What is the Safe Third Country Agreement?
The Safe Third Country Agreement (STCA) is a bilateral agreement between Canada and the United States that took effect on 29 December 2004. The agreement is based on the principle that refugee claimants should seek protection in the first safe country they reach rather than traveling between countries seeking asylum.
Under this agreement, Canada and the United States have agreed to return refugee claimants who arrive at their shared land border to the country from which they came. In Canadian law the Agreement operates through IRPA s.101(1)(e), which makes a claim ineligible for referral to the Refugee Protection Division where the claimant came directly or indirectly from a country designated by the Regulations, and through s.159.3 of the Immigration and Refugee Protection Regulations, which designates the United States as the only such country.
The agreement aims to prevent what is sometimes called "asylum shopping," where individuals may travel through multiple countries seeking the most favorable refugee determination system. The STCA is a significant aspect of Canadian refugee law that affects who can make refugee claims in Canada.
How the Agreement Works
The STCA operates at the land border between the United States and Canada. When someone arrives from the United States at the Canadian land border and makes a refugee claim, an officer decides under IRPA s.100 and s.101(1)(e) whether the claim is eligible to be referred to the Refugee Protection Division. Under Regulations s.159.4, the Agreement does not apply to a claim made at an airport (other than a person being removed from the United States in transit through Canada) or at a harbour port or ferry landing.
Application at the Border
If someone arrives from the United States and indicates they wish to make a refugee claim, an immigration officer determines whether the STCA applies. Since the Additional Protocol came into force on 25 March 2023 this is not limited to official ports of entry: the Agreement reaches the entire land border, including crossings between ports of entry and internal waterways, where the claim is made less than 14 days after the day of entry. If the Agreement applies and no exception is met, the person is returned to the United States to make the claim under US law.
Key Provision: First Safe Country
The central principle of the STCA is that application for protection in the first safe country reached is the expectation. When someone has already passed through the United States (which is considered a safe country) and arrives at Canada, return to the United States to make a claim there instead of Canada may occur.
Who Has to Establish an Exception
Regulations s.159.5 and s.159.6 are worded so that the ineligibility does not apply where the claimant "establishes" that one of the listed exceptions is met. Evidence of a family member's status in Canada, of the claimant's age, or of a qualifying Canadian document is therefore what takes a claim outside the Agreement, not the absence of proof of travel through the United States.
Implications for Refugee Claims
The STCA has significant implications for refugee claimants seeking protection in Canada. Understanding how the agreement might affect your ability to make a claim is important if you have traveled through the United States.
Ineligibility to Claim in Canada
A person who arrives at the Canadian land border from the United States and meets no exception is found ineligible under IRPA s.101(1)(e) and returned to the United States to pursue a claim under US law. Under IRPA s.49(2)(a) the removal order made against a claimant found ineligible only under s.101(1)(e) comes into force on the day notice of the ineligibility finding is given, and under IRPA s.110(2)(d) no appeal to the Refugee Appeal Division is available where the claim was referred only because of an exception to the Agreement.
Impact on Claim Strategy
Before 25 March 2023 the Agreement reached only official land ports of entry, and crossing elsewhere fell outside it. That is no longer the case. Since the Additional Protocol, a crossing between ports of entry is caught where the claim is made within 14 days of entry, so it is not a route around the Agreement. The four exceptions in the Agreement, covering a qualifying family member in Canada, an unaccompanied minor, a document holder and the public interest, are what take a claim outside it.
Procedural Requirements
Where the Agreement may apply, an officer decides eligibility under IRPA s.100 before any return to the United States. That decision is an eligibility determination by an officer, not a hearing before the Immigration and Refugee Board, and the claimant is the party who has to establish that an exception in Regulations s.159.5 or s.159.6 applies.
Exemptions and Exceptions
While the STCA applies to many refugee claimants, there are important exemptions and exceptions that may allow someone to make a claim in Canada despite having traveled through the United States.
Family Connections
Under Regulations s.159.5(a) to (d), the Agreement does not apply where the claimant establishes that a family member in Canada is a Canadian citizen; is a protected person or permanent resident, or has a stayed removal order; is 18 or older and has a pending refugee claim that has not been withdrawn, abandoned or rejected; or is 18 or older and holds a valid work or study permit (with the exclusions listed in that paragraph). "Family member" is defined in Regulations s.159.1 as a spouse or common-law partner, legal guardian, child, father, mother, brother, sister, grandfather, grandmother, grandchild, uncle, aunt, nephew or niece.
Unaccompanied Children
Under Regulations s.159.5(e), the Agreement does not apply to a claimant under 18 who is not accompanied by their mother, father or legal guardian, who has neither a spouse nor a common-law partner, and who has no mother, father or legal guardian in Canada or the United States.
Document Holders
Under Regulations s.159.5(f) to (h), the Agreement does not apply to a claimant who holds one of the Canadian documents listed in paragraph (f), other than a document issued solely for transit through Canada: a permanent resident visa or temporary resident visa, a temporary resident permit, a travel document referred to in IRPA s.31(3), refugee travel papers issued by the Minister, or a temporary travel document under Regulations s.151. It also does not apply to a claimant who may enter Canada without a visa but would need one to enter the United States, to a foreign national seeking to re-enter Canada after being refused entry to the United States without a refugee claim being adjudicated there, or to a permanent resident of Canada ordered removed from the United States and being returned to Canada.
Public Interest
Under Regulations s.159.6, the Agreement does not apply to a claimant who establishes that they are charged in the United States with, or have been convicted there of, an offence punishable by death in the United States, or charged or convicted in another country of an offence punishable by death there. A refusal of a claim in the United States is not, by itself, an exception.
The Land Border Issue
A significant issue with the STCA has been its application at the land border specifically. The agreement has been the subject of ongoing legal and policy debates regarding fairness and access to the Canadian refugee system.
Border Asylum Requests
The Agreement applies to refugee claims made at the Canada-United States land border, and since 25 March 2023 that includes crossings between ports of entry and internal waterways where the claim is made within 14 days of entry. Border officials assess whether the Agreement applies before a full refugee claim proceeds, so a person to whom it applies and who meets no exception is returned to the United States before the claim is heard in Canada.
Recent Developments
In Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, decided on 16 June 2023, the Supreme Court of Canada held that the regulation designating the United States as a safe third country does not breach section 7 of the Charter, relying on the "safety valves" in the Act that allow individual claimants to be exempted from return. The Court sent the section 15 equality claim back to the Federal Court for decision. The Additional Protocol extending the Agreement to the whole land border came into force on 25 March 2023, through amendments to Regulations s.159.4.
Impact on Asylum Seekers
The STCA has effectively restricted the ability of people transiting through the United States to make refugee claims in Canada at the land border. This has had significant practical implications for asylum seekers from countries worldwide who attempt to reach Canada from the United States.
Your Rights Under the Agreement
If you arrive at the Canadian border and the STCA may apply to your situation, you have specific rights that must be respected by immigration officials.
Right to Information
A claimant is entitled to the officer's eligibility decision. Where the claim is found ineligible, notice of that finding is what starts the removal order under IRPA s.49(2)(a), so the finding and its basis are communicated to the claimant.
Right to Examination
Eligibility is decided by an officer under IRPA s.100, and the claimant has the opportunity to present information to the officer. Because the exceptions in Regulations s.159.5 and s.159.6 apply where the claimant "establishes" them, information about a family member's status in Canada, the claimant's age, or a qualifying Canadian document is what the officer considers in deciding whether an exception applies.
Representation
A claimant may be represented on an immigration matter by a lawyer who is a member of a provincial or territorial law society, a paralegal licensed by the Law Society of Ontario, a notary who is a member of the Chambre des notaires du Quebec, or a licensee of the College of Immigration and Citizenship Consultants; IRCC publishes that list and links to each register.
Right to Challenge the Decision
An ineligibility finding is a decision under the Act that may be judicially reviewed by the Federal Court with leave (IRPA s.72(1)). Under IRPA s.72(2)(b) the application for leave is to be filed within 15 days after the day the applicant is notified of a matter arising in Canada, and the removal order under IRPA s.49(2)(a) comes into force on the day notice of the ineligibility finding is given.
Challenging a Safe Third Country Determination
If you believe a STCA determination has been made incorrectly in your case, there are limited avenues for challenging the decision.
Judicial Review
Judicial review of an ineligibility finding is available in the Federal Court with leave of the Court (IRPA s.72(1)). Judicial review is a legal process where a court examines whether an administrative decision was made fairly and lawfully. The time limit in IRPA s.72(2)(b) for a matter arising in Canada is 15 days after the day the applicant is notified of the decision.
Demonstrating Exemption
A challenge to an ineligibility finding usually turns on whether an exception in Regulations s.159.5 or s.159.6 applied. That can include evidence of a family member's status in Canada within the s.159.1 definition, evidence of the claimant's age and that no parent or legal guardian is in Canada or the United States, or a qualifying Canadian document.
Importance of Legal Representation
Because the removal order comes into force on the day notice of the ineligibility finding is given (IRPA s.49(2)(a)) and the leave application must be filed within 15 days (IRPA s.72(2)(b)), legal advice at the earliest stage matters. An authorized representative can advise on whether an exception applies and can act on an application for leave and judicial review.