Taking the Rights of Asylum Seekers Seriously: A Judicial Review of The US-Canada Safe Third Country Agreement in Canadian Federal Court

By: Tally Kritzman-Amir

On June 22, 2020, The Canadian Federal Court declared the US-Canada Safe Third Country Agreement unconstitutional. Under this agreement, which has been implemented since 2004, persons arriving into Canada from the US through land port of entries would be ineligible to apply for asylum. This blog post seeks to put this decision into a comparative context.

Safe Third Countries: A Common Phenomenon in the Landscape of Compassion Fatigue

Safe Third Country Agreements have become quite common. Countries instate them, allegedly, to distribute the responsibility for refugees in some predictable manner and prevent secondary refugee movement and alleged “asylum shopping.” They are a part of the border policy in many parts of the world. In fact, the purpose of responsibility sharing is specified explicitly in the Safe Third Country Agreement at hand.

In some cases, rather than becoming a much-needed mechanism to create a more just and fair distribution of the responsibility for refugees protection, Safe Third Country Agreements have become a mechanism for countries to distance themselves from international and domestic legal obligations to refugees and legal tools to externalize refugee protection onto other countries. In fact, in many cases these agreements were essentially mechanisms allowing countries to “dump” refugees onto other countries with little to no regard to their human rights situation there or how already-overburdened the receiving country is.

One of the challenges with such agreements has to do with the mutual considerations they impose on parties. Parties to such agreements are forced to consider the other parties’ implementation of the Convention Relating to the Status of Refugees in order to determine if they are “safe.” In this particular case, the Canadian authorities argued that the applicants’ arguments against the Safe Third Country Agreement are not specific to the agreement, but rather have to do with the US asylum policy and its implementation. The US policy, argued the Canadian authority, is not the responsibility of Canada, and it is outside Canada’s control. This statement in of itself seems to be a contradiction in terms with the notion of responsibility sharing. If Canada and the US engage in a responsibility sharing agreement and Canada externalizes responsibility for asylum seekers to the US than by definition it is Canada’s responsibility to ensure that the US asylum policy is managed in an adequate and legal manner.

Several of these agreements were struck down by national and regional courts. The third country agreement between the US and Canada follows this same path.

The Applicants

The applicants in this case represent some of the groups whose protection as refugees in the US became jeopardized during the era of the Trump administration. One family was a woman and her children who were fleeing gender-based persecution and gang violence. Protection for persons whose applications were based on either of those persecution grounds have been under constant threat, especially since 2018.

Some of the other applicants were from countries of origin which were covered under the travel bans instated by Trump as soon as he entered office and banning entry of persons coming from them.

Others were unable to apply for asylum in the US due to the one-year bar, requiring asylum applications to be filed within a year of arrival to the US, or were unable to receive protection under DACA – the Deferred Action for Childhood Arrivals, which the Trump administration was determined to rescind but was stopped by the US Supreme Court.

The applicants were detained once returning to the US, where the use of immigration detention has become pervasive and widespread, almost routinely normalized, despite continuous reports of severe human rights violations in detention facilities.

In other words, the applicants are the embodiment of those put at risk by the increasingly exclusionary immigration and asylum policies the US implements. Though every asylum seeker is unique, their stories shed a light on just exactly who has been excluded from the US in the last few years.

The Decision

The Court found that the Safe Third Country Agreement violated Article 7 of the Canadian Charter of Rights and Freedoms, which states that “[e]veryone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.”

The Court found the applicants eligible for the protection of the Charter by virtue of being physically present in Canada. In a way, the Court acknowledges, implicitly, the relationship formed between Canada and the asylum seekers which enter it. By being present on the territory, they are no longer “outsiders,” but rather people with some membership claim which needs to be addressed through constitutional means. In a way, though, the Court also evades the more challenging, broader question – do people who are not physically present, such as persons whose entry was barred or persons who did not try to enter Canada knowing that entry would be declined per the Safe Third Country Agreement are also eligible to the protection of the Charter. In a world in which many of the borders are closing, these questions are far from theoretical.

The Court’s analysis relies exclusively on Canadian constitutional law. The Court thus refrains from making a determination on whether the applicants’ human rights violations (which include violations of rights under the International Covenant on Civil and Political Rights, for example) may justify nullifying the Safe Third Country Agreement.

The court pointed to the fact that “the US ‘now operates the largest immigration detention system in the world,’” and acknowledged the fact that immigration detention was degrading and dehumanizing, put people in a situation which compromised their mental health, traumatized them, and restricted their access to medical care, food, or legal counsel. The Court also acknowledged that asylum seekers can be detained for months without review of their detention, and may face a heightened risk of refoulement – being returned to a place where their lives and liberty can be jeopardized.

Upon review of Canada’s conduct, the Court concluded that it was such that retains a “sufficient connection” between the actions of the state of Canada, namely returning asylum seekers to the US while notifying the American counterparts of the return, and the detention. In other words, Canada’s responsibility does not stop at the border. This determination follows the logic of the prohibition on indirect refoulement. “Indirect refoulement occurs when a sending State sends an asylum claimant or refugee to a receiving State, where the sending State knew or ought to have known that the [receiving] State has inadequate asylum procedures to process the application.” Just like states cannot indirectly lead to the refoulement of a person, a state cannot indirectly lead to the arbitrary denial of a person’s liberty and the security of a person.

The Court also found the Safe Third Country Agreement legislation overly broad as the deprivation of the liberty rights of returnees by their being detention in the US has no connection to the purpose of the legislation, which is sharing responsibility for refugees with a country that complies with the Conventions. The Court concluded that the Agreement has a grossly disproportionate effect on the human rights of the returnees, including the applicants, and stated that their experiences in detention in the US “shock[s] the conscience.” The Court did not find any sufficient justification to the infringement. Therefore, the Court ruled that the Safe Third Country Agreement legislation is void. Nevertheless, “[t]o allow time for Parliament to respond, [they are] suspending this declaration of invalidity for a period of 6 months from the date of this decision.”

Focusing on the general argument on the infringement of liberty and security of a person, the Court failed to take the opportunity to deal more specifically with the risk and vulnerability of asylum-seeking women. The gender-neutral language of the decision may not be enough to promote their protection.

Moving forward – Concluding Thoughts

This decision should be read together with the multiple decisions on other Safe Third Country Agreements issued in domestic and regional courts. This growing body of judicial opinions suggests that Safe Third Country Agreements cannot be used with disregard to their consequences on the rights of asylum seekers and cannot be a mere mechanism of externalization. These agreements have become a battleground between courts and administrations, and courts have repeatedly proven that they do not hesitate to fulfill their role as protectors of the rights of underrepresented persons when considering the legality of such agreements. The fact that even the US could be condemned for its role in the implementation of a Safe Third Country Agreement demonstrates the strength of judicial review and human rights considerations, which, at least in this case and in many others, transcended international relations considerations.

This decision should also be read as a wake-up call – a harsh international critique of the US asylum system, in particular of its immigration detention system. For the US immigration administration, it is perhaps an opportunity to think about the urgent need to reform the asylum system, minimize the use of immigration detention, and ensure that detention conditions do not violate human rights. To the asylum system, the decision demonstrates that they are not invisible and that their human rights violations do not go unnoticed at the international level.

Tally Kritzman-Amir is a Visiting Assistant Professor at Boston University (2020-2021); Visiting Associate Professor, Harvard University Department of Sociology (2018-2021); Associate Professor, the College of Law and Business (2009-Present); Honorary Research Associate, The Hadassah Brandeis Institute (2018-2020). She holds an LL.B. & Ph.D. from Tel Aviv University School of Law.