Comments on Proposed agreement for cooperation in the examination of refugee status claims from nationals of third countries
30 July 2002

GENERAL COMMENTS
The Canadian Council for Refugees is firmly opposed to the proposed agreement.  It is clear that the primary purpose of the agreement is to reduce refugee claimants' access to Canada and thus reduce the number of refugees able to find protection in Canada.  Canada is a geographically isolated country that receives very few of the world's refugees.  Given Canada's wealth and many privileges, it is particularly shameful that it should be closing its doors on refugees.

The proposed agreement removes from refugees the choice of the country in which they seek refugee protection.  Given that refugees have already lost so much home, country, job, friends, often family, social status it is cruel to deprive them of any say in the choice of the country where they will make their home. It is also short-sighted from the receiving countries' point of view, since the integration of newcomers is clearly greatly facilitated when the newcomers have chosen the country, rather than having the country imposed on them.  The agreement fails to respect the principle articulated by the UNHCR Executive Committee in Conclusion No. 15 (XXX) which states that "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."

While Canadian and US refugee systems are similar in many ways, they also have some important differences, including in interpretations of the refugee definition.  As a result, some refugees that would be accepted in one country would be refused in the other.  As long as there are significant divergences between the two systems, it is incompatible with each country's non-refoulement obligations to deny a claimant the right to make a claim on the grounds that a claim could be made in the other country.

The effect of the agreement will be to increase claimants' vulnerability to smugglers.  The experience of Europe since safe third country measures came into effect is instructive.  Claimants have increasingly turned to desperate measures in an attempt to reach their destinations.  The recent history of the US-Mexican border also shows how efforts to close the border lead to increased deaths.  Given the context of the struggle to enhance security in the post-September 11 environment, it is paradoxical that the US and Canada should be negotiating a deal that seems destined to convert an orderly process at the border into a dangerous and disorderly process.

The agreement would appear to be difficult if not impossible to implement.  The agreement does not explain the process at the border, but it is hard to see how the receiving country will be able to fairly and effectively determine whether a claimant meets any of the exceptions.  There is no easy, reliable and quick way to determine whether a person is under 18, whether a minor has a parent or legal guardian in Canada or the US, or whether a person has a family member in the receiving country with a particular status.  Instead of spending time on the important question of whether the claimants need protection, officials will have to divert resources in order to determine whether the claimants meet the exceptions in the agreement.  It is unclear what happens to the claimants while the determination is being made.

PURPOSE OF THE AGREEMENT
A key problem with the agreement is that it is unclear what the Canadian and US governments are trying to achieve.  According to the December 12 "Canada-U.S. Smart Border Declaration" the safe third country agreement is intended "to enhance the managing of refugee claims."  It is hard to understand how the proposed agreement meets this goal, given that it creates a whole new process that brings with it additional management challenges.

For its part, the December 3 "Joint Statement on Cooperation on Border Security and Regional Migration Issues" had a longer "Statement of Purpose" for the Safe Third Country Agreement.  According to this, the agreement was to limit access of asylum seekers "under appropriate circumstances" to refugee determination in only one of the two countries.

The proposed agreement does not however address itself in any effective way to this stated purpose.  On the contrary, the agreement could oblige refugees who want to make a claim in one country only to make claims in both countries.  For example, a refugee claimant could come to the Canadian border, be found to meet one of the exceptions in the agreement and enter Canada to make a refugee claim.  Months later the Canadian government could decide that the claimant no longer meets the exception, re-determine eligibility and force the claimant back to the US to make a claim.  (This could happen to a minor who turned 18 while in the Canadian refugee determination system or a claimant whose family member in Canada left the country or died).   Thus the agreement will perversely force duplicate claims where a single claim would have sufficed.

The Canadian Council for Refugees has indicated in the past its willingness to discuss with Citizenship and Immigration Canada (CIC) how best to respond to problems that it may be dealing with, such as how to address increases in numbers of claims or perceived abuse of the claim process.  We believe that it might be possible to come up with creative solutions that would respond to CIC's problems while avoiding or at least minimizing the negative impacts on refugees.  We therefore regret that CIC prefers to move ahead with their solutions, without first engaging in substantive discussion with refugee advocates on alternatives and without ever clearly articulating what problem the solution is intended to respond to.

PROTECTION OF REFUGEES
The preamble underlines the commitments made by both countries to the protection of refugees.  The provisions of the draft agreement do not however translate those commitments into meaningful protections for refugee claimants.

Access to one or other of the two countries' refugee determination systems
Article 3 addresses the issue of access to a refugee determination system.  However, the agreement only ensures that claimants have an "adjudication of the person's refugee status claim."  "Adjudication" is not defined and would be open to an interpretation that includes a decision on eligibility.  This would potentially allow one of the countries to find the claimant ineligible on the basis that he or she could be returned to another "safe third country."  Thus, the agreement offers no protection against the greatest danger for refugees in the safe third country concept, namely chain deportations where the claimant is returned from country to country and possibly back to the country of feared persecution, without ever being given a hearing on the refugee claim itself.

The 1995 draft agreement offered some concrete protection against such chain removals by specifying that a claimant could not be removed to a third country unless both countries were parties to an agreement with a third country, or, if only one country had an agreement, unless the other country consented to the removal of the claimant to the third country.

Differences in eligibility screens between the two countries
Article 3 also fails to give protection to a person who would be found ineligible under the law of the "country of last presence" but eligible in the other country.  An example of the differences in the eligibility rules is the US general requirement that a claim be made within a year of arrival in the US.  Canada has no such rule.  As a result a person who had been in the US for over a year and who was turned back from the Canadian border under the terms of agreement might be denied the right to a hearing in the US and removed from the US.  Since that claimant would be eligible under Canadian law and might have been found to be in need of refugee protection, Canada would in such a case put itself at risk of a violation of its non-refoulement obligations.

The 1995 agreement had a rule saying claimants who were ineligible in one but not both countries would have access to the country in which they were eligible.

Risk of protection guarantees being suspended
Any limited protection that Article 3 offers is undermined by Article 10 which gives either country the right to unilaterally suspend the agreement for three months, renewable.  Thus a country could, without any notice, suspend the agreement, including the guarantees in Article 3.  This would affect not only future claims but also claimants previously sent back to the "country of last presence" under the terms of the agreement, who would find the guarantees meaningless because they were suspended.

RECOMMENDATIONS:
1. Amend Article 3 to ensure that claimants have access to a hearing on their claim for refugee protection in at least one of the two countries, i.e. to prohibit removals of claimants to a third country for refugee determination.

2. Add a provision stating that the more generous eligibility screen applies, i.e. to grant claimants access to refugee determination in the receiving country if they would be ineligible in the "country of last presence" but eligible in the receiving country.

3. Amend Article 10 to state that, in the event of a suspension of the agreement by either party, Article 3 would continue to have force with respect to any claimants previously returned under the terms of the agreement.
EXCEPTIONS

Unaccompanied minors
Article 1 defines an "unaccompanied minor" as an unmarried person under 18 who does not have a parent or legal guardian in either Canada or the United States.  This is a narrow definition of "unaccompanied minor" that fails to address the situation of some children.  Of particular concern is what happens to unaccompanied minors who have a parent in one of the two countries.  For example, a child could come to the Canadian border and have a parent in Canada.  If the parent is a permanent resident, a recognized refugee or a claimant who is not ineligible, the child would be covered by the family exceptions.  However, if the parent is in Canada on a student visa or a temporary worker visa, the child would not be admitted to Canada.  This would seem to violate Canada's obligations under the Convention on the Rights of the Child.

Transit
The draft agreement (unlike the 1995 version) provides for no exception for claimants who were only in the "country of last presence" in transit towards the receiving country.  Given that Canada is geographically isolated and many routes to Canada take travellers through the United States, and given also the commitment to responsibility-sharing articulated in the preambles, it makes good sense to have an exception for claimants who are merely transiting through the United States.

Family members
The agreement defines the types of family relationship that count for the purpose of the exception.  This excludes other family members who may be important for the claimant.  For example, a cousin can offer a claimant important support and orientation, especially when the claimant has no other family members in North America.

The agreement also limits the family exceptions to family members with a certain status.  As a result, someone, for example, whose spouse was in Canada as a student would still be forced to apply for refugee status in the United States.  Similarly, a person might have six siblings all in the refugee determination system in Canada but still be forced to apply in the United States.

A further problem lies with the requirement that the family member in the refugee claim system of the receiving country must be at least 18 years old.  This would lead to scenarios where parents were turned back to make their claim in the US even though their child was in the claim process in Canada.

Special considerations are needed for situations where the family member in the receiving country is an unaccompanied minor.  There need to be mechanisms for family reunification when a relative, including an aunt, uncle, niece, nephew or sibling, of an unaccompanied minor, arrives at the border.

Determination of exceptions
The agreement gives the receiving country sole responsibility for determining whether a claimant fits any of the exceptions (unlike the 1995 agreement which required both countries to be satisfied).  Presumably this is meant to simplify the decision-making process.  However, this leaves a gap in terms of protection against arbitrary decision-making, particularly since claimants at the border, usually no doubt without legal representation, are not in a good position to assert their rights.  If the only recourse available is by way of an application for judicial review to the Federal Court of Canada, there is effectively no recourse for most claimants sent back to the United States, since they will be in no position to hire a Canadian lawyer.

Time limits for determination
The agreement says nothing about the period of time within which a determination under the agreement is to be made.  Under Canadian law, eligibility decisions may be re-determined while a claimant is before the Immigration and Refugee Board.  This leaves the door open to a person being found ineligible on safe third country grounds months after entry into Canada.

RECOMMENDATIONS
4. The definition of family member should be broadened to include cousins and de facto family members (i.e. family members with strong psychological and emotional ties).

5. Family members should not be required to have a particular status in the country in order for the exception to apply.  In the alternative, student and temporary worker statuses and persons affected by a temporary suspension of removals should be added to the categories of status that are taken into account.

6. The agreement should be amended to delete the requirement that family members in the refugee status determination system be at least 18 years of age.

7. In the alternative, a special provision should be added to address the situation of unaccompanied minors in the refugee determination system in the receiving country, when a family member makes a claim at the border, in order to allow for family reunification.

8. The agreement should guarantee claimants' right to counsel during the process at which it is decided whether they meet any of the exceptions.

9. An accessible and effective complaint mechanism should be added so that individual claimants have a recourse against arbitrary or unfair decisions.

10. The agreement should include a timelimit for the receiving country to return a person to the "country of last presence" under Article 4.

DETENTION
The agreement does not mention the issue of detention, although this is an issue of great importance to refugee claimants, given the increased use of detention in recent years in both the US and Canada.

RECOMMENDATIONS
11. The preamble should include reference to the general principle, as articulated by the UNHCR, that refugee claimants should not normally be detained.

12. The agreement should include a provision requiring that the "country of last presence" not detain refugee claimants returned from the receiving country, unless the claimant represents a danger to security or a danger to the public.

13. The agreement should require that claimants not normally be detained while a determination is being made as to whether they meet any of the exceptions in the agreement.

14. The agreement should include a provision committing both parties to detain minors affected by this agreement only as a measure of last resort.

USE OF DISCRETIONARY POWER TO ADMIT CLAIMANTS
Article 6 gives each country the right to examine any claim, despite the agreement, on the grounds of public interest.

RECOMMENDATION
15. The discretionary power should be used to admit for determination:
 a) Claimants who have less of a chance of being accepted in the other country, including claimants with a gender-based claim;
 b) Survivors of torture;
 c) People who would be detained if returned to the other country;
 d) Claimants with particular physical or psychological health needs;
 e) People with no means of support in the other country;
 f) People who have ties to the country, including linguistic ties, that will assist in integration.
 g) Claimants from a country to which the receiving country has a temporary suspension of removals, if the "country of last presence" does not have a similar policy of non-removal.

PERSONS IN TRANSIT DURING REMOVAL
Article 5 states that a claimant whose refugee claim has been refused in the US would be denied the right to make a claim in Canada and instead forwarded for deportation.  This is incompatible with non-refoulement obligations and with Canadian law, which recognizes that there may be changes of circumstances.  Under the terms of the agreement a person who had been refused refugee status in the US several years ago would be denied the right to make a claim in Canada, even if there were significant changes in circumstances.

RECOMMENDATION
16. The agreement should be amended to allow all persons in transit access to the refugee determination system in the country through which they are transiting.

MONITORING
The agreement has very limited provisions for monitoring the application of the agreement.  Article 8 provides for a review undertaken by the parties, not later than 12 months after the entry into force of the agreement.  The UNHCR is to be invited to participate in the review.  There are no provisions for ongoing monitoring of the agreement.  No role is offered to NGOs, despite the important role played by NGOs in both US and Canada with respect to the refugee claim systems.

RECOMMENDATIONS
17. A provision should be added requiring the parties to make public the standard operating procedures and regular comprehensive statistics on the decisions made under the agreement.

18. The agreement should guarantee the UNHCR access to all processes affected by the agreement, including interviews with refugee status claimants at the border, in order to allow it to monitor the operations of the agreement on an ongoing basis.

19. The agreement should guarantee NGOs a role in ongoing monitoring and review of the application of the agreement.

PRIVACY ISSUES
The agreement provides for the exchange of information about individual claimants (Article 7) but has no explicit measures to protect confidentiality, referring only to disclosure being limited by a country's "national laws and regulations."

20. The provision should be redrafted to specify precisely what information may be exchanged, how it is to be protected and limiting the use that may be made of the information and the length of time it may be held.

21. A provision should be added specifically prohibiting the disclosing of personal information to a refugee claimant's country of origin or to any other entity that may disclose the information to the refugee claimant's country of origin.

FUTURE CHANGES IN A COUNTRY'S REFUGEE DETERMINATION SYSTEM
The preamble to the agreement asserts each country's confidence that both countries have "generous systems of refugee protection."  As stated above, the CCR and other human rights groups are of the opinion that many aspects of the US asylum system currently fail to meet the requirements of international law.  Whatever the current shortcomings are, there are clear indications that refugee protection may well be further weakened in the US.  The agreement fails to address how future changes will be taken into consideration.  Article 7 states only that parties may exchange information on laws, regulations and practices relating to their respective refugee status determination systems.  This contrasts with the 1995 draft agreement which said that parties shall exchange such information and provided for an annex detailing the types of information to be exchanged and the mechanisms for exchange.

RECOMMENDATIONS:

22. The agreement should oblige both parties to exchange information on a regular basis on their laws, regulations and practices and should require each party to notify the other in advance of any impending changes to their refugee status determination system.

23. The agreement should provide for the automatic review of the agreement whenever either country makes a change to its laws or regulations relating to its refugee status determination system.

RESETTLEMENT
Article 9 addresses mutual assistance in the area of resettlement.  The issue of resettlement and measures relating to resettlement programs have no place within an agreement addressing asylum seekers arriving in Canada and the US.

The preamble to the agreement presents as a context for the draft agreement the conviction that each country is fully living up to its obligations under the Refugee Convention.  The introduction in this context of a provision for the resettlement of refugees "determined to require protection" appears contradictory, as it seems to suggest that the parties are not in fact confident that they are able to protect all persons determined to require protection.

Of particular concern is the fact that there appears to be an additional undisclosed annex to the agreement according to which Canada accepts up to 200 refugee resettlement referrals a year from the United States.  The lack of transparency about this part of the agreement and the absence of detail as to the intent of Article 9 call into question the integrity of the proposal.

The Canadian Council for Refugees has serious concerns about the proposal to give the US the right to refer to Canada refugees for resettlement.  This will entail a loss of sovereignty for Canada and a reduction in the Canadian government's ability to decide where its resettlement program is best directed, including which refugees are most in need of resettlement.

Also of concern is that the undisclosed agreement under Article 9 does not appear to be reciprocal.  The one-sidedness of the agreement highlights the question as to the identity of the refugees in need of protection for whom the US feels it needs Canada's assistance.

RECOMMENDATION
24. Article 9 and any undisclosed side-deals should be deleted.

25. In the alternative, all side-deals should be fully disclosed.