Why Joe Biden’s Election Does Not Solve Canada’s “Safe Third Country” Problem, Supporters Say


Joe Biden has vowed to dismantle US President Donald Trump’s immigration policy when he takes office in January, but that doesn’t mean Canada should continue to honor its asylum pact with America, advocates say refugees.

“President-elect Biden has expressed his concerns and made a commitment to reform certain areas of immigration,” said Maureen Silcoff, immigration and refugee lawyer and president of the Canadian Association of Lawyers refugees.

“But ideas have to materialize, and human rights are too important to depend on promises or hope.”

Although declared unconstitutional by the Federal Court, the future of the Canada-United States Safe Third Country Agreement (STCA) is still at stake after an appeals court extended the original January 22 deadline for that the federal government rescind the treaty pending an appeal hearing in February.

The bilateral agreement, established in 2004, is designed to prevent “asylum shopping” in Canada and the United States by forcing migrants to seek asylum in the first safe country they disembark. It allows Canada to return migrants to the US border.

In July, Federal Court Judge Ann Marie McDonald ruled that the STCA violated the Canadian Charter of Rights and Freedoms by exposing asylum seekers to inhumane conditions in migrant detention centers in the United States.

“The accounts of detainees (in the United States) demonstrate both physical and psychological suffering as a result of the detention, and a real risk that they will not be able to assert their asylum claims,” ​​wrote McDonald’s. The decision effectively declared America dangerous to refugees and ridiculed Canada as an accomplice in human rights abuses.

The Canadian government appealed the decision and will make its case in February. At this point, the United States will have a new president, who will obviously be friendlier to asylum seekers. Biden’s victory offers a new source of hope for current and future immigrants to the United States, following an unprecedented crackdown on immigration by Trump.

In four years, Trump has made more than 400 immigration-related policy changes, including his “zero tolerance” policy, which criminalizes asylum seekers and systematically separates children from their parents. On his first day as president, Biden vowed to create a task force to bring together the 545 migrant children who have been separated from their parents due to politics. He also pledged to end construction of the border wall, restore protections for dreamers, expand legal immigration routes, and remove Trump’s asylum restrictions.

While Biden is expected to overhaul much of Trump’s immigration agenda, that doesn’t necessarily mean an end to human rights abuses in detention centers, observers say.

“This is a very long-term problem,” said Craig Damian Smith, senior research associate at the Canada Excellence Research Chair in Migration and Integration at Ryerson University, which leads Monday a discussion of the Munk School on the subject. “(Biden) can change a lot of things immediately, but he won’t fundamentally overhaul the entire US immigration system, especially when it comes to detention. “

The treatment of asylum seekers at the southern border worsened under Trump, but the practice of detaining migrants predates his administration. The first modern detention centers in the United States were established by Jimmy Carter in the 1970s to handle a growing number of migrants fleeing Haiti and Cuba and were cemented by the Reagan administration amid increasing arrivals of refugees from America central. Since then, the United States has detained migrants and now has the world’s largest migrant detention apparatus.

As Trump likes to point out, Barack Obama built the infamous Central Processing Center in MacAllen, Texas, where migrants are held inside chain-link fences – the site of images of “children in cages” that have surfaced following the split from Trump’s family. Politics.

The fundamental problem with the STCA is that it is based on “a high level of confidence in the good functioning of the (American) system”, and that means that the rights of asylum seekers are respected, says Chris Alexander, former minister of Immigration at the Stephen Harper. government of 2013-15.

“The challenges of US immigration and refugee policy are vast and deep,” he said, and while there is progress under the next administration, Biden alone is unlikely to solve. this issue.

“The United States is no longer a reliable partner (when it comes to immigration) and has not been for some time,” added Silcoff. “His failure to meet human rights standards for refugees predates President Trump, but has escalated under his administration to the point that Canada must act now.

The efforts to bring down the STCA before Trump, too.



In 2007, the Federal Court of Canada allowed a challenge from human rights groups arguing that the STCA had violated the Charter rights of an anonymous Colombian asylum seeker in the United States who feared be returned to his country of origin where he would be persecuted. The decision was ultimately overturned in an appeal because the Colombian in question never attempted to seek asylum in Canada due to the STCA.

The Canadian government has argued that removing the STCA will result in an “influx” of asylum seekers across the US border, causing “irreparable harm” to the public by hampering “border operations, sustainability and integrity. of the Canadian asylum system. and the services and resources that support applicants in Canada. “

Some current and former politicians in the immigration portfolio don’t see it that way.

Suspension of the STCA will mean better border management, as people will not be forced to cross irregularly, predicts Jenny Kwan, MP for Vancouver East and NDP critic for immigration, refugees and citizenship.

The STCA only applies to official border crossings, but migrants can navigate them by seeking asylum at unofficial entry points, such as Roxham Road at the Quebec-New York border, which hosted the Most of the 57,000 migrants who have passed through Canada. irregularly since Trump cracked down on immigration in 2017. Crossings at unofficial ports of entry have slowed significantly during the COVID-19 border closure.

Alexander said forcing migrants to make irregular and often dangerous crossings was not only inhumane, but ineffective. While reducing the STCA could attract more migrants initially, he said, welcoming migrants at official crossings will allow for more efficient screening and faster processing of applications. The backlog of refugee claims in Canada stood at over 85,000 in September.

There are reasons to be hopeful what Biden’s victory will mean for migrant rights, Alexander said.

“There will be progress. The Biden administration will take a more serious look at these issues, pay more attention to the global migration challenge.

But human rights abuses in migrant detention camps did not start with Trump and likely will not end with him. “In the meantime, every refugee that Canada returns to the United States and who is imprisoned suffers human rights violations simply because they seek protection. And it continues to stain Canada’s reputation for refugee protection, ”said Silcoff.

“This is something that we can end now by ending (the STCA).”

Lex Harvey is a Toronto producer of The Star newsletter and author of the First Up newsletter. Follow her on Twitter: @lexharvs


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