The STCA Amidst Changing US Politics

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Given the proposed changes, as well as the political tonal shift regarding the United States’ immigration and refugee policies over the past year, it may become necessary for Canada to re-examine its commitment under the Safe Third Country Agreement (STCA). The number of accepted refugee claimants to the United States has been greatly reduced over the past year under the new administration, potentially bringing Canada’s legal obligations under the Geneva Convention into conflict with the STCA.

Under the STCA, pursuant to Article 5b, any refugee claimant entering Canada from the US will be turned back to the US. Although previous travel bans passed through executive orders have been found to be unconstitutional by the American Supreme Court, this might not be the case in the future. Should Canada keep up with the STCA under those changes to US policy, Canada would be complicit in returning asylum seekers who would then be denied refugee status based on their ethnicity or country of birth.

Critics of the STCA, such as the Canadian Council for Refugees (CCR), have argued for the need to suspend the STCA due to the US’s alleged failures to maintain international and Canadian standards. Not only has the discriminatory travel ban been of concern, but the CCR also finds objectionable the expedition of asylum-seekers without a fair trial, unlawful and/or arbitrary detention, and prosecution of asylum seekers.

Proponents of the STCA advocate for a renegotiation of the STCA, although, their focus is on dealing with asylum seekers who do not use designated Canada-US border-crossings, which the STCA is silent on. Currently, the Minister of Immigration, Ahmed Hussen has made no indication that Canada will renegotiate or suspend the STCA. Instead, his focus is on safety, security, and ensuring all asylum seekers entering Canada by any means receive due process. Should the US fail to maintain acceptable standards for processing asylum seekers, however, it is uncertain what Canada can do in response, within the existing STCA framework.

The nature of some of the changes in the US, as well as the influx of asylum seekers, especially those crossing at illegal points of entry, has given rise to the need for Canada to consider renegotiating or suspending the STCA. In order to effectively respond to the changing patterns of asylum seekers, as well as these potential US policy changes.

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

About the Author

Nathan Prendergast
Nathan is a second year in the JD program at the University of Windsor Faculty of Law.