The United States and Canada announced the expansion of their Safe Third Country Agreement (STCA) last week during President Biden’s visit to Canada. Under U.S. law, a so-called “Safe Third Country” agreement allows the United States to deport asylum seekers to a third country without allowing them to apply for asylum. The move was kept secret for almost a year, only leaking shortly before the public announcement. The new terms allow each country to expel asylum seekers who apply for protection within 14 days of crossing the U.S.-Canada border between ports of entry.
The changes took effect on 12:01 am on Saturday, March 25, just hours after the Department of Homeland Security published the final rule on the Federal Register. Advocates criticized the lack of transparency surrounding the updated agreement, which Canada signed on March 29, 2022 and the U.S. signed on April 15, 2022. Before the deal was made public, both countries had previously implied that no deal had yet been reached and negotiations were still ongoing.
The reported impetus for expanding the STCA was an increase in asylum seekers crossing into Canada through Roxham Road, between New York and Quebec. Roxham Road became a popular unofficial crossing point for asylum seekers during the Trump administration. Crossings have continued under the Biden administration. Advocates fear that closing Roxham Road through the agreement’s expansion will only lead to more dangerous border crossings from the U.S. into Canada and push immigrants underground out of fear of being deported back to the United States.
The Safe Third Country Agreement (STCA) with Canada was signed by the George W. Bush administration and has been in effect since December 2004. Under the STCA, Canadian officials can turn back asylum seekers who’ve passed through the United States before arriving in Canada—with limited exceptions—because the agreement presumes they will receive access to a full and fair asylum process in the United States. The same is true of asylum seekers coming to the United States through Canada.
The original agreement only applied to asylum seekers who crossed the border at a port of entry. But the recent expansion will now also bar asylum to individuals who enter between ports, like those who had used the unofficial Roxham Road crossing.
The stated purpose of the STCA is to share refugee protection responsibilities between countries designated as “safe” for asylum seekers. However, human rights advocates and scholars have long criticized the agreement and questioned whether the U.S. is truly “safe” for asylum seekers under international law standards. Calls to end the STCA grew as the U.S. dismantled existing protections for asylum seekers under the Trump administration and pursued increasingly vile and inhumane policies, like family separation.
Despite the recent expansion of the STCA, the legality of the entire agreement is an open question. In July 2020, the Federal Court of Canada ruled that sending asylum seekers back to the United States from Canada under the STCA violates the Canadian Charter of Rights and Freedoms. The lawsuit—filed by the Canadian Council for Refugees, the Canadian Council of Churches, Amnesty International, and affected individuals—argued that U.S. policies and practices put asylum seekers at risk of harm in the countries they fled and violate their human rights.
The court agreed, finding that the United States’ widespread detention of asylum seekers, often in squalid conditions, violates their “rights to life, liberty and security of the person” under the Charter of Rights and Freedoms.
The Canadian Federal Court of Appeal overturned the decision in April 2021, upholding the constitutionality of the STCA. The case is now at the Canadian Supreme Court, which heard oral arguments in October 2022. If the Canadian Supreme Court overturns the STCA, the U.S. and Canada’s recent expansion of the agreement would also be void.
The STCA’s expansion comes on the heels of additional asylum restrictions at the southern U.S. border through the Biden administration’s newly proposed transit ban. Though the future of the STCA remains in question, its expansion reflects a concerning trend toward shirking domestic and international law obligations by limiting asylum access throughout the Americas and worldwide. We must opt for a humane asylum system instead of restrictionist policies that return refugees to life-threatening harm.