The Supreme Court’s decision on the Safe Third Country Agreement offers a “mixed” outcome, according to the organizations behind the legal challenge. Even if this Canada-US agreement is maintained for the moment, it remains an “opening”, say the groups, because the recourse is referred to the Federal Court, which will have to examine one of the aspects in depth.
Friday morning, the highest court in the country decided to keep intact the agreement between Canada and the United States which allows the return of asylum seekers who have crossed the border between the two countries. The judges unanimously ruled that it does not violate their rights to life, liberty and security. The question of whether the agreement contravenes the principle of equality remains unanswered and the Federal Court will have to consider it, since no court has ruled on this question.
“There is nothing that will change for the refugees tomorrow morning, because the status quo is maintained, which is obviously not what we were looking for”, thus told the Duty Marisa Berry Méndez, Campaigns Manager for Amnesty International Canada Francophone.
On Parliament Hill in Ottawa, his Canadian Council for Refugees (CCR) counterpart, Gauri Sreenivasan, insisted at a press conference that the United States “is not a safe third country for refugees”. She added that the groups offered “overwhelming evidence” that returning asylum seekers to the United States could cause “serious violations” of their rights.
In an interview, the other co-director general of the CCR, Lauren Lallemand, also said that she found the decision “disappointing”, because it had no effect on the refugees at the border. “People have already died at the border and it will continue if there is no concrete change,” she believes.
But the judges did not completely repudiate their arguments presented in lower courts. Judge Nicholas Kasirer, who signs the judgment on behalf of his colleagues, noted in particular that “those returned to the United States risk being detained there”. But the people who face these risks of detention have recourses which are not “illusory”, it is written in the decision.
These “safety valves” were considered sufficient, such as the possibility of having the reasons for their detention checked, or even discretionary exemptions not to return an applicant who presents himself at the Canadian land border from the United States.
However, for the groups behind this legal procedure, these “valves” only exist on paper. “In the lived experience of refugees and frontline workers, they don’t exist in a practical way,” says Ms.me Lallemand. Border officers do not have the information to be able to exempt, for example, an asylum seeker from the application of the agreement.
Even the exceptions provided for in the agreement, such as the fact of being able to apply for asylum if you already have family in Canada, “are applied in a very subjective and very variable way”, affirms Stephan Reichhold, director of the Table de concertation des organizations serving refugees and immigrants (TCRI). “If there are other valves that work, we would like to know them,” he adds.
“Above all, since the expansion of the agreement, almost all applicants have been rejected,” said Ms.me Berry Mendez.
Context
On the other hand, the Supreme Court “did not give the federal government carte blanche”, continues Mr. Reichhold, but it will be years “before something else happens”.
The definition of refugee status based on the 1951 Geneva Convention, now enshrined in our own law, describes several types of persecution. Canada interprets gender-based violence, such as spousal abuse, as valid persecution. “But that’s not the case in the United States. So if someone tries to apply for asylum on this ground, it will be rejected,” explains Lauren Lallemand, from the CCR.
“We also have to put ourselves in the context of what was happening in the United States” when the three organizations filed their legal challenge, in 2017, says Sule Tomkinson, professor of political science at Laval University. During Donald Trump’s presidency, Attorney General Jeff Sessions and rulings by immigration judges ended the granting of refugee status to abused women.
Joe Biden’s government no longer applies this judgment, says this administrative law specialist. “This clearly demonstrates the political aspect of the right to asylum,” she laments. Canada was the first country to recognize that women can seek asylum because of domestic violence, as early as 1993, reports Ms.me Tomkinson.
She says she is not surprised by the Supreme Court’s decision and observes that asylum policies are “standing still”. The professor nevertheless welcomes the observations of Judge Kasirer on the fact that there can be no “hierarchy” of rights. The right to equality is as important as the right to liberty, and on this the Federal Court will have to do its homework.