was dismissed by the Federal Court of Appeal in 2019. In Kreishan v. Canada, STCA-excepted refugee claimants whose claims had been rejected by the Refugee Protection Division (RPD) of the IRB argued that they should be able to appeal their decisions to the Refugee Appeal Division of the IRB.71 The Federal Court of Appeal rejected this argument, noting that international law does not mandate any particular form of appeal. It also stated that the question of whether some refugees are treated better through a more favourable appeals process has no bearing on whether the refugee claimants’ rights were denied.

Many legal experts and advocates have maintained their position that the U.S. does not adequately fulfill its obligations to refugee claimants. The 2013 report prepared for the Harvard Immigration and Refugee Law Clinical Program and cited above concluded that through the STCA, Canada is systematically closing its borders to asylum seekers and circumventing its refugee protection obligations under domestic and international law. The report states that Canada “jeopardizes asylum seekers’ ability to obtain fundamental legal protections by returning them to the United States despite clear deficiencies in the U.S. asylum system.”72

In 2017, the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International Canada, along with a Salvadoran woman accompanied by her children,73 launched another legal challenge in the Federal Court about the designation of the U.S. as a safe third country for refugees. The organizations argued that the U.S. asylum system and immigration detention regime fails to meet required international and Canadian legal standards, especially since the Trump administration took office in January 2017.74 They argued that this situation results in substantial risk of detention, wrongful return to a country in which a refugee claimant would face persecution (refoulement), and other rights violations.

In July 2020, these applicants received an initial favourable decision. The Federal Court found that the STCA unconstitutionally violates the rights to life, liberty and security of the person.75 The Court noted that asylum seekers at land ports of entry receive no consideration of the substance of their refugee claims and are returned to the U.S. to face automatic detention, sometimes in solitary confinement or in inhumane conditions. This causes physical and psychological suffering. The Court emphasized that the STCA was supposed to be about “sharing of responsibility” but fails to provide any guarantee of access to a fair refugee determination process. The Court relied on the Supreme Court of Canada’s statement in Suresh v. Canada that the government “does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand.”76 The effects of this decision were suspended, leaving time for the federal government to appeal or respond with legislation.

In April 2021, the federal government succeeded in its appeal of the decision.77 The Federal Court of Appeal found that the claim had not been properly framed and thus could not be upheld for two reasons. First, the claim selected two specific legislative provisions from a complex, interrelated legislative scheme and asked the court to consider them in isolation.78 Second, the claim challenged the general legislative provisions that enable the STCA, rather than the Governor in Council’s decisions, to continue designating the U.S. as a safe third country. For these reasons, the lower court decision was set aside, and the STCA continues to have effect.

In December 2021, the Supreme Court of Canada granted leave to appeal this decision.79

5 Current Context and Policy Considerations

The ongoing challenge to the constitutionality of the STCA contributes to uncertainty about the future of the agreement. The following section aims to clarify several issues pertaining to the Canada–U.S. STCA that have been in the public discourse in recent years, including the number of refugee claimants and the potential renegotiation of the agreement.

5.1 Data and Recent Policy Changes

Since 1989 and the coming into force of the 1987 legislative measures discussed above, the federal government has tracked the number of refugee claims made in Canada. These in-Canada claims can be made either at a port of entry to the country or, within Canada, to an officer of the Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC).80 Individuals who cross the border at unofficial border crossings are generally intercepted and transported by the Royal Canadian Mounted Police (RCMP) to either a CBSA or an IRCC office to make a claim.81 The RCMP does not take any enforcement actions “against people seeking asylum as per section 133 of the Immigration and Refugee Protection Act.”82 For this reason, those who cross the border at unofficial border crossings are commonly called irregular border crossers. As discussed above, the Canada–U.S. Safe Third Country Agreement applies only to refugee claimants who are seeking entry to Canada from the U.S. at land ports of entry.

As seen in Figure 1, between 1989 and September 2022, the overall number of claims averaged around 30,047 per year; the lowest number of claims was registered in 2013 (10,378) and the highest in 2019 (64,050). Because of the COVID-19 pandemic and the temporary Canada–U.S. border closures from March 2020 to November 2021,83 fewer in-Canada refugee claims were registered in 2020 and 2021 (23,715 and 24,955 respectively).84

Figure 1 – Refugee Claims Made in Canada, January 1989 to September 2022

Note: The first source below provides no data on refugee claimants for 1988; consequently, the data series starts at 1989. In addition, the series in that source is broken from 1998 but has data from a more recent edition of the same source. The series is again broken from 2017 and has a different source. The data for 2022 are not complete. The terms “refugee claimants” and “asylum claimants” in the sources are used interchangeably and refer to people who have applied for refugee protection status in Canada.

Sources: Figure prepared by the Library of Parliament using data obtained from Citizenship and Immigration Canada, “Canada – Temporary residents by yearly status, 1988–2012,” Canada Facts and Figures: Immigration Overview – Permanent and Temporary Residents  (4.8 MB, 130 pages), 2012, p. 52; Government of Canada, “10.1. Asylum Claimants by gender, 1997 to 2017,” Facts and Figures 2017 – Immigration Overview – Temporary Residents; Government of Canada, Asylum claims by year – 2018; Government of Canada, Asylum claims by year – 2019; Government of Canada, Asylum claims by year – 2020; Government of Canada, Asylum claims by year – 2021; and Government of Canada, Asylum claims by year – 2022.

From 2016 to 2017, the number of claims more than doubled to make the biggest increase seen year over year. As of 2017, the increase in the number of claims made in Canada was in part due to people crossing the Canada–U.S. border at unofficial border crossings. For instance, in 2017, about 41% of total claims were from people intercepted by the RCMP at unofficial border crossings. In 2018 such claims represented about 35% of the overall claims, and in 2019 they made up about 26%. Between January and August 2022, the CBSA and IRCC offices processed the files of 52,880 refugee claimants; of this figure, 23,358 claimants (about 44%) crossed at unofficial border crossings and were intercepted by the RCMP.85 The federal government started publicly tracking the number of RCMP interceptions between ports of entry only as of 2017, due to the increase in irregular border crossings.

While the overall reasons86 and full impact87 of this increase in refugee claims from irregular border crossers are outside the scope of this paper, one reason that the increased volume is significant is its impact on the functioning of the IRB. The sudden increase in the number of claims referred to the IRB88 has placed a strain on its resources. The IRB was already struggling to make decisions under prescribed timelines and dealing with a backlog of older claims.89

A 2018 independent review of the IRB found that the prescribed timelines for holding hearings were met in only 59% of cases in 2017, down from a high of 65% between 2014 and 2016. The IRB reported that these delays were largely attributable to human resources challenges, including insufficient recruitment, and a more complex caseload due to a large variety of countries of origin.90

Prior to 2017, the IRB did not specifically track statistics on refugee claims made by irregular border crossers. Figure 2 provides a five-year overview of the number of claims received by the IRB from people intercepted by the RCMP at unofficial border crossings. The highest number of claims received in a quarter was registered from July to September 2017 (8,559) and the second highest was registered from October to December 2017 (6,908).91 In 2020 and 2021, the IRB received a smaller number (4,106 and 1,550 respectively) of in-Canada refugee claims by irregular border crossers due to the COVID-19 pandemic and the temporary Canada–U.S. border closures.92

Figure 2 – Refugee Claims Made by Irregular Border Crossers, February 2017 to June 2022

Note: The Immigration and Refugee Board of Canada (IRB) has only partial data for February and March 2017.

Source: Figure prepared by the Library of Parliament using data obtained from IRB, “Statistics on refugee claims made by Irregular Border Crossers, by Calendar Year and Quarter,” Irregular border crosser statistics.

This created significant backlogs for the IRB, as seen in Figure 3. The number of claims finalized could not keep up with the intake, resulting in an increase of pending cases over time. However, due to the smaller number of claims received during the COVID-19 pandemic and temporary Canada–U.S. border closures, the number of pending claims fell over time to an average of around 12,400 from January to June 2022, down from the almost 29,400 claims received from July to December 2019.

Figure 3 – Pending and Finalized Refugee Claims Made by Irregular Border Crossers, February 2017 to June 2022

Note: The Immigration and Refugee Board of Canada (IRB) has only partial data for February and March 2017.

Source: Figure prepared by the Library of Parliament using data obtained from IRB, “Statistics on refugee claims made by Irregular Border Crossers, by Calendar Year and Quarter,” Irregular border crosser statistics.

In 2018, the IRB established an inventory reduction task force for less complex claims, which focused on claims that “lend themselves to quicker resolution through paper-based or short-hearing decisions.”93 To increase its productivity and improve its case management approach, the IRB also updated its policy on the expedited processing of refugee claims by the RPD and issued instructions governing the streaming of less complex claims at the RPD.94 As such, the IRB has established “shorter, more focused hearings to resolve straightforward claims and has also decided claims without a hearing, where appropriate.”95

In addition to streamlining its processes, the IRB received, through Budget 2018, $74 million over two years to “enable faster decision-making on asylum claims, including money to hire 64 decision makers plus 185 support staff.”96 As such, the IRB was able to finalize “30% more refugee claims, and over 60% more refugee appeals in fiscal year 2018 to 2019 than in the previous year.”97

Also in Budget 2018, the Government of Canada provided about $100 million over two years for the IRCC, the CBSA, the RCMP and other concerned departments to address operational pressures resulting from irregular migration.98 Those funds helped support “intake of new asylum claims, front-end security screening procedures, eligibility processing, removal of unsuccessful claimants, and detention and removal of those who pose a risk to the safety and security of Canadians.”99

The IRB received a further investment of $208 million in Budget 2019 to increase its overall target for processed refugee claims to 50,000 per year.100 In addition, the Economic and Fiscal Snapshot 2020 and Budget 2022 also allocated funding to the IRB as part of the federal government’s commitment “to support the long-term stability and integrity of Canada’s asylum system.”101 These additional investments helped stabilize the IRB, which worked to reduce the backlog and wait time for refugee claims and appeals during the pandemic.102

In 2019, IRPA and associated regulations were amended to provide an additional reason for which refugee claims in Canada may be found ineligible.103 As of April 2019, a person is ineligible for refugee protection in Canada if they have made a previous refugee claim in a country with which Canada has an information-sharing agreement.104 For those excluded from the refugee determination process because they have made a refugee claim in a country with which Canada has an information sharing agreement, the pre-removal risk assessment process includes a mandatory oral hearing.105

5.2 Potential Renegotiation of the Canada–United States Safe Third Country Agreement

Despite all these public policy and operational changes, the main issue in the public discourse is the future of the Canada–U.S. STCA. Since 2017, there have been numerous calls for its suspension, while others have advocated for its application regardless of how a refugee claimant crosses into Canada.106 The ongoing challenge to the constitutionality of the STCA may impart greater urgency to the potential renegotiation of the agreement.

To modify the STCA, both Canada and the U.S. must agree to any changes in writing. In addition, either party may suspend application of the STCA for a period of up to three months upon written notice to the other party. That suspension is renewable for additional periods of up to three months.107

Considering that the STCA must be continually reviewed, there have been other proposals for updating it in the past. For instance, in 2011, officials from the IRCC (then Citizenship and Immigration Canada) identified the STCA’s inapplicability at airports and to irregular border crossings as areas to examine for possible future changes.108 The increase in irregular border crossings as of 2017 brought attention to significant issues concerning Canada’s overall immigration system. However, the Minister of Immigration, Refugees and Citizenship has stated that the Canada–U.S. STCA remains crucial to the handling of asylum claims in both countries.109

While the federal government put in place operational and policy changes in 2017, it also recognized that “there are opportunities to negotiate and enhance a safe third country agreement that will operate more effectively to the mutual benefit of both countries.”110 This is consistent with early indications in the 1990s and early 2000s that Canada was always open to continuing conversations with the U.S. on asylum, the STCA and related issues.111 In 2021, the Prime Minister publicly mandated the minister of Immigration, Refugees and Citizenship to continue working with the U.S. on modernizing the STCA.112 However, as one researcher argued, “Canada must also consider the possibility that the United States may not want to ultimately modify the agreement, even if it expresses a willingness to open renegotiations.”113

Between March 2020 and November 2021, the Government of Canada issued a series of orders in council (OIC) under the Quarantine Act, intended to stop the spread of COVID-19. The OICs also had the consequence of limiting refugee claimants’ entry into the country. Under the first OIC, only a small group was eligible to make a refugee claim: unaccompanied minors, parents of a minor U.S. citizen, a person who usually lives in the U.S. but is stateless, or an American citizen.114 The federal government was criticized by civil society groups for restricting access and not respecting its own immigration laws and its international obligations with respect to refugees.115 In April 2020, foreign nationals who had already been determined to be in need of protection in Canada and certain persons allowed to make refugee protection claims were once again permitted to enter Canada at the land border. In addition, certain groups such as stateless persons, U.S. citizens, and foreign nationals with a family member in Canada or facing the death penalty were permitted to make refugee claims at designated ports of entry. An unaccompanied minor, a person who usually lives in the U.S. but is stateless, or an American citizen could also make a refugee claim by entering Canada irregularly.116 The Government of Canada issued a new related OIC approximately each month, with the last such OIC expiring on 31 January 2022.117

6 Conclusion

The future of the STCA is uncertain. In 2019, the Canadian government expressed its intention to modernize the agreement, and it has recently reaffirmed its commitment to do so. Meanwhile, an ongoing constitutional challenge to the STCA could impart greater urgency to the renegotiation process or end the agreement altogether. In addition, temporary measures in response to the COVID-19 pandemic further restricted asylum seekers from entering and remaining in Canada. These developments highlight the barriers and uncertainty that refugees who hope to seek asylum in Canada face.

Notes