(From the Canadian Council of Refugees website)

LESS SAFE THAN EVER
Challenging the designation of the US as a safe third country for refugees

BACKGROUNDER
December 2006

Designation of the US as a safe third country
In 2004, the federal Cabinet adopted regulations designating the United States as a safe third country under the Immigration and Refugee Protection Act. The designation took effect on 29 December 2004. Since that date, refugee claimants attempting to seek Canada’s protection at the US-Canada border are ineligible to make a refugee claim in Canada, with some exceptions, and are instead returned to the US where it is alleged they can find protection if they need it.

The introduction of the safe third country rule has led to a dramatic decrease in the number of refugee claimants in Canada (2005 saw the lowest number of claimants since the mid-1980s). Refugees who are wrongly denied protection in the US find Canada’s door closed on them. Colombians in particular have been negatively affected, both because they were the largest group making claims at the border before the introduction of safe third, and because many Colombians fall through the cracks of the US refugee system.

For more information on the impacts of the safe third country rule, see CCR’s report, Closing the Front Door on Refugees: Report on the First Year of the Safe Third Country Agreement, 29 December 2005, http://www.ccrweb.ca/closingdoordec05.pdf.

Legal obligations regarding review of safe third country designation
Canada’s Immigration and Refugee Protection Act authorizes the Governor in Council (the Cabinet) to adopt regulations:

“Designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture.” (IRPA 102(1)(a))

Article 33 of the Refugee Convention and Article 3 of the Convention against Torture contain the non-refoulement obligations, i.e. the obligations on states not to send refugees back to persecution or anyone to torture.

The Act further stipulates at subsection 102(2) that the following factors are to be considered in so designating a country:

(a) whether the country is a party to the Refugee Convention and to the Convention against Torture;

(b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention against Torture;

(c) its human rights record; and

(d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Subsection 102(3) states that “[t]he Governor in Council must ensure the continuing review of factors set out in subsection (2) [quoted above] with respect to each designated country”.

Despite the very significant developments in the US since its designation as safe third country, it does not appear that the federal Cabinet has reviewed its status.

CCR submission to Cabinet

In November 2006, the Canadian Council for Refugees made a submission to Cabinet, presenting the evidence that the US can no longer properly be considered a safe third country, given the definition and factors to consider established by Canadian law. This submission is now made public under the title Less safe than ever. The Executive Summary is available at http://www.ccrweb.ca/lesssafeexsum.html. The full report is available at http://www.ccrweb.ca/Lesssafe.pdf

Legal challenge of safe third country
The Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches have launched a court challenge of safe third country, along with a Colombian asylum seeker in the US. The challenge argues that the designation of the US as a safe third country is wrong in law and that sending refugee claimants back to the US without hearing their claim violates the Charter of Rights and Freedoms and Canada’s international human rights obligations. The Federal Court hearing on the case is scheduled for February 2007.

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