Question Period Note: STCA – Asylum seekers

Canada – U.S. Safe Third Country Agreement and U.S. designation as a safe third country.

• Canada and the U.S. share a mutual interest in ensuring the orderly management of asylum claims along our shared border, and providing protection to those in need.

• The Safe Third Country Agreement (STCA) is an important tool for Canada and the U.S. to work together on the orderly management of refugee claims made in our countries.

• The STCA benefits both countries and reflects the fact we both have robust systems for refugee and human rights protection that are in line with international obligations.

• Since March 2023, the STCA applies to individuals who make an asylum claim after entering Canada from the U.S. anywhere along our shared land border – resulting in a significant drop of irregular arrivals to Canada.

• Individuals who do not meet an exemption or exception under the Agreement are returned to the U.S. to pursue their asylum claim.

• We are in regular contact with U.S. counterparts on issues related to our shared border and expect this to continue.

If pressed on the STCA’s future under the incoming Administration

• The STCA is mutually beneficial, allowing both countries to better manage access to their refugee protection systems.

• We are in regular contact with U.S. counterparts on issues related to our shared border, including the STCA, and expect this to continue.

On the possible return of a surge in irregular arrivals

• The Government of Canada is prepared to respond effectively to arrivals at our border without compromising the safety and security of Canadians.

• Crossing between ports of entry is dangerous, especially as winter draws near, individuals should enter legally at a designated port of entry.

• The RCMP and its law enforcement partners in Canada and the U.S. will continue to work to monitor the shared border and disrupt illicit cross-border movements.

• Any approach taken will be first and foremost in the best interest of Canada and all those who live here.

If pressed on changes to irregular migration volumes

• Entering between ports of entry does not provide greater access to Canada’s asylum system. Individuals will be turned back to the U.S., unless they meet STCA exceptions. This removes the incentive for individuals to seek irregular entry into Canada, encouraging individuals to claim asylum in the first country they enter or to pursue regular immigration pathways.

• Our law enforcement officials are prepared to address any changes in irregular migration volumes. We will continue to work closely with our U.S. counterparts to investigate attempted border crossings, as well as monitor volumes of irregular migration in both directions.

If pressed on 14 days limit and risk of human smuggling

• The Additional Protocol applies the terms of the STCA to individuals who make an asylum claim within 14 days of crossing between ports of entry along the border. The 14-day limit was agreed to by both parties through negotiations. Individuals who are seeking protection should make their claim upon entering the country.

• Human smuggling is a global problem that requires both domestic and international solutions. Canada works closely with its domestic and international partners and we remain confident in the ability of Canadian law enforcement agencies to maintain the integrity of Canada-U.S. border.

• Irregular routes to Canada and other countries present very real dangers. The changes to the STCA were intended to deter irregular crossings between ports of entry, and to re-affirm that foreign nationals should claim asylum in the first safe country they enter, either Canada or the U.S.

If pressed on irregular southbound migration

• Canada is concerned about the recent increase in southbound irregular crossings from Canada to the U.S.

• Addressing irregular crossings is a priority for Canada. We are monitoring the issue closely with the U.S. and reviewing our policies and processes to help address the issue.

• Foreign nationals who cross irregularly into the U.S. and claim asylum are subject to the STCA and may be returned to Canada by U.S. authorities to pursue their claim. The STCA does not apply if they do not claim asylum.

• IRCC, CBSA, and the RCMP are working with U.S. and other international counterparts to support safe and orderly migration along our international borders, by combating human smuggling activities, and addressing the root causes of forced displacement and irregular migration that impacts Western Hemisphere.

If pressed on U.S. designation

• The Government of Canada uses a robust framework to monitor developments in the U.S. and the impact that changes in policies and practices may carry with respect to the integrity of the country’s refugee protection system.

• The U.S. Government has an extensive system for assessing refugee protection applications, and this remains subject to appropriate administrative and legal checks and balances.

• The U.S. is a reliable partner and safe third country in the space of refugee protection and migration management.

If pressed on STCA litigation before the Federal Court on the process to Review U.S. designation, or gender-based impact of the STCA

• We do not comment on matters before the Court.

Facts and Figures (Asylum Claims by Mode 2021-2024)

Regular / Irregular Mode of Entry 2021 2022 2023 2024
Jan to Oct
Regular Airport 3,465 17,140 41,360 38,415
Inland 11,750 27,395 69,630 93,370
Land Border 5,250 7,540 15,775 12,240
Marine 20 25 35 25
Regular - Total 20,485 52,100 126,805 144,050
Irregular Irregular 4,630 40,115 17,445 3,555
Irregular - Total 4,630 40,115 17,445 3,555
Overall - Total 25,115 92,215 144,250 147,605
Data source: IRCC-EDW (CBR) Data Refresh Date: Nov 1 2024

• As a result of the STCA Additional Protocol, irregular volumes fell from an average of 165 a day earlier in March 2023, to an average of around 12 a day since.
• The volume of irregular claims in January to October 2024 period decreased by 78% compared to the same period in 2023. In the same period, regular asylum claims increased by 49% compared to the previous year.

Safe Third Country Agreement (STCA)

• The STCA has been in effect since 2004 and was developed to enhance the orderly management of refugee claims, strengthen public confidence in the integrity of our refugee systems, help reduce abuse of the asylum systems of both countries, and share responsibility for providing protection to those who meet the refugee definition.
• The STCA requires that asylum claimants seek protection in the first safe country they enter, either in Canada or in the U.S, unless they qualify for an exception to the Agreement.
• The exceptions to STCA are the following:

o Family member exception
o Unaccompanied minor exception
o Document holder exception
o Public interest exception

• These exceptions reflect key Government of Canada commitments, such as family reunification and protecting the best interests of the child.
• The Agreement gives both parties the discretion to take responsibility for a refugee claim when it is in the public interest to do so. Canada applies this discretion, for example, to provide an exception for persons charged or convicted with an offence for which they could receive the death penalty in the U.S. or in another country.
• The STCA does not apply to U.S. citizens or habitual residents of the U.S. who are not citizens of any country (“stateless persons”).
• On March 24, 2023, Prime Minister Trudeau and President Biden announced Canada and the U.S. were expanding the application of the STCA across the entire land border, including internal waterways. Previously, the STCA only applied at official ports of entry along the border. This change was done through the Additional Protocol to the STCA, which came into effect at 12:01 a.m. EDT on March 25, 2023.
• The Additional Protocol applies the terms of the STCA to individuals who make an asylum claim within 14 days of crossing between ports of entry along the land border, including the same limited exceptions outlined above.
• The U.S. is the only country Canada has designated as a safe third country.

STCA Litigation

• In 2017, an application challenging the constitutionality of the domestic legislative and regulatory framework for the STCA) was filed with the Federal Court of Canada. Following a decision of the Federal Court of Appeal on April 15, 2021, in which the Court found that the Charter challenge was not properly constituted, the opposing parties filed an appeal to the Supreme Court of Canada (SCC).
• On June 16, 2023, the SCC ruled that the designation of the U.S. as a safe third country (s. 159.3 of the Immigration and Refugee Protection Regulations (IRPR)) complies with s. 7 of the Charter and the principles of fundamental justice.
• However, the SCC concluded that it was not well placed to make the factual findings necessary to assess whether section 159.3 IRPR infringes section 15 of the Charter, which deals with equality rights, as this was never assessed by the lower Courts. The SCC returned the matter back to the Federal Court for determination.
• Currently the litigation is ongoing.

Southbound Irregular Migration from Canada to the U.S.

• Canada and the U.S. share the world’s longest international border, and share a strong interest in safe and orderly migration, refugee protection, and border security.
• Irregular crossings at the U.S.’ northern border is significant bilateral irritant in Canada- U.S. relations. The growing number of irregular southbound crossings from Canada has drawn the attention of U.S. media, as well as U.S. officials.
• Since 2022, there has been a significant rise of individuals attempting to cross into the U.S. by land from Canada between official ports of entry (POEs), i.e. irregularly. Foreign nationals who cross irregularly, and who do not make an asylum claim in the U.S., are not subject to the Canada-U.S. STCA.
• Most (87%) U.S. Customs and Border Patrol (USCBP) apprehensions occur within the Swanton Border Sector. The Champlain region just south of Montreal is the most active area within Swanton border sector. The second most affected sector is Blaine, which sees 11% of the movement.
• Human smuggling is a major concern in the southbound movement and targets multiple nationalities. Smuggling is financially lucrative, with migrants sometimes paying thousands of dollars to smugglers to enter the United States. In addition, these crossings can be dangerous.
• Prior to Canada’s partial visa reimposition on February 29, 2024, Mexican nationals were the top intercepted population. Since the partial visa reimposition, interception of Mexican nationals has dropped dramatically; however, there has been a rise in the number of apprehensions of Indian nationals and to a lesser extent, Bangladeshi nationals.
• Canadian and U.S. counterparts have been working together to advance joint information-sharing efforts to help strengthen our understanding of southbound irregular crossings associated with these cohorts. The Government of Canada is working to understand any new drivers of this movement in order to make any adjustments to our processes that may be required.
• IRCC supports the Royal Canadian Mounted Police and the Canada Border Services Agency in their efforts to identify and disrupt human smuggling and trafficking networks that target Canada, and in their collaboration with international law enforcement partners.
• IRCC does not disclose specifics regarding its engagement with the U.S. given bilateral relations and other operational considerations.

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