The Current

U.S. too focused on 'freezing out asylum seekers' to fix refugee deal with Canada: researcher

Is Canada's Safe Third Country Agreement with the U.S. putting refugees at risk? We look at how similar deals work elsewhere.

Safe Third Country Agreement facing legal challenge over crackdown in U.S.

Police meet people crossing into Canada along Roxham Road in Quebec. (Susan Ormiston/CBC)

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The U.S. might not want "to play ball" if Canada wishes to renegotiate the Safe Third Country Agreement, according to an expert on refugees and immigration.

"The reality is that most asylum seekers cross over from the U.S. into Canada and not the other way around," said Robert Falconer, a researcher specializing in immigration and refugee-related issues, at the University of Calgary School of Public Policy.

The Safe Third Country Agreement recognizes both countries as safe for refugees, so people fleeing persecution are required to claim asylum in the first country they enter.

The agreement is being challenged in federal court this week on the grounds that the U.S.'s immigration crackdown under President Donald Trump's administration has made it unsafe for refugees.

The Liberal government is arguing against the legal challenge, but has suggested the deal — signed in December 2004 — could be renegotiated to modernise it, and cover all border crossings. 

Safe Third Country Agreement taken to court

4 years ago
Duration 1:51
A Canadian court is hearing arguments about whether the U.S. is still a safe country for asylum seekers as part of a legal challenge to the Safe Third Country Agreement.

A revised agreement might mean Canada could return refugees to the U.S., Falconer told The Current's interim host Laura Lynch.

"And U.S. immigration policy is all about freezing out asylum seekers right now."

Texas-based immigration lawyer Luis Campos thinks Canada should scrap the agreement.

"I don't see the United States as a safe place for asylum seekers," he said.

Campos has been working with asylum claimants for 20 years. He said he has "never seen circumstances as poor" for refugees and migrants being held in U.S. detention centres, while they wait for their asylum claims to be processed. 

He's worked on cases where 150 to 200 people were packed into cells designed for 50. A lack of bedding meant people had to sleep in shifts, and the single toilet was in full view, and prone to overflowing. 

He said he has also heard of the officials in charge dissuading detainees from seeking medical attention, with threats it could delay their case from being heard.

"In one specific case, an individual was forced to extract his own tooth because he wouldn't get dental attention," Campos said.

Detainees are seen at Otay Mesa Immigration Detention Center in San Diego, Calif., in May 2018. (Lucy Nicholson/Reuters)

Suspension could stoke tensions

Falconer warned that a successful legal challenge could lead to a suspension, and "negatively impact" Canada-U.S. relations.

"We're already in a sort of a tenser period ... than we have been," he said, pointing to ongoing issues with trade and the fact that the revised NAFTA agreement isn't yet "across the finish line."

Craig Damian Smith suggested that Canada should wait for a change in U.S. leadership before trying to renegotiate the deal.

"My policy prescription is essentially keep our heads down until we have a rational partner to negotiate with in the U.S.," said Smith, the associate director of the Global Migration Lab at the Munk School of Global Affairs and Public Policy in Toronto.

He said the Safe Third Country Agreement is similar to the deal known as the Dublin Regulations that made the EU member countries an "open-border regime."

That deal works by pooling countries' resources to control the external borders, he explained, with the aim of sharing the burden internationally.

When states can't co-operate, then they make deals with less scrupulous states.- Craig Damian Smith

Refugees are expected to claim asylum in the EU country the first arrive in. However the system has been put under strain by the migrant crisis, which has seen hundreds of thousands of displaced people to seek asylum.

Faced with those numbers, Smith said that countries like Italy, Greece or Hungary have begun accepting support like equipment and personnel from non-port-of-entry states.

But other states have been less forthcoming in offering to take in the "hundreds of thousands" of people stranded in the countries they arrive in, he said.

"When states can't co-operate, then they make deals with less scrupulous states, states that aren't signatories to the convention, or just autocratic states," he told Lynch.

"When you have a fight between France and Italy over who is going to accept these asylum seekers, Italy will go and make a deal with Libya to keep the people at bay," he said.

Migrants arrive at the southeastern island of Kos, Greece, after crossing from Turkey in 2015. (Alexander Zemlianichenko/Associated Press)

U.S. making deals in Central America

Smith said something similar is happening with the U.S. right now, as the country "is trying to control migration to its southern border by cutting deals with Central American states."

The Trump administration is working on agreements with Guatemala, El Salvador, and Honduras that would require refugees on their way to the U.S. to seek asylum in those countries first. 

Falconer said that migrants travelling through those countries are at a high risk of violence.

The researcher cited a 2015 UNHCR report that said women fleeing through Central America preemptively "took contraceptives before traveling, in order to reduce the possibility of becoming pregnant if they were raped during flight."

The U.S. is signing these agreements "not with the idea of burden sharing for asylum seekers, [or] that everybody will get a fair chance of safety," he said.

"They're using it more in a way to avoid taking asylum seekers within the U.S."

Written by Padraig Moran. Produced by Karin Marley.