Safe Third Country Agreement Overview:
In 2002, Canada and the United States signed the Safe Third Country Agreement (STCA) to address the administrative efficiency of the two nations’ refugee system. Under the STCA, asylum seekers are required to file refugee protection in the first safe country they arrive at. In particular, article 5(b)(ii) of the STCA specifies “[a]ny person being removed from the United States in transit through Canada, who makes a refugee status claim in Canada, and who has not had a refugee status claim determined by the United States, shall be returned to the United States…”
The STCA became new amendments in the form of regulations 159.1 – 159.7 under the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). The regulations then came into force in late 2004.
Canadian Council For Refugees v Canada (Immigration, Refugees And Citizenship), 2020 FC 770
- Section 101(1)(e) of the IRPA and section 159.3 of the Immigration and Refugee Protection Regulations (the Regulations) are of no force or effect pursuant to section 52 of the Constitution Act, 1982, because they violate section 7 of the Canadian Charter of Rights and Freedoms.
- The declaration of invalidity shall be suspended for six months, during which the STCA remains in effect.
A recent Federal Court decision, Canadian Council for Refugees v Canada, released on July 22, 2020, found sections 101(1)(e) of the IRPA and 159.3 of the Regulations unconstitutional and deprived asylum seekers’ right to life, liberty, and security of person.
The Applicants in their affidavit submit, due to the STCA, ineligible asylum claimants are immediately placed in solitary confinement upon being returned to the US. Contrary to the understanding that refugee claimants will have access to a fair refugee determination process in the US, the Applicants’ evidence was that the immediate consequence for ineligible STCA claimants is solitary detention in harsh conditions that violate basic human dignity, liberty and security of the person.
In Justice McDonald’s decision, her Honour found the legislation stemming from the STCA overtly broad and grossly disproportionate, and the deprivation of liberty rights of STCA returnees have no connection to the spirit and intention contemplated by the legislature. Despite the Respondents arguing there are procedural safeguards in place, the judge stated that such resources are not generally available or afforded and are therefore “illusory”.
While the federal court decision aligns with international human rights mechanisms to which Canada is signatory, the declaration of constitutional invalidity is suspended for a period of six months, during which the STCA remains effective.
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