Ottawa asks court to keep Safe Third Country Agreement
Absence of pact with U.S. would lead to ‘influx of refugee claimants’
Canada would face “an influx of refugee claimants” and other “ripple effects” in the absence of a bilateral pact that stops would-be asylum seekers from making a claim here via the U.S., the federal government is warning.
This country will suffer “irreparable harm,” especially amid a global pandemic, if the Federal Court of Appeal does not suspend an earlier lowercourt order that struck down the Safe Third Country Agreement, Ottawa argues.
In July, the Federal Court ruled the accord unconstitutional because the United States routinely detained asylum seekers in poor conditions. It gave Ottawa six months to fix the policy and make sure it complies with the Canadian Charter of Rights and Freedoms before the pact becomes invalid.
On Friday, the appeal court will hear a motion by the federal government to extend the deadline until a full appeal can be heard on a later date.
“An influx of refugee claimants will impair the sustainability of the systems that support refugee claimants while their claims are pending. Provincial and municipal governments are struggling to provide housing and social services,” the government says in its submissions.
“This unpredictability is significantly heightened by the global pandemic. Should the reopening of the border between Canada and the U.S.A. coincide with the end of the suspension period, a surge of asylum claims at the border is anticipated.”
Critics have argued the U.S. asylum system is cruel and inhumane, especially since Donald Trump came into power in 2016 on an anti-immigrant agenda, building a wall to shut out illegal immigrants from the south and separating migrant children from their families. These critics said the Canadian government’s request should be dismissed because infringements of refugees’ rights outweigh any alleged public interest in maintaining the status quo.
“While the court gave Parliament six months to remedy the law, the government has squandered that opportunity in favour of an appeal,” said Justin Mohammed of Amnesty International Canada, one of three litigants who launched and won the constitutional challenge.
“We are hopeful that the Federal Court of Appeal will affirm the deadline, so that no refugee protection claimant will be handed over by Canada to face the horrors of U.S. immigration detention past January 2021.”
Under the bilateral agreement, Canada and the U.S. each recognize the other country as a safe place to seek protection. It lets Canada turn back potential refugees who arrive at land ports of entry along the Canada-U.S. border, on the basis that they should pursue their claims in the U.S., the country where they first arrived.
In its submissions, the federal government says the agreement, in place since 2004, is in line with international refugee law to ensure claimants have access to a fair asylum process in an “orderly and efficient manner.” There are exemptions and mechanisms in place to avoid returning would-be asylum seekers to risks and danger.
While the U.S. asylum detention system may be unacceptable, it says the Canadian charter does not apply to foreign the public interest, the functioning of the border, the sustainability of the Canadian asylum system and the services and resources that support claimants in Canada,” the government says.
According to Ottawa, all levels of governments are already struggling to provide services to the 56,515 asylum seekers who skirted the safe third country restrictions by crossing “irregularly” into Canada between official land ports of entry from 2017 to 2019.
“An additional influx would further strain those already stretched systems and resources,” the government cautions, adding that the surge will create further “negative ripple effects and backlogs” in the overall immigration and refugee protection scheme.
“There is a strong public interest in affording Canada control of its borders to regulate the flow of persons and goods and to ensure the orderly processing of claims between Canada and the U.S.A.”
However, the respondents, also including the Canadian Council for Refugees and the Canadian Council of Churches, argued that the lower court’s finding is already “tantamount” to a determination that the Canada-U.S. agreement is not in the public interest.
They said the government’s assertions of irreparable harm to the asylum system and services for claimants in Canada are based not on evidence but on a series of speculative claims by officials at the immigration department and Public Safety Canada.
The pandemic has actually made the conditions worse for asylum seekers, they argue. As of Oct. 6, the U.S. Immigration and Customs Enforcement reported 6,387 confirmed COVID-19 cases in custody, including eight COVID-19-related deaths of detainees.
“The appellants’ suggestion that COVID-19 makes it more difficult to predict ‘asylum intake volumes’ is misleading. While the pandemic is unprecedented, its effect on ‘asylum intake volumes’ is clear: it is dramatically suppressing the number of new refugee claims,” said the respondents in their submissions.
“It is simply harder and more dangerous to travel during the pandemic, and travel to Canada is far more restricted.”
The NDP’s immigration critic Jenny Kwan agrees.
“By appealing the court ruling, the federal Liberals are saying they’d rather let people seeking the safety of asylum here in Canada suffer under Donald Trump’s rules, than stand up for human rights and Canadian values,” said Kwan, who is also the MP for Vancouver East.
“Instead of accepting the court’s ruling and terminating the agreement, they have chosen to double down on turning back asylum seekers to a country that has a policy of separating children from their parents without any way of reuniting them,” she added. “It’s a heartless and shameful act. It’s un-Canadian.”