By Edward C. Corrigan
It has been reported by Global News that the Canada-United States Safe Third Country (STCA) is under review. They acquired government documents prepared in 2018 under an access to-information request.
According to the Memo, “the recent influx of asylum seekers to Canada, the Safe Third Country Agreement is no longer working as intended.” The Briefing Memo prepared for the Canadian Minister of Immigration further stated that:
Asylum seekers are evading the Canada-United States Safe Third Country Agreement by crossing into Canada between ports of entry where the agreement does not apply. This has brought to our attention gaps that may be creating a pull factor for people to cross illegally into Canada.
The discussion of the Briefing Memo comes at a time when warmer weather in Canada leads to an increase in the number of “irregular migrants” crossing the border into Canada. These migrants are crossing into Canada at points where there is no border security or legal points of entry.
Data from Canadian immigration officials show that in 2018, irregular crossings in January and February stood at 1,517 and 1,565 respectively. Then there was an increase in March, April and May to 1,970, 2,560 and 1,869.
Information available for January 2019 show only 888 irregular migrants were intercepted by RCMP in January 2019. Data from 2017 did not show significant spikes between winter and spring.
Global News contacted Hussen’s office for comment but was directed to contact Bill Blair Canada’s Border Security and Organized Crime Minister. Responsibility for the Safe Third Country Agreement and any changes to it were assigned to Minister Blair in the fall of 2018.
Minister Blair has said he sent a letter to Nielsen asking to engage American officials on ways to “improve and enhance” the Safe Third Country Agreement.
FORTRESS NORTH AMERICA
The Minister’s Spokesperson indicated that “Minister Blair is in discussion with his U.S. counterparts to address the loophole that permits people to avoid the provisions in the STCA and improve the way the ‘anchor relative exception’ is defined and applied.”
The exception being referred to allows asylum seekers who present themselves at a Canadian Port of Entry to enter Canada if they have a close family relative in Canada. This called an “anchor relative” which allows the asylum seeker to enter Canada as they have a family member in Canada. The reverse applies to the United States.
Up until now the United States has shown little interest in amending the STCA and “closing loopholes” because the net flow of asylum seekers was to the United States advantage with many more asylum seekers going to Canada and leaving the United States.
The loop hole that allows irregular migrants who cross at unauthorized points of entry to make refugee claims in Canada is in excess of 40,000. The influx this large number of asylum seekers puts a great deal of pressure on Canada’s Immigration and Refugee Board, and provincial health care and other social services.
The problem is that Canada and the United States share the longest border between two countries on the planet. The boundary (including portions of maritime boundaries in the Great Lakes, and on the Atlantic, Pacific, and Arctic coasts) is 8,891 kilometres (5,525 miles) long. This includes 2,475 kilometres (1,538 miles) of Canada's border with Alaska.
The Canadian government wants to change the Agreement to allow Canadian officials to escort asylum seekers who enter at an unauthorized entry point to a designated crossing area. There the irregular migrants would be refused entry into Canada and be returned to the United States. It is proposed that the change would apply to the entire Canada-United States land border.
The STCA applies only to those who arrive at official points of entry. Asylum seekers can avoid being immediately turned away by crossing into Canada where there are no border posts. The effect is that Canada is obligated to process most of the claims for refugee protection for those who enter illegally.
One of the main goals of the STCA was to prevent asylum shopping. It also was designed to reduce the numbers of individuals seeking asylum in either Canada or the United States. It also wants to reduce unwarranted refugee claims and economic refugees.
In Canada Conservative Members of Parliament have repeatedly called on the government to close the loophole in the STCA. The NDP have urged the Liberals to suspend the pact so asylum seekers in the United States can claim refugee status at official Canadian land border posts due to problems with the American asylum system.
Sean Rehaag, an Associated Professor at Osgoode Hall Law School, who specializes in Immigration and Refugee law, writes:
The purpose of the STCA from a Canadian perspective was to force the U.S. to take responsibility for asylum-seekers who travel to Canada via the United States. Canada had long wanted the STCA because the flow of asylum-seekers is asymmetrical. Far more asylum-seekers come to Canada from the U.S. than the reverse.
For the same reason, the United States has long refused to agree to the STCA. That only changed after 9-11, when Canada offered the U.S. greater border security integration in exchange for the STCA.
Canada now wants to expand the STCA, so the question is: What will Canada have to give the U.S. to get them to agree?
One might expect quite a lot, given that Trump has shown little interest in taking steps that would result in thousands of asylum-seekers who would otherwise go to Canada remaining in the U.S.
The STCA is also under legal attack in Canada. In July 2017 Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches launched a legal challenge to the Agreement.
There is a wide spread concern from refugee lawyers, Human Rights organizations and refugee advocates that there are serious problems with the US Asylum system. On the other hand Conservatives and their supporters want to stem the flow of asylum seekers and prevent what they see as abuse of Canada’s laws and the costs of supporting these asylum seekers while they remain in Canada.
No doubt Immigration and refugees will be a major issue in the coming Canadian Federal election expected in the Fall of 2019. Immigration is already a major issue in the United States.
It remains to be seen how these legal and political considerations will be played out. It is doubtful that US President Donald Trump will be eager to change the STCA that would allow the return of thousands of asylum seekers who have entered Canada from the United States.
As experience has shown desperate people will find a means to overcome barriers even if it means risking their lives as the European refugee issue has demonstrated.
It is clear that the STCA is under scrutiny both in Canada and in the United States. For those asylum claimants in the United States the doors may soon be shut as Canada and the United
States set up “Fortress North America” with the express purpose of reducing the number of asylum claimants seeking the protection of Canada and the United States.
Edward C. Corrigan is certified as a specialist by the Ontario Law Society (formerly the Law Society of Upper Canada) in Citizenship, Immigration and Immigration and Refugee Law. Edward can be contacted at corriganlaw@edcorrigan.ca or at 519-439-4015
Version 1 April 2019 1306 Words.
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1 “Safe Third Country Agreement,’ memo reveals,” by Amanda Connolly, National Online Journalist, Global News, March 14, 2019, link at https://globalnews.ca/news/5055035/safe-third-country-agreement-irregular-migration-canada/
2 Ibid.
3 Ibid
4 Ibid.
5 Ibid.
6 “Canada, U.S. in talks to close loophole in border pact on asylum seekers,” by Michelle Zilio, Globe and Mail, March 17, 2019, https://www.theglobeandmail.com/politics/article-canada-in-talks-with-us-to-close-loophole-in-border-pact-on-asylum/
7 “Closing the Canada-U.S. asylum border agreement loophole? Not so fast,” by Sean Rehaag, The Conversation, March 25, 2019, (link at http://theconversation.com/closing-the-canada-u-s-asylum-border-agreement-loophole-not-so-fast-114116