What happens when a “Safe Third Country” is no longer safe?

As the U.S. becomes an increasingly harsh place to claim asylum, Canada is telling more people than ever that that's where they ought to go

Like many countries, Canada has an ambivalent relationship to asylum seekers. On the one hand, we welcome those looking for refuge, in accordance with our obligations under international law. On the other, we get antsy when we think there are too many of them.

Frustrated by the number of refugee claimants arriving via Canada’s southern border — when, the logic went, there was already a perfectly safe country right there — Prime Minister Jean Chrétien’s government persuaded the Americans to sign the “Safe Third Country Agreement” in 2002.

Under the treaty, asylum seekers arriving at official ports of entry would be turned away if they were entering Canada from the United States, and vice versa. To Canada, the U.S. was a safe country, and to the U.S., Canada was a safe country — so why shouldn’t a person have to make their claim in the first safe country on whose land they set foot?

This, however, held open a loophole: While asylum seekers would be rebuffed at official border crossings, they could still make claims upon crossing at unofficial ones. And in 2022 alone, approximately 40,000 did — the vast majority at Roxham Road in Quebec. Last month, Prime Minister Justin Trudeau and U.S. President Joe Biden announced an expansion of the agreement, closing that loophole.

But what happens when a country once designated “safe” is in fact less than ambivalent toward asylum seekers? What if it’s downright hostile? What does it mean to send someone into that system? And what would it mean for Canada to acknowledge that its closest ally might not quite meet its own definition of “safe”?

On this week’s CANADALAND, reporter Cherise Seucharan sifts through some of the same evidence that Canada’s Supreme Court is weighing right now:

Here are lightly edited excerpts from some of the voices heard on the episode:

“There was a lot of evidence before the Canadian government and the courts with regards to the problems with the U.S. refugee determination system. You know, aside from assessing whether or not someone is a refugee, the ways in which the United States has historically dealt with refugee claimants is, you know, problematic. There is documentary evidence in that litigation, for example, indicating that people were automatically detained when they were turned away at the Canada-U.S. border. So, you know, that’s concerning: the amount of detention, the use of prisons to basically contain refugee claimants. It’s a problem. That kind of treatment is not one that should be seen in a country that’s supposed to be refugee-friendly or one that’s supposed to be abiding by the Refugee Convention, for example.” — Jamie Chai Yun Liew, University of Ottawa law professor and expert in refugee law, on evidence that’s been presented to Canadian governments and courts over the past two decades

“In the US, that’s the main issue. When you’re processed, you have to be in the detention centre. Many people spend months and sometimes years to get clear; either they accept it, or they send you back home. It was either I die trying to get to where I want to come, or I die if I get deported to my country. So I got two choices: either die in my country, because of that unsafe area, or I die in the desert at the moment. So I prefer to continue and see how far I can get.” — “Cruz,” a Canadian refugee from Honduras, who crossed on foot from Mexico to the U.S., and then continued on to Canada via an irregular border crossing

“Canada’s supposed to be looking at the United States’ human rights record. And importantly, Canada is meant to conduct ongoing reviews of this kind of compliance. So that’s been a bit of an issue, because the reviews are not transparent, they’re not proactively disclosed, and no one really has a good sense of, not only what the human rights records are that Canada is looking at, but also what the conclusions are and what the measure is. So part of the problem is these reviews are done in secret.” — Maureen Silcoff, partner at Silcoff Shacter and expert in refugee law, on Canada’s ongoing reviews of the United States’ designation as a “safe third country”

“I don’t think there’s any way a serious expert with experience in these fields could argue that the United States is a safe place for refugees today. Better than a lot of other countries still? Yes. Able to adjudicate many cases? Yes. But safe by the standards of the Refugee Convention and the other international instruments whose principles we’re supposed to be living up to in these difficult times? No.…It should be about peer review, stating the truth, helping each other get to a better place. There have been times in Canada’s history where we didn’t do as well on these issues. Today we should take pride in the fact that we are in a better place, and not indulge in the fiction that the United States is anywhere close to meeting the standards that we expect.” — Chris Alexander, Minister of Citizenship and Immigration under Prime Minister Stephen Harper from 2013 through 2015, at a November 2020 panel discussion organized by the Centre for European, Russian, and Eurasian Studies at the University of Toronto’s Munk School of Global Affairs & Public Policy

“It’s actually quite shocking that, in light of all of this evidence — everything that the Canadian government is aware of in terms of the deficiencies in the U.S. asylum system — that instead of pulling back these harsh measures, the pendulum actually has swung the other way and the border is now virtually closed, aside from some preexisting exemptions.” — Maureen Silcoff, on the expansion of the Safe Third Country Agreement that took place last month

“People want to be safe and have a better life, and they will try. It’s like when I was trying to cross the desert, 10 days, 10 nights, and I don’t want to go back. I wanted to get to a place where I could be free and have a better life without fear. Many people, they will continue going to different places to be safe and be free. If they want to block the borders, close the border, they have to open a solution for the people, too, because every time they make it harder, people are gonna go around and sometimes they die trying to get to a safe country.” — “Cruz”

Top photo of asylum seekers preparing to cross the border at Roxham Road in August 2017 edited from the original taken by Daniel Case, via Wikimedia Commons, CC BY-SA 3.0

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