A family, claiming to be from Columbia, is arrested by RCMP officers as they cross the border into Canada from the United States as asylum seekers on Wednesday, April 18, 2018 near Champlain, NY. THE CANADIAN PRESS/Paul Chiasson

Ever since President Donald Trump was inaugurated, experts in immigration law have petitioned the federal government to suspend or repeal the Safe Third Country Agreement.

Enacted in 2004, the agreement allows Canada and the United States to send asylum seekers back to the country where they first filed an asylum claim.

Sean Rehaag, an associate law professor at York University, said there are misconceptions about the terms of the agreement. Most believe the Safe Third Country Agreement enforces the deportation of irregular migrants to their original port of entry, when in fact this is not the case. Under the agreement, the Canadian government has the option to return migrants if they do not fit the government’s definition of a refugee.

“The status quo is not an option,” Rehaag told iPolitics. “Refugee claimants are generally well-informed about their options and they’re not going to be dissuaded by a sign telling them not to cross here.”

The call to end the Safe Third Country Agreement didn’t start under the age of Donald Trump. Immigration lawyers, professors and advocates in Canada have been campaigning for the suspension or repeal of the agreement since it was first signed.

In 2007, Federal Court of Canada judge Michael Phelan struck down the Safe Third Country Agreement because he believed it violated Canada’s Charter of Rights and Freedoms, the 1951 Geneva Convention on Refugees, and the Convention Against Torture. The federal court of appeal repealed the decision less than a year later saying the non-profit organizations who launched the lawsuit, including Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches did not have legal standing.

Recent anti-immigration policy decisions by the Trump Administration, including a ban on immigrants from predominantly Muslim countries, to the controversial family separation legislation are bringing the agreement to the spotlight again.

U.S Attorney General Jeff Sessions also reversed a previous immigration provision that says victims of gangs and domestic violence can qualify to stay in the U.S. under asylum protections.

Section 102 of the Immigration and Refugee Protection Act says the Canadian government must constantly be reviewing which countries are safe or unsafe for asylum seekers. When conducting these reviews, four criteria need to be considered: if the country is a signatory of the UN Refugee Convention and to what degree it obeys its regulations, the country’s human rights record and whether the country is already part of an agreement with the Canadian government to share the burden of refugee claims.

The government’s website includes reasons why the United States continues to be labeled a safe country for refugees, including the presence of an “extensive administrative” system that will offer “a high degree of protection” to a refugee claimant. The government also applauds the United States for its human rights agenda.

“The United States meets a high standard with respect to the protection of human rights,” the website reads. “It is an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.”

These justifications to keep the Safe Third Country Agreement in place, Rehaag said, make Canada complicit in the eyes of the international communities to the policies pushed in the United States.

“It’s unconstitutional,” he said. “The agreement is prefaced on the idea that the US is safe for refugees and clearly it is not.”

On Friday, federal immigration minister Ahmed Hussen reiterated his position on the Safe Third Country Agreement, saying it is good for all Canadians.

So what can Canada do in this case? Rehaag and Toronto immigration lawyer Lorne Waldman say the government needs to either suspend or repeal the agreement in its entirety during these turbulent times with the United States.

The terms of the agreement say “either party may terminate this agreement upon six months written notice to the other party,” or can suspend the agreement for three month periods.

If the government were to make this decision, Rehaag said the wheels could be put in motion almost instantaneously because it’s an agreement between states – not a binding law.

Another option for Hussen would be to create broad exemptions to the agreement that would offer protection to groups of people, like those at threat of domestic or gang violence who are not afforded protection by the United States. Rehaag said this is a fairly easy process that could be put in place while Cabinet makes a full review of the Immigration and Protection Act and decide if the exemptions should be made into law.

The consequences of suspending or repealing the agreement are not clear from the outset, but Waldman says a spike in asylum claims is almost guaranteed.

“I’m quite certain that there would be an increase in claims,” he said. “We already have a huge number of claims and, with the backlog, it would make the system unmanageable.”

What can be done to counteract a possible spike in claims, Waldman continued, is to find a way to speed up the refugee review process by the Immigration and Refugee Board. As of this February, the waiting time for refugee hearing was 20 months.

A spokesperson from the Immigration and Refugee Board says the additional $74 million dedicated to the agency in this year’s budget will go towards finalizing 17,000 claims in the next year.

Under the board’s expedition policy, it has allowed refugee claims from Afghanistan, Burundi, Egypt, Eritrea, Iraq, Syria, Turkey and Yemen to be processed faster because citizens from these countries automatically fit Canada’s refugee definition.

There are several reasons why the government might not repeal the Safe Third Country Agreement for now, Rehaag said. The unpredictability of the current U.S. government could be top of mind for Prime Minister Justin Trudeau.

However, Rehaag said if the U.S government knew the nuances of the agreement, they would also be in favour of its suspension.

“Frankly I think that concern is misplaced; I don’t think the U.S. president cares about the Safe Third Country Agreement at all,” he said. “If he [Donald Trump] thought about the agreement for thirty seconds he would agree to get rid of it.”