The “Safe Third Country” Agreement Between Canada and the United States

You may have read in the news in recent years about people crossing the border from the United States into Canada at a section of the border without an official crossing to seek asylum once they arrive in Canada. Why not just ask for asylum at an official point of entry?

Well, the answer is found in the safe third country agreement between the United States and Canada. It's a bilateral treaty (only between two countries), requiring someone seeking asylum to apply in the United States or Canada – whichever they arrive in first – after fleeing the country where they fear persecution.

An asylum-seeker arriving from Central America usually travels by train, bus, or car, and on foot. This means they are mostly likely to cross into the United States at the land border with Mexico, therefore arriving in the United States first. Under the agreement, they should seek asylum in the United States, rather than proceed to Canada and request asylum there.

So why were some people crossing the U.S.-Canada border at an unofficial crossing point?¹ To essentially circumvent the treaty between the two countries, as, once in Canada, an asylum-seeker could file for asylum anyway.² (Similarly, under United States law, “any alien” in the United States, regardless of how they arrived, may file for asylum in the United States.³) As a result, many asylum-seekers entering Canada would cross the border illegally so that they could then apply from within Canada and avoid getting turned away at an official port of entry under the Safe Third Country Agreement.⁴

Early last year, United States and Canadian officials agreed to a treaty addendum addressing that perceived loophole, allowing them to turn back asylum-seekers not only at points of entry but across the entire land border and barring asylum-seekers from applying for asylum within 14 days of crossing the border.⁵ So, someone picked up the day of entry at an unofficial border crossing and asked for asylum would be turned away under this addendum.⁶

More recently, the Supreme Court of Canada held that the Safe Third Country Agreement was constitutional, despite arguments from refugee advocacy groups that claimants who are returned to the U.S. are automatically detained, treated poorly, and sometimes face deportation and that U.S. detention centers may run afoul of international law because there have been reports of inadequate medical care, cold temperatures, and staff who do not respect religious dietary restrictions.⁷ However, the Court also remanded that case for further consideration of the treaty, given claims that the U.S.'s treatment of women migrants fleeing gender-based violence may violate Section 15 of the Charter of Rights, guaranteeing equality.⁸ We'll see if the challenge to the STCA is more successful on these grounds.

¹Darren Major, Roxham: The Little Country Road that Became a Big Political Headache for the Trudeau Government, CBC News (Feb. 23, 2023), https://perma.cc/4KSV-QMPP.

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³8 USC 1158.

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⁵Richard Raycraft, New Deal with U.S. Allows Canada to Turn Back Migrants at the Border, CBC News (Mar. 24, 2023), https://perma.cc/NWE3-5BTK.

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⁷John Paul Tasker, Supreme Court Upholds Agreement that Lets Canada Send Refugees Back to U.S., CBC News (Jun 16, 2023), https://perma.cc/W4DQ-7AEV.

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