Internalizing the Consequences of Externalized Asylum Processes – Federal Court affirms that the Safe Third Country Agreement violates asylum seekers’ fundamental rights under Canadian law.
Safe third country – Asylum – Return – Detention – Fundamental rights
The decision in Canadian Council for Refugees v Canada marks a long-awaited victory for advocates of asylum seekers and a significant blow to the safe third country agreement with the US, acknowledging its infringement of the fundamental rights of non-Canadians. The case built on previous court challenges brought by refugee advocates in Canada, in an effort to affirm and uphold Canada’s national and international legal obligations, ensuring that every person physically present in Canada has a legal right to life, liberty and security of person under the Charter of Rights and Freedoms.
A. Facts and Ruling
In a landmark decision on July 22, 2020, Justice McDonald of the Federal Court has ruled that the “Safe Third Country Agreement” (STCA) between Canada and the United States, which allows Canada to send certain refugee claimants back to the United States, is unconstitutional. Specifically, provisions enacting the STCA are in violation of Section 7 of the Canadian Charter of Rights and Freedoms (Charter) protecting the life, liberty and security of persons and this infringement does not fall under reasonable and justified limitations of rights and freedoms, allowed under Section 1 of the Charter. Justice McDonald suspended her judgement for six months to allow for Parliament to respond. The Government has appealed the ruling and has meanwhile asked the Federal Court of Appeal (FCA) to stay the order of the Court, beyond the six-month suspension already granted, while the appeal is being heard. The FCA granted the government's request for a stay, therefore Justice McDonald’s decision will not come into effect on January 22nd, 2020. The FCA is set to hear the appeal in the week of February 22.
1. Facts and circumstances of the case
The case concerned the latest court challenge to the STCA which came into force in December 2004. The Applicants challenged the validity and the constitutionality of the legislation implementing the STCA, specifically s. 101(1)(e) of the Immigration and Refugee Protection Act (IRPA), and s. 159.3 of the Immigration and Refugee Protection Regulations (IRPR or the Regulations), which designate the US to be a “safe third country”. Amnesty International, the Canadian Council for Refugees, the Canadian Council of Churches, and eight individual refugee claimants challenged the legality of the STCA.
The stated purpose of the STCA was to help Canada and the US share responsibility for refugees in a way that complies with the Refugee Convention. Under the Agreement, those who arrive to Canada through a land Port of Entry (POE) from the US are ineligible to make a refugee claim in Canada, unless they have close family members in Canada, or are an unaccompanied minor, or meets a few other specific exceptions. However, claimants arriving from the US by air, sea, or avoiding official POEs are eligible to have their refugee claims assessed. This has created perverse incentives for asylum seekers to enter Canada through unofficial routes, sometimes on rough, or dangerous terrain, possibly subject to exploitation by smugglers.
2. Applications lodged with the Federal Court and its decision
The Applicants in this case are citizens of El Salvador, Ethiopia, and Syria, who arrived at a Canadian land POE from the US and sought refugee protection, fearing persecution in their home country and the lack of protections available in the US. The Applicants’ personal stories and journeys were described in compelling detail, supported by extensive evidentiary records including affidavits, reports, expert opinions and transcripts [§30-34].
The Applicants argued that the STCA violates the Canadian Charter of Rights and Freedoms, threatening the life, liberty, and security of the person (Section 7 of Charter) by returning “ineligible” refugee claimants to the United States where they face abusive and punitive detention measures. They also argued a violation of Section 15 of the Charter, claiming that the policy of returning refugee claimants has a disproportionate negative impact on women fleeing gender based violence. In addition, the Applicants argued that the STCA violates Canada’s obligations under international law by designating the US as a safe country for refugees, which they consider unreasonable given the US’s ongoing institutional violations of the 1951 Convention Relating to the Status of Refugees (Refugee Convention). According to the Applicants, the STCA contravenes Canada’s international obligations under the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT), as it exposes refugee claimants to unsafe conditions in the US and introduces the risk of their refoulement from the United States.
The Court found that under the STCA, ineligible asylum claimants are immediately returned and handed over to US authorities by Canadian officials where they are automatically detained – resulting in a de facto form of punishment without charges or a trial – merely for making a refugee claim in Canada, in contravention of the Refugee Convention. The Court accepted Applicants’ extensive evidence of the abusive and punitive nature of the detention of returned asylum seekers and of the fact that Canadian officials were aware of this practice. Justice McDonald concluded that subjecting this specific group of asylum seekers to punitive detention and the ensuing ill-treatment, for the sake of “administrative” compliance with the provisions of the STCA, cannot be justified. It is an outcome that is not in keeping with the spirit or the “responsibility sharing” purpose of the STCA, nor the foundational Conventions upon which it was established. This is sufficient to establish that Section 7 rights under the Charter have been breached and these breaches are not justified under the reasonable limits described in Section 1.
The following section will provide some context as to the origins of the STCA and the previous court challenge mounted by refugee advocates, which laid the groundwork for the current case. It then takes on the Court’s reasoning and relevant case law, finding in favor of Applicants’ claims of Section 7 violations; and rejecting Respondents’ claims that any limitations of rights under the STCA fall under the protection of Section 1 of the Charter, as “reasonable” and “demonstrably justified”. The conclusion offers some updates on the ongoing appeals process and further insights on the local and global impact and relevance of the decision during a time of rampant deterioration in the global asylum protection system.
1. Background of challenges to the STCA
The immediate years following the terrorist attacks on September 11, 2001, saw a conflation of security threats and migration. This had profound impact on movements along the US and Canadian border. As Audrey Macklin’s comprehensive study pointed out, a political narrative emerged about Canada as a security threat to the United States, by assuming that its immigration system and security screening is more lax, allowing potential extremists and easier path to entry and regular status, making their subsequent movement towards the US easier. These allegations were later refuted. Nevertheless, a significant gap between public perception and reality regarding the terrorism-refugee-Canada nexus developed in these years. It was in this context the 2004 STCA came into being. The Agreement came under fire from the very beginning by asylum advocates, and with good reason. One troubling early sign came from transcripts from a US House Subcommittee on Immigration meeting, where government officials openly argued for the efficacy of the safe third country agreement on the basis that it would allow for an “ideal” blanket detention of all returnee asylum seekers. As Macklin’s pointed out, “some opponents of immigration commend the Agreement in the hopes that it will eventually link up with other, similar Agreements to create an unbroken chain of refoulement back to the country of origin” (at p. 417).
Underscoring their concern for the rights and safety of asylum seekers, in 2005 the Canadian Council for Refugees published a report entitled Closing the Front Door on Refugees, followed by a submission to Cabinet, which outlined relevant changes in US policy and practice since implementation of the Agreement. In the ensuing years there have been continuous calls to the Canadian government to recognize that the US does not meet the requirements under international law for a safe third country and to end the designation of the US as such.
On 29 December 2005, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, along with a Colombian asylum seeker (“John Doe”) – hoping to enter Canada to seek asylum after being denied asylum in the US –, launched a legal challenge of the designation of the US as a safe third country for refugees. In Canadian Council for Refugees v R (2007), Justice Michael Phelan of the Federal Court upheld the challenge, finding that the designation of the US as a safe third country is ultra vires, that it is unreasonable to conclude that the US complies with its non-refoulement obligations under the Refugee Convention and the Convention against Torture, and that the application of the safe third country rule violates refugees' Charter rights to life, liberty and security of the person (Section 7) and to non-discrimination (Section 15). The Court also found that the federal Cabinet failed to comply with its obligation under the law to ensure continuing review of the status of the US as a safe third country. This victory was short lived as the governments appeal was allowed and on 27 June 2008, the Federal Court of Appeal in Canadian Council for Refugees v. Canada (2008) overturned Justice Phelan's ruling.
It is important to note that the FCA in 2008 did not dispute, or even consider the lower-court’s factual findings on substantive Charter violations and conclusions of US noncompliance. Instead the Court applied a formalist approach and found it did not need to consider any evidence of US law and practice. On the administrative law ground, the FCA held that a plain reading of IRPA’s statutory requirement for the Cabinet to ‘consider’ a country’s conformity with the Refugee Convention and the CAT prior to designating it a ‘safe third country’, simply means an obligation to ‘consider’. So long as Cabinet ‘considered’ and was satisfied of US conformity with the treaties, the vires of the Agreement was unaffected by whether or not the US actually complied with them. The Court simply stripped the human rights organizations (Applicants) of their public interest standing. This was justified by the fact that “John Doe” from Colombia was also barred from bringing a Charter challenge since the US had already granted him protection by the time the FCA heard the case – rendering his claim moot.[i] In 2009 the Supreme Court of Canada denied the application to appeal the FCA’s decision.
In 2017 the original three organizations joined a group of eight individual litigants in asking the Federal Court to strike down the STCA and to allow the claimants to make a refugee claim in Canada. The Applicants submitted what they considered to be developments in Canadian law, in particular regarding the authority responsible for supervising the conditions to be met for Safe Third Country designation (at paras 58-70). In the July 22, 2020 decision Justice McDonald reiterated that the ultra vires question was determined by in CCR 2008 and that she saw no grounds to depart from binding authority. However, by neither considering nor disputing the substantive Charter violations in its CCR 2008 decision, the FCA left the door open to revisit the very same issues, undergirded by compelling narratives of the individual Applicants plight at the hand of the US immigration system as well as a decade and a half of evidence on the impact and functioning of the STCA.
At the outset, Justice McDonald cited Singh v Minister of Employment and Immigration (1985, para 35) to state that having been physically present in Canada, the individual Applicants have the right to advance a Charter claim. In addition, the fact that one of the Applicants was returned to the US, does not prevent her from asserting a Charter claim as established in Kreishan v Canada (Citizenship and Immigration) (2019, para 78). The Court then turned the attention to the substance of potential Charter violations.
2. Does the STCA infringe Section 7 of the Charter?
Here, the Court had to address two interrelated issues: did the Canadian officials who returned ineligible STCA claimants to US authorities to face detention, deprive the claimants of their “right to life, liberty, or security of the person” under Section 7; and if so, are these deprivations in accordance with the “principles of fundamental justice”?
- Right to life, liberty, or security
The Applicants argued the penalization of asylum seekers by US authorities for the mere fact of attempting to seek asylum in Canada, and the complicity of Canadian authorities by knowingly returning “ineligible” people, certainly engaged their liberty and security interests. The Court agreed with the Applicants.
US detention conditions often lack in ensuring basic human dignity, medical care, and food. The term of detention may last for months without any review [§82]. The affidavit of one of the Applicants, Ms. Mustefa, was particularly compelling, detailing her time in solitary confinement as a “traumatic experience”. As a Muslim she was denied appropriate meal options which resulted in her losing 15 pounds. She was eventually detained among people with criminal convictions in “freezing cold” conditions [§96].
Furthermore, the Court found that immigration detention routinely impedes access to legal counsel and increases the risk of refoulement, implicating a violation the security of the person. Another Applicant, “ABC”, had already faced violence at the hand of the MS-13 gang, who threatened her and her daughters’ lives if she were to return to El Salvador [§105]. Detained asylum seekers face insurmountable systemic barriers in the US, especially in accessing legal representation, access to translators and assistance with legal forms and weaker asylum protections for gender based violence. Justice McDonald concluded that had ABC been detained in the US, there would have been a real risk of refoulement [§105-§108].
Justice McDonald cited Suresh v Canada (Minister of Citizenship and Immigration) (2002), to send an important message in the era of border and immigration control externalization: Canada “does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else's hand” (para 54). Accordingly, the fact that STCA returnees are imprisoned by US authorities, does not immunize the actions of Canadian officials from consideration. Evidence makes it clear that Canadian officials not only inform US officials that STCA claimants are being returned, but they are involved in the physical handover of ineligible claimants. where they are immediately and automatically imprisoned by US authorities [§101-§103].
- Principles of Fundamental Justice
To round up its inquiry into Section 7 violations, the Court had to determine if the limitation is “in accordance with the principles of fundamental justice.” According to Carter v Canada (Attorney General) (2015, para 55), the principles of fundamental justice are concerned with arbitrariness, overbreadth, and gross disproportionality. Further in Canada (Attorney General) v. Bedford (2013, para 125), the Supreme Court argued that the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose.
Respondents argued that, unlike in Bedford and in Carter, the impacts on the individuals caused by the legislation fall outside Canada’s control. In addition, they relied upon case-law in Suresh and in Revell v Canada (Citizenship and Immigration) (2019), to argue that IRPA has safeguards to protect against overbreadth, as there are discretionary remedies available in the context of removal of unsuccessful asylum seekers [§125-§126]. Therefore, the STCA is not overbroad or disproportionate in its application. In addition, the Respondents argue that the grossly disproportionate impact test needs to show that the impact of foreign law would “shock the conscience” (Suresh at para 18).
The Court however reiterated that the cited cases do not match the facts present here. In “removals” cases, such as Suresh and Revell, there were sufficient consideration of the merits of the asylum claims. In the present case however, the Applicants have not had access to such consideration, or had any risk-assessment performed by Canadian authorities. If the immediate consequence of ineligibility under the STCA is imprisonment, the “sharing of responsibility” objective of the STCA should entail some guarantee of access to a fair refugee process [§128].
After rebutting the Respondents’ arguments, Justice McDonald, relying on both Carter (at para 72) and Bedford (at para 125), as well as CCR 2008 (at para 75) found that the legislation provisions of the STCA were both overbroad and grossly disproportional in their applications [§136].
Overbroad, because the deprivation of liberty rights of STCA returnees has no connection to the “mischief contemplated by the legislature”, i.e. the original purpose of responsibility sharing (citing Carter at para 131). The legislative objective of the STCA scheme is the sharing of responsibility for consideration of refugee claims with countries that comply with the relevant Conventions. Returning applicants to the US to face imprisonment does not bare a connection to this original purpose.
The detention and risk to security of the person, facilitated by the STCA, were also found to be grossly disproportionate to the stated administrative benefits of the STCA [§135]. Justice McDonald stated that to find otherwise would be “entirely outside the norms accepted in our free and democratic society” (Bedford at para 120). Furthermore, gross disproportionality can be established based upon the impact on a single person. In the Court’s view, Ms. Mustefa’s evidence of abuses suffered is alone sufficient to meet this test and to “shock the conscience” [§137].
3. Justification under Section 1 of the Charter
The final remaining question was whether a Section 7 infringement in this case may be justified under Section 1 of the Charter as “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” Under Canadian constitutional case-law, the burden of proof to show justifications under Section 1 falls on the respondents [§143].
The Respondents argued that the disputed sections of the IRPA and IRPR meet the pressing and substantial objective of the STCA, namely “the sharing of responsibility” [§145]. They further argued that should the appellants prevail, the sustainability of the Canadian asylum system would be at stake, because of the presumable increase in the volume of refugee claimants and consequent challenges brought. In addition, they suggest that despite being subject to detention, failed STCA claimants have access to a fair detention review process in the US [§145-§146].
Justice McDonald found the evidence provided to support these arguments to be weak and that “in the past, Canada has demonstrated flexibility in adjusting to fluctuations in refugee numbers in response to certain needs” [§147]. Meanwhile, the “rights of refugee claimants are more than minimally impaired by the STCA and the deleterious effects (detention and threats to security of the person) are not proportional to the salutary effects (administrative efficiency)” [§149].
4. Does the STCA Infringe Section 15 of the Charter?
The Applicants also argued that the STCA further violates Section 15 of the Charter because the practice of returning asylum-seekers has a disproportionate impact on women. Women facing sexual violence in Central America have a particularly hard time proving they merit protection in the US as a “social group” despite systematic, gender based violence and inadequate state protections. This restrictive attitude by US asylum officials is inconsistent with the Refugee Convention and leads to an increased risk of refoulement according to the Applicants’ argument [§105].
However, Justice McDonald declined to substantively address Section 15 of the Charter challenge due to the finding of the infringement of Section 7.
Although the Court determined that the Canadian legislation designating the US as a safe third country violates the Charter and is consequently of no force or effect, it also ordered that its decision will only take effect after six months from the decision, that is on January 22, 2021. Meanwhile the Canadian Council of Refugees has called for an immediate halt to sending refugee claimants back to the United States and a suspension of the STCA. The government has appealed the ruling and asked the Federal Court of Appeal to stay the order of the Court beyond the six-month suspension already granted, while the appeal is being heard, for fear that a sudden surge of asylum claims in January would overwhelm the Canadian asylum system. The refugees advocates counter argument is that the government has failed to show that the STCA’s expiration would lead to “irreparable harm”, as it ignores that all travel, and therefore refugee claim numbers, are dramatically down because of the COVID-19 pandemic. They further emphasized that maintaining policies that have been found unconstitutional by the Federal Court, is clearly contrary to the public interest. Despite the extensive evidence supporting these counter-arguments, on October 26, 2020, the Federal Court of Appeal granted the government's request for a stay of the Federal Court's decision on the Safe Third Country Agreement until the Court determines the appeal and cross-appeal. This means that the Federal Court’s decision will not come into effect on January 22. The Federal Court of Appeal will hear the appeal in the week of February 22. The FCA in its analysis, among other arguments, took into account the exigencies of the COVID-19 pandemic on the Parliament’s legislative process mand the drastically reduced number of asylum seeker arrivals, resulting in less room for potential Charter violations, at the border.
With all its limitations and the mounting challenges to come, the Federal Court’s judgment striking down the STCA comes as a beacon of light in a time of a severe deterioration of migrants and asylum seekers rights and access to protection in the United States and around the world. The past four years of the Trump administration brought sweeping policy changes, all but dismantling the proper functioning of the asylum system and increasing abusive practices in immigrant detention. Today, for the first time ever since the enactment of the Refugee Act in 1980, people seeking asylum at the US border are being turned away by Border Patrol agents with no chance to make a legal case for asylum. Child asylum seekers of all ages are routinely separated from their parents at the US-Mexico border and kept in prolonged and inappropriate detention conditions, or otherwise deported without any due process protections. Highlighting the vulnerability of women are the recent allegations about coerced sterilizations of immigrant women at the Irwin County Detention Center (ICDC) in Georgia. There are also widespread reports of failures in protecting detained asylum seekers from Covid-19 infections.
Safe country agreements and other methods of externalizing immigration control are problematic worldwide. The Federal Court’s decision likely resonates with advocates challenging asylum externalization efforts from Australia to the peripheries of the European Union, including recent Greek court challenges to returning asylum seekers to Turkey. This case note highlighted how the “safe third country” concept and related agreements can represent the dark side of otherwise necessary inter-state cooperation in the field of migration management. These arrangements contribute to the de facto and de iure erasure of asylum seekers, their opportunities to reach safety and the very notion that their claims might be credible. Amidst these restrictive measures it is important to keep in mind that “refugees do not cease to enter countries, but they decreasingly enter as refugees” (Macklin at p. 370). Canada has also been complicit in “expending considerable resources to ensure that asylum seekers – most of whom are non-white – do not succeed” in reaching its land (Macklin at p. 20). Nevertheless, the Canadian Court’s current decision is an important step in internalizing the costs of externalization in the context of refugee protection.
C. Suggested Reading
Case law :
Singh v Minister of Employment and Immigration,  1 SCR 177.
Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223.
Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1.
Carter v Canada (Attorney General), 2015 SCC 5.
Canada (Attorney General) v. Bedford, 2013 SCC 72.
H. Adelman, “Canadian Borders and Immigration Post 9/11”, The International Migration Review 36, no. 1, 2002, pp. 15-28.
Canadian Council for Refugees, “Closing the Front Door on Refugees: Report on the First Year of the Safe Third Country Agreement”, December, 2005.
F. Crépeau, and D. Nakache, “Controlling Irregular Migration in Canada - Reconciling Security Concerns with Human Rights Protection”, SSRN Scholarly Paper. Rochester, NY: Social Science Research Network, February 1, 2006.
A. Macklin, “The Value(S) of the Canada-Us Safe Third Country Agreement”, SSRN Scholarly Paper. Rochester, NY: Social Science Research Network, June 22, 2004.
A. Macklin, “Disappearing Refugees: Reflections on the Canada-U.S. Safe Third Country Agreement Migration and Refuge in the Twenty-First Century: A Symposium in Memory of Arthur Helton”, Columbia Human Rights Law Review 36, no. 2, 2005, pp. 365-426.
To cite this contribution : E. Frenyó, “Internalizing the Consequences of Externalized Asylum Processes – Canadian Federal Court affirms that the Safe Third Country Agreement with the US violates asylum seekers’ fundamental rights under Canadian law”, Cahiers de l’EDEM, October 2020.
[i] A key “public interest standing” test would be that there by no other reasonable or effective manner to bring the issue to court. The FCA made it clear that a refugee claimant who was denied entry at the border could her/ himself launch a judicial review of the decision.