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Safe Travels Illustration by Maia Grecco

Safe Travels

If Canada prides itself on its treatment of refugees, it needs to abolish the Safe Third Country Agreement.

Habib Zahori came to North America in 2014. Leaving behind a career as a journalist and interpreter in his home country of Afghanistan, he travelled to the University of Denver to take up his place as a Fulbright Scholar in a master’s degree program. He graduated in 2015, and the following year, his student visa already expired, Zahori was stuck on what to do next. The terms of his visa demanded that he leave the US upon completion of his studies, but heading back home to Kabul felt like a dangerous prospect. Months before he finished his degree his father had been kidnapped, and then released, by the Taliban, and Zahori feared that his life would also be threatened by the insurgents if he were to return. In the US, asylum claims are subject to strict deadlines—they must be made within a year of arrival—meaning that Zahori wouldn’t be eligible to apply for asylum. Cornered by circumstance and the threat of deportation, he made the impulsive decision to cross the border into Canada and try his luck claiming asylum there.

Just over eleven years before, in 2004, the United States and Canada implemented the Safe Third Country Agreement (STCA), a border plan between the two nations intended to limit and manage the access of refugees to either country. A product of Jean Chrétien and George W. Bush’s governments, the STCA introduced restrictions by requiring asylum seekers to make a refugee claim after arriving in the first  “safe” country between the two and rejecting claims from people attempting to pass from one to the other. What safe means in this context is subject to legal interpretation, but is defined by the agreement as a country which “[respects] human rights and [offers] a high degree of protection to asylum seekers.” People fleeing from countries like Haiti or Mexico could no longer travel through the US to seek refugee protection in Canada, unless they met limited exception criteria, such as travelling as an undocumented minor or to join a close family member. But in practice, it is common for asylum seekers to travel to either country, attempt to settle there, then move to the other if they found it too difficult to find employment or housing, or faced other challenges such as discrimination. Others travel in phases, earning money or finding transportation in the US before making the final trip to Canada, where they might have family or other prospects waiting.

Within the STCA, however, was a loophole, one that has been utilized by people such as Zahori in the decades since. The treaty applied specifically to asylum seekers arriving at ports of entry like train stations and land borders manned by the Canada Border Services Agency (CBSA). But official border crossings are not the only way to enter a country. Across the Canada-US border there are stretches of unmanned land that are difficult and illegal to cross, like Roxham Road, the eight-kilometre rural throughway running between Champlain, New York and Saint-Bernard-de-Lacolle, Quebec that has become a flashpoint in Canadian media discourse around asylum seekers.

For people like Zahori, who faced deportation by the US government, or migrants who feel that they might have a better shot in Canada, these risky unofficial pathways become entrance points to a better life out of necessity. But in March of this year, the US and Canada announced the STCA now applies to both official and unofficial border crossings, eliminating entrance via unmanned land borders as a potential option for desperate asylum seekers and closing the loophole.

In January 2016, Zahori set off to Canada by bike, piling on all the winter gear he had to protect him from the hazardous cold. His route had been planned with a friend from Maine, which borders New Brunswick; he was headed toward the Maritime province’s town of Woodstock, a challenging fifty-kilometre ride from his starting point near the border between the two countries. From Woodstock, he would catch a bus to Montreal, then find his way to Toronto, where an Immigration and Refugee Board office is located. None of this came to fruition; Zahori was apprehended less than two hours into his journey.

Over a period of five hours, Zahori complied with officer demands in a detention centre and a port of entry office, including providing fingerprints and undergoing interrogation. Eventually, the officers determined that Zahori was not a security risk, and since he hadn’t entered the country through an official port of entry, could not be subjected to the conditions of the STCA and returned to the US. Once discharged, Zahori spent two months staying with the mother of an acquaintance, corresponding with a lawyer who helped him submit his refugee claim, which was approved later in the year.

As dangerous and uncertain as Zahori’s route to Canada had been, the recent expansion to the STCA means that even this narrow path to asylum is inaccessible. Now, any asylum seeker found within two weeks of entering Canada from the US can be returned to the latter country and forced to make a claim there instead, which may well be unsuccessful. Advocacy groups were quick to condemn the change, warning that it would drive desperate asylum seekers toward riskier methods of entry, and make them attempt to remain hidden and undetected after crossing the border, resulting in even further risk of death, injury and exploitation. Less than a week after the STCA amendment came into effect, the bodies of two Haitian families were found by authorities near the St. Lawrence River, including a child under the age of three. Migrant justice advocates laid the blame for these deaths directly at the feet of lawmakers. “Let’s be clear,” the Caring for Social Justice Collective, a Montreal-based justice and healthcare group, declared in a statement, “these deaths were predictable and predicted—and in that sense they are intentional.”

Ultimately, Zahori knows that he had a relatively “easy experience” compared to other refugee claimants who cross the border into Canada. If he had been forced to make the same journey today, following the STCA amendment, he may have been returned to the US to face charges for overstaying his visa, and then deported to Kabul, where he risked violence at the hands of the Taliban.

As Canada positions itself as a global leader in terms of welcoming and resettling refugees, the tightening of the STCA is sure to functionally make asylum seekers’ lives harder. There will likely be more injuries and deaths as travellers take ever-riskier routes across the US-Canada border, as well as an increase in the use of illegal smugglers as people attempt to enter the country covertly, leaving them exposed to abuse, exploitation and unsanitary conditions.

“It’s going to cause a lot of problems. A lot of people will die,” says Zahori. “I crossed the border out of desperation. I could clearly feel that I would die, if it was a little bit colder, if it was a little bit more wet.” With the number of displaced people increasing every year, how can a country that prides itself on its generosity toward immigrants turn away the most vulnerable?

The idea of a safe third country is contentious. It originally entered our lexicon in the mid-1980s, when Denmark became desperate to deter “economic migrants,” a term used to describe people supposedly fleeing their homes to start new lives in other countries purely for economic reasons, rather than “legitimate” reasons like war, environmental disaster or persecution. In an attempt to stymie the flow of migration, Denmark created legislation requiring refugees to seek protection in the country of first asylum, meaning the first nation that they reach which is perceived as sufficiently safe to remain in, a standard later adopted by other European nations. By establishing these agreements, countries could refuse entry to certain kinds of refugees, deporting them back to the so-called safe countries that they had initially passed through.

This represented a significant shift in Denmark’s approach to refugees—in 1951, it had been the first country to sign the Convention Relating to the Status of Refugees. Also known as the Refugee Convention, this agreement was a United Nations (UN) treaty which defined the term refugee, outlined standard measures for their protection and prevented nations from returning refugees at risk of persecution back to their countries of origin. The seeds for the Refugee Convention were first planted immediately after World War II. In the pursuit of preventing further global atrocities, the newly-formed UN agreed in 1948 to establish and protect the rights of individuals across the world, resulting in the creation of the Universal Declaration of Human Rights (UDHR). Since the world wars had caused millions to desert their homelands, the 1951 Refugee Convention expanded on the UDHR to lay out specific requirements for the way that states should treat refugees, including the stipulation that they cannot be returned to their home countries. Both the Refugee Convention and the UDHR are accepted as customary international law, meaning that states have collectively agreed to consider their principles as part of their global commitment to human rights—Canada and the US included.

But any sense of global openness toward refugees was short-lived. As migration began to increase in the late twentieth century following the increased availability of travel and growing instability from conflicts and environmental perils, many Western nations took steps to put limits on the number of people who were allowed into their countries. In Canada, the first mention of a safe third country came in 1989, when the Mulroney government included the concept in an amendment to immigration legislation. Thanks to objections from refugee rights and social justice groups, the clause was never actually utilized, although Canada and the US went back and forth on agreements similar to the STCA throughout the nineties as part of trade and immigration negotiations. Ultimately, it was 9/11 that brought Canada and the US together to designate each other as safe countries, as concerns about national security became a smokescreen for increasingly limiting immigration policy.

Much of the motivation for the STCA relies on the flawed concept of “asylum shopping”—the idea that asylum seekers wander from country to country until they find one that they like enough to settle in. This framing vastly mischaracterizes the challenges and motivations of asylum seekers. Many are forced to take convoluted journeys through multiple destinations to get to their end location and unite with family: in 2021, Naomie, a twenty-four-year-old woman from the Democratic Republic of the Congo fled her home country due to violence from her family and travelled through twelve countries in an attempt to join her uncle in Montreal, according to the CBC. When she finally arrived in Canada in April 2023, shortly after the STCA amendment, she was denied entry—by passing through the US, she had become ineligible for asylum status. At the time, Naomie was one of around two hundred people who had been refused entrance to Canada following the amendment.

When they arrive in the US, many asylum seekers do not experience any realistic notion of safety, but instead face detainment, dangerous jail conditions and a lack of access to legal representation. Many refugee rights organizations, including the Canadian Council for Refugees (CCR), argue that the US frequently violates refugee rights under international law by limiting claims to those who have been in the country for a year or less, prosecuting asylum seekers for illegal entry into the country and forcing asylum seekers to endure  subhuman conditions. Emilio Rodriguez, policy analyst for refugee and migrant rights at Citizens for Public Justice (CPJ), states that as a signatory of the Refugee Convention, Canada has committed to granting asylum to anyone fleeing persecution from another country. According to Rodriguez and groups like the CCR, by sending refugees back to the US—a country which often violates refugees’ rights—Canada is flouting its own obligations under the Refugee Convention as well as the Canadian Charter rights of life, liberty and security for asylum seekers. Strengthening the STCA even further thus creates a clear and distinct danger for these vulnerable people.

“It’s a very intentional action from the Canadian government to evade some of their responsibilities related to refugee protection,” says Rodriguez. “Limiting access to asylum is against the spirit of the 1951 Convention.” In sending asylum seekers to the US, Canada is simply hoping to sweep its responsibilities under the legislative carpet, regardless of how many lives are ruined as a result.

When the STCA was expanded earlier this year, a number of organizations including Amnesty International, the CCR and the Canadian Council of Churches banded together to defend refugee rights against the new legislation. The groups attempted to establish that the US could not be considered a safe country and that deporting refugees there does not comply with Canada’s Charter. But on June 16, the Supreme Court of Canada ruled that the agreement is not unconstitutional and voted to uphold it, declaring that sufficient mechanisms were in place to prevent refugees from being sent back to the US if doing so would put them in danger.

Though the Supreme Court’s ruling to uphold the STCA amendment was disheartening to those battling to preserve refugee rights, the specifics of the case may also have opened up another legal avenue to challenge the legislation. The judges voted unanimously that the amended STCA didn’t violate section seven of the Charter of Rights and Freedoms, stating there was no major difference between the Canadian and American legal systems. However, they also stated that there was a lack of evidence to be able to conclusively vote on whether the agreement violated section fifteen of the Charter, which enshrines that every individual has the right to equal protection and benefit of the law without discrimination, including gendered discrimination.

Currently, the US doesn’t recognize gender-based violence as a ground for refugee persecution, while Canada does. As a consequence, a woman fleeing gendered persecution such as domestic violence or female genital mutilation would be able to claim asylum in Canada, but not in the US, creating a discrepancy under the STCA. If someone is considered to be in enough danger to be accepted as a refugee in Canada, but not the US, then logically it should not be regarded as safe for them to return to the US, where they could face deportation.

It is this contradiction that’s likely to form the basis of future challenges to the STCA, according to Nicholas Hersh, the vice president of the Canadian Association of Refugee Lawyers (CARL). The STCA has a public interest exception, meaning that asylum seekers can be accepted into Canada even if they have crossed through the US if they potentially face the death penalty in the US or in the country that they came from.

As part of the group moving to challenge the government once again, Hersh hopes to broaden that category in the courts to include victims of gendered and sexual violence, arguing that Canada, and not the US, is their only reasonable option for settlement. Naomie, the twenty-four-year-old asylum seeker denied entry to Canada earlier this year, fled her country of origin to escape her stepfather, a soldier who had raped her—by being forced to remain in the US under the STCA, she may not be able to make a valid asylum claim, despite the clear risk to her livelihood if she were deported. If Hersh and CARL are successful, people like Naomie would become eligible for refugee status in Canada regardless of their route into the country. Though it’s not a policy that will cover every asylum seeker subject to the STCA, it will at least provide an avenue to safety for some vulnerable people.

But any legal challenge, no matter how optimistic, is bound to move slowly. Even if victims of gender-based violence are successfully included under the exceptions to the STCA, exceptions remain special cases. The STCA at large will still be in effect, making asylum seekers’ lives harder and limiting their options. It’s for this reason that the primary position of advocacy groups like the Canadian Council for Refugees is that the STCA should not exist at all, not just that the exceptions should be expanded. The STCA infringes on asylum seekers’ rights because it filters people out before they’re even able to make a claim in Canada, argues Gauri Sreenivasan, the co-executive director of the Canadian Council for Refugees.

“A much simpler thing would be to have people present themselves at ports of entry, make a claim, and then they get their determination. Having no agreement doesn’t stop the proper processing of refugee claimants and that’s what is so tragic about the STCA,” says Sreenivasan. No one should be deemed less deserving of asylum because of the countries they previously travelled through before coming to Canada, and expecting asylum seekers to have a deep knowledge of refugee law to be able to settle safely is unfair. “When we make the possibilities for passage so dangerous and so remote, we do a disservice both to their lives and to our own credibility as a country that stands for human rights,” Sreenivasan argues.

The United Nations High Commissioner for Refugees estimated in May 2022 that the number of forcibly displaced people across the world had reached one hundred thousand, a global record. In the late nineties, my mother became part of this statistic. The Great War of Africa wreaked havoc in her home country of the Democratic Republic of the Congo well into the early 2000s, leading to the deaths of over five million Congolese and the displacement of two million more. Before she immigrated to Montreal in 1999, my mother sought refuge first in Ivory Coast, then Germany. She journeyed mostly alone—a woman in her late twenties with one child, expecting a second. My father would join us in Montreal in 2000, after I was born. The UDHR and the Refugee Convention protected their right to remain in Canada, where we have lived ever since.

For her part, my mother rarely speaks about her migration journey besides mentioning from time to time how she and my father were political refugees, or how they couldn’t stay in Germany because of the overt anti-Black racism. Twice the UDHR and the Refugee Convention granted them a fresh start: once from the destabilizing antics of DRC presidents Mobutu Sese Seko and his successor Laurent-Désiré Kabila, and a second time away from the German white power skinheads who revelled in harrassing my father. Like Zahori, my parents didn’t start their asylum journey in Canada, but the opportunity to end it there shaped the trajectory of their lives for the better.

Canada is quick to congratulate itself for its attitude toward refugees — Trudeau himself commented in 2015 that “this is the story of this country, that you get to come here and build a better future for yourself [...] than you could have anywhere else in the world.” Sreenivasan, Rodriguez and others are effectively in agreement with Trudeau’s statement—Canada is a better place for many asylum seekers to settle than other countries, including the US. But as climate change, political warfare and persecution continue to exacerbate the number of people fleeing their homes each year, the STCA creates unnecessary hurdles which ultimately land people in danger and in detention centres simply for having the courage to seek a better future.

The legal challenges are moving through the courts, but refugee rights groups are clear that we don’t need to wait for the ruling in order to do right by refugees. Canada has the means to honour its commitment to protect human rights now, if it would only abolish the STCA. ⁂

Yannick Mutombo is a journalist, content creator and fact-checker based in Ottawa. He has written for the likes of ByBlacks, Apt613 and This. His interests include people-watching, an affinity for oversleeping and establishing soft deadlines. You can find him on Instagram at @thenotoriousself.