Poli Savvy: What does the U.S election mean for the Safe Third Country Agreement?

The results of the election could determine whether the Canadian government wins an appeal to keep the agreement in place

The Federal Court of Canada has ruled that the Safe Third Country Agreement between Canada and the United States is unconstitutional and will be scrapped at the end of January 2021.

In October 2020, the Federal Court of Appeal extended the agreement to the final appeal date, sometime in spring 2021.

A safe third country is a concept, also called the ‘first country of asylum’ concept,’ which comes from international cooperation where an asylum seeker (or their status) remains within the first country they sought protection in. Internationally, it’s used as a concept to limit refugee movements to a third country if they’ve already achieved protection elsewhere.

Canadian immigration and refugee rights organizations have called for an end to the agreement, stating the U.S. is no longer a safe third country. With a new president on the horizon – will the outcome of the agreement change?

What is the Safe Third Country Agreement? 

The agreement, which came to be in 2004, sets out that an individual may seek asylum in the first safe country they arrive in. A migrant who goes to the U.S. first and then subsequently tries to cross through Canada’s official borders will be sent back to the U.S., deemed a “safe” country, and vice versa. The agreement has some exceptions: those who have family members already living in Canada, for example.

There is one major loophole affecting Canada, however: those who cross illegally through unofficial or unmanned border crossings, like Roxham Road in Quebec, can be processed as asylum seekers.

Does a Joe Biden presidency change anything?

Joe Biden has made some promises: allowing refugees into the country at an average that is the same or equivalent to past presidencies, an end to the Trump administration’s “zero-tolerance” policy that separated thousands of families at the border, and a pledge to reunite the 545 children whose — according to International Rescue Committee — parents can’t be found.

Canadian immigration and refugee rights groups, however, are wary of declaring Biden’s win a victory for refugees. Member of the National Assembly of Québec Solidaire, Andrés Fontecilla, is responsible for immigration, interculturalism and housing. He thinks Biden’s administration will have a lot to prove.

“A Joe Biden victory could be good news for immigrants and asylum seekers, but we have to keep an eye on his administration,” he warned.

After all, Obama’s administration — of which Joe Biden was vice-president of — deported millions of people from the United States.

“It was to the point where [Obama] was nicknamed by groups, and particularly groups from the Hispanic community, as deporter-in-chief,” said Fontecilla.

In 1969, Canada signed on to the United Nations Convention relating to the Status of Refugees, which declares that no state should return a claimant back to their country if their life or freedom is at risk through no fault of their own.

If claimants coming to Canada are turned back to the U.S as a “safe” country but are subsequently detained in horrifying conditions, this could violate the convention.

“It’s a big problem, because a huge portion of groups that defend immigration rights don’t think that the American administration guarantees that they’ll respect the fundamental rights and protections set out by the [Status of Refugees] convention,” Fontecilla explained.

“So we really need to judge him based on his actions.”


Graphic by @sundaeghost

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