Issues to be considered in the context of discussions regarding a

responsibility-sharing agreement between Canada and the United States

UNHCR recognizes that the ultimate objective of a “safe country” agreement is the appropriate allocation of State responsibility for determining refugee status. It is, however, important to ensure that such arrangements do not result in refugees and asylum-seekers being subject to protection standards which are inconsistent with international norms. UNHCR urges that any agreement under discussion between the U.S. and Canada reflect the objectives and concerns set out below. 

1. Objective: To ensure that every asylum-seeker has access to a fair and efficient asylum procedure in one of the two countries, in line with international protection principles

·Canada and the United States have endorsed Executive Committee Conclusion 15 which states, inter alia: “The intentions of the asylum-seeker as regards the country in which he wishes to request asylum should as far as possible be taken into account” and "Regard should be had to the concept that asylum should not be refused solely on the ground that it could be sought from another State."

·The notion of “safety” is not a generic one, and the presumption of “safety” should therefore be rebuttable, requiring an individual assessment of whether a person will indeed be able to have access to protection in the country concerned.

·Legislation in both countries permits returning applicants to “safe third” countries. However, safeguards are needed to avoid ‘chain deportations’, which can result in ‘orbit’ situations or in refoulement. Thus, if responsibility is assigned to one of the Contracting Parties, that Party should not transfer the applicant to another state, but should examine the claim on the merits.

·Because of broad statutory bars to asylum in U.S. and Canadian law, a person may be precluded from access to the asylum procedure in one country, although the same person would not be denied access in the other country. In UNHCR’s view, some of the bars are contrary to international standards.

·The use of detention and its impact on an asylum-seeker’s ability to present his or her claim should also be considered. For example, detention in remote locations may affect the ability of an asylum-seeker to have access to counsel and adequately to present his or her claim.

·The use of any expedited procedures in the consideration of asylum claims should conform to international standards.

·Varying interpretations of the refugee definition, and varying evidentiary standards in the two countries, should be considered.

2. Objective: To avoid applicants having to file claims in both Canada and the U.S.

·Asylum-seekers sometimes file applications in both countries. This is not necessarily done with the intent to abuse the asylum system.

·Many asylum-seekers, for example, are intercepted in the U.S. while en route to Canada. Although they intended to apply for asylum in Canada, often because of close ties there, they must apply for asylum in the U.S after being detained, in order to avoid deportation.If released, they may continue on to Canada, apply for asylum there, and withdraw their application in the U.S.

3. Objective: To ensure that persons are treated in accordance with basic human rights standards during the asylum procedure.

·Detention of asylum-seekersremains a serious concern. In particular in the U.S., asylum-seekers, including children, are often held in isolated locations and difficult conditions, without effective access to NGOs or counsel, or to interpreters.

·There are considerable differences as regards eligibility of asylum-seekers for social services.

4. Objective: To ensure the unity of the refugee family.

·Many asylum-seekers transit through one country to seek protection in the other, because of relatives already present there. The understanding of what constitutes “family” should be broad enough to take account of emotional and/or economic dependency. Applicants may have other relevant links to either country, which should also be taken into consideration.

5. Objective: To take account of the situation of persons with special humanitarian needs.

·There may be persons whose individual situation justifies an exception to any established procedures. Such cases could include unaccompanied or separated children, persons with particular medical/psychological conditions, victims of trauma, for instance. The system should be sufficiently flexible to take such cases into account.

6. Objective: To ensure that persons in need of international protection have access to a durable solution in the asylum country concerned

·Problems which limit access to permanent residence and naturalization, in particular in Canada, should be resolved. This primarily concerns recognized refugees who are unable to acquire permanent resident status because they do not have “satisfactory” identity documents from their country of origin. Without “landed” status, they may not reunite with their immediate relatives, nor obtain Convention travel documents.

7. Objective: Responsibility should be evenly shared.

·A mechanism may be needed in the event that numbers of asylum applications become overwhelming in one country as compared to the other.

8. Objective: To build support for the agreed responsibility-sharing system, and to ensure that the system is transparent.

·It is urged that UNHCR and non-governmental organizations on both sides of the border be consulted during the preparation of any agreement, and be enlisted to participate in monitoring of the system. Involvement of UNHCR would be in line with Executive Committee Conclusion 15 which states that “The establishment of criteria should be accompanied by arrangements for … consultation with the Office of the UNHCR ….”

UNHCR, 29 January 2002