Minister of Border Security Bill Blair is seeking to expand the Safe Third Country Agreement and apply it to refugee claimants already in Canada, with the result that more asylum seekers will be returned to the United States. Meanwhile, Finance Minister Bill Morneau has announced that Budget 2019 will allocate new funds of over a billion dollars for this purpose, mischaracterizing those seeking refugee protection as wanting to “exploit Canada’s immigration system.”

Two major newspapers have since published editorials praising the move, noting that the proposal — which would see the RCMP apprehend and transport refugee claimants to the nearest port of entry to be removed — is a “logical and obvious solution.”

We think the proper descriptors are “illogical” and “illegal.”

The Safe Third Country Agreement bars migrants who enter Canada at official ports of entry from the U.S. from making refugee claims, with some exceptions. The premise of the agreement is that the U.S. and Canada are equivalent options for refugees, with both providing fair hearings and due process. Categorizing the U.S. as a safe country, however, is inaccurate.

The U.S. is a hostile environment for refugees. Asylum claimants often don’t have access to counsel, are prevented from making a claim if they wait more than one year after entry, and are kept in detention while their claims are assessed. Since 2016, the Trump administration has implemented the Muslim ban, closed the door on asylum claims based on domestic violence and gang violence, kept migrant children in cages, housed migrants in tent cities, and separated children from parents.

This is the system to which Minister Blair hopes to remove claimants under the Safe Third Country Agreement by apprehending those who present themselves at irregular border crossings and forcibly transporting them to official ports of entry.
Already, the agreement causes harm. In Manitoba, there were multiple reports of serious frostbite in 2016, and in 2017 the body of Mavis Otuteye was found just south of our border. If the agreement is expanded to refugee claimants already inside Canada, people might take more dangerous routes into the country, placing this vulnerable population in an even more precarious situation.

Further, if claimants know they’ll be returned to the U.S. — since they would not be permitted to apply for asylum — they may live underground in Canada, undermining the stated objective of knowing who enters the country. As migrants with precarious status, they will have limited access to vital services like health care.

When Canada’s Senate reviewed the Safe Third Country Agreement in 2002, they noted exactly this. In deciding whether it should apply to everyone entering Canada, the Senate examined Germany, which had a similar agreement that barred anyone who had arrived from a bordering nation from seeking protection. This resulted in people accessing protection in Germany by arriving through clandestine routes.

In fact, the Senate foresaw the possibility that the agreement might fail to reduce the number of people crossing into Canada. The Senate recommended suspending the agreement so people could come to official ports of entry, rather than expanding the agreement and forcing claimants to cross at more remote locations to evade authorities.

Even if this policy were to be enforced, questions about how it could work remain. It’s not uncommon for refugee claimants to lose travel documents, making it difficult to prove their last location. While using biometrics to prevent refugee claimants from seeking protection is plausible, it’s not in the spirit of the Refugee Convention. Canada has already been criticized for using ancestry websites to help deport individuals, with lawyers and academics sharing significant concerns regarding privacy law and human rights.

The treatment of refugee claimants under the Safe Third Country Agreement has raised serious concerns about its legality. If it were to be expanded, this would greatly exacerbate those concerns, which are currently before the courts.

Removing refugee claimants to a country on which we are relying to implement our Refugee Convention obligations, and which is not, itself, in compliance with the Convention, runs egregiously afoul of international law and human rights norms.

With more questions than answers, this proposal should be met with scathing skepticism, not premature endorsement. As it currently stands, Minister Blair’s proposal is neither logical nor legal. It would drive refugee claimants underground and violate Canada’s human rights obligations.

The only approach consistent with international law, human rights, and common sense is to suspend, not expand, the Safe Third Country Agreement. Let us do what’s right and offer protection, not turn our backs, to those who cannot find it in Trump’s America.

Aditya Rao (@aditrao) and Paula Ethans (@PaulaEthans) completed their JD at the University of Ottawa Faculty of Law in 2018 and will be called to the Ontario Bar in June 2019.