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The United States and Canada operate under a “safe third country” agreement in their refugee processing and screening system, which has come under intense criticism from immigrants’ rights advocates.

Under this treaty, both countries designate each other as a “safe third country,” meaning that refugees who are in either of the countries are presumed to be safe and must apply for asylum where they are. Under this presumption, Canada does not allow asylum seekers coming from the United States to enter its borders and vice versa. The law is meant to deter “asylum shopping.” As U.S. immigration policy becomes increasingly restrictive, however, advocates worry that the U.S. is no longer a safe country for refugees and have called for Canada to rescind the agreement.

The Safe Third Country Agreement is a treaty signed in 2002 which entered into effect in 2004. Because of the Safe Third Country agreement, Canada turns away refugees at the U.S. border, but it still processes refugees who present themselves to immigration authorities in Canadian territory. Refugees who have family members in Canada may present themselves at the Canadian border and, upon presenting sufficient evidence of their family ties, be accepted into Canada. On the other hand, those who cannot prove local family ties are turned back to the U.S. or even deported to their countries of origin. Even for those who do have family ties in Canada, the inaccessibility of records and the costs of DNA testing can make obtaining adequate proof excessively costly.

This system has created an incentive to attempt dangerous illegal crossings into Canada for those who are in the United States and wish to apply for asylum in Canada. In order to avoid rejection at the border and possible deportation, refugees regularly hire taxis to drive them to the Canadian border in order to attempt to walk across. A safe house called Vive in Buffalo, New York, houses migrants who plan to cross, either legally or illegally into Canada. Migrants’ first choice is to present themselves legally at the Canadian border, where they risk being turned away and deported to their home countries. Their second choice is to attempt to enter illegally where they risk being caught or injured on the journey. While they weigh their prospects, many migrants are paralyzed with fear and they live for months or years in limbo at the shelter.

Since President Trump’s election, the number of illegal border crossings into Canada has increased dramatically. In the first two months of 2017 alone, the Canadian Royal Mounted Police apprehended 1,134 asylum seekers as they crossed illegally, nearly half of the number of total apprehensions in 2016. The migrants include individuals and families, some of whom have lived in the U.S. for several years. Many suffer severe frostbite and lose fingers on their journeys.

Critics have recently urged Canada to repeal the Safe Third Country agreement, citing subpar treatment of refugees and asylum seekers in the U.S.. A Harvard Law School Immigration Clinic Report states that the U.S. is no longer a Safe Third Country, citing increasing rates of internal immigration enforcement and detention, especially following President Trump’s executive orders on immigration. A group of twenty-two Canadian law schools researched the issue and came to the same conclusion, and they, along with other NGOs such as the Canadian Council for Refugees and Amnesty International Canada, are calling for cancellation of the agreement. The Canadian Border Services Agency has resisted rescinding the program. In justifying that decision, Ahmed Hussen, the Canadian Minister for Immigration and Refugees, stated that President Trump’s executive orders on immigration have no bearing on the Safe Third Country Agreement, and that eligible asylum seekers continue to have fair access to a hearing. Canada’s decision is likely caused by fear that the Canadian Border Services Agency would be overwhelmed if forced to process arriving asylum seekers, as well as a desire to maintain a positive political relationship with the United States.

In defending the Safe Third Country agreement, the Canadian Immigration Minister Ahmen Hussen states that the United Nations High Commissioner for Refugees supports the agreement and has said that both the U.S. and Canadian asylum systems offer due process. The status of a Safe Third Country, or “First Country of Asylum” is unclear under international law. Such a principle is not mentioned in the 1951 Refugee Convention, but it is implied from Article 31, which states that a refugee should not be punished for illegal presence in a country if she is arriving directly from a country where she was under threat. Safe Third Country policies have come under criticism in Europe, where the Dublin Regulation allows asylum seekers’ applications to be processed only in one country, usually the first European country the refugee reaches. In the European context, the UNHCR has issued guidelines saying that any decision to return a refugee to a third country should be made on a case by case basis, taking into account that refugee’s ties to the third country and the country’s treatment of refugees in policy and in practice. The UNHCR advises that a refugee should only be returned to a country where she will not only be free from persecution or deportation, but will also have adequate access to social assistance, legal counsel, healthcare, work, and education.

By systematically rejecting asylum seekers at the border, Canada and the U.S. certainly do not provide the suggested case by case review. Furthermore, as the Harvard report points out, the U.S. does not treat refugees fairly and should not be considered a safe third country, therefore Canada should rescind the Safe Third Country Agreement.