Under the agreement, refugee claimants must apply in the first country they arrive between the United States or Canada, unless they are entitled to a waiver. For example, asylum seekers who are citizens of a country other than the United States and who arrive from the United States at the land border between Canada and the United States can only assert their rights to refugees in Canada if they fulfill an exception under the Safe Third Country Agreement. “A Canadian judge has heard the stories of people in immigration detention in the United States and found that their treatment shocked consciences and violated fundamental human rights,” said Janet Dench, Executive Director of the Canadian Council for Refugees, which challenged the agreement with Amnesty International and the Canadian Council of Churches. The Safe Third Country Agreement between Canada and the United States came into force in 2004 to share responsibility for the review of refugee applications between the two countries. Under the agreement, asylum seekers must apply in the first country, which means that people attempting asylum at the official border crossing point along the U.S.-Canada border will be returned. The verdict established that the United States is no longer a safe third country, because U.S. authorities imprison asylum seekers “immediately and automatically.” Those who have returned under the agreement face “cruel and unusual conditions of detention, isolation and the risk of refoulement… [who are] “Totally outside the norms accepted in our free and democratic society,” said Justice Ann Marie McDonald. Under the Safe Third Country Agreement, which has been in effect since December 2004, Canada and the United States declare each other “safe” for refugees and establish the principle that asylum seekers should generally seek refuge in the first of the two countries they reach. There are some limited exceptions to this principle, including for family members in the other country.
Some people in the United States who do not have permanent status feel uncertain because of the anti-refugee and anti-Muslim measures taken by the new government. They may feel that their refugee claim is not being fairly taken into account in the current climate. Some people in one of the seven countries that are subject to a “travel ban” fear that they will not be able to reintegrate with immediate family members, even if they are themselves welcomed as refugees in the United States. When the agreement was signed, the Canadian government knew that it would result in an increase in the number of irregular border crossings and a potential physical risk to refugee claimants. The government can solve this problem by withdrawing from the agreement: it would mean that people would be able to file their refugee applications in an orderly manner in a port of entry, which would be safer for everyone. International and Canadian law protects the right of refugees to flee safely, including, if necessary, entering a country in violation of immigration laws. This is based on the fundamental right, as set out in the Universal Declaration of Human Rights, to seek asylum before persecution in other countries (art.