In 2004, Canada and the United States implemented the Safe Third Country Agreement – a bilateral agreement modeled after the (then) Dublin Convention of the European Union (Macklin, 2005; Arbel, 2013). As a vital bilateral agreement between Canada and the United States, has the Safe Third Country Agreement caused more harmful implications surrounding refugee claimants than beneficial? Indeed, the Safe Third Country Agreement has caused adverse implications for refugee claimants, as a multitude of criticisms have been raised over issues pertaining to national and border security, international law, and gender politics.
First, critics have raised concerns over the Safe Third Country Agreement’s ability to “meet its stated objective of making the border more secure” (Arbel, 2013, p.73). According to Arbel (2013), “the STCA has proven effective in reducing refugee eligibility to enter Canada”; in fact, it was reported that, in the first year alone, “the number of claims lodged at the border declined by over 50 per cent” (Arbel, 2013, p.71). Considering the notable decline and how “the STCA applies only at land ports of entry,” “critics argue that it […] creates incentives for human smuggling” (Arbel, 2013, p.72). For example, in 2004, Colombia was “the top country of origin for claimants in Canada,” “of which 97 percent made their claims at the land border” (Settlage, 2012, p.170). As reported by the Canadian Council on Refugees, “[f]rom January to November 2005, the number of claims made by Columbians dropped by 70 percent” (Settlage, 2012, pp.170-171). To this point, Arbel (2013) denotes that the STCA altered the Canadian border to “a ‘smart’ border’” and, thus, made “it virtually impossible for land-bound claimants who do not satisfy one of the STCA’s exceptions to enter Canada, unless doing so clandestinely” (p.75 &78). Further, Amnesty International claims “that a likely ironic result of implementation of the Agreement would be the undermining of […] the border”; for, “[w]hen that door is closed, desperate refugees will try to get across irregularly, putting themselves in the hands of traffickers and becoming victimized yet again” (Cutler, 2004, p.134). Consequently, Macklin (2005) asserts that the “predictable escalation in undocumented entry […] means that the Agreement will not only fail in its putative goal of enhancing security, it may actually prove inimical to Canada’s national security” (p.422). For, “[w]hen people initiate refugee claims at a port of entry, a process of record keeping begins” (Macklin, 2005, p.422). Although some claimants may “abandon their claims in favor of going underground, most refugee claimants want their claims adjudicated and prefer legal status” (Macklin, 2005, p.423). However, there is no “incentive to engage with the state” when “individuals enter clandestinely” (Macklin, 2005, p.423). Albeit limited “comprehensive statistics are available, anecdotal evidence indicates that more and more asylum seekers are crossing into Canada through alternative routes, rather than at regular border crossings, in order to avoid being turned back pursuant to the STCA” (Settlage, 2012, p.171). Overall, the aforementioned points raise questions against the effectiveness of the STCA to secure the border – whether the number of claimants truly diminished, or simply transferred to the dark figures of illegal entrance; indeed “critics argue that the STCA has failed to meet its stated objective of making the border more secure” as “it is a greater risk to […] have a population of undocumented migrants living underground than a population of official refugee claimants” (Macklin, 2005, p.423).
Second, concerns over international law violations have been raised against the policies of the United States. In fact, the United Nations High Commissioner for Refugees “has raised concerns that […] elements of U.S. law may be contrary to international law” (Cutler, 2004, p.133). These concerns stem from the radical alteration in the asylum process following the introduction of the Illegal Immigration Reform and Immigration Responsibility Act (hereinafter referred to as the IIRIRA) in the United States. In accordance with the IIRIRA, the policies of “expedited removal, mandatory detention […] and one-year bar to asylum” were implemented; yet, these policies have all received extensive criticisms (Asthana, 2011, p.4).
To start, the reliability and accuracy of the expedited removal process are questioned. Indeed, when a foreign national arrives at “a land port of entry […] trying to seek admission into the United States on the basis of fraudulent or willful misrepresentation of material fact, a false claim of citizenship, or without proper documentation, the IIRIRA authorizes an immigration officer to order the removal of the alien from the United States without further hearing or review unless the alien specifies an intention to apply for asylum” (Asthana, 2011, pp.30-31). In fact, an asylum officer holds the discretionary power to “order the alien removed from the United States without further hearing or review” or detain the alien for further consideration (Asthana, 2011, pp.30-31). Although “the process of expedited removal was not meant to remove genuine asylum seekers, […] its summary nature and lack of procedural safeguards” leads to inevitable mistakes (Asthana, 2011, p.31). Accordingly, Asthana (2011) denotes that, under the process of expedited removal, 89,035 people were removed from the United States in 1999 – of which, “88,412 were removed without an examination of whether a credible fear of persecution existed or whether there were any other lawful means for granting admission into the United States” (p.31). Respectively, Kerwin (2005) sustains that “[r]ecent reports have confirmed […] that the expedited removal system […] returned migrants to countries where they risk persecution, torture, and death” (Kerwin, 2005, p.758). Overall, both the discretionary power awarded to asylum officers and the minimal procedural safeguards raise concern over genuine refugees being removed and, so, returned to places of great risk to their lives.
Further, “an alien who is seeking entry into the United States on the basis of fraudulent or willful misrepresentation of material fact or improper documentation shall be detained pending a final determination of credible fear of persecution” (Asthana, 2011, p.34). Further, if no credible fear of persecution is supported, they “shall be detained until removed” (Asthana, 2011, p.34). Consequently, Asthana (2011) argues “the enactment of the IRIRA in 1996, […] greatly expanded the detention of asylum seekers”; indeed, “[t]he average daily total of detained asylum seekers grew from less than 6,000 in the early 1990’s to over 19,000 in 2001” (p.34). Moreover, detained asylum seekers are housed “in service processing centers, contract facilities, county and local jails, and federal prisons”; in fact, “approximately fifty percent are held in county and local jails and live in close quarters with convicted criminals” (Asthana, 2011, p.35). Surrounding the “reliance on privately run contract facilities or local jails to hold” detained asylum seekers, Asthana (2011) cites “poor physical conditions, inadequate access to legal assistance, inadequate information […] regarding their status, mixing with criminal populations in the jails, poor health care, physical mistreatment, and isolation from families” as the main concerns outlined by the Human Rights Watch (p.34). Although Canada reports detaining asylum seekers, it is done so “less frequently than the United States”; in fact, asylum seekers in Canada are generally only “detained if they are a flight risk, there is a question as to their identity or they are considered to be a danger to the public” (Asthana, 2011, p.37). Largely, marked in comparison to Canadian practices, the detainment of asylum seekers in the United States has raised considerable concerns surrounding the high volume of those detained and the conditions of which they are subject to.
A third concern entails the establishment of a time limit, requiring “asylum seekers to file their claims within one year” of their arrival; notably, if it is not demonstrated “by clear and convincing evidence that” the claim was filed within the one-year deadline, the “claim for asylum will be rejected” (Asthana, 2011, p.37). Asthana (2011) refutes this practice, as “Article 33(1) of the Refugee Convention prohibits the return of a refugee to a country where […] life would be threatened on account of […] race, religion, nationality, membership of a particular social group or political opinion” (p.38). Hence, concerns are raised, as a strict “enforcement of the one-year time limit implies that an asylum claimant who would be capable of establishing all the requisite elements necessary to achieve asylum may nevertheless be denied protection” if they fail to meet the deadline (Asthana, 2011, p.38). Consequently, the “result is contrary to article 33(1) as it threatens the refoulement of a genuine refugee” (Asthana, 2011, p.39). In fact, the UNHCR has argued that an asylum request should not be “excluded from consideration” simply due to the “failure to meet a filing deadline” (Settlage, 2012, p.159). Further, considering the “exceedingly complex” process, this practice raises concern as “[t]here are no exceptions for missing this deadline,” as even “the failure to include information required on the application, or any errors or inconsistencies in the application, […] can be fatal to an asylum claim” (Settlage, 2012, p.158). Thus, the one-year filing deadline enforced by the United States has received much criticism from the international community, as the UNHCR has denounced the exclusion of asylum claims following a time constraint and the practice is argued to be against the Refugee Convention.
Considering these practices, concerns have been raised over Canada’s association with the United States through the STCA. As Cutler (2004) notes, “[t]he chance of non-refoulement becomes more likely where there is a safe third country agreement,” as “[s]afe third country practices rely on the presumption that the country to which the asylum-seeker is being returned is safe” and “that the asylum-seeker has the ability to apply for asylum in the third country” (pp.131-132). For, the contradictory nature between the United States’ classification as a safe third country under the STCA and the controversy of international law violations has created considerable debate relative to Canada’s asylum process. Indeed, the UNHCR has raised concerns over the scenario in which “an asylum-seeker […] ineligible in one of the two countries but eligible in the other” is forced to apply “in the country of ineligibility and therefore […] sent back to the country of alleged persecution”; consequently, the asylum seeker “may be subject to refoulement” (Cutler, 2004, p.132). Henceforth, “[i]f the United States is in breach of its international obligations under the Conventions, […] by deflecting asylum seekers back to the United States […], Canada is violating its international obligations” (Asthana, 2011, p.5). Although Canadian law does not have equivalents to these American policies, the STCA allows Canada to send claimants back to the United States (Arbel, 2013). Consequently, the STCA has the potential of “refouling refugee claimants before they have their claims heard on their merits” and, thus, “effectively ‘allows Canada to […] deny refugees the rights to which they are entitled per international and domestic law’” (Arbel, 2013, p.75). Indeed, Foster (2008) suggests “[t]he adequacy of any refugee status determination system
is irrelevant if an applicant transferred […] will not have access to that process on transfer” (pp.70&73). Overall, “Canada’s adherence to its international legal obligations will effectively be gutted by default, due to cases in which the United States is the “country of last presence” and decides cases in its jurisdiction under U.S. laws that are contrary to international legal obligations” (Cutler, 2004, p.133).
Finally, as women and children form the large majority of the refugee and displaced population, the impact of the STCA must be critically examined within the framework of gender politics. Per Asthana (2011), the “refusal to list gender as an enumerated ground of persecution has led to severe confusion and inconsistency in [..] asylum adjudication” in both Canada and the United States (p.4). This statement is legitimated for, as of January 2005, “women and children comprised eighty percent” of the “over nine million refugees and displaced persons in the world” (Asthana, 2011, p.3). Further, although “the refugee population is […] overrepresented by women, men significantly outnumber women in gaining admission into Canada under the refugee category”; for instance, even in the Canadian context, “[i]t is estimated that close to sixty percent of adults granted admission into Canada are male” (Asthana, 2011, p.3). Within the context of expedited removal in the United States, women are “removed more frequently […] than the regular immigration removal proceedings” (Asthana, 2011, p.31). For example, “the percentage of Mexican women (85%) who were removed through expedited removal was more than double that of Mexican men (35%)” (Asthana, 2011, p.31). Consequently, Asthana (2011) “suggests that expedited removal is applied in a manner that disfavors women” (p.32). For instance, “personal or societal shame” is associated with “[e]xperiences with extreme violence”; indeed, Hodgens (2006) denotes the impact of “emotional manifestations of abuse” during the proceedings (Asthana, 2011, p.32; p.1049). Following experiences with abuse, it is common for women to “keep these experiences hidden due to the fear of being condemned” (Asthana, 2011, p.32). Accordingly, “women may be afraid of relaying their stories to the immigration or asylum officers” or their anxiety may “be perceived as evidence of lying or misrepresentation”; in either scenario, the woman is placed at a disadvantage (Asthana, 2011, p.32). With regards to detention, “[w]omen asylum seekers […] are […] unable to attain requisite documentation” at a higher rate than men and, thus, are “subject to detention for unreasonable lengths of time during the asylum process” (Asthana, 2011, pp.34-35). As previously mentioned, asylum seekers in the United States are held in INS facilities and in jails; however, this “is particularly harmful to women asylum seekers”, as they “are exposed to an environment which is physically and sexually abusive, violent and full of fear and intimidation” (Asthana, 2011, p.35). For instance, “[s]eparation from family has been reported across the United States and it has been determined that in such scenarios, detained women are often prevented from being visited by their young children”; indeed, “[t]he separation of women from their children during detention increases the severity of their vulnerability” (Asthana, 2011, p.36). One of the reported impacts related to the separation of women and their children over long periods of time has been the woman’s preference “to return to the country where they were persecuted” rather “than to await the outcome of their claim for asylum” (Asthana, 2011, p.36). Finally, “women are extremely vulnerable” to the one-year limitation to file applications for asylum in the United States (Asthana, 2011, p.38). Undeniably, the clear majority of women “are not […] aware that the protection of asylum is available or what the procedures are in obtaining it” (Asthana, 2011, p.38). In addition, due to limited resources, “securing legal representation is a lengthy process”; specifically, “[t]his step is […] difficult for women who come from countries where they were denied an education or where approaching the government and/or the legal authority was not permitted” (Asthana, 2011, p.38). Further, “as a result of their painful persecution,” some women “are unable to speak […] immediately upon arrival in the United States”; consequently, the “long period of time in order to recover from their trauma” or to seek help may hinder their ability to file within the deadline (Asthana, 2011, p.38). Another aspect to consider are the priorities of the woman, notably one responsible for a child. Indeed, “a woman’s priorities are child care and basic security of her children” and, thus, “will […] have limited time and resources to advance a claim for asylum” (Asthana, 2011, p.38). Consequently, Asthana (2011) denotes “that Canada is in breach of its international obligations,” as “Canada is essentially closing the door on refugee women by forcing them to make their claims in the US, where gender-based claims are not as likely to be recognized as legitimate” (p.5 & 27). Indeed, Hodgens (2006) supports that “if persecuted women seeking asylum based on gender are denied access to the Canadian system, they may be denied their only feasible option for a successful asylum claim” (p.1048). This is because “analysts have proposed that the legal and administrative climate in the United States is more inhospitable for gender-based-asylum claimants compared to the climate in Canada” (Hodgens, 2006, 1049). In fact, “Canada has established that victims of domestic violence constitute a particular social group within the meaning of the United Nations’ definition of “refugee”” (Hodgens, 2006, 1049). However, “the United States declined to formally recognize that domestic violence constitutes a valid basis for an asylum claim” (Hodgens, 2006, 1050). Consequently, “[b]y forcing persecuted women to bring their asylum claims in the United States […], the Agreement will prevent some women–particularly those seeking asylum from domestic violence–from ever successfully obtaining asylum” (Hodgens, 2006, p.1050). Accordingly, Asthana (2011) argues that these policies prove “that the United States is in breach of its obligations under Article 33(1) and 31 of the Refugee Convention and Article 3(1) of the Convention Against Torture because they fail to adequately protect women against persecution” (Asthana, 2011, p.30). Consequently, following their affiliation through the STCA, Canada is scrutinized. According to Asthana (2011), “[t]he Canadian government […] has […] failed to recognize the substantive differences between adjudication of gender-based asylum claims in the United States as compared to Canada”, as “policies such as expedited removal, mandatory detention on the basis of improper documentation and one-year bar to asylum are not followed in Canada, they exist in the United States and are particularly harmful and unfair to women who seek asylum in Canada on the basis of gender persecution” (Asthana, 2011, p.30).
In conclusion, considering the questionable increase of national and border security, the criticisms of international law violations in the United States, and the focus of gender politics on the inequitable treatment of women, the STCA has resulted in more negative implications for the asylum process. First, although the number of land-made asylum claims have decreased following enactment of the STCA, speculation surrounds the accuracy of the statistics to support the effectiveness of the STCA to increase national and border security; for, there is no means to distinguish whether people were effectively turned away at the border or entered the country through illegal channels and, thus, not tracked by official statistics. Second, the discretionary power of asylum officers and the minimal procedural safeguards surrounding the expedited removal process, the increase and the conditions of detention, and the one-year bar to asylum has raised concern over international law violations of the United States. If the United States has indeed breached international obligations, Canada is subject to the criticisms and thus, asylum practices and advances are null-in-void. Finally, with regards to gender politics, considerable concerns have been raised against the maltreatment of women asylum seekers. In terms of the policies practiced in the United States, women are highly disadvantaged; in fact, women are disproportionately subject to expedited removal in comparison to men, particularly harmed through detention practices following abusive environments and tactics to separate families, and unfavorably subject to the one-year bar to asylum due to familial obligations. Consequently, women asylum seekers accentuate the disparity between the asylum process between Canada and the United States. Thus, the STCA must be re-examined to ensure the fair treatment and consideration of asylum seekers across the border to meet the stated goals of national and border security.