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The US is not safe for all refugees. The Canadian government should suspend the US/Canada border pact and allow those in need of refugee protection to access it in Canada.

Amnesty International is deeply concerned that the US government, at the request of the Canadian government, is considering altering an agreement that would make it more likely that refugees seeking asylum in Canada would be returned to the United States. This week, the Canadian government also introduced a bill that includes provisions that would bar individuals from making a refugee claim in Canada if they have made a prior asylum claim in certain countries, particularly the United States.

The request to renegotiate concerns a possible expansion of the Safe Third Country Agreement (STCA) between the two countries, which currently applies only at official ports of entry along the U.S.-Canada border. It requires individuals who arrive in Canada or the US to request protection in the first country in which they arrive. There are only limited exceptions.

Amnesty International has opposed the STCA since it was adopted in 2004 and has actively pressed the Canadian government to suspend the agreement since the Trump Administration came to power and initiated a range of measures violating the rights of refugees, refugee protection claimants and migrants in the United States.

“The STCA is premised on the notion that both countries are safe for refugees and have asylum or refugee status determination systems that respect their rights. Since January 2017, the US has stopped at nothing to prevent asylum-seekers from accessing safety here,” said Margaret Huang, executive director of Amnesty International USA. “With the xenophobic immigration policies of the Trump Administration and the near-constant attacks on the right to seek refugee protection, many refugees are being forced to seek protection in Canada because they cannot receive it in the United States.

“The Canadian government has made it clear that it is interested in renegotiating the terms of the STCA to apply not just to ports of entry, but to the entire length of the border between the two countries. At a time when Donald Trump is seeking to build walls on his southern border, Canada needs to build bridges that ensure human rights are respected and protected on the northern border.”

Furthermore, a provision buried within a recent omnibus budget implementation Bill blocks refugee claims in Canada from individuals who have previously made an asylum claim in the United States, further closing down prospects for protection in Canada for refugees who have come through the United States.

“The combined impact of these two developments is deeply troubling. If the agreement were expanded to include everyone who crosses anywhere, it would force refugee claimants to come into Canada at more remote locations at even greater risk,” said Alex Neve, Secretary General of Amnesty International Canada. “Barring individuals from accessing refugee protection in Canada if they made a prior asylum claim in the US, despite all of the obvious serious shortcomings in that country’s asylum system, is antithetical to the spirit of refugee protection.”

“Extending the reach of the STCA and introducing this new bar on claims in Canada, would mean that growing numbers of refugees would likely opt to reside in Canada without status, rather than coming forward to make their claims for protection and risk being sent back to the United States. Not only is this approach impractical, it blatantly disregards human rights and refugee protection principles while making irregular border crossings more likely.”

Amnesty International Canada and Amnesty International USA strongly urge the Canadian and U.S. governments to uphold their international obligations to provide refugee protection to those who need it by suspending – not expanding – the STCA immediately, so that refugees who cannot receive protection in the US may find it in Canada. The Canadian government must also withdraw the proposed amendments to the Immigration and Refugee Protection Act in Bill C-97 which would bar individuals who have previously made asylum claims in the United States from being able to make refugee claims in Canada.

Background

Amnesty International submitted a brief, prepared jointly with the Canadian Council for Refugees (CCR), to the Government of Canada in June 2017 documenting serious shortcomings in the US refugee protection system, such as punitive and arbitrary detention as well as prosecution of refugee claimants. In July 2017, Amnesty International filed a lawsuit alongside CCR, the Canadian Council of Churches and individual refugee claimants, challenging the constitutional validity of the STCA. The Federal Court of Canada is currently scheduled to hear that legal challenge in September 2019.

Over the past two years, as a result of the agreement, thousands of refugee claimants have been forced to cross the U.S.-Canada border at unofficial crossings because they would be turned back at official ports of entry. Many do so at great personal risk. Seidu Mohammed and Razak Iyal lost all of their fingers to frostbite when they crossed the border into the province of Manitoba on foot in the winter of 2016. In the winter of 2017, 57-year old Mavis Otuteye died when she tried to cross into Canada irregularly. There have also been reports of refugee claimants being forced to pay upwards of US $2000 to be smuggled into Canada.

United Nations human rights bodies have also expressed concern about the STCA during recent reviews of Canada’s human rights record, in particular the UN Committee on the Elimination of Racial Discrimination (UN CERD) in August 2017 and the UN Committee Against Torture in November 2018.  Notably, the UN CERD prioritized its recommendation that the STCA be suspended and asked Canada to report back on progress by August 2018.  That report, submitted in March 2019, was six months overdue and simply stated that the Canadian government is of the view that the “U.S.  continues to satisfy the criteria upon which it was designated as a safe third country.”  There is no analysis of the range of authoritative reports and court judgements documenting the rapid deterioration in refugee protection in the United States over the past two years.

Amnesty International released an in-depth report in 2018 documenting, among other things, illegal pushbacks of refugee claimants at the US-Mexico border and thousands of family separations inflicting extreme suffering on families constituting, at times, torture.

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