Explaining Canada’s Determination

by Shaurya Shukla, Jurist

Recently a Canadian court threw out the Safe Third Country Agreement (STCA) with the USA, finding that the detention centers in the United States violate the human rights of refugees. This pact compels refugees seeking asylum in Canada through the US-Canadian border to first seek asylum in the USA. The pact was challenged last year by Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches. A lawyer for the refugees stated that the USA does not qualify as a “Safe Third Country” under the administration of Donald Trump, as refugees are subjected to family separation and illegal pushbacks. The judge in the case, Ann Marie McDonald, pronounced that the STCA violates the Canadian Constitution guarantees of life, liberty, and security.

In the ruling, McDonald cited the ordeal of a female migrant from Ethiopia named Nedira Mustefa, who she was isolated in a US detention center for one week after being sent back by the Canadian authorities. McDonald suspended the decision of the court for six months to give parliament a chance to respond. This ruling can be appealed to the Federal Court of Appeal and Canada’s Supreme Court.

The STCA is a smart border action plan. This agreement was signed between the USA and Canada on December 5, 2002, and it came into effect on December 29, 2004. It was signed to maintain the refugee system in both countries, as this agreement forces refugees to seek asylum in the first country they arrive unless they qualify for an exception. This agreement has four kinds of exceptions.

First is the “family member exception,” which applies if the family member of a refugee is a Canadian citizen or a permanent resident of Canada or has a work or study permit in Canada. Second is the “unaccompanied minor exception,” applying to refugees under the age of 18 who are not accompanied by their mother, father, or legal guardian and don’t have any parent or legal guardian in Canada and the USA. The third is the “document holder exception,” applying to those who hold a valid Canadian visa, or work or study permit. The fourth is the “public interest exception,” applying to any person who is convicted of an offense which could subject that person to the death penalty in the US or in a third country.

Section 102 of Canada’s Immigration and Refugee Protection Act (IRPA) permits the designation of safe third countries for the purpose of sharing the responsibility for refugee claims. To be considered as a safe country under section 102 (2) of IRPA, a country must be a party to the Refugee Convention and Convention Against Torture. Additionally, its policies must follow the rules and regulations mentioned in these conventions. The country must hold a good track record in the precinct of human rights, and it should be a party to the agreement with the government of Canada for sharing responsibilities with respect to claims of refugee protection.

In the past, the US has denied asylum to refugees. The Inter-American Commission on Human Rights (IACHR) has also reported that the US has violated the right of refugees to seek asylum as well as their right to life, liberty, and security of the person. But the immigration policies rolled out by the Trump administration in 2017 and 2018 have brutally transgressed American as well as international law, and these policies are moving toward destruction of the US asylum system. These policies have included illegal pushbacks at the borders.

These policies have led to illegal family separations. In one of many miserable instances, a mother was told that she doesn’t possess any rights in America, not even the right to stay with his son. Many asylum seekers were subjected to arbitrary and indefinite detention, where they were treated in an inhumane and degrading way. Such policies that obliterate the basic human rights of refugees deter the persecuted from seeking asylum in the USA, which is against section 102 (2) of IRPA. The Canadian court ruled that the USA is no longer a safe country for refugees under the administration of Donald Trump in the light of such violations.

Such draconian policies of the Trump administration, which promote illegal pushbacks and illegal family separations, violate basic human rights and refugee rights guaranteed under US and international law. Article 27 of American Declaration of the Rights and Duties of Man and article 22 (7) of American Convention on Human Rights guarantee that every person has right to asylum in foreign territory in accordance with the laws of each country and with international agreements. Making such policies to create a sense of trepidation in the minds of asylum-seekers is a gross violation of the right to asylum guaranteed by above statutes.

Other international law obligations were also violated by the USA through these pushbacks, family separations, and inhumane treatment of refugees at detention centers. Article 7 of the International Covenant on Civil and Political Rights provides that no one should be subjected to cruel, inhumane and degrading treatment. On account of the statement of an Ethiopian female immigrant, Nedira Jemal Mustefa, it can be easily apprehended how this basic human right is violated in the detention facilities of USA. Article 14 of Universal Declaration of Human Rights guarantees that everyone has the right to seek asylum from persecution, and that if a country persecutes refugees then it cannot be considered safe.

One more essential condition imparted in Section 102 (2) of IRPA is that for a country to be considered a “Safe Third Country,” it must be a party to the Refugee Convention of 1951 and Convention Against Torture of 1984 and it should also follow the rules and regulations of these conventions while forming its policies. Trump’s USA has also failed on this ground. Article 23 of Refugee Convention states that all the parties to the convention must afford refugees within their borders the same fundamental rights as their own nationals. This regulation is violated in a ferocious way when refugees are forced to live away from their family members and kin in detention centers amid torment and inhumane treatment. Article 3 (1) of Convention Against Torture states that no party to the covenant shall send a person to another state where there are substantial grounds for believing that he or she will be tortured or subjected to inhumane treatment.

The current situation of the human rights and refugee rights in the US makes clear why the Canadian court decided to issue such a ruling. This type of situation brings great disrepute to the image of a country that is considered to be a superpower in world politics. The US government must win back the trust of people across the world by passing strict legislation which explicitly bans illegal pushbacks and illegal family separations of refugees. America should upholds international standards of human rights in its detention centers. An independent central agency must be formed, charged with looking into matters of basic human rights for refugees and empowered to initiate criminal investigations of the people who are involved in such practices.

The USA should also ratify the UN Convention on the Rights of the Child, which the United States signed in 1995 and is the only country in the world which has not adopted it yet. Article 22 of this convention says that signatory states shall take appropriate measures to ensure that a child (whether accompanied by parents or not) who is seeking refugee status after following the due procedure in accordance with applicable international or domestic law shall “receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.” The parties to this convention must undertake all efforts to reunite a child with his or her parents and to avoid illegal family separations.


Shaurya Shukla is a second-year law student at Chanakya National Law University in Patna, India

This story first appeared Aug. 11 in Jurist.

Photo: Asylum-seekers queue for a meal at El Barretal shelter in Tijuana, Mexico
Credit: UNHCR/Daniel Dreifuss via UN News


Canada court rules ‘Safe Third Country’ pact with US invalid, cites detention risk
Reuters, July 22, 2020

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Reprinted by CounterVortex, Aug. 12, 2020