Parliamentary Committee Notes: Asylum Claimants, Irregular Migration and the Safe Third Country Agreement
Date: April 28, 2022
Classification: Unclassified
Fully releasable (ATIP)? Yes
Branch / Agency: SPB, IEB / CBSA
Proposed Response:
Asylum Claimants:
- Funding to support asylum costs for the Agency through past Budgets would be included in the Main Estimates.
- In addition, Budget 2022 provided key Departments and Agencies with a combined investment of $1.3B over the next five years and $331.2M ongoing to support the long-term stability of the asylum system.
- This funding helps to continue Canada’s proud humanitarian traditions of providing protection to those most in need of our assistance.
Safe Third Country Agreement:
- Since 2004, the Safe Third Country Agreement (STCA) between Canada and the U.S. has helped both governments better manage access to the refugee system for foreign nationals crossing the Canada-U.S. land border at designated ports of entry (POE).
- Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception to the Agreement.
- The Government of Canada is in continuous contact with the U.S. Department of Homeland Security and U.S. State Department on issues related to our shared border, including our desire to modernize the STCA.
- From March 2020 to November 2021, the Government of Canada enacted Orders in Council as part of Canada’s response to COVID-19. This included a prohibition on entering Canada between ports of entry (POE) for the purposes of making a refugee claim. The STCA continued to apply at POEs.
- Since these restrictions were eased, there has been a steady increase of refugee claimants entering Canada.
- The CBSA checks refugee claimants for signs of COVID-19 and any other medical conditions, and verifies their vaccination status, regardless of how they enter Canada. All refugee claimants must comply with applicable public health measures upon entry into Canada.
Statistics from November 21, 2021 to April 26, 2022:
- 20,319 individuals came to Canada to make a claim for refugee protection. Of those, 12,829 arrived between designated POEs and 7,490 arrived at designated POEs.
- Of the 7,490 individuals who arrived at a designated POE to make a claim for refugee protection, 1,637 met an exception under the STCA.
- As of April 26, 2022, there were approximately 14,847 refugee claims pending an eligibility decision.
Background:
Border security and integrity is a shared mandate between the CBSA and the RCMP. The CBSA is responsible for enforcement at designated Canadian POEs, while the RCMP is responsible for enforcement between POEs. The RCMP then escorts people crossing between the POE to the nearest CBSA POE. The closest POE to Roxham Road near Montreal is Saint-Bernard-de-Lacolle.
The STCA was signed in 2002 by Canada and the U.S. and has been in effect since December 2004. Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception. People who are not eligible to make a claim for refugee protection at the land POE under the STCA are immediately returned to the U.S.
Since 2017, the Government of Canada has been in continuous contact with the U.S. Department of Homeland Security and U.S. State Department on issues related to our shared border, including our desire to modernize the STCA.
The STCA’s objectives
The primary objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, and share the responsibility for protecting people who fit the official definition of “refugees”.
The mandates behind the STCA
The CBSA and Immigration, Refugees and Citizenship Canada (IRCC) share a mandate of preserving the integrity of the immigration system. Together, the CBSA and IRCC administer the Immigration and Refugee Protection Act (IRPA), which governs the admissibility of people into Canada, and the identification, arrest, detention and removal of people who are inadmissible, and provides the legal foundation for Canada’s refugee and asylum system. Continued investments in the asylum system have been provided through recent Budgets.
The STCA under the Quarantine Act
Without going against Canada’s international obligations with respect to non-refoulement, (i.e. forcing asylum seekers to return to a country in which they would be at risk of persecution), the Order in Council (OIC) issued under the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) supported the continued application of the STCA at designated land POEs in accordance with theIRPA. This means that those who met one of the narrow exceptions or exemptions in the OIC were permitted to enter and apply for refugee protection.
While the OIC contained a prohibition against entry for the purpose of making a refugee claim at any other location (including airports, marine ports, and between official POEs), the prohibition was not included in the OIC that came into effect on November 21, 2021.
Who the STCA applies to
The STCA generally applies to refugee claimants who are seeking entry to Canada from the U.S. at a designated land POE. The Agreement does not apply to U.S. citizens and stateless persons residing in the U.S. or to those who arrive from the U.S. by air (with the exception of some people being deported from the U.S. through Canada), or by sea.
The STCA does not apply to anyone who meets an exception, such as:
- people who have a family member in Canada;
- unaccompanied minors;
- people who hold a valid travel document issued by Canada or who are from a visa-exempt country for Canada but require a visa to enter the U.S.; and
- people who meet the public interest exception.
It also does not apply to claims made by people who entered Canada between POEs.
Recent Litigation - Federal Court of Appeal decision
The Federal Court rendered a decision on litigation challenging the STCA in July 2020. The Court found that the STCA and section 159.3 of the Immigration and Refugee Protection Regulations violated section 7 of the Canadian Charter of Rights and Freedoms. The Government’s appeal and the cross appeal were heard by the Federal Court of Appeal (FCA) in February 2021 and the decision was delivered on April 15, 2021.
The FCA upheld the validity of the Agreement and on June 14th, 2021, the Canadian Council for Refugees et al submitted their application for leave to appeal against the FCA decision to the Supreme Court of Canada (SCC). On December 16, 2021, the SCC granted the application for leave to appeal.
Contacts:
Approved by: Scott Millar, Vice-President, Strategic Policy Branch
Approved by: Scott Harris, Vice President, Intelligence and Enforcement Branch
- Date modified: