Policy in support of migrant security or in favor of U.S.-Canada relations?
President Biden’s visit to Ottawa entailed more than just road closures downtown. The recent visit marks the first meeting between Prime Minister Trudeau and President Biden, since his election in 2020. Understandably, this event has spurred several concerns about U.S.-Canada relations.
Importantly, Trudeau stated the Safe Third Country Agreement would be on the agenda to discuss with Biden. This Agreement is relevant in current public discourse because Trudeau is facing pressure from the Conservative Party and Quebec to close the unofficial border crossing from New York State into Quebec—Roxham Road.
Impact on U.S.-Canada Relations
The Safe Third Country Agreement (STCA) is an agreement that came into effect on December 29, 2004, between the United States and Canada, establishing that migrants are required to request refugee protection in the first country they arrive.
In other words, the STCA acknowledges that the United States and Canada are safe nations for asylum seekers to enter. The goal of the Agreement was to enable both governments to manage access to the refugee system for people crossing the U.S.-Canada land border. The STCA therefore, establishes that migrants should apply for asylum in the country where they first arrive. In other words, if migrants arrive in the U.S. first, they have no reason to seek entrance into Canada.
The increasing number of migrants crossing Roxham Road has sparked conversations about immigration into Canada. Indeed, controversies surrounding immigration appear to be at an all-time high. Certainly, whether in class, at work, or on social media, everyone has a distinct dogmatic attitude on immigration in their nations. The same is true for Canada, as evidenced by recent articles about Roxham Road and the Canada-U.S. Safe Third Country Agreement.
Though experts advocate for the suspension of the STCA changes to the Agreement remain an important political strategy with regards to U.S.-Canada relations. Dr. Christina Clark-Kazak is an Associate Professor at the School of Public and International Affairs at the University of Ottawa. As well, she is the former President of the International Association for the Study of Forced Migration and the immediate past editor-in-chief of Refuge: Canada’s Journal on Refugees.
In an interview with the Fulcrum, she explained that “The STCA and its proposed modification increases cooperation between the US and Canada on immigration and border security. It does not necessarily need the involvement of the PM and President, but both are facing political pressure on irregular migration. So, the announcement of changes to the agreement during the POTUS visit is politically helpful for them to demonstrate that they are “doing something” about irregular migration.”
While immigration is a deeply politicized issue, it does not eliminate the fact that there are people seeking refuge in Canada whose lives would be severely impacted by potential policy changes pertaining to crossing the US-Canada border as asylum seekers.
Changes to the STCA
Recently, edits were made to the STCA. On March 24, 2023, the expansion of the STCA across the entire land border and internal waterways was announced. On March 25, 2023, following the completion of regulatory amendments, the two countries signed an Additional Protocol to the STCA.
Further, the recent revisions of the STCA impact asylum seekers since they are subject to the expanded application and, therefore, if they cross the border to make an asylum claim, they will be returned to the U.S., unless they meet relevant exceptions outlined in the Agreement.
While the overall goal of the STCA appears reasonable, its application is harmful to those seeking refuge in Canada. Importantly, many groups oppose the STCA. For example, the Canadian Council for Refugees (CCR) states the U.S. is not a safe country for all refugees. Further, they denounce the purpose of the Agreement claiming that the intended effect is to reduce the number of refugees who can seek Canada’s protection. The CCR has a history of challenging the STCA.
Challenging the STCA
In July 2017, the CCR joined human rights groups such as Amnesty International in a new legal challenge by submitting to the government a 52-page brief, Contesting the Designation of the US as a Safe Third Country, which reveals the ways in which the U.S. asylum system fails to fulfill the international and Canadian legal standards.
On July 22, 2020, the Federal Court ruled that returning refugees to the United States under the Safe Third Country Agreement violates their right to liberty and security under Section 7 of the Canadian Charter of Rights and Freedoms. As a result, the Court found that Canadian legislation designating the United States as a safe third nation had no validity.
In response to this ruling, the CCR asks the government to immediately stop sending refugee claimants back to the United States and suspend the Safe Third Country Agreement, as well as accept the Court’s judgment and refrain from pursuing a further appeal.
In support of these requests are leading Canadian human rights organizations such as the aforementioned CCR, Amnesty International Canada, and The Canadian Council of Churches who argue that the practice of barring refugee claimants from seeking protection violates Canada’s human rights obligations under both the Charter of Rights and Freedoms and international law.
In an October 2022 Media release, the president of CCR Aleks Dughman-Manzur states that “The United States is not a safe place for refugee claimants escaping persecution. Despite the change in administration in the U.S., people sent back to the U.S. under the STCA continue to be at high risk of detention in abhorrent conditions. And some, including people facing gender-based persecution, are unfairly denied protection in the U.S. and sent back into danger in their countries of origin – a clear violation of their basic human rights.”
Expert Advice
The STCA amendments have an immediate impact on migrants seeking to enter Canada via Roxham Road. For many years, this unauthorized crossing has served as a type of “loophole” for rising numbers of migrants seeking to enter Canada from the United States. This is because the STCA previously did not limit access through the forests or dirt roads. The recently extended application of the STCA means that migrants who enter Canada via Roxham Road will be returned to the U.S.
Laura Madokoro, associate professor at Carleton University specializing in the history of migration, explains that Canada is one of many signatories to the 1951 UN (United Nations) Convention Relating to the Status of Refugees that are finding new ways to minimize their obligations to refugee claimants. Importantly, under the convention, people have the right to seek asylum. In a Globe and Mail opinion feature, Madroko explains that “their claims have to be heard, and they cannot simply be turned away regardless of how “safe” other countries might be.”
Other experts also maintain that further restrictions on Roxham Road influenced by the changes to the STCA will negatively impact migrants and asylum seekers.
Dr. Clark-Kazak says “It is very difficult to come to Canada through regular channels to make an asylum claim. The STCA means that refugee claimants who cross at an official border crossing with the US will be turned back to the US.”
“To fly into Canada, most people from refugee-producing areas require a visa.” Clark-Kazak explains. “Immigration officials will not grant visitor visas to people they believe will make a refugee claim. The changes to the STCA will further reduce the ability for people to make a refugee claim in Canada. But, the right to asylum is a fundamental human right, protected by international and Canadian law.”
It is based on this fundamental human right to asylum that Dr. Clark-Kazak explains Canada should “deal with irregular migration at Roxham Road, [and] invoke public policy exemptions, allowed under article 6 of the agreement, to permit some groups of people to make asylum claims at an official border crossing. For example, unaccompanied minors are already an exemption under the agreement.”
Trudeau on Roxham Road
In a joint press conference with Biden on March 24 Trudeau was asked about Roxham Road and the changes to test STCA by Christina Noel with Radio-Canada.
In French Trudeau answered; “We’ve known for a long time theoretically what modernization needed to be made to the Roxham Road, to the agreement. We couldn’t simply shut down Roxham Road and hope that everything would resolve itself, because we would have had problems. The border is very long. People would have looked for other places to cross.”
“And so that’s why we chose to modernize the Safe Third Country Agreement so that someone who attempts to cross between official crossings will be subject to the principle — the same principle as someone who should seek asylum in the first safe country they arrive at.”
“Now, for people who are coming from the U.S., that is where they should be asylum seekers, using this means of uniformly applying the agreement, which we knew theoretically would be the solution, but it takes complex processes to manage the border. It took months before we could move forward with the announcement.”
“But by doing so, we protected the integrity of the system. And we’re also continuing to live up to our obligations with respect to asylum seekers.”
“At the same time, we continue to be open to regular migrants, and we will increase the number of asylum seekers who we accept from the hemisphere — the Western Hemisphere — in order to compensate for closing these irregular crossings.”
Translation from whitehouse.gov
What can you do?
Rather than succumbing to nationalist rhetoric regarding immigration, people should instead educate themselves on who is at risk because of these policy changes. Most importantly, individuals should try to put themselves in the position of migrants who wish to make a life in Canada. Politics may sometimes stand in the way of our humanity, and this will be critical in living together in an increasingly polarized society. If readers feel compelled to support the CCR effort to suspend the refugee agreement with the US they can contact Prime Minister Trudeau and their Member of Parliament with the urgent requests outlined in this article.
