Under the Canada-U.S. Safe Third Country Agreement, Canadian officials send back asylum-seekers coming from the United States at land border crossings, on the grounds that they should file refugee claims in the United States.
Under the agreement border officials from either country can turn asylum-seekers back at border crossings but asylum-seekers rarely try to cross by land from Canada into the United States.
The implication is that a “safe” country, as Canada has been designating the United States, is one that respects asylum-seekers’ rights and offers them protections in line with international law.
Canada has said it needs the agreement to manage its border and its asylum system. Refugee advocates argue the agreement violates asylum-seekers’ rights by subjecting them to the possibilities of immigration detention and removal to potential persecution.
Two Canadian courts more than a decade apart found the agreement violates asylum-seekers’ rights under Canada’s Charter of Rights and Freedoms. Twice, the Federal Court of Appeal overturned these rulings. L1N2M81PT
In its ruling last year upholding the agreement, the Federal Court of Appeal said the refugee advocates should have challenged the process by which Canada designates the United States a “safe” country, rather than the law underlying that designation.
This puts people trying to challenge any Canadian law in a difficult position, the advocates argue.
In this scenario “litigants can no longer challenge the law whose operation violated their rights, but instead must identify and challenge each of the administrative and legislative actions or inactions that might have worked as a ‘safety valve’ to prevent the harm.”
The Canadian government, which defended the agreement in court and has sought to extend it so it applies the full length of the border, has not yet filed its arguments with the Supreme Court. A spokesperson for the federal Minister of Immigration, Refugees and Citizenship did not immediately respond to a request for comment.