Discussion of Safe Third Party Agreement and Changes

In March 2023, President Biden travelled to Ottawa for an official state visit to Canada, the first state visit from a sitting president of the United States since 2016. Many things were discussed during the visit, including the role of NORAD in defending North America, support for Ukraine amidst the war between Russia and Ukraine, the Canada United States Mexico Agreement, mining and mineral supply chains, climate change and the pivot to clean energy, and the situation in Haiti.

However, key policy ramifications from President Biden’s state visit to Canada may come in an immigration context. The state visit involved discussions regarding the Canada-United States border, including the Safe Third Country Agreement. During the visit, Canada and the United States agreed to update the Safe Third Country Agreement in a manner that will impact tens of thousands of asylum seekers from around the world.

The Purpose of the Safe Third Country Agreement

In order to understand what changed as a result of President Biden’s visit, it is important to know what the Safe Third Country Agreement (the “Agreement”) is and how it applies to asylum seekers coming to Canada.

The Safe Third Country Agreement regulates how refugee claims are processed at the shared border between Canada and the United States. Under the Safe Third Country Agreement, asylum seekers are supposed to claim asylum in the first country they arrive in. For example, if an asylum seeker first arrives in the United States, they are supposed to make their refugee claim in the United States, instead of coming to Canada and then making their claim.

Discouraging “Asylum Shopping”

The Agreement was adopted partially because Canada and the United States recognized each other as safe countries. Therefore, it was acknowledged that asylum seekers should seek safety through the refugee process of whichever country they entered first. This requirement also prevents asylum seekers from engaging in what is known as “asylum shopping”, a process where some asylum seekers look to make their refugee claim in a country they want to claim in. Asylum shopping goes against the idea that asylum seekers should claim refugee protection in the first available safe country they can.

The Agreement originally applied to Canadian entry by way of official land border crossings, by trains, or planes in some instances. The Agreement was originally announced in 2002 and did not apply to unofficial land border crossings between Canada and the United States.

Legal History

The Safe Third Country Agreement has been a controversial topic in Canada since its implementation. Some parties like that it helps to reaffirm Canada’s relationship with the United States. However, others have criticized the Agreement, arguing that it restricts asylum seekers’ rights by forcing them to claim asylum in the United States in certain cases.

These issues came to a head during President Trump’s administration, as there were legal challenges to the Safe Third Country Agreement. Immigration changes under President Trump’s administration regarding the rights and treatment of refugees in the United States brought the Safe Third Country Agreement into the spotlight. The legal challenge in 2020, initiated in part by the Canadian Council for Refugees, sought to have the Safe Third Country Agreement declared unconstitutional due to the treatment of some refugees by the United States. During this time, the law changed rapidly.

During the first challenge, the Safe Third Country Agreement was found to infringe upon the guarantees in the Charter of Rights and Freedoms. However, the Agreement stayed active for 6 months following that decision in order to allow Canadian Parliament to respond to the change. The Federal Government appealed the decision, and Immigration, Refugees and Citizenship Canada maintained that the Safe Third Country Agreement remained in place. Since these legal challenges, the application and law regarding the Safe Third Country Agreement has been in a state of flux.

Changes to the Safe Third Party Agreement as of March 24, 2023

Following the meeting between the Canadian and American heads of government, the Safe Third Party Agreement has been changed.

Closing the Loophole

The amended Agreement has closed a loophole that asylum seekers previously used to enter Canada. The Safe Third Party Agreement previously did not apply to unofficial border crossings between the United States and Canada. Asylum seekers were taking advantage of this loophole in order to cross into Canada through unofficial crossings, most notably at Roxham Road in Quebec. Almost 40,000 people made asylum claims in Canada, with the majority being made in Quebec from those who entered Canada through the unofficial crossing at Roxham Road.

Now, migrants can no longer claim asylum in Canada within 14 days of arriving in Canada if they arrive through an unofficial border crossing. However, there are exceptions under the amended Agreement for individuals who have family members with legal status in Canada, unaccompanied minors, or already have a Canadian visa or work permit.

Canada Agrees to Accept 15,000 Migrants

Canada has also agreed to accept 15,000 migrants from the Western Hemisphere as part of the Agreement. Additional information regarding this agreement will be revealed later this year.

The long term ramifications and impacts of the decision to amend the Safe Third Party Agreement remain to be seen. In the short term, the amended Agreement is anticipated to reduce the number of asylum seekers entering Canada from the United States. It is also expected that the Agreement, in its new state, will lead to further legal challenges and discussions as to whether the changes were justified.

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