Safe Third Country

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Overview

On 29 December 2004, the US and Canada implemented the Safe Third Country Agreement, by which each government closed the door on most refugee claimants at the US-Canada border. 

The Canadian Council for Refugees strenuously opposes the Agreement, because the US is not a safe country for all refugees. The CCR also denounces the purpose and effect of reducing the number of refugees who can seek Canada’s protection.

Under the Safe Third Country Agreement, the US and Canada each declared the other country safe for refugees and established the general principle that refugee claimants should make their claim in the first of these countries that they reach.  Thus refugees who are in the US are expected to pursue their claim in the US, rather than seeking protection in Canada.  Similarly, those in Canada are expected to apply in Canada. However, in practice few asylum seekers move from Canada to the US to make a refugee claim: the Agreement is about preventing people who are in the US, or travelling through the US, from making a refugee claim in Canada.

The Agreement applies to refugee claims made at a land border port of entry. As a general rule, claims made at the border are summarily refused, based on safe third country. There are however some exceptions, including where the claimant has a family member in Canada or where the claimant is an unaccompanied minor whose parents are not in the US or Canada. (See below for practical information on the application of the Agreement).

On the first anniversary of the implementation of the Agreement, 29 December 2005, the CCR published a report on the first year of safe third country, Closing the Front Door on Refugees. In December 2006, the CCR made public its submission to Cabinet, which outlines relevant changes in US policy and practice since implementation of the Agreement. (A supplementary submission, from April 2007, was also made). These changes mean that the US is less safe than ever. The CCR calls on the Canadian government to recognize that the US does not meet the requirements under law for a safe third country and to end the designation of the US.

Also on 29 December 2005, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, along with a Colombian asylum seeker in the US, launched a legal challenge of the designation of the US as a safe third country for refugees.

On 29 November 2007, Justice Michael Phelan of the Federal Court upheld the challenge, finding that the designation of the US as a safe third country is ultra vires, that it is unreasonable to conclude that the US complies with its non-refoulement obligations under the Refugee Convention and the Convention against Torture, and that the application of the safe third country rule violates 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 failed to comply with its obligation under the law to ensure continuing review of the status of the US as a safe third country.

On 17 January 2008, Justice Phelan issued his final order, ruling that the designation of the US as a safe third country would be quashed as of 1 February 2008. On 31 January 2008, Federal Court of Appeal granted a stay of the order quashing the designation of the US as a safe third country, while the government appeals the case. This meant that the safe third country rules continued to apply.

On 27 June 2008, the Federal Court of Appeal allowed the appeal brought by the government. Although the Court overturned Justice Phelan's ruling, its decision did not find the US a safe country for all refugees. Instead it concluded that the Court should not consider the actual situation for refugees in the US. In September 2008, an application was filed with the Supreme Court of Canada for leave to appeal the decision of the Federal Court of Appeal. The Supreme Court declined to hear the case on 5 February 2009.

Documents

Application to the Supreme Court seeking leave to appeal, September 2008

Supplementary submission to Cabinet with respect to the designation of the U.S. as a safe third country for refugees, April 2007

Brief to the Standing Committee on Citizenship and Immigration, 16 February 2007 (same document in PDF)

Opinion piece, America no "safe haven" for refugees, published in the Toronto Star, 7 February 2007 (same document in PDF )

Report, Less safe than ever, Challenging the designation of the US as a safe third country for refugees, Submission to Cabinet, November 2006

Report: Closing the Front Door on Refugees: Report on the First Year of the Safe Third Country Agreement, 29 December 2005

10 reasons why safe third country is a bad deal, updated February 2005

Pamphlet version (print on legal paper)

Comments to the Standing Committee on Citizenship and Immigration on the Proposed Safe Third Country Regulations, 14 November 2002

Memorandum filed in the legal challenge of the Safe Third Country Agreement, March 2006

Responding to questions about the "none is too many" agreement, 10 June 2002

Open Letter to U.S. and Canadian Government Officials, 15 August 2002

Media releases

CCR and AI Call for Suspension of Removal of Refugee Family, 8 April 2009

Supreme Court Denial of Leave on Safe Third Regretted, 5 February 2009

Supreme Court asked to review Canada’s closing of the door on refugees, 29 September 2008

Rights Groups Express Dismay with Appeal Court Ruling on Safe Third Country, 2 July 2008

Stay of Safe Third Country Decision puts refugees’ lives at risk, 1 February 2008

Safe Third Country Decision Welcomed by Rights Organizations and John Doe, 30 November 2007

Court and Parliament to hear Safe Third Country Challenge, 1 February 2007

Government urged to recognize that U.S. is less safe than ever, 6 December 2006

Governmental safe third review asks wrong questions, 16 November 2006

Safe Third Country Agreement Shown to Violate Refugee Rights, 29 March 2006

Groups launch legal challenge of Safe Third Country Agreement, 29 December 2005

Closing the Door on Refugees: First Six Months of Safe Third Country Agreement, 4 August 2005

Safe third country agreement closes the doors on refugees, 1 December 2004

Do We Still Think the US is a Safe Country?, 6 November 2002

CCR Asks: "How Safe Is the USA?", 18 October 2002

CCR Denounces Secret Side-Deal, 12 July 2002

Practical information

Frequently Asked Questions, January 2005 (This document is intended to give basic information to people considering making a refugee claim in Canada or to their advisors)

See also the Canadian government's guide

Further information

Federal Court of Appeal judgment, 27 June 2008, Canada v. Canadian Council for Refugees (2008 FCA 229)

Federal Court reasons for judgment, Canadian Council for Refugees v. Canada (2007 FC 1262) IMM-7818-05, 29 November 2007

Federal Court final order, Judgment in the matter of Canadian Council for Refugees et al. v. Her Majesty the Queen, 17 January 2008

Final Text of the Safe Third Country Agreement

Standing Committee on Citizenship and Immigration, Hearing on safe third country, 8 February 2007

Harvard Law Student Advocates for Human Rights & The International Human Rights Clinic, Human Rights Program, Harvard Law School, Bordering on Failure: The US-Canada Safe Third Country Fifteen Months after Implementation, March 2006

Audrey Macklin, The Values of the Canada-US Safe Third Country Agreement, (Ottawa: Caledon Institute of Social Policy, December 2003.) 26 pp.

United Nations High Commissioner for Refugees (UNHCR), Monitoring Report, Canada - United States, “Safe Third Country” Agreement, June 2006

UNHCR, Comments on the Draft Agreement between Canada and the United States of America for "Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries", 26 July 2002

House of Commons, Canada, Standing Committee on Citizenship and Immigration, Report: The Safe Third Country Regulations, December 2002

US Congress, Hearing before the Subcommittee on Immigration, Border security, and Claims of the Committee on the Judiciary, House of Representatives, 16 October 2002

Citizenship and Immigration Canada, A Partnership for Protection, Year One Review, November 2006

Citizenship and Immigration Canada, Canada–U.S. Safe Third Country Agreement (links to various documents)