Appeals court to the Canadian government defending the asylum seeker refusal agreement.
A Canadian appeals court on Thursday upheld an agreement between Canada and the United States to reject asylum seekers, overturn a lower court ruling, join the federal government and initiate a possible Supreme Court showdown.
The Canadian government appealed to defend the agreement and US immigration detention practices. Canada had argued the pact was necessary to manage its border with the United States.
It was about the question of whether the Safe Third Country Agreement (STCA), signed in 2002, under which asylum seekers attempting to cross between Canada and the United States at formal border crossings are turned over and sent back, the fundamental rights of an asylum seeker under the framework the agreement violates Canadian Charter of Rights and Freedoms.
Thursday’s ruling said that it was not the deal itself that could have caused the alleged violations of the applicants’ rights, but rather the regular reviews of the US’s designation as a “safe” country and “associated administrative conduct”.
A group of asylum seekers wait to be processed after being taken from their tent camp to Canada Border Services in Lacolle, Quebec, Canada in 2017 [File: Christinne Muschi/Reuters]The challenge should have focused on these reviews, the ruling said, even though the government kept them secret.
The ruling also stated that the experience of just 10 asylum seekers cited was insufficient to draw conclusions about the US immigration system and possible legal violations.
That’s a problematic bar, said Jamie Chai Yun Liew, professor of immigration law at the University of Ottawa, adding that the ruling and the deal’s continuation fly in light of the reputation Canada has built as an advocate for refugees.
“It undermines our commitment to protecting refugees and our reputation for upholding refugee rights,” she said.
Canada’s government had argued that if the agreement were terminated and asylum seekers could enter land border crossings and make refugee claims, it would suffer “irreparable harm”.
“[The] STCA remains a comprehensive vehicle for the compassionate, fair and orderly handling of asylum applications, “the government said in a statement on Thursday.
Refugee attorneys can apply to be heard in the Supreme Court of Canada.
A family from Haiti goes to the border to get to Canada from Champlain, USA [File: Christinne Muschi/ Reuters]Last year, a federal court ruled that the agreement violated asylum seekers’ rights to life, liberty and security because those who were rejected could be indefinitely detained in immigration.
The refugee lawyers also argued that people trying to assert claims accepted by refugees in Canada, for example on the basis of gender discrimination, run the risk of being sent back to their countries of origin by the US.
During the tenure of former US President Donald Trump, tens of thousands of asylum seekers came to Canada between ports of entry to circumvent the STCA, which only applies to formal border crossings.
However, since the advent of COVID-19, Canada has had a policy of rejecting asylum seekers who attempt to cross irregularly. While what happened to them is not tracked, at least a dozen ended up in U.S. immigration custody and at least one was deported.