A collective of rights groups is demanding Canada meet its legal obligations by recognizing that the United States is no longer a safe place to send refugees and scrapping an agreement between the two governments.
"The time for Canada to rely on the adequacy of the U.S. protection regime has come to a definitive end."
—Justin Mohammed, Amnesty International The demand comes from the Canadian Council for Refugees (CCR), Amnesty International (AI), and the Canadian Council of Churches (CCC), who, along with an individual litigant, are in a Canadian federal court this week to challenge the Safe Third Country Agreement.
"We are asking the court to look at the impact of the Safe Third Country Agreement on women, men, and children who can't find safety in the U.S. and to assess the legality of Canada sending them back to detention and potential deportation to persecution," CCR president Claire Roque said in a statement released last week. "The impacts are particularly severe for women, because of U.S. policies that close the door on women fleeing gender-based violence," she said. "The conclusion is clear to us: the U.S. cannot be considered a safe country for refugees."
[It] operates from the assumption that both the U.S. and Canada offer protections, so people fleeing their homes should apply for asylum in either country they arrive in first. [...]
Under the accord, people leaving the U.S. cannot apply for asylum in Canada at an official crossing point, or vice versa. Except for a few limited cases, such as if they have close family in Canada, they will be turned back to the U.S.
The refugee advocates say that assumption is flawed, and that the lack of proper protections for refugees in the U.S has driven many to seek entry to Canada through irregular crossings, thereby dodging the agreement's mandate that they be sent back.
The lawsuit was first launched in 2005 then resubmitted in 2017 after the groups said the Trump administration worsened the prospect of refugees' rights being upheld. Specifically, the groups say sending refugees back to the U.S. violates their rights under Sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
According to a backgrounder on the case,
Section 7 is violated because refugees are at risk of refoulement (or forced return) from the U.S. to persecution, torture, death.
Section 7 is also violated because claimants are unjustly detained in the U.S.
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Section 15 is violated because women are disproportionately badly affected by the shortcomings in the U.S. refugee protection regime.
Refugees who are sent back to the U.S., the groups say, may be subjected to expedited removal process or may face roadblocks in making an asylum claim. They may miss the one-year deadline to make their asylum claim, perhaps because they were unable to access legal representation because they were detained under appalling conditions.
An excerpt from the groups' legal argument points to some of the Trump administration's anti-immigrant policies:
The evidence now before the court establishes that the refugee claimants that Canada turns away at our borders are exposed to grave risks of detention and mistreatment in the U.S. and refoulement. Refugee claimants are being detained indefinitely, in conditions that are nothing short of cruel and unusual, simply for seeking protection. Those who failed to start their U.S. claims within a year of first arrival are barred from ever obtaining asylum. Whole classes of people are being excluded from protection under the Refugee Convention, including women fleeing gender-based persecution and those fleeing gang violence.
In efforts to discourage and prevent people from even seeking protection in the U.S., the administration has issued transit bans targeting Muslims, instituted "zero-tolerance" policies targeting Central American refugees, separated children from their parents and detained them, refused entry to almost all people seeking asylum at the southwestern border, and most recently rendered ineligible for asylum anyone who could have made a claim elsewhere before coming to the U.S.
Alex Neve, Amnesty International Canada's secretary attention, drew attention to the case in a recent Twitter thread in which he criticized "the indefensible and immoral fiction that the U.S. has an admirable refugee protection record. Nothing could be further from the despicable truth."
The "cascading series of viciously, intentionally cruel (and unlawful) policies implemented over the past 2 1/2 years by the Trump administration," Neve wrote, are cause to end the Safe Third Country Agreement.
The "incoming Justin Trudeau government," Neve continued, "must call out U.S. refugee and border policy for what it is, disgraceful and illegal, and nothing that we will countenance or cooperate with in any way."
"The time for Canada to rely on the adequacy of the U.S. protection regime has come to a definitive end," added Justin Mohammed, Human Rights Law and Policy Campaigner at Amnesty International, in a statment. "In the absence of action on the part of Canada's elected representatives to acknowledge the serious shortcomings of the U.S. refugee protection system, we now turn to the courts to ensure that Canada’s domestic and international legal obligations are upheld."
The groups are set to hold a rally Monday outside the federal court in Toronto.