Section 103(2) of the Immigration and Refugee Protection Act (the “IRPA”) states that the Government of Canada can designate countries that it determines comply with international standards relating to the treatment of refugees as safe third countries.  Section 101(1)(e) further states that refugee claimaints coming to Canada from these designated safe third countries cannot have their asylum claims heard in Canada.

Regulation 159.3 of the Immigration and Refugee Protection Regulations (the (“IRPR”) designates the United States as being a safe third party.

The Safe Third Country Concept

Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping.

The Safe Third Country Agreement

The Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (the “Safe Third Country Agreement”) came into effect on December 29, 2004.

The Safe Third Country Agreement contains several objectives, including the orderly handling of asylum applications, ehanced burden sharing and avoiding the direct or indirect breaches of the principle of non-refoulement.

Under the Safe Third Country Agreement, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection in Canada.  Instead, they are sent back to the United States, it being the first “safe country” in which they arrived.

There are exceptions to this. Canada retains responsibility for determining the refugee status of claimants arriving from the United States in the following scenarios:

  • where the claimant has family members in Canada and the family member is a Canadian citizen, a permanent resident, or a protected person;
  • a family member is a work permit holder;
  • the claimant is an unaccompanied minor;
  • the person has a Temporary Resident Permit; or
  • the claimant is a person who may enter Canada without a being required to hold a visa and who would, if the claimant was entering the United States, be required to hold a visa.

It is important to note that claimants arriving in Canada otherwise than at a land border port of entry (e.g., via an irregular border crossing or by air) are exempt from the Safe Third Country Agreement. Their claims for protection are assessed in the same manner as those of refugee claimants arriving from other countries.  This has been described as a “loophole” by some commentators.

The Process

A claimant who meets one of the exceptions under the Safe Third Country Agreement and who claims asylum in Canada will have their claim assessed by the Refugee Protection Division (the “RPD“) unless another exception applies.

If the RAD rejects a Safe Third Country Agreement – excepted claimant’s application for asylum they do not have a right of appeal to the Refugee Appeal Division (the “RAD“).  This restriction was introduced in 2012, a few years after the introduction of the RAD, under Bill C-31, Protecting Canada’s Immigration System Act.   The then Conservative Government of Canada’s state goal of the time was to support the “expedited processing and removal of certain cases of failed claimants.” In Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, the Federal Court of Appeal ruled that this does not violate s. 7 of the Canadian Charter of Rights and Freedoms, which provides that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The recourse that an individual instead has to challenge their refused claim is a judicial review application.  They do not have access to a statutory stay of removal pending the judicial review.  They instead must seek a stay in the Federal Court pending disposition of the application for leave, and if leave is granted, pending disposition of the application for judicial review on the merits.

If they are unscessful there, they can apply for a Pre-Removal Risk Assessment, a deferral of removal or a humanitarian & compassionate class application, after twelve months.