Migrants board an RCMP bus to go to the St-Bernard-de-Lacolle border crossing in Roxham, Que., in March, 2023. The Safe Third Country Agreement was expanded in 2023 to cover all of the land border between Canada and the U.S.SEBASTIEN ST-JEAN
Lawyers and refugee experts say U.S. President Donald Trump’s announcement that his country will halt all asylum claims should prompt the Canadian government to suspend the Safe Third Country Agreement, which they say is now unworkable.
The agreement mandates that asylum seekers must make a claim in the first country they arrive in, which allows Canada to turn away potential refugee claimants who enter the country from the United States as it is considered safe there.
Mr. Trump said last week that his administration would suspend asylum claims after the shooting of two National Guard soldiers in Washington. The suspect has been identified as a 29-year-old Afghan national who worked with the CIA during the Afghanistan War.
But some experts have warned that suspending the agreement could open the door to an unknown number of asylum claimants who are currently ineligible for protection in Canada, at a time when the federal government is striving to reduce immigration because of pressure on housing.
Fen Hampson, president of the World Refugee & Migration Council and a professor of international affairs at Carleton University, said Mr. Trump’s decision “puts our government on the horns of a real dilemma.”
“The U.S is no longer providing equivalent protection and Canada faces a significant moral and potentially legal obligation to offer asylum to those who cannot get protection in the U.S.,” he said.
“The Canadian government must now decide whether it wishes to exercise its authority to suspend the agreement, create a broader exemption or stick with the status quo,” he said in an e-mail. “With tens of thousands of asylum claims still pending in Canada and fears that suspending the [agreement] could lead to increased irregular border crossing, the government may prefer to do nothing.”
A National Guard member died on Thursday after being shot near the White House in an ambush that investigators say was carried out by an Afghan national, an attack President Donald Trump blamed on Biden-era immigration vetting failures as he ordered a sweeping review of asylum cases.
Reuters
The Safe Third Country Agreement with the U.S. took effect in 2004. Initially, it applied only to official ports of entry, but in 2023 was expanded to cover the entire land border to discourage irregular border crossings. The agreement gives either signatory the ability to suspend it if they believe the circumstances require it.
Joseph Edlow, the director of U.S. Citizenship and Immigration Services, said last week on X that the government would pause refugee claims “until we can ensure that every alien is vetted and screened to the maximum degree possible.”
That announcement came after Mr. Trump declared he would “permanently pause migration” from all “Third World countries.”
Immigration Minister Lena Diab said she is aware of the policy changes in the United States, though she suggested there are no plans to shift Canada’s participation in the agreement.
“As of now, our advice is, we have a safe third-party agreement, and Canada will honour that,” Ms. Diab said in an interview.
“For now, we have a plan,” she added. “We’re comfortable with that plan, we’re going to execute that plan.”
Immigration Minister Lena Diab said for now, Canada will continue to honour the agreement.Dave Chan/The Globe and Mail
The Canadian Association of Refugee Lawyers and the South Asian Legal Clinic of Ontario have launched a judicial review of the Safe Third Country Agreement, seeking to declare it invalid. Maureen Silcoff, a lawyer who is representing plaintiffs in that case with lawyer Sujit Choudhry, said the agreement requires countries to follow the UN Refugee Convention, but the U.S. has chosen to stop adjudicating asylum claims.
“The agreement itself anticipated that a situation may arise that requires a suspension,” Ms. Silcoff said.
“That day has arrived. The basis for the agreement has evaporated. It was predicated on the U.S. having a functional asylum system. The U.S. suspension of asylum determination means that the very foundation of the agreement has disappeared.”
Lawyer James Yousif, who was policy director to former immigration minister Jason Kenney, said the U.S. government’s decision to halt all refugee claims would likely lead the Federal Court to strike down the Safe Third Country Agreement, which requires what he describes as a “functioning” asylum system.
“The extent of a President’s ability to halt asylum without legislation is unclear. But if asylum is halted and deportations begin, the consequences for Canada will be immediate,” he wrote in an e-mail.
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If the pact is struck down, Mr. Yousif said, that would allow millions of people currently in the U.S. who are covered by the Safe Third Country Agreement to apply for asylum here.
“That would represent an existential threat to Canada’s immigration system,” he said.
Sharry Aiken, a professor at Queen’s University specializing in immigration and refugee law, said Mr. Trump’s latest edict on halting asylum claims is “the nail in the coffin” of the Safe Third Country Agreement.
She said other anti-migrant policies he has enacted should have already prompted the Canadian government to revisit whether it is still valid.
“If we had any doubts before, we shouldn’t now,” she said. “The agreement is predicated on responsibility sharing and that people have access to asylum in the U.S.”
Prof. Aiken predicted suspending the agreement is not going to lead to Mr. Trump being “upset with Canada” or a big influx of asylum seekers coming from the U.S.
“If necessary, we need to ensure that the IRB [Immigration and Refugee Board] is adequately resourced to deal with a potential increase in the number of claims,” she said.