Will Canada Suspend Its Safe Third Country Agreement With the United States?

This week, a Canadian federal court in Toronto will hear a challenge to the U.S.-Canadian Safe Third Country Agreement, which recognizes both nations as safe for refugees. Like Europe’s Dublin Regulation, the agreement, which went into effect in 2004, stipulates that refugees must claim asylum in their country of first arrival. In practice, its purpose is to limit the flow of people from the United States to Canada, which has a more permissive asylum system. It only applies to official border crossings, which means that those who enter Canada between official border posts will not be returned to the United States.

Human rights groups originally challenged the Safe Third Country Agreement in 2005 on the grounds that it abrogated the rights of an anonymous asylum-seeker in the United States who feared removal to Colombia, where the person would face persecution. The John Doe in the case never sought protection in Canada, given the perception that the third-county agreement would bar them from entry. The challenge was eventually denied by an appeals court.

The new challenge, brought by Amnesty International, the Canadian Council for Refugees, and the Canadian Council of Churches, revolves around the cases of people who were refused entry and claims that U.S. policies under President Donald Trump have fundamentally changed the situation. It cites Trump’s one-year bar on claiming asylum, removals of asylum-seekers to unsafe countries, unlawful detentions, the barring of asylum claims based on gender and gang violence, criminalizing asylum at the border, and inconsistent access for asylum-seekers to courts.

The challenge comes after an election that saw Canada’s ruling Liberals reduced to a minority government and in the midst of a two-year spike in asylum-seekers crossing into Canada from the United States. Since the spring of 2017, almost 50,000 people have claimed asylum at Roxham Road on the New York-Quebec border. Although the total is negligible in comparison to other refugee-receiving countries, it represents a doubling of yearly asylum claims over 2016. While only 23,894 people claimed asylum in 2016, 50,390 claimed in 2017, and 55,025 in 2018. Although the flow has steadied in the last six months, the political impacts of the trend—in particular straining Canada’s ability to house refugees and hear refugee claims, generating criticisms from opposition parties including the Conservatives, and raising questions about burden-shifting between cities and provinces—revealed Canada’s vulnerability to spillover from U.S. asylum policies.

As part of an 18-month research project to investigate the relationship between U.S. policies and irregular migration, our team at the University of Toronto and York University conducted one-hour interviews with almost 300 asylum-seekers from over 50 countries, all of whom crossed at Roxham Road. Roughly 40 percent had resided long-term in the United States before their journey to Canada. Their interviews show how U.S. policies push people northward.

Abdi, a 30-year-old man from Turkey, arrived in the United States in 2012 to study English and later worked at a Turkish consulate. He was fired because of social media posts he made after the attempted coup against Turkish President Recep Tayyip Erdogan in 2016, and his visa eventually expired. Abdi is HIV-positive, and he began to fear hospital visits. “After Trump,” he told us in January, “they were asking for ID and insurance. I told them I’m sick, but they said, ‘We’re trying to figure out if you’re illegal.’”

Abdi drifted between odd jobs, lived in his car, and ran out of money for anti-retroviral medication. One day, a close friend was deported to Turkey, he said: “Immigration police came to his house and took him. Just like that, he was gone.” Abdi felt he could no longer stay in the United States, and he knew that he would be arrested in Turkey. Although he had long been aware of the Roxham Road route into Canada, his friend’s deportation triggered his decision to try it. Abdi’s experience is typical.

Dana is 38 and from El Salvador. She left in 2006 with her son to join her husband in the United States, who had fled threats from Salvadoran gangs two years earlier. She found work, had a U.S. citizen child, and her older son was given protection under the Deferred Action for Childhood Arrivals program. Her husband was arrested in 2011 but was eventually granted a work permit. They felt a sense of normalcy.

“While Obama was deporting more, his humanitarian policies let people work if they didn’t have criminal records,” she said. But things changed after 2016, when Trump was elected: “If you got pulled over for a light out or something like that, they used to let you go. Now, they’re going to deport you.” Agents from U.S. Immigration and Customs Enforcement (ICE) officers started roaming their neighborhood. “In the factories we were all Latinos. They were rounding up people. It was a trauma for us,” Dana said. Her husband went to his yearly ICE check-in in 2017 and was told that his work permit would be allowed to expire. They went to a shelter for undocumented people and then made the trip to Canada. They were granted asylum in Toronto in late 2018.

Other people left the United States after facing interminable delays or having their asylum cases rejected. Frank left Eritrea at 15 after his father was killed and his mother fled to Saudi Arabia. He went to Ethiopia, then spent three years with his mother before making it to the United States in 2013. He claimed asylum and was given a court date a year later, which was then pushed back another year. In 2016, he was given a new date for 2022. “I started to give up, I was so tired,” he said. Frank had a work permit but was never able to fulfill his dream of attending college.

In the summer of 2017, he heard that Trump wanted to deport 2 million people. “Everything was changing, especially for immigrants who don’t have permanent papers,” Frank said. “All the new laws, always hearing about immigrants in the news makes you scared. I’m not a troublemaker, but I don’t think it matters.” His work permit was due to expire in early 2020, and his lawyer gave him a 50 percent chance of renewal. Frank wasn’t willing to lose his documented status and work illegally. He left for Canada and was given asylum along with his wife and U.S. citizen child.

Yonas is from Ethiopia, where he worked as a fixer for international aid organizations. In 2010, he was imprisoned for political activism. He left for Kenya and first thought of Europe, “but the Sahara is too dangerous,” he said, and he was afraid of having to transit Libya, too. “A friend of mine had gone through it. He was sold and tortured.”

He paid smugglers to get to Cuba, then made his way to Mexico, where he was kidnapped by a cartel. “One guy didn’t want to pay some gangsters. They found money and shot him as a lesson,” Yonas said. He spent 15 months in U.S. detention: “My crime was not having ID. You live in a big compound, eat shit food, and get one hour a day outside. They pay you $1 per day for cleaning or laundry, $3 for working in the kitchen. There are gangs. The leaders send people to fight you. They work with the guards to smuggle things. It’s like an American movie.”

His asylum claim was rejected in 2012. He lived in the United States illegally for five years, working as a storekeeper, valet, and in kitchens. “I knew a guy who had a work permit and paid taxes. ICE came with a random check. They deported him without even bringing him home to his family,” Yonas said. “Then friends starting sharing videos of Roxham Road.” In early 2019, he was granted asylum in Canada and is waiting to bring his wife and two daughters, whom he hasn’t seen in a decade.

Interview after interview revealed that Canada’s perceived openness in relation to the United States is a major factor in people’s decisions. While it is debated as to whether and how such permissive asylum policies may encourage more immigration, the difference between Canadian and U.S. asylum processes was an impetus for the Safe Third Country Agreement in the first place.

It is also clear that ending Canada’s participation in the agreement would do nothing to change U.S. policy for the better while also potentially encouraging more immigration, both through official border points and unofficial ones.

Policy announcements often lead to rumors. The clearest example is Canadian Prime Minister Justin Trudeau’s response on Twitter after Trump’s ban on travel to the United States from some Muslim-majority countries. His statement that “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada” was widely publicized and potentially spurred some people northwards. Other instances abound. For example, Telemundo, the United States’ second-largest Spanish-language news service, conflated a pilot program to regularize unauthorized construction workers with a goal of attracting new immigrants. It ran a story with the headline: “Tired of Trump? Canada Needs Workers and Offers Residence to One Million Immigrants.” Similar stories ran in Nigeria, the top country of origin at Roxham Road. Our research illustrated that in the context of restrictive U.S. policies, these types of rumors played into potential migrants’ decision-making before they arrived in Canada.

Irregular migration demands a policy response, because it is unpopular with voters and fuels dangerous forms of populism. Over the last 15 years, the most popular options for liberal democracies have included tightening rules to deter so-called asylum shopping, fortifying borders, and externalizing migration controls by cutting deals with autocratic states, interdicting migrants at sea, and warehousing refugees in the global south.

The current balance in the Canadian Parliament precludes harsh policies, and the Liberal government has largely resisted the impulse over the last two years, with the exception of a new rule in the 2018 omnibus federal budget barring asylum determination for anyone who claimed in Australia, New Zealand, the United Kingdom, or the United States.

A more immediate risk to stricter Canadian policies is retribution from the United States. The Trump administration has threatened sanctions to contain migrants in El Salvador, Guatemala, Honduras, and Mexico; gutted refugee resettlement programs; and threatened to send asylum-seekers to sanctuary cities. A Canadian court decision that, in effect, is an indictment of U.S. policies risks poking a volatile leader with no compunction for threatening allies or using refugees and migrants as bargaining chips.

It would be wrong to claim that the United States is safe for all refugees and foolhardy to believe Canada has leverage over U.S. policy. Although not by design, Roxham Road is now a de facto port of entry and humanitarian corridor for asylum-seekers who want to leave the United States. As a loophole in the Safe Third Country Agreement, it threads the needle between race-to-the-bottom policies and drawing attention to an irksome neighbor.