On January 17, 2008, the Federal Court of Canada issued its order regarding the Safe Third Country Agreement (IMM-7818-05). Mr. Justice Phelan, following his Reasons for Judgement of November 29, 2007, ordered that “this application for judicial review is granted and the designation of the United States of America as a ‘safe third country’ is quashed.” Justice Phelan and the Order took effect on February 1, 2008.

Three legal questions were also certified by the Federal Court “as questions of general importance.” Due to the fact that three questions were certified “as serious questions of general importance,” the government was given the option to appeal the Federal Court’s Judicial Review of the Safe Third Country Agreement to the Federal Court of Appeal.

The Government of Canada appealed the decision to the higher Court. The Canadian government also sought a Stay of the decision until the matter had been finally decided by the Federal Court of Appeal.

The government argued that ending the agreement abruptly would lead to a flood of people making refugee claims at Canada’s “land borders from the U.S. and cause ‘irreparable harm’ to the Canadian public.”

If the Agreement is suspended more refugee claimants may show up at the border. Refugee advocacy groups, however, argued that there is “no evidence the border was unmanageable before the agreement was implemented on December 29, 2004.”

On January 31, 2008 the Federal Court of Appeal granted the Canadian Government’s request and stayed the ruling that overturned the refugee pact between Canada and the United States. Chief Justice John Richard of the Federal Court of Appeal said “there should be a full airing of arguments before the Safe Third Country Agreement is suspended.”

Under the Safe Third Country Agreement, which took effect on December 29, 2004, Canada and the U.S. recognized each other’s countries as safe places to seek protection. Refugees were required to make their claims for asylum in the first country that they arrived in and could not transit that country and make a refugee claim in the second country. There were a number of exemptions to this rule, primarily the requirement that you had a close family relative in the second country.

Canadian refugee advocates opposed the deal, arguing the U.S. is not always a safe country for people fleeing persecution. Opponents of the Agreement noted that refugee claimants, including children, are often imprisoned for months or even years in the United States while their asylum claims are being processed. Critics also pointed out that the American rules and interpretation of who qualified as a refugee were more restrictive. Many claimants who were rejected by the United States were later granted the protection of Canada as Convention refugees.

The Canadian Council for Refugees, the Canadian Council of Churches, Amnesty International and an unidentified Columbian refugee claimant in the United States named “John Doe” successfully contested the agreement in Canada’s Federal Court.

In the November 29, 2007 decision, Justice Michael Phelan ruled the federal cabinet exceeded its jurisdiction in designating the United States of America as a “safe country.” The Federal Court ruled that the U.S. does not comply with United Nations conventions concerning the protection of refugees and the prohibition of returning refugees to countries where they faced torture.

The Federal Court also ruled that the return of a refugee claimant to the U.S. from Canada violated Charter of Rights and Freedoms guarantees of equality and life, liberty and security.

Two of the applicants who challenged the Safe Third Country Agreement, the Canadian Council for Refugees and Amnesty International Canada expressed deep dismay at the decision of the Federal Court of Appeal to stay the Federal Court ruling that struck down the Safe Third Country Agreement.

In a press release dated February 1, 2008 they stated, “This decision gives higher priority to the government’s administrative convenience than to the risk of persecution, torture and even death faced by refugees,” said Gloria Nafziger, Refugee Coordinator for Amnesty International.

Janet Dench, the Executive Director of the Council for Refugees, was also dismayed by the decision to grant the stay. “Obviously we’re extremely disappointed and actually shocked that the court would put the administrative convenience of the government over the lives of refugees.” Dench also said, “We know that people do come up to the border, are turned back and end up deported to their country of origin.”

In 2006, some 400 people were turned away at the Canadian border based on the Safe Third Country provisions. Many more were dissuaded from trying to make a claim in Canada as they knew they were excluded.

The Court of Appeal has agreed to an expedited review of the decision, but a hearing is likely some months away and a decision would not be released for many months after the hearing of the appeal.

The organizations who initiated the legal challenge are considering whether to appeal the decision to grant the stay.

After the Federal Court of Appeal ruling granting the Stay, New Democrat MP Olivia Chow said she would put a motion before the Commons Immigration Committee to end the Safe Third Country agreement. If successful, the motion would then go to parliament for a vote, potentially pre-empting the coming Federal Court of Appeal hearing. The Conservative Government of Stephen Harper does not have a majority in the Canadian House of Commons and the other Canadian Parties could potentially pass a resolution revoking the Safe Third Country Agreement with the United States.

Edward C. Corrigan

Edward C. Corrigan

Edward C. Corrigan is a lawyer certified as a Specialist in Citizenship and Immigration Law and Immigration and Refugee Protection by the Law Society of Upper Canada in London, Ontario, Canada.