Canada - U.S. memorandum of understanding

Resolution number: 
22
November 1993
Whereas: 
  1. There is now available a draft memorandum of understanding between Canada and the U.S. to provide for the allocation of determination of refugee claims between the two countries;
  2. This draft memorandum has not been signed and may be changed if the governments of the two countries agree;
Therefore be it resolved: 

That the CCR ask the governments of the U.S. and Canada to amend the memorandum of understanding to incorporate the following changes:

  1. Country of Determination
    1. The country of determination should be the one chosen by the claimant.
    2. If the rule of country of choice is not accepted, and the rule of first arrival remains, the rule of first arrival should not apply in every case.
    3. Where the claimant has a family member in one state, and the country of first arrival is another, the claimant should be free to choose between the country of first arrival and the country where the family member is present.
    4. "Present" for this purpose means physically present. It would cover family members who have no status in the country of choice, but are only there for the purpose of making a refugee claim.
    5. Family member, for this purpose, means both the family class and assisted relatives.
    6. Where the claimant has a visa for one state and the country of first arrival is another, then the claimant should be able to choose between the country of first arrival and the country of visa issuance.
    7. Where the claimant has been lawfully present in the country of second arrival at any time prior to the claim, the claimant should be able to choose the country of claim.
    8. A country of transit should not be considered a country of first arrival.
  2.   Safeguards
    1. The parties should agree to apply minimum standards of procedural fairness in the determination of refugee claims. The agreed minimum standards would be listed in the memorandum.
    2. The parties should agree not to deter the making or maintaining of refugee claims either by detention or by any other means.
  3.   Access
    1. The parties should each agree to grant access to its refugee determination system on the merits of the claim to every person allocated under this agreement.
    2. The undertaking to examine claims should include persons who are at the border as well as persons who are in the country.
  4. Confidentiality
    1. Any information exchanged under this agreement about individuals should be considered confidential and may not be passed on to any third party.
    2. Any information about an individual that is exchanged under this agreement must be accessible to that individual without regard to any exclusion that may exist in the privacy legislation of either country about information exchanged between governments.
  5. Appeals
    1. The parties should establish a joint appeal tribunal to consider and decide on appeals from persons whose determination of claims have been allocated under this agreement, and who have been denied refugee recognition.
    2. The appeal tribunal should be a judicial body independent from both governments.
    3. Access to the tribunal should be subject to an admissibility requirement. The tribunal should be able to consider any appeal from a person allocated under the memorandum where there is a reasonable possibility that the determination would have been different if the claim had been in the other country.
    4. The appeal tribunal should have the power to reverse a negative determination and determine the person to be a refugee.
    5. The appeal tribunal would also have a power to decide disputes between the two state parties or between claimants and a state party on the country of allocation.
  6. Third Countries
    1. Removal of a person allocated under this agreement to a third country should not be possible unless the claimant has a right to have his/her claim considered on the merits in the third country.
    2. Removal of a person allocated under this agreement to a third country should not be possible unless there is an agreement with the third country that incorporates all the provisions that are in this memorandum.
  7. Status of the Memorandum
    1. The memorandum should be a legally binding agreement between the state parties enforceable by refugee claimants.
    2. The parties should undertake to provide to claimants free access to the courts of their countries for the enforcement of this agreement.
    3. All international human rights or refugee protection instruments by which a signatory state may be bound, including the Geneva Convention for the Protection of Refugees and Protocol, the International Covenant on Civil and Political Rights, the Charter of the Organization of American States, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on All Forms of Discrimination against Women, and the Convention against Torture, should be respected in the application of this memorandum by that signatory state. In case of conflict between an international human rights or refugee instrument by which a signatory state is bound and this memorandum, the international human rights or refugee instrument should predominate.
  8. Quotas
    1. Except in the case of a claimant whose claim has already been determined on its merits by one of the signatory states, each party should not, in any year, invoke the memorandum of agreement to allocate determination of a claim until after that country has accepted for determination on the merits a minimum number of refugee claims. The minimum for Canada should be 30,000.
  9. A Coordinating Committee
    1. A Coordinating Committee should be established, to consist of representatives of Canada, the U.S., non-governmental organizations, and the United Nations High Commission for Refugees. The Committee would be responsible for supervising the administration of the memorandum. The Committee would set the minimum numbers that would have to be reached to make the memorandum operational.
Working Group: 
Inland Protection