Sovereignty, Refugee Protection at Stake in Canada and US Asylum Court Cases

July 29, 2020 Updated: July 29, 2020

Two weeks before Federal Court Justice Ann Marie McDonald struck down the Safe Third Country Agreement’s application in Canada on constitutional grounds, California’s 9th District Court of Appeals backed an injunction against a similar, nascent third country asylum rule announced in July 2019 by the Department of Homeland Security.

Rhode Island lawyer Peter Margulies, an expert on national security law, says there are parallels in the decisions, but U.S. asylum cooperation agreements with Honduras, El Salvador, and Guatemala are a “travesty” compared to the 16-year-old treaty between Canada and the United States.

“What [the decisions] do have in common, I think, is they both respond to the tightening of asylum during the Trump administration,” said Margulies, who teaches at the Roger Williams University School of Law.

“The Canadian decision is a reaction to a trend in U.S. law that in fairness certainly started before Trump … in using detention to restrict asylum-seekers. [The United States] used that approach for almost 25 years, certainly since the 1996 Immigration Act. In fact, before then, but the trend accelerated during the Trump administration.”

The two court decisions put paramount importance on refugee rights, but Margulies notes a U.S. Supreme Court decision which determined that U.S. constitutional rights did not apply to a Sri Lankan man caught 22 metres inside the border attempting to sneak into the country.

The asylum officer determined that the man’s story about fear of persecution in his home country lacked credibility.

“The court cited, as it’s done repeatedly, that the United States has a sovereign interest in control of its borders—that’s very important in U.S. law. And you’ll see, based on what happens with the federal decision, whether or not the Canadian court feels the same way, feels sovereignty is that important,” he said.

“I certainly think sovereignty is a very important interest that has to be weighed against refugee protections. … Compared to the U.S. agreements with Central American countries like Guatemala, the US-Canada (STC) agreement is the model.”

Margulies adds, however, that people who deal with refugees regularly may say that “it’s not enough,” due to fear that someone who is sent to the United States may be mistakenly sent back to their home country where they would face persecution.

Lone Asylum Applicant

Detention of the migrants who challenged the Safe Third Country Agreement (STCA) in Federal Court weighed heavily in Justice McDonald’s decision, in which she describes Ethiopian national Nedira Mustefa’s treatment by U.S. officials after being turned away from Canada as something that would “shock the conscience.”

Mustefa was the lone asylum applicant in the federal court challenge that also included families from El Salvador and Syria, whose personal stories McDonald considered in declaring that the immigration law is unconstitutional.

In effect since 2004, the STCA stipulates that refugees must file for protection in the first safe country they arrive in—Canada or United States. However, McDonald’s ruling indicates that the United States is no longer qualified as a “safe third country”; therefore it violates Section 7 of the Charter right to “life, liberty and security of person.”

Ottawa is currently reviewing the ruling. McDonald suspended her “declaration of invalidity” for six months to give Parliament an opportunity to respond, which could take the form of an appeal, immigration law re-write, or simply allowing the federal court decision to stand.

The Canadian Council for Refugees prefers the latter.

“We are certainly urging the Canadian government not to appeal the decision. This is a decision which found that [STCA] is a violation of people’s charter rights to send them back to the U.S.,” said Janet Dench, council executive director and co-applicant in the case with the unnamed Salvadoran family.

This is the council’s second challenge of the STCA, along with other groups. In 2005, the groups used the plight of a failed U.S. asylum seeker from Columbia, “John Doe,” to win at Federal Court, but lost on appeal three years later.

“John Doe never presented himself at the Canadian border and, therefore, never requested a determination regarding his eligibility … in this case, [there] is no factual basis on which to assess the alleged Charter breaches,” reads the 2008 Federal Court of Appeal decision which noted that it was not for the court to determine whether United States was living up to its obligations.

The Supreme Court of Canada ultimately declined to hear the case in 2009.

Spike in Asylum Seekers

Since the beginning of 2017, nearly 60,000 people have illegally entered Canada overland from the United States at unofficial border crossings, with nearly 95 percent of them entering at Roxham Road in Quebec.

The nexus for this spike in asylum traffic heading North began with U.S. President Donald Trump’s executive order on Jan. 26, 2017, that imposed a 90-day travel ban for national security reasons from seven countries: Iraq, Syria, Somalia, Yemen, Iran, Sudan, and Libya.

Two days later on Jan. 28, Prime Minister Justin Trudeau indicated that Canada was open for asylum seekers. “To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength. #WelcomeToCanada,” he wrote on Twitter.

A report by the National Post citing government emails said there was a spike in inquiries from would-be refugees to Canada after Trudeau’s tweet.

The STCA does not apply at non-ports-of-entry (non-POE), and that loophole has been used to enter Canada illegally in British Columbia, Manitoba, and Quebec in order to claim asylum.

As refugee arrivals dropped in the United States, illegal migration and asylum claims doubled in Canada; the 19,419 “irregular border crossers” in 2018 was nearly the same number as refugee arrivals in the United States, plus the almost 30,000 such asylum claims processed by Canadian Border Services Agency at air, land, and sea ports.

As the influx of illegals continued, Ottawa established makeshift receiving areas at Roxham Road staffed by Canadian Border Services Agents and RCMP officers who expedited the steady stream of asylum seekers.

In 2019, the Auditor General of Canada reported that this surge over two years had stretched an already overtaxed immigration department to the breaking point and without additional funding, processing times could take as long as five years.

Making matters worse on the immigration front was another Auditor General report released at the beginning of July this year which found that the Canada Border Services Agency had lost track of more than 34,000 foreign nationals slated for deportation.

Though a significant figure, it pales when compared to the situation in the United States where it’s estimated that more than 10 million are in-country illegally.