When Havens Aren’t Safe

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Canada’s Supreme Court began hearing arguments Thursday on whether the US is a safe destination for asylum seekers, in a case that could upend a bilateral agreement under which the two countries share responsibility for people in need of protection, the Washington Post reported.

The case will focus on the constitutionality of the 2004 Safe Third Country Agreement. The deal stipulates that asylum seekers who enter Canada through official land border crossings are deported back to the US, and vice versa.

The idea behind the pact implies that both countries are safe destinations and meet their obligations under international refugee law, which means that claimants must submit their requests for protection in the country where they first land.

However, a number of asylum seekers and human rights organizations said the agreement violates the right of “life, liberty and security of the person” enshrined in Canada’s constitution: They explained that it exposes asylum seekers – who are returned to the US – to potential detention on the American side, and repatriation to the nations they fled because of persecution.

Canadian government officials, meanwhile, countered that the US process of handling asylum claims is “robust and fair” with “built-in protections and safeguards compliant with its non-refoulement obligations.”

The deal was challenged at a Canadian federal court in 2020. While the court agreed with the claimants, a federal appeals court overturned the lower court’s decision.

The pact has come under criticism since its inception but a loophole has given critics new traction in recent years: While asylum seekers who enter Canada through official land border crossings are deported, those who arrive through unauthorized entries elsewhere along the 5,500-mile border may stay and register their claims.

More than 67,800 asylum seekers have entered Canada through such crossings and submitted applications for protection since 2017.

Although the number of asylum seekers rose during the Trump administration, figures for asylum in Canada have continued under the Biden administration.

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