Proponents of safe third country agreements suggest that such agreements are necessary to prevent refugee protection seekers from “shopping” for a specific or preferred destination country. According to a researcher at the Centre for Immigration Policy Reform, the concept of a safe third country is based on the following principle: Although the federal government made operational and policy changes in 2017, it also acknowledged that “there are opportunities to negotiate and improve a safe third country agreement that works more effectively in the mutual interest of both countries.” 101 This is consistent with early signs in the 1990s and early 2000s that Canada was still open to further discussions with the United States on asylum, STCA and related issues.102 In 2019, the Prime Minister publicly directed the ministers concerned to continue working with the United States. Thus, the concept of a safe third country was included in the Immigration Act of 1976, but for it to come into force, the federal government had to list the countries considered safe in the regulations. That is not what he did. In particular, the legislation requires that the review of a designated country be based on the following four factors: Although UNHCR`s assessment of the CST in 2006 found that the United States was sufficiently in compliance with its international obligations to refugees,59 proponents pointed to differences between the two countries to argue otherwise. Their concerns include the conditions of detention of migrants in the United States, restrictions on the work capacity of asylum seekers at hearings in the United States and the United States. Interpretation of the Convention relating to the Status of Refugees and the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture)60 In the mid-2000s, speakers highlighted the different acceptance rates of asylum seekers from certain countries, such as Colombia, as well as the stronger protections that Canada offers to victims of gender-based persecution.61 Defenders also suggested that refugee claimants in Canada have greater access to legal aid and, if necessary, social assistance.62 These rights have emerged over three decades due to several court challenges. Among countries with similar legal standards, the separate assessment of claims by the same person can be considered ineffective. To avoid this, some countries have agreements that require people to apply for asylum only in the first “safe” country they enter. In 2002, Canada and the United States (USA) agreed on this type of system through the so-called Safe Third Country Agreement (TSCA). Although outside the scope of this document, the United States signed new safe third country agreements with Guatemala, Honduras and El Salvador in 2019, the first since the agreement with Canada. The American Civil Liberties Union questions the legality of these agreements under U.S.
and international law.75 Under the Safe Third Country Agreement, the governments of Canada and the United States, in cooperation with the Office of the United Nations High Commissioner for Refugees (UNHCR), have agreed to conduct a review of the first year of implementation of the agreement. The review assessed the implementation of the agreement and examined the effectiveness of achieving binational policy objectives. In 2018, the IRB established an inventory reduction working group for less complex claims, with a focus on applications that are “suitable for faster resolution through paper or short consultation decisions.” 87 To increase its productivity and improve its approach to case management, the IRB also updated its policy on expedited processing of refugee claims by the RPD and issued instructions for forwarding less complex claims to the RPD.88 As such, the IRB “introduced shorter, more targeted hearings to resolve simple claims and also adjudicated claims without hearing, if applicable. 89 Scientific studies show that, especially since the end of the Cold War, countries have implemented increasingly restrictive migration policies and measures to prevent the arrival of foreigners on their territory. These policies and measures include the imposition of visas and outsourced border management practices.20 The concept of a safe third country shows that borders are not static; they are “developed and converted through legal decision-making”. 21 Borders respond to unique political problems and objectives for a particular geography and population. The safe third country concept is applied transnationally and requires states to cooperate and exchange information to implement their migration law enforcement practices.22 With the entry into force of the Canada-U.S. NCA in December 2004, both governments have faced several challenges. First, as provided for in the agreement itself, a review of its implementation was to be carried out in the first year.
In addition, since its inception, the STCA has been the subject of criticism and several legal challenges, as described below. IrPA requires the federal government to continuously review countries that have been designated as safe third countries to ensure that the conditions leading to the initial designation continue to be met.10 For example, a series of human rights violations by a safe third country could result in a change in its designation. According to the most recent June 2015 guidelines, the Minister must continually review the factors listed in subsection 102(2) of the IRPA with respect to the United States.11 The 9/11 attacks in the United States led to new negotiations.39 In December 2001, Canada and the United States signed the Smart Borders Declaration and the associated 30-point action plan to improve the security of our shared border. while facilitating the legitimate movement of people. and goods that provided for a safe third country agreement between the two countries.40 In the same month, the Committee recommended Canada and the United States. Continue to develop joint initiatives to ensure safe and effective border practices. It also recommended that, in response to these outsourcing trends, the Office of the United Nations High Commissioner for Refugees (UNHCR) publish an analysis of the concept of a safe third country in 1996. It included factors that countries should consider before determining that a refugee can be legally returned to a supposedly safe country.
These factors include whether the third country has ratified and respects international refugee and human rights instruments, in particular the principle of non-refoulement23;23 the willingness of the third country to allow asylum seekers to remain in the country while their applications are examined on the merits; respect for the fundamental human rights standards of the third country in the treatment of asylum seekers and admitted refugees; and the demonstrated willingness of the third country to receive returned refugee claimants and to fairly assess their claims on the merits.24 As a result of the STCA, most people who come to Canada via the United States are prevented from seeking asylum in that country. There are a few exceptions, including that the CASS only applies to official land border crossings. Last year, the Federal Court agreed that the agreement violated rights, but last spring, the Federal Court of Appeal overturned that decision. He confirmed the deal, saying the refugees` lawyers should have questioned the government`s secret reviews, which the U.S. calls a “safe country,” rather than the deal itself. However, starting in 2017, more refugee claimants began crossing the Canadian border between official land border crossings, bypassing the STCA claim and allowing them to make a refugee claim. This has led some to again argue in favour of expanding the STCA so that these types of passages are included. Others called for the STCA to be suspended so that Canada could assess refugee claims independently of U.S. decisions. As part of this legislation, Bill C-55, an act to amend the Immigration Act of 1976 and to make consequential amendments to other Acts, was introduced in the House of Commons, incorporating the concept of a safe third country into Canadian law. .
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