ARCHIVED – Report on the Review of the designation of the United States as a Safe Third Country

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• Introduction
• Overview of the Safe Third Country Agreement
• Criteria for the review of the Safe Third Country Agreement
• Review of the four factors considered in the designation of the United States
  as a Safe Third Country
• Conclusion

Introduction

On December 5, 2002, Canada and the United States signed the Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, or as it is more commonly known, the Safe Third Country Agreement (STCA). Coming into force on December 29, 2004, the STCA affirms the commitment of Canada and the U.S. to effectively share the assessment of refugee claims, to enhance the orderly handling of refugee claims and to strengthen public confidence in the integrity of the Canadian and U.S. refugee status determination systems. The STCA acknowledges the international legal obligations of both governments as outlined in the 1951 Convention Relating to the Status of Refugees (1951 Refugee Convention) and the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984 Convention Against Torture).

The STCA is the only responsibility-sharing agreement related to refugee status determination that either the U.S. or Canada has entered into to date. Both the U.S. and Canada, as outlined in the Agreement, cooperate with the United Nations High Commissioner for Refugees (UNHCR) in the monitoring of the Agreement. In Canada, under Subsection 102(3) of the Immigration and Refugee Protection Act (IRPA), the Governor in Council must ensure a continuing review of four factors, described below, with respect to each country that is designated as a safe third country.

This report highlights the review of those four factors in the designation of the United States as a safe third county. Covering the period between 2004 and 2009, the review drew upon submissions received from a number of non-governmental organizations. It also drew upon U.S. government agency reports, statistical records and policy announcements, new U.S. legislation and congressional studies, relevant academic research, media reports, advocacy publications, and legal affidavits relating to the STCA. Recent policy directions and pronouncements stemming from the new U.S. administration have also been taken into consideration.

This report is the first report on a review of the designation of the U.S. as a safe third country, as per Subsection 102(3) of the IRPA. A previous report, on the implementation of the STCA over the first year, was published in November 2006 and was carried out by both Canada and the United States, in collaboration with the UNHCR. [ Note 1 ] The review concluded that the Agreement was implemented in a way that was consistent with the terms and principles of the STCA as well as with international refugee law. The UNHCR’s monitoring role has been invaluable, and it continues with the support of both governments. It is consistent with the UNHCR’s responsibilities as set out in the 1951 Refugee Convention.

Overview of the Safe Third Country Agreement

International cooperation based on the principle of responsibility sharing provides a basis for states to respond to challenges in the handling of refugee protection applications. [ Note 2 ] To this end, a number of countries have articulated “safe third country” policies. The common premise of these policies is that where a refugee claimant could have sought protection in a country that upholds the principles of the 1951 Refugee Convention and the 1984 Convention Against Torture, it is reasonable and appropriate to require the refugee claimant to have made use of that opportunity.

In Europe, a safe third country policy, known as the Dublin system, came into force in 1997 under the Dublin Convention. Replaced by the Dublin II Regulation in 2003, the system is intended to prevent asylum seekers from applying for asylum in multiple European states.

The STCA, a similar policy based on the principle of responsibility sharing, applies to refugee claimants who are seeking entry to Canada or the U.S. at Canada-U.S. land border ports of entry. [ Note 3 ] The premise of the STCA is that a refugee claimant, other than a citizen or national of Canada or the U.S., must seek protection in the country where the claimant first has the opportunity to do so – either Canada or the U.S. – unless she or he qualifies for an exception.

In crafting the STCA, Canada and the U.S. considered other key policy objectives, including a shared commitment to family unity, the need to take into account the best interests of children, and the discretionary authority of each country to take responsibility for any application where it would be in the public interest to do so. In order to ensure that these objectives can be met, the STCA provides for exceptions to the general principle that requires the country of first arrival to take responsibility for adjudicating the refugee claim. In Canada, exceptions are made, for example, in the case of refugee claimants with family members legally residing in Canada, unaccompanied minors with no legal guardian in either country, and individuals who face the death penalty.

By entering into the STCA, both governments recognize that the basis for sharing responsibility for refugee protection must include the provision of meaningful access to a full and fair assessment of refugee protection claims, in order to ensure compliance with international obligations under the 1951 Refugee Convention and the 1984 Convention Against Torture.

The views of the UNHCR and non-governmental organizations in both countries were sought in the development of the STCA. The UNHCR has stated that responsibility-sharing agreements between states can, where appropriate safeguards are in place, enhance the international protection of refugees by ensuring the orderly handling of refugee protection applications.

Criteria for the review of the STCA

Canada’s Immigration and Refugee Protection Act allows for a refugee claimant coming to Canada through a designated “safe” country to be returned to seek protection in that country. Under the IRPA, the Government of Canada has the authority to designate as “safe” a country that complies with the 1951 Refugee Convention and the 1984 Convention Against Torture, subject to the consideration of the four factors listed below:

1. whether the country is party to the 1951 Refugee Convention and the 1984 Convention Against Torture;
2. the policies and practices of the country with respect to claims under the 1951 Refugee Convention, and its obligations under the 1984 Convention Against Torture;
3. the country’s human rights record; and
4. whether the country is party to an agreement with Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

The IRPA requires that the Governor in Council ensure the continuing review of these four factors in respect of any designated safe third country. The purpose of the review process is to ensure that the conditions that gave rise to the designation continue to be met, and that the designated country remains an appropriate partner for sharing responsibility for refugee claims.

Review of the four factors considered in the designation of the U.S. as a Safe Third Country

The Government of Canada has reviewed the four factors outlined in the IRPA, on a continuing basis, with respect to the U.S. Below is a summary of the findings of this review to date.

Factor 1: Whether the U.S. is party to the 1951 Refugee Convention and the 1984 Convention Against Torture

This review has found that the U.S. is legally bound by the two international treaties that provide protection to people fearing persecution or at risk of torture in their countries of origin: the 1951 Refugee Convention and its 1967 Protocol, and the 1984 Convention Against Torture.

1951 Refugee Convention
The 1951 Refugee Convention was approved at a special United Nations conference on July 28, 1951. It was initially designed to protect European refugees after World War II, but the 1967 Protocol expanded the Convention’s scope by removing geographic specifications and time limits. Article 1(a) of the 1951 Refugee Convention defines a refugee as a person who is:

“[…] outside his/her country of nationality and, owing to well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion, is unable or unwilling to return.”

One of the most important protections provided under the 1951 Refugee Convention is Article 33, which expresses the principle of non-refoulement. Article 33(1) forbids a contracting state to:

“[…] expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.”

The U.S. acceded to the 1967 Protocol to the 1951 Refugee Convention on November 1, 1968. While the U.S. is a signatory only to the 1967 Protocol, in practice this does not affect its obligations under the Refugee Convention, as the 1967 Protocol incorporates the definitions and obligations of the Convention and, further, removes the temporal and geographic limitations contained in the Convention.

1984 Convention Against Torture
The 1984 Convention Against Torture is an international human rights instrument that aims to prevent acts of torture. Article 3 of the 1984 Convention Against Torture obliges states not to expel, return (refouler) or extradite a person to a state where there are substantial grounds for believing that the individual would be in danger of being subjected to torture.

The U.S. ratified the 1984 Convention Against Torture on October 21, 1994.

Factor 2: U.S. policies and practices with respect to claims under the 1951 Refugee Convention and obligations under the 1984  Convention Against Torture

The U.S. government, through statute and regulation, has developed an extensive administrative system, subject to judicial checks and balances, for assessing refugee protection applications. The U.S. has a universal asylum policy, meaning that qualified asylum seekers are accepted from everywhere in the world as long as they meet the asylum program criteria as well as broader criteria related to security, criminality and medical requirements.

The U.S. asylum system includes an affirmative and a defensive process for determining refugee protection claims. The defensive process is for claims made by individuals who are subject to a removal order.

A person seeking entry into the U.S. who is either undocumented or who holds fraudulent documents is subject to “expedited removal.” Before the removal order becomes effective, immigration officers ascertain whether the individual has any fear about being removed. Individuals who express fear or concern are interviewed by an asylum officer within 48 hours to determine if they have a “credible fear.” Individuals with a credible fear are referred to immigration judges in the defensive process.

Affirmative claims are adjudicated by asylum officers of the U.S. Citizenship and Immigration Services at the Department of Homeland Security (DHS). Defensive claims, which include claims rejected under the affirmative process, are heard by an immigration judge of the Department of Justice in a formal process. Claimants in both the affirmative and defensive processes may appeal decisions made by immigration judges to the Board of Immigration Appeals (BIA), which is the highest administrative tribunal dealing with immigration and asylum issues in the U.S. Judicial review of BIA decisions may be sought in the U.S. federal courts, up to and including the American Supreme Court.

If claimants are found ineligible for asylum, their eligibility for other forms of relief from removal, including a Withholding of Removal, is considered by the immigration judge. These additional forms of protection act as safeguards against refoulement. Further, claimants have access to judicial review of decisions take by immigration judges, which provides an additional safeguard against the risk of refoulement.

In the context of this review, U.S. policies and practices with respect to claims under the 1951 Refugee Convention and its obligations under the 1984 Convention Against Torture have been assessed. Issues reviewed included areas of procedural practice, such as access to counsel, practices related to detention, criteria for granting protection, restrictions on applying for refugee protection, and exclusions related to security, terrorism and criminality.

Access to Counsel
U.S. law provides for a right to counsel during immigration proceedings and explicitly requires that refugee claimants be informed of their right to counsel. While this right is at no expense to the government, information on organizations and immigration attorneys who take cases as pro bono is provided to claimants. Neither the 1951 Refugee Convention nor its 1967 Protocol requires that legal representation be allowed throughout the refugee status determination process, or that aid for legal representation be provided.

Detention
The U.S. has clear guidelines on immigration detention as set out in the DHS Detention Operations Manual. Upon assessment, it has been determined that the factors employed in determining whether to detain or release a refugee protection claimant are consistent with the UNHCR’s Executive Committee Conclusion 44 on the detention of refugees and refugee protection claimants; that the DHS exercises adequate monitoring of detention standards; and that the basic provisions governing detention are in accordance with international standards.

Criteria for granting protection
The criteria for granting protection in the U.S. meet a sufficiently high standard to ensure that people are not returned to persecution or torture. These criteria are consistent with the definition of a “refugee” and principles of protection contained in the 1951 Refugee Convention as well as the principles of the 1984 Convention Against Torture. Asylum claimants must establish that they have a well-founded fear of persecution and that one of the Convention grounds for protection was or will be at least one central reason for the persecution that they fear. The criteria for granting other forms of relief from removal, including the Withholding of Removal, also incorporate principles contained in both conventions, particularly that of non-refoulement.

Restrictions on applying for asylum
U.S. law bars certain people from asylum status, most controversially those who have failed to apply for asylum within one year of arrival in the U.S. This “one-year bar,” however, only covers access to the asylum system and not to a determination on Withholding of Removal, which ensures protection in line with the 1984 Convention Against Torture. Further, exceptions to the one-year bar are made in cases where there are changed circumstances that materially affect a person’s eligibility for asylum, such as changes in country conditions, or extraordinary circumstances directly related to a person’s failure to file within one year.

Exclusions related to security, terrorism and criminality
The U.S. applies exclusions to refugee protection based on connections to terrorist activities or terrorist organizations. The U.S. system ensures that the application of the terrorist exclusion is consistent with obligations under the 1951 Refugee Convention and other international laws. For example, exemptions for refugee protection claimants who provided support to terrorist organizations under duress have been put into place. The U.S. also excludes certain criminals and people deemed to be threats to national security from eligibility for refugee protection, in keeping with provisions in the 1951 Refugee Convention for exclusions based on criminality and national security considerations.

Conclusion
The review has found U.S. policies and practices to be in keeping with obligations under the 1951 Refugee Convention and the 1984 Convention Against Torture. The refugee status determination system in the U.S. offers a high degree of protection to refugee protection claimants, with multiple levels of recourse. Certain policies and practices outside of the refugee status determination system, such as the “extraordinary rendition” of terrorist suspects to countries known to sanction the use of torture, have been the subject of criticism and were scrutinized as part of this review. The overall assessment, however, is that the U.S. is compliant with obligations under the Refugee Convention and the Convention Against Torture. A recent executive order, reaffirming U.S. commitment to obligations under the 1984 Convention Against Torture, among other treaties and conventions, supports this assessment.

Factor 3: Human rights record of the U.S.

The assessment of the human rights record of the U.S. went beyond a narrow assessment of how refugee claimants are treated within the U.S. refugee status determination system, taking into consideration, more generally, the U.S. human rights regime and compliance with human rights treaty obligations.

The U.S. Constitution guarantees basic individual liberties such as freedom of speech, of the press, of religion and of association, as well as the right not to be subjected to unreasonable searches and seizures, the right to a speedy and public trial, and the right to protection against cruel and unusual punishment. Moreover, the power of the federal government is distributed among three separate branches: legislative, executive and judicial. The legislature, the U.S. Congress, is independent of the executive and is capable of checking the executive’s actions through legislation and its powers of oversight. The judicial branch (the courts) is also independent and has broad powers, frequently exercised, to protect individual rights. It offers a check against the power of both the executive and the legislative branches of the system.

Historically, the U.S. has been active in promoting human rights in the international community. It played a prominent role in the adoption of the Universal Declaration of Human Rights in 1948 and is a party to the four Geneva conventions of 1949 – the principal repositories of the provisions that make up international humanitarian law.

Advocacy groups have been critical of certain policies, relating to detention and interrogation, for not complying with international human rights standards. However, court decisions during the period covered by the review, as well as early signals on the part of the new U.S. administration, indicate that the protection of human rights in the U.S. continues to be safeguarded. Recent executive orders reaffirm the commitment of the U.S. to the Geneva conventions, among other human rights treaties and conventions, with respect to the treatment of detainees and interrogation practices.

Conclusion
The U.S. remains a country that meets a high standard with respect to the protection of human rights. It is an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.

Factor 4: Whether the U.S. is party to an agreement with Canada for the purpose of sharing responsibility with respect to claims for refugee protection

The U.S. is currently party to the STCA between Canada and the U.S. The STCA was signed on December 5, 2002, and came into force on December 29, 2004. It remains in force.

Conclusion

The overall assessment of the government’s review of the four factors set out in subsection 102(2) of the IRPA, with respect to the U.S., is that the conditions that gave rise to the designation of the U.S. as a safe third country continue to be met, and that the U.S. remains an appropriate responsibility-sharing partner in the determination of refugee protection claims.

This review has found that the U.S. upholds its obligations with respect to claims under the 1951 Refugee Convention as well as its related obligations under the 1984 Convention Against Torture, and meets a high standard with respect to the protection of human rights. As stated above, the U.S. remains a country with a fair and robust refugee status determination system that offers a high degree of protection to refugee claimants, as well as an open democracy with independent courts, separation of powers and constitutional guarantees of essential human rights and fundamental freedoms.

The Government of Canada, as a result of this review, supports the continued designation of the U.S. as a safe third country.

The Government of Canada will continue to monitor developments in refugee and human rights policies and practices in the U.S., according to the four factors identified in subsection 102(2) of the IRPA.