Migrants wearing face masks and shackles sit on a military aircraft at Fort Bliss in El Paso, Texas on Jan. 30, awaiting their deportation to Guatemala.Christian Chavez/The Associated Press
The federal government is facing calls to suspend a long-standing agreement with the U.S. to return asylum seekers at the border, with immigration experts saying the United States should no longer be considered a safe place for people fleeing persecution.
They say U.S. President Donald Trump’s executive orders that make it easier to deport or detain migrants – including plans to hold 30,000 migrants accused of criminality in Guantanamo Bay – undermine their rights to such an extent that Canada should halt returning asylum seekers to the U.S.
Under the Safe Third Country Agreement, which came into effect in 2004, asylum seekers must make a claim at the first country in which they arrive. The agreement means that most asylum seekers arriving at the Canadian border are automatically returned to the U.S., with some exceptions such as people facing the death penalty.
Immigration lawyers and refugee advocates say Mr. Trump’s policies that make it easier to deport asylum seekers without a court hearing and increase detention may breach international law and should prompt Canada to rethink or suspend the agreement.
“The executive actions in the U.S. will materially impede access to asylum, and result in the routine imprisonment of refugees, contrary to UN standards,” says Erin Simpson, a partner at immigration law firm Landings LLP in Toronto.
“When Canada returns refugees to the U.S. under the Safe Third Country Agreement, they risk deportation to persecution and torture, and prison. Canada has the authority to suspend the agreement, and should exercise that authority until it is satisfied the agreement is not harming refugees.”
Canada has been scrambling for weeks to avert steep tariffs threatened by Mr. Trump on all imports from this country, and although the President paused them for 30 days on Monday, Canada has been careful not to provoke the Trump administration with policy demands.
Mr. Trump came to power on promises of a sweeping immigration crackdown, including mass deportations of migrants. His first moves on the issue have included expanding “expedited removals,” which were previously limited to areas within 160 kilometres of the U.S. border and applied to people who did not request asylum or who had failed to demonstrate a legitimate claim.
Now, people who have been in the U.S. for less than two years can be arrested and swiftly deported without prolonged court hearings under an executive order entitled Protecting the American People Against Invasion. Officers enforcing immigration laws can also now arrest undocumented migrants at schools and places of worship, after the Trump administration dropped policies limiting where such arrests could happen.
One of Mr. Trump’s executive orders stated that the U.S. government now recognizes only male and female sexes, prompting transgender advocates and lawyers to call on Canada to create an exception to the Safe Third Country Agreement to allow non-binary asylum seekers who may have fled to the U.S. to escape persecution in their home countries to make refugee claims in Canada.
“Although President Trump’s policies on tariffs are top of mind, the plight of asylum-seekers under the current U.S. administration also demands Canada’s attention because it impacts the very foundation of a bilateral agreement, the STCA,” said Maureen Silcoff, a Toronto immigration lawyer.
“The STCA is predicated on the U.S. being a reliable partner that can offer protection to asylum-seekers. But U.S. policies call that into question. Can a trans or non-binary asylum-seeker in the U.S. now expect that international human rights standards will be followed in assessing their asylum claim?”
Ms. Silcoff cited a 2023 report by the House of Commons immigration committee that recommended carving out asylum seekers with gender-based claims from the agreement, meaning they would not be sent back to the U.S.
“The importance of considering carve-outs is even more urgent now,” she said.
Matthew Behrens, co-ordinator of Canada’s Rural Refugee Rights Network, said “with the U.S. administration completely bulldozing refugee rights,” the Safe Third Country Agreement should be scrapped.
“The agreement violates our treaty obligations by preventing access to those seeking protection, and we’ve seen the lethal effects it has on those needing asylum,” he said. “Among the many reasons the U.S. is not safe are the much higher risk of arbitrary, long-term detention and the risk of rejection based on restrictive interpretations of refugee law especially in cases of gender-based persecution and those fleeing gang violence.”
Jeffrey MacDonald, a spokesperson for Immigration, Refugees and Citizenship Canada, said the agreement “is an important tool for Canada and the U.S. to work together on the orderly management of asylum claims made in our countries.”
But some experts warned that scrapping the agreement could lead to an influx of asylum seekers to Canada, who could not be turned back.
James Yousif, a Toronto-based lawyer who was director of policy to former Conservative immigration minister Jason Kenney, said the move would be “reckless” and “risk destabilizing Canada’s social and economic foundations.”
“Canada would face a surge in asylum claims from undocumented migrants in the United States, overwhelming public systems. Provinces and cities would be required to provide health care, social assistance, education and housing supports,” he said, adding they would be “severely strained.”