U.S. no longer “Safe Third Country” Canada court rules

Shelby Thevenot
Published: July 22, 2020

The Federal Court of Canada has struck the U.S. off of the Safe Third Country Agreement, which could affect thousands of asylum-seekers if it comes into effect.

The Safe Third Country Agreement between Canada and the U.S. states that asylum-seekers must claim refugee protection in the first safe country they arrive in, with certain exceptions. Many people have been turned away under the provision since it came into effect in 2004, with notable increases since 2016 once the Trump administration began targeting undocumented migrants in the States.

Since then, refugees, lawyers and advocacy groups have been calling on Canada to end the agreement with the U.S., often saying it is no longer a safe country.

Federal Court Judge Ann Marie McDonald found the agreement to be unconstitutional. The July 22 ruling stated that the act of sending people back to the U.S., where they were at risk of imprisonment, violated their rights to life, liberty, and security. The Canadian Charter of Rights and Freedoms applies to anyone who physically enters Canada, including people who are coming to make a refugee claim.

The decision is currently in political limbo as Canada’s justice department has 30 days to decide whether they want to appeal the ruling. If the government does not appeal, the decision will come into effect in six months.

However, if they do appeal, the decision will be put on hold until the appeal is decided in court. If the feds win the appeal, the decision reached on July 22 can either be overturned or they can reach a new decision. If the appeal is denied then the decision stands and asylum-seekers crossing the Canada-U.S. border will not be turned away under the Safe Third Country Agreement.

Nedira Jemal Mustefa, one of the refugee applicants challenging the agreement, was arrested after being turned around at the Canadian border and placed in solitary confinement for a week. The ruling cited her affidavit, describing her experience as “terrifying, isolating, and psychologically traumatic.” She described losing 15 pounds as a result of not eating, saying that she was given pork even though she told officers she could not eat it for religious reasons. She and other refugees from the ruling also described the facility as “abnormally cold.” Mustefa was in U.S. prison for a month before being released on bond.

“Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the [Safe Third Country Agreement],” McDonald wrote in the decision. “The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.”

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