Canadian Refugee Procedure/Safe Third Countries
Regulation s. 159 - Determination of Eligibility of ClaimEdit
The text of the relevant section of the regulation reads:
Determination of Eligibility of Claim Working day 159 For the purposes of subsections 100(1) and (3) of the Act, (a) a working day does not include Saturdays or holidays; (b) a day that is not a working day is not included in the calculation of the three-day period; and (c) the three-day period begins from the day on which the claim is received. Definitions 159.1 The following definitions apply in this section and sections 159.2 to 159.7. Agreement means the Agreement dated December 5, 2002 between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries. (Accord) claimant means a claimant referred to in paragraph 101(1)(e) of the Act. (demandeur) designated country means a country designated by section 159.3. (pays désigné) family member, in respect of a claimant, means their spouse or common-law partner, their legal guardian, and any of the following persons, namely, their child, father, mother, brother, sister, grandfather, grandmother, grandchild, uncle, aunt, nephew or niece. (membre de la famille) legal guardian, in respect of a claimant who has not attained the age of 18 years, means a person who has custody of the claimant or who is empowered to act on the claimant’s behalf by virtue of a court order or written agreement or by operation of law. (tuteur légal) United States means the United States of America, but does not include Puerto Rico, the Virgin Islands, Guam or any other United States of America possession or territory. (États-Unis) Non-application — former habitual residence 159.2 Paragraph 101(1)(e) of the Act does not apply to a claimant who is a stateless person who comes directly or indirectly to Canada from a designated country that is their country of former habitual residence. Designation — United States 159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act. Non-application — ports of entry other than land ports of entry 159.4 (1) Paragraph 101(1)(e) of the Act does not apply to a claimant who seeks to enter Canada at (a) a location that is not a port of entry; (b) a port of entry that is a harbour port, including a ferry landing; or (c) subject to subsection (2), a port of entry that is an airport. In transit exception (2) Paragraph 101(1)(e) of the Act applies to a claimant who has been ordered removed from the United States and who seeks to enter Canada at a port of entry that is an airport while they are in transit through Canada from the United States in the course of the enforcement of that order. Non-application — claimants at land ports of entry 159.5 Paragraph 101(1)(e) of the Act does not apply if a claimant who seeks to enter Canada at a location other than one identified in paragraphs 159.4(1)(a) to (c) establishes, in accordance with subsection 100(4) of the Act, that (a) a family member of the claimant is in Canada and is a Canadian citizen; (b) a family member of the claimant is in Canada and is (i) a protected person within the meaning of subsection 95(2) of the Act, (ii) a permanent resident under the Act, or (iii) a person in favour of whom a removal order has been stayed in accordance with section 233; (c) a family member of the claimant who has attained the age of 18 years is in Canada and has made a claim for refugee protection that has been referred to the Board for determination, unless (i) the claim has been withdrawn by the family member, (ii) the claim has been abandoned by the family member, (iii) the claim has been rejected, or (iv) any pending proceedings or proceedings respecting the claim have been terminated under subsection 104(2) of the Act or any decision respecting the claim has been nullified under that subsection; (d) a family member of the claimant who has attained the age of 18 years is in Canada and is the holder of a work permit or study permit other than (i) a work permit that was issued under paragraph 206(b) or that has become invalid as a result of the application of section 209, or (ii) a study permit that has become invalid as a result of the application of section 222; (e) the claimant is a person who (i) has not attained the age of 18 years and is not accompanied by their mother, father or legal guardian, (ii) has neither a spouse nor a common-law partner, and (iii) has neither a mother or father nor a legal guardian in Canada or the United States; (f) the claimant is the holder of any of the following documents, excluding any document issued for the sole purpose of transit through Canada, namely, (i) a permanent resident visa or a temporary resident visa referred to in section 6 and subsection 7(1), respectively, (ii) a temporary resident permit issued under subsection 24(1) of the Act, (iii) a travel document referred to in subsection 31(3) of the Act, (iv) refugee travel papers issued by the Minister, or (v) a temporary travel document referred to in section 151; (g) the claimant is a person (i) who may, under the Act or these Regulations, enter Canada without being required to hold a visa, and (ii) who would, if the claimant were entering the United States, be required to hold a visa; or (h) the claimant is (i) a foreign national who is seeking to re-enter Canada in circumstances where they have been refused entry to the United States without having a refugee claim adjudicated there, or (ii) a permanent resident who has been ordered removed from the United States and is being returned to Canada. Non-application — claimants at land ports of entry and in transit 159.6 Paragraph 101(1)(e) of the Act does not apply if a claimant establishes, in accordance with subsection 100(4) of the Act, that the claimant (a) is charged in the United States with, or has been convicted there of, an offence that is punishable with the death penalty in the United States; or (b) is charged in a country other than the United States with, or has been convicted there of, an offence that is punishable with the death penalty in that country. (c) [Repealed, SOR/2009-210, s. 1] Temporal operation 159.7 (1) For the purposes of paragraph 101(1)(e) of the Act, the application of all or part of sections 159.1 to 159.6 and this section is discontinued, in accordance with subsections (2) to (6), if (a) a notice of suspension of the Agreement setting out the period of suspension is publicized broadly in the various regions of Canada by the Minister via information media and on the website of the Department; (b) a notice of renewal of the suspension of the Agreement setting out the period of renewal of suspension is published in accordance with subsection (6); (c) a notice of suspension of a part of the Agreement is issued by the Government of Canada and the Government of the United States; or (d) a notice of termination of the Agreement is issued by the Government of Canada or the Government of the United States. Paragraph (1)(a) — notice of suspension of Agreement (2) Subject to subsection (3), if a notice of suspension of the Agreement is publicized under paragraph (1)(a), sections 159.2 to 159.6 are rendered inoperative for a period of up to three months that shall be set out in the notice, which period shall begin on the day after the day on which the notice is publicized. Paragraph (1)(b) — notice of renewal of suspension of Agreement (3) If a notice of renewal of the suspension of the Agreement is published under paragraph (1)(b), sections 159.2 to 159.6 are rendered inoperative for the further period of up to three months set out in the notice. Paragraph (1)(c) — suspension of part of Agreement (4) If a notice of suspension of part of the Agreement is issued under paragraph (1)(c), those provisions of these Regulations relating to the application of the Agreement that are referred to in the notice are rendered inoperative for a period that shall be set out in the notice. All other provisions of these Regulations continue to apply. Paragraph (1)(d) — termination of Agreement (5) If a notice of termination of the Agreement is issued under paragraph (1)(d), sections 159.1 to 159.6 and this section cease to have effect on the day set out in the notice. Publication requirement — Canada Gazette (6) Any notice referred to in paragraph (1)(b), (c) or (d) shall be published in the Canada Gazette, Part I, not less than seven days before the day on which the renewal, suspension in part or termination provided for in the notice is effective.
Section 102 of the Act concerns eligibility to claim, the safe third country agreement, and the criteria for listing a countryEdit
Section 102 of the IRPA reads as follows:
Regulations 102 (1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; (b) making a list of those countries and amending it as necessary; and (c) respecting the circumstances and criteria for the application of paragraph 101(1)(e). Factors (2) The following factors are to be considered in designating a country under paragraph (1)(a): (a) whether the country is a party to the Refugee Convention and to the Convention Against Torture; (b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; (c) its human rights record; and (d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection. Review (3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country.
Text of the Safe Third Country AgreementEdit
The above regulatory provisions implement the text of the Safe Third Country Agreement in Canadian law; see this citation for the text of the agreement between Canada and the US itself.
See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Responsibility sharing and burden sharing between states are fundamental principles of the Refugee Convention and Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”.
Factual background to the Safe Third Country AgreementEdit
The political background against which the safe third country agreement operates is the much higher number of refugee claims that Canada receives per capita than does the United States. The United States and Canada are both popular asylum-seeker destinations that conduct Refugee Status Determination on a relatively large scale. The United States consistently receives more asylum applications than any other country; in 2012, it received 17.4% of the total number of asylum applications lodged worldwide. Canada tends to hover in the top five receiving countries; in 2008 it was the second most popular and in 2012 it was sixth, with 4.3% of worldwide applications. As is apparent, Canada receives far more asylum seekers per capita than does the United States - during the five-year period between 2006 and 2010, for example, Canada received one asylum application for every 236 residents; in the United States, the ratio was one asylum application per every 1200 residents. Furthermore, many claimants in Canada have traversed the United States before arriving in this country. For example, from 1995 to 2001, approximately one-third of all refugee claims in Canada were made by claimants known to have arrived from or through the U.S.
Legislative provisions regrading safe third countries have been part of the Immigration Act since 1988. At that point, the provision was enacted, but no country was listed. For more detail, see: Canadian Refugee Procedure/History of refugee procedure in Canada#Post-IRPA measures.
The "Direct Back Policy"Edit
Canada and the US have both employed what is termed the "direct back policy", which is related to, but distinct from the Safe Third Country Agreement. The "direct back policy” refers to the process whereby an asylum seeker approaches a port of entry at a time when border officials are unable to process the claim and the asylum seeker is returned to the other country (primarily, returned to the U.S. from Canada) after having been given a scheduled time to return for an interview. Prior to 21 May 1986, claimants arriving from the United States to claim refugee status remained temporarily in the United States until a Canadian immigration inquiry could be scheduled. On 21 May 1986, a blanket admission policy was introduced, allowing individuals to wait inside Canada for determination of their claim, or to receive an automatic permit to remain and work, depending on their country of origin. From then on, until 2003, the direct back policy was used only in exceptional cases. That year, after the Safe Third Country Agreement was signed, but before it was implemented, the direct back policy was used as there was a large and sudden influx of persons arriving from the United States who wanted to lodge their claims in Canada before the entry into force of the Safe Third Country Agreement. The procedure prompted a complaint in 2004 by several national and international organizations to the Inter-American Commission on Human Rights. The UNHCR subsequently criticized this policy on the basis that many claimants are not allowed to re-enter Canada to attend their scheduled interviews, writing in a report on the subject that "This has been especially problematic for asylum-seekers directed back from Canada to the United States, as a number were detained in the United States and unable to attend their scheduled interviews." Canadian authorities stated that they largely phased out the use of “direct back policies” as of August 2006, and going forward, they would be used only in exceptional cases. See the 2007 amendments to Canadian policy manuals for details regarding the current parameters of Canada's direct back policy. The “direct back policy” was revived again during the Covid-19 pandemic as part of the implementation of an Order-in-Council restricting travel into Canada.
Constitutionality of the Safe Third Country Agreement with the United StatesEdit
The constitutionality of the Safe Third Country Agreement regime has been repeatedly challenged in Canadian courts. All of the challenges to it have been dismissed for procedural reasons - by the Supreme Court of Canada in 1992, and the Federal Court of Appeal in 2008 and 2021. The latter decision is presently under appeal to the Supreme Court of Canada, with the case expected to be heard by that court in 2022.
- Government of Canada, Final Text of the Safe Third Country Agreement, December 5, 2002 <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html> (Accessed August 22, 2020).
- Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press, 2014. Print. Page 26.
- Francois Crepeau, The Foreigner and The Right to Justice in The Aftermath of September 11, Refugee Watch Newsletter, <http://refugeewatch.org.in/RWJournal/25.pdf> (Accessed June 26, 2021) at item 1.6.
- Citizenship and Immigration Canada, A Partnership for Protection: One Year Review, Executive Summary (November 2006) at 13.
- Alan Nash, International Refugee Pressures and the Canadian Public Policy Response, Discussion Paper, January 1989, Studies in Social Policy, page 51.
- Kelley, Ninette, and Michael J. Trebilcock. The Making of the Mosaic: A History of Canadian Immigration Policy. Toronto: University of Toronto Press, 2010 (Second Edition). Print. Page 444.
- Obiora Chinedu Okafor, Refugee Law After 9/11: Sanctuary and Security in Canada and the US, UBC Press, 2020, ISBN 9780774861502, page 211.
- Canadian Council for Refugees, Closing the Front Door on Refugees: Report on the Safe Third Country Agreement, Six Months after Implementation, August 2005, <https://ccrweb.ca/files/closingdoordec05.pdf> (Accessed August 23, 2020), at 23.
- Canadian Council for Refugees v. Canada, 2008 FCA 229 (CanLII),  3 FCR 136, par. 95, <http://canlii.ca/t/1z69f#par95>, retrieved on 2020-03-22.
- Canadian Council for Refugees v. Canada, 2008 FCA 229 (CanLII),  3 FCR 136, par. 96, <http://canlii.ca/t/1z69f#par96>, retrieved on 2020-03-22.
- Standing Committee on Citizenship and Immigration, House of Commons, "Testimony of Francisco Rico-Martinez", 39th Parl, 1st Sess (February 8, 2007) at 7.
- Immigration, Refugees and Citizenship Canada, ENF-4: Port of Entry Examinations, Dated 2019-08-15 <https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf04-eng.pdf> (Accessed March 22, 2020) at, inter alia, page 5.
- Nicholas Keung, Why choosing the wrong ‘door’ may have cost this man his chance to claim asylum in Canada and rejoin his wife, Toronto Star, April 23, 2021, <https://www.thestar.com/amp/news/canada/2021/04/23/why-choosing-the-wrong-door-may-have-cost-this-man-his-chance-to-claim-asylum-in-canada-and-rejoin-his-wife.html> (Accessed April 25, 2021).
- Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC),  1 SCR 236, <https://canlii.ca/t/1fsg5>, retrieved on 2021-04-24.
- Canadian Council for Refugees v. Canada, 2008 FCA 229 (CanLII),  3 FCR 136, <https://canlii.ca/t/1z69f>, retrieved on 2021-04-24.
- Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72 (CanLII), <https://canlii.ca/t/jfbm9>, retrieved on 2021-04-24.
- Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al., 2021 CanLII 129759 (SCC), <https://canlii.ca/t/jlbn1>, retrieved on 2021-12-29.