The Safe Third Country Agreement Should Be Ended, not Expanded

On March 24, 2023, on the occasion of President Joe Biden’s first visit to Ottawa, Canada slammed the door shut on thousands of asylum seekers. After a meeting in Ottawa with President Biden, Prime Minister Justin Trudeau  announced an expansion of the Canada-U.S. Safe Third Country Agreement (STCA), effectively cutting off the only safe route for most asylum seekers to enter Canada from the U.S. The amendment to the agreement went into effect as of midnight that night and closed a loophole within the STCA by applying the agreement to the entire land border between the two countries (including inland waterways) to those apprehended within 14 days.

The STCA requires that asylum seekers in the U.S. and Canada seek asylum in the first of the two countries they reach. Any asylum seeker crossing from one country to the other (with specific exceptions, including minors and people with close relatives in the country they seek to enter) is turned back at the border. Until March 25, however, the STCA applied only at official ports of entry, and not to people caught crossing irregularly between official posts. Because of this “loophole” for irregular entrants, thousands of people seeking safety have crossed the border between official posts and applied for asylum in Canada. The most famous is the “unofficial border crossing” at Roxham Road between New York and Quebec, about three miles from the official post at St.-Bernard-de-Lacolle, Quebec, and a half-hour drive from Plattsburgh, New York. Once they arrived in Canada, via Roxham Road or elsewhere, asylum seekers were able to submit applications and have their cases adjudicated (eventually). While awaiting a decision, asylum seekers in Canada get work authorization, housing, and medical care.

People fleeing persecution have been crossing the border at Roxham Road and elsewhere since the STCA came into effect in 2004. The numbers began to rise in 2017 after the election of Donald Trump, and the border was closed to virtually all asylum seekers because of COVID restrictions from March 2020 until November 2021. In line with a regional shift in migration patterns throughout the Western Hemisphere, these numbers have increased in recent years. In 2021, 4,246 people entered Canada via Roxham Road. In 2022, that number went up to almost 40,000 and in January 2023 almost 5,000 crossed.

As the number of arrivals in Canada increased, so did opposition. In the last couple of months, the Liberal government came under increasing pressure to “close Roxham Road.” The pressure came especially from the nationalist premier of Quebec, François Legault, and the Conservative opposition leader, Pierre Poilievre.

This will be disastrous for asylum seekers, many of whom are ineligible for asylum in the United States, but may have a claim in Canada. For example, some have gender-based claims that don’t qualify because gender is not recognized as a particular social group under (most) U.S. immigration law, but they are eligible in Canada. Others don’t qualify in the U.S. because of the one-year filing deadline. Many will be detained if they are returned to the U.S.

With the safer routes closed off, the inevitable result will be more dead refugees. Unable to cross openly and safely at Roxham Road or elsewhere, asylum seekers who want to get to Canada will have no choice but to attempt to cross in more remote locations, like the frigid border between North Dakota and Manitoba or the marshlands along the border of Quebec.

Expanding the STCA is not only dangerous to asylum seekers, but against Canada’s recent history of welcoming refugees. In 2015, Justin Trudeau campaigned for the office of prime minister of Canada promising to resettle 25,000 refugees from Syria. After his election, he came through on that pledge, famously greeting refugees arriving at the Toronto airport. In January 2017, in response to Trump’s Muslim ban, he tweeted, “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.”

In 2020, the Federal Court of Canada invalidated the initial STCA, finding essentially that the agreement violates the Canadian Charter of Rights and Freedoms because the United States is not a safe country for asylum seekers. Sadly, that ruling was overturned on appeal and is now pending before the Supreme Court of Canada. AILA members can support this litigation by submitting relevant examples.  Unless the Supreme Court of Canada overturns the law, the expanded treaty will force thousands of refugees underground and will undoubtedly lead to many more deaths of people fleeing from persecution.