Canadian court says Safe Third Country Agreement with U.S. violates charter

Posted on July 22, 2020 in Equality Policy Context

Source: — Authors: – Canada

The Federal Court of Canada has ruled it is unconstitutional for the United States and Canada to ban would-be refugee claimants from attempting to enter either country at official border crossings.

In a judgment released Wednesday, Justice Ann Marie McDonald bashed the U.S. government’s treatment of asylum seekers and chided Canadian officials for their complicity through the so-called Safe Third Country Agreement.

In ruling the bilateral pact a breach of the Canadian charter and refugees unsafe in the U.S., the court has given this country’s government six months to respond and fix the policy before declaring the accord invalid.

“It is my conclusion, based upon the evidence, that ineligible STCA claimants are returned to the U.S. by Canadian officials where they are immediately and automatically imprisoned by U.S. authorities. This is sufficient to establish … liberty rights are engaged,” McDonald wrote.

The judge said not only are the would-be refugees’ liberty rights infringed, their right to personal security is also threatened.

“The evidence demonstrates that the immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada,” said McDonald in her 62-page decision.

“The ‘sharing of responsibility’ objective of the STCA should entail some guarantee of access to a fair refugee process.”

The court said the fact that STCA returnees are jailed by U.S. authorities, does not immunize the actions of Canadian officials from consideration.

“The actions of Canadian officials in returning ineligible STCA claimants to U.S. officials facilitates a process that results in detention,” McDonald wrote.

The bilateral pact, implemented in 2004, was originally touted by both Canadian and U.S. officials as a way to curb “asylum shopping.” However, critics have long argued that the U.S. asylum system is cruel and inhumane, especially under the Trump administration.

U.S. President Donald Trump’s anti-migrant policies have spurred an influx of so-called irregular migrants skirting asylum restrictions by crossing outside of Canada’s official ports of entry, where restrictions apply.

More than 50,000 asylum seekers have come here that way via the U.S. over the past two years. Once here, after passing initial medical and security screenings, refugees can work and access health care pending a decision on their asylum claims.

In 2007, three advocacy groups — the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches — took Ottawa to federal court and successfully had the U.S. declared unsafe for refugees, but the decision was later overturned on appeal, largely on the grounds that the groups failed to find a lead individual litigant who was directly impacted by the policy.

After Trump’s election in November 2016 with an anti-immigration agenda, Canadian and American non-governmental organizations and refugee lawyers renewed their effort to challenge the legality of the asylum restrictions.

In 2017, they connected with a Salvadoran woman in the U.S. who sought asylum after she was raped and threatened by the notorious Mara Salvatrucha gang in El Salvador, and agreed to be the lead litigant.

The other litigants include a Syrian family of four and a young Ethiopian woman, all of whom were denied access to asylum in Canada. The three Canadian rights groups also enlisted nine other witnesses, including the Burundian woman, to provide evidence in support of the litigants’ arguments.

During the hearings in November, the litigants presented evidence of human rights violations and Canadian charter breaches in U.S. detention and asylum practices, and highlighted the impact of the Safe Third Country Agreement on the most vulnerable refugees fleeing gender-based persecution and gang violence, who are singled out by the Trump administration to be excluded from the U.S. refugee definition.

Ottawa argued the agreement ws no different from similar deals in other refugee-receiving countries in response to rising global migration and forced displacement. It argued that the governments conducted regular reviews of the pact in order to ensure fair access to asylum.

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