Montreal Canada – It was early April 2017 when Nedira Mustefa, an Ethiopian woman who had lived in the United States since childhood but had no immigrant status, reached the Canadian border in search of protection.
After 30 hours of interrogation, Canadian officials turned their backs on her and pointed to an agreement between the two neighbors that would allow Canada to unceremoniously return most asylum seekers who come to the border from the United States.
Back in the US, Mustefa was held in a New York State correctional facility for a month, including a week in solitary confinement, which she described as “a terrible, isolating, and psychologically traumatic experience.” She said she was fed pork against her belief as a Muslim woman, could not use blankets during the day despite the freezing cold, and did not know when she would be released.
Their experience has fed into a legal challenge attempting to repeal the bilateral Safe Third Countries Agreement (STCA), which human rights defenders say violates the rights of refugees and Canada’s own constitution, known as the Canadian Charter of Rights and Freedoms.
But the federal appeals court joined the Canadian government on Thursday and upheld the deal. Now the litigants must decide whether to ask the country’s highest court to take up the case – and ultimately decide whether the US is a safe place for refugees.
The judges said a lower court made a mistake in its ruling last year that the STCA was unconstitutional.
“We are very disappointed,” said Justin Mohammed, a human rights law and policy activist for Amnesty International Canada, one of the groups involved in the legal challenge.
“Without question, there are people who are returning to the US and facing serious human rights abuses by US authorities,” Mohammed told Al Jazeera, adding that Amnesty and the other litigants are considering their next steps, including a possible motion Appeals to the Supreme Court of Canada.
A single lane lane from the United States to Canada remains open at the Peace Arch border crossing in Blaine, Washington [Elaine Thompson/AP Photo]
Under the STCA, signed in 2002, asylum seekers must file protection claims in the first country they arrive, either the US or Canada. The idea behind the agreement is that both countries are “safe” and give people access to fair systems for determining refugee status. In practice, this means that most people who attempt to make a claim at a Canadian port of entry will return to the United States.
However, Canadian law allows asylum seekers to apply for protection once in Canada – and this loophole has pushed thousands of people to undertake sometimes dangerous hikes across the 6,416 km land border between the US and Canada.
Human rights and refugee advocates have for years raised concerns that Canada is violating its own constitutional and international law obligations by enforcing the STCA. The present case is not the first to attempt to challenge the agreement after an attempt more than 10 years ago ultimately failed.
But when thousands of asylum seekers left the US for Canada since 2017, largely due to the immigration policy of former US President Donald Trump, another legal battle against the agreement was initiated. In July 2020, the Federal Court of Canada ruled that the STCA violated the refugees’ right to life, liberty and security, as well as their right to equality, guaranteed in the charter.
This week’s appeals court ruling overturns that and means the deal stands.
Thousands of people who were unable to lodge asylum applications in official ports of entry into Canada due to the STCA crossed the border between the United States and Canada in 2017 in search of protection [File: Christinne Muschi/Reuters]”I think the reality that people are experiencing was completely ignored in this decision,” said Jamie Liew, immigration attorney and professor at the University of Ottawa Law School, adding the appeals court said the evidence was “individualized.” and “piece by piece”.
“It really does raise questions about future cases where people can claim their charter [rights] get hurt. What is the threshold now? It sets a really high bar for anyone who has felt the impact a government decision has on their lives, ”Liew told Al Jazeera.
She added, “I think it is an appeal decision. I think the parties will appeal and I think there is a very good chance that vacation will be granted. “
The Canadian government welcomed the appeals court’s decision, saying, “The STCA has served Canada well for 16 years and made sure our common border continues to be well managed.”
“Canada remains committed to upholding a fair and compassionate refugee protection system, and the STCA remains a comprehensive vehicle for the compassionate, fair and orderly handling of asylum applications on the Canadian-US land border,” a statement said.
But Maureen Silcoff, president of the Canadian Association of Refugee Attorneys, said the ruling was “a step backwards for human rights in Canada” as the evidence presented to the referring court shows the risks refugees face if they are sent back to the US. including many who are locked up under harsh conditions.
The U.S. asylum system is more restrictive than Canada, especially for people fleeing gender-based violence, she said, while refugees must submit their application within a year of arrival, a restriction many cannot meet.
Canada says the Safe Third Country Agreement helps keep the US-Canada border “well managed”. [File: Geoff Robins/AFP]Silcoff told Al Jazeera there are “serious shortcomings in the US asylum system” and the ongoing trauma faced by many refugees should force Canada “to be careful not to just slam the door on groups of people, simply because.” there is an asylum system in the US. ” ”.
The small number of asylum seekers sent back under the STCA in recent years – 4,400 people were deported between 2016 and late September 2020, according to the government last year – also shows that Canada has the resources to process applications edit the border, she added.
“They make up a very small percentage of total refugee claims in Canada, but slamming that door in the face at the border is a life-changing decision, with sometimes dire consequences, for any individual.”