The Safe Third Country Agreement - Impact on Refugee Claimants

By Edward C. Corrigan, Certified Specialist in Citizenship, Immigration Law and Refugee Protection

Published in 9 Benders Immigration Bulletin, September 15, 2005.

The U.S.-Canada Safe Third Country Agreement came into effect on December 29, 2004. This agreement has substantially changed the rules for people in the U.S. coming to Canada and making a refugee claim at the Canadian border. For many refugees, the safe third country rule means that if one is in the U.S. and applies at a land port of entry to Canada one will be denied admission by Canadian Immigration officials without ever being able to present their refugee claim.

The new rules apply to most refugee claimants in the United States. There are, however, exceptions to this rule. If you qualify for one of the exceptions to the safe third country rule, you can still make a refugee claim in Canada.

FAMILY EXCEPTION

If you have a close family relative in Canada, who is a citizen, a permanent resident, protected person or approved in principle for landing, you can qualify for an exception. You also may qualify if the relative is in Canada on a legal work permit or student visa. You also may qualify if the relative is in Canada and has a refugee claim that has not been rejected, withdrawn or abandoned. The relative must be:

To qualify for an exception as a common-law partner the person (of the same or opposite sex) with whom you are cohabiting in a conjugal relationship must have cohabited for at least a year. In addition if you are a minor, or less than 18 years and are not accompanied by your father, mother or legal guardian, or if you are unmarried and neither your mother, father nor legal guardian is in Canada or the U.S., you will also qualify for an exception. .

SUSPENDED REMOVALS COUNTRY EXEMPTION

A further qualification for exemption to the safe third country rule is if you are a citizen of a country to which Canada has temporarily suspended removals. At present these countries are Afghanistan, Burundi, Democratic Republic of Congo, Haiti, Iraq, Liberia, Maldives, Rwanda, Sri Lanka, and Zimbabwe. If you have a criminal record, this exception does not apply.

If you have been charged with or convicted of an offence punishable with the death penalty in the country where the charge or conviction was made you may also qualify for an exemption. However, you may be still ineligible to make a claim on grounds of criminality.

NO VISA EXEMPTION

The safe third country rule also does not apply if you have a valid visa to enter Canada, other than a transit visa. You can also qualify for the exemption if you come from a country for whose citizens Canada does not require a visa but the U.S. does. These countries currently are Antigua and Barbuda, Barbados, Botswana, Cyprus, Greece, Malta, Mexico, Namibia, Papua New Guinea, Republic of (South) Korea, St. Kitts and Nevis, St. Lucia, St. Vincent, Solomon Islands, Swaziland, and Western Samoa.

TO QUALIFY FOR EXCEPTIONS

When you arrive at the Canadian border, you must be able to prove that you qualify for one of the exemptions. An Immigration officer will interview you to see if you meet any of the exceptions. The Immigration officer will take into account what you say and will look at any documents you provide. The officer may also make inquires if you say you have a family member in Canada. The officer will check the immigration databases and may try to speak to your family members on the phone. If you are coming to Canada from the U.S., you should bring documents that show that you qualify for an exception. It is advisable that you let the family member know that you are coming to Canada and have contact information so that Immigration can reach them when you make a claim at the Canadian border.

Giving false information to an Immigration officer can have very serious consequences. If you falsely claim to meet one of the exceptions, and Citizenship and Immigration Canada later finds out that you did not give accurate information the Canadian government can take away your right to make a refugee claim under section 104(1)(c) of the Immigration and Refugee Protection Act.

ONLY APPLIES AT LAND ENTRY

The U.S.-Canada safe third country rule only applies to refugee claimants arriving from the U.S. make a refugee claim at a land port of entry. The rule does not apply if you arrive by air or by water. Claims made at an airport, port or ferry landing are not affected by the safe third country rule, even though you arrived from the United States. If you enter Canada at a location that is not a port of entry, the safe third country agreement does not apply. However, if you are being removed from the United States under an order and are in transit at a Canadian airport you cannot make a refugee claim.

The safe third country rule also does not apply to claims made inside Canada. Accordingly, if you enter Canada from the U.S. and later make a refugee claim at an inland immigration office you are exempt from the safe third country rule. You are also exempt if you are a foreign national who is seeking to re-enter Canada in circumstances where they have been refused entry into the United States without having a refugee claim adjudicated there.

If you meet one of the exceptions to the safe third country rule, you can make a claim in Canada even if you have applied for asylum in the US. So even if the refugee claimant has made a claim for asylum in the United States, they can still make a claim in Canada provided they qualify under one of the exceptions.

Note that even if you meet an exception to the safe third country rule, you may still be ineligible to make a claim in Canada, for example if you have previously made a refugee claim in Canada. You are also not eligible if you have been granted refugee protection by another country, or if you are inadmissible on criminality or security grounds.

WHERE TO GET HELP

There are a number of agencies that can help refugee claimants who may want to come to Canada for protection. In Detroit you can contact Freedom House, Detroit, Tel. 313-964-4320 ext*833. Their email is freedomhousemi@sbcglobal.net, www.freedomhousedetroit.org. In Buffalo you can contact VIVE, Buffalo, Tel. 716-892-4354, www.vivelacasa.org. In Vermont you can contact Vermont Refugee Assistance: Tel. 802-223-6840, email vtrefuge@together.net or jenness@accessvt.com, www.vermontrefugeeassistance.org.

In Toronto contact Hamilton House, Toronto, Tel. 416-469-9754, email fcjhamilton@on.aibn.com (for people destined to Toronto), www.fcjsisters.ca/HamiltonHouse

Arabic refugee claimants can contact the Arab Community Centre 555 Burnathorpe Road Suite 209, Etobicoke, Ontario, telephone 416-231-7746 or contact Palestine House 3195 Erindale Station Road Mississauga, Ontario, telephone 905-270-3622.

In Quebec you can contact the Committee to Aid Refugees, Montreal, Tel. 514-272-6060, ext 5, email carmtl@cam.org