The Canada-US Safe Third Country Agreement (STCA) plays a significant role in shaping the process of asylum claims for individuals seeking refugee protection in either Canada or the United States.

This bilateral agreement between the two countries was implemented on December 29, 2004, with the objective of streamlining the refugee protection process and ensuring that claims are made in the first safe country of arrival.

Under the STCA, refugee claimants are generally required to request protection in the country they arrive in first, whether it’s the United States or Canada. This means that an asylum seeker who arrives in the U.S. and then attempts to enter Canada to claim refugee status will typically be sent back to the U.S. to have their claim processed, unless they meet certain exceptions to the agreement.

In this article, we will delve into the rules surrounding the Safe Third Country Agreement and explore the specific exceptions that allow certain refugees to bypass this general requirement.

What is the Safe Third Country Agreement?

The Safe Third Country Agreement is an arrangement between Canada and the United States that designates both countries as “safe” for refugees. In essence, the agreement asserts that both nations offer fair and comprehensive protection to those seeking asylum, so a person should apply for refugee status in whichever country they arrive in first.

The STCA applies to refugee claimants who arrive at official land border crossings between the two countries. However, individuals who arrive by air or sea, or who cross the border irregularly at non-designated points, are not subject to the agreement’s provisions.

The Purpose of the STCA

The main aim of the Safe Third Country Agreement is to prevent what is known as “asylum shopping,” where claimants try to seek refugee protection in multiple countries or attempt to bypass one country’s system in favor of another. By requiring individuals to claim asylum in the first safe country they reach, the agreement reduces the strain on the refugee systems of both nations and ensures that asylum seekers are processed in an orderly manner.

While the STCA is effective in managing refugee claims between Canada and the U.S., it also has its critics. Many argue that the U.S. refugee system does not offer the same level of protection as Canada’s, which can lead to hardship for vulnerable refugees sent back to the U.S. under the agreement.

Exceptions to the Safe Third Country Agreement

While the Safe Third Country Agreement imposes a general rule requiring claimants to request refugee protection in the first safe country they arrive in, it also includes a number of exceptions. These exceptions take into account factors like family ties, humanitarian considerations, and specific legal circumstances.

The exceptions to the STCA fall into four broad categories:

1. Family member exceptions
2. Unaccompanied minors exception
3. Document holder exceptions
4. Public interest exceptions

Each of these categories provides certain claimants the opportunity to make a refugee claim in Canada, even if they arrived in the U.S. first.

Family Member Exceptions

One of the most important exceptions under the STCA is the family member exception, which allows refugee claimants to bypass the agreement if they have family members residing in Canada. This exception ensures that families can remain united during the asylum process, a principle that is considered to be in the best interest of refugee claimants.

Refugee claimants may qualify under this exception if they have a family member who:

• Is a Canadian citizen
• Is a permanent resident of Canada
• Is a protected person under Canadian immigration legislation
• Has made a claim for refugee status in Canada that has been accepted by the Immigration and Refugee Board of Canada (IRB)
• Has had their removal order stayed on humanitarian and compassionate grounds
• Holds a valid Canadian work permit
• Holds a valid Canadian study permit
• Is over 18 years old and has a claim for refugee protection referred to the IRB, provided that the claim was not withdrawn, declared abandoned, rejected, or found ineligible for referral

This family member exception recognizes the importance of family unity and allows for claimants to be processed in Canada where they have close relatives, fostering support networks during the asylum process.

Unaccompanied Minors Exception

Another critical exception is the unaccompanied minors exception, which is designed to protect children under the age of 18 who are traveling without their parents or legal guardians. This exception ensures that vulnerable children are not sent back to the U.S. without appropriate care or protection.

Refugee claimants may qualify under the unaccompanied minors exception if they:

• Are under the age of 18
• Are not accompanied by their mother, father, or legal guardian
• Have neither a spouse nor a common-law partner
• Do not have a mother, father, or legal guardian in Canada or the United States

This exception is particularly important in safeguarding the best interests of children who may be fleeing persecution or violence and ensures that their asylum claims are processed in a safe and supportive environment.

Document Holder Exceptions

The document holder exceptions are another important set of rules that allow claimants to be processed in Canada if they hold certain types of valid documents issued by Canada. This exception ensures that individuals who already have legal ties to Canada are not automatically barred from making a refugee claim under the STCA.

Refugee claimants may qualify under the document holder exceptions if they:

• Hold a valid Canadian visa (excluding a transit visa)
• Hold a valid work permit or study permit
• Hold a valid travel document (for permanent residents or refugees) or another valid admission document issued by Canada
• Are exempt from requiring a temporary resident visa to enter Canada but need a U.S.-issued visa to enter the U.S.

These document holder exceptions acknowledge that claimants with existing legal connections to Canada should have the opportunity to seek protection there, even if they initially arrived in the U.S.

Public Interest Exceptions

The final category of exceptions under the STCA is the public interest exceptions, which apply to claimants who may be at risk of severe harm if sent back to the U.S. or another third country.

Refugee claimants may qualify under the public interest exceptions if:

• They have been charged with or convicted of an offense that could subject them to the death penalty in the U.S. or in a third country

However, claimants will be ineligible for this exception if they have been found inadmissible to Canada on grounds of security, violating human or international rights, or serious criminality. In such cases, the Minister of Immigration may deem the claimant a danger to the public, which overrides the public interest exception.

This public interest exception is crucial in protecting individuals from facing life-threatening punishment in the form of capital punishment, while also maintaining Canada’s commitment to security and human rights.

The Canada-US Safe Third Country Agreement is a key component of the refugee protection framework between the two countries, aiming to ensure that asylum claims are processed efficiently and fairly. While the STCA imposes a general rule requiring claimants to seek protection in the first safe country they arrive in, the exceptions within the agreement highlight the importance of family unity, the best interests of children, and the public interest in ensuring that vulnerable individuals are not unfairly penalized or placed in dangerous situations.

These exceptions allow for flexibility within the Safe Third Country Agreement and provide opportunities for claimants to seek refuge in Canada even if they arrive from the U.S. first, ensuring that Canada continues to uphold its humanitarian values in offering protection to those fleeing persecution and violence.