Question Period Note: Asylum Claimants, Irregular Migration and the Safe Third Country Agreement

A recent media article has highlighted an investment by the Government of Quebec to assist in housing irregular migrants entering Canada between ports of entry.

• Asylum claims are governed in part by international treaties to which Canada is a signatory.

• Those with a legitimate need for protection have a right to make an asylum claim.

• The CBSA works with Immigration, Refugees and Citizenship Canada, Public Health Agency of Canada, and the provinces to make sure refugee claimants are safe and have access to food, water and shelter while they wait for processing and other steps in the refugee claims process.

• The Lacolle Regional Processing Centre was developed in 2017 in response to the unprecedented volumes of refugee claimants coming to Canada between ports of entry. Under emergency contracts, Lacolle was used as temporary accommodations for refugee claimants.

• The leases of land and building, used to accommodate an influx of refugee claimants at the border in Lacolle, Quebec expired in March of 2022.

• The CBSA spends $3M per year for the processing and accommodation infrastructure for asylum seekers located in Saint-Bernard-de-la-Colle, Quebec.

Contingency planning if claimant volumes go up

• The CBSA has contingency plans in place to deal with the possibility that we see higher numbers of refugee claimants crossing at ports of entry.

• Plans include mobilizing resources between districts and regions. The CBSA is also considering arrangements that would allow it to accommodate higher numbers of people awaiting processing if needed.

Statistics from November 21, 2021 to May 11, 2022:
• 22,597 individuals came to Canada to claim asylum. Of those, 14,229 arrived between official ports of entry and 8,368 arrived at an official port of entry.

• Of the 8,368 individuals who arrived at an official port of entry to make an asylum claim, 1,878 met an exception under the STCA.

Border security and integrity is a shared mandate between the CBSA and the RCMP. The CBSA is responsible for enforcement at official Canadian ports of entry (POEs), while the RCMP is responsible for enforcement between POEs. The RCMP then escorts people crossing between the ports of entry to the nearest CBSA port of entry. The closest port of entry to Roxham Road is Saint-Bernard-de-Lacolle.

The STCA was signed in 2002 by Canada and the U.S. and has been in effect since December 2004. Under the STCA, people seeking refugee protection must make a claim in the first country they arrive in (U.S. or Canada), unless they qualify for an exception. People who are not eligible to make an asylum claim at the land port of entry under the STCA are immediately returned to the U.S.

Since 2017, the Government of Canada has been in continuous contact with the U.S. Department of Homeland Security and U.S. State Department on issues related to our shared border, including our desire to modernize the STCA.

The STCA’s objectives

The primary objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, and share the responsibility for protecting people who fit the official definition of “refugees”.

The mandates behind the STCA

The CBSA and Immigration, Refugees and Citizenship Canada (IRCC) share a mandate of preserving the integrity of the immigration system. Together, the CBSA and IRCC administer the Immigration and Refugee Protection Act (IRPA), which governs the admissibility of people into Canada, and the identification, arrest, detention and removal of people who are inadmissible.
The STCA under the Quarantine Act
Without going against Canada’s international obligations with respect to non-refoulement, (i.e. forcing asylum seekers to return to a country in which they would be at risk of persecution), the Order in Council issued under the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) also supported the continued application of the Safe Third Country Agreement at designated land ports of entry in accordance with the IRPA. This means that those who met one of the narrow exceptions or exemptions in the OIC were permitted to enter and apply for refugee protection.
While the OIC contained a prohibition against entry for the purpose of making a refugee claim at any other location (including airports, marine ports, and between official ports of entry), the prohibition was not included in the current OIC which came into effect on November 21, 2021. Irregular migration has since resumed with a daily average of approximately 82 claimants.

Who the STCA applies to

The STCA generally applies to asylum claimants who are seeking entry to Canada from the U.S. at a land port of entry. The Agreement does not apply to U.S. citizens and stateless persons residing in the U.S. or to those who arrive from the U.S. by air (with the exception of some people being deported from the U.S. through Canada), or by sea.

The Agreement does not apply to anyone who meets an Agreement exception, such as:
• people who have a family member in Canada;
• unaccompanied minors;
• people who hold a valid travel document issued by Canada or who are from a visa-exempt country for Canada but require a visa to enter the U.S.; and
• people who meet the public interest exception.

It also does not apply to claims made by people who entered Canada between ports of entry.

Recent Litigation - Federal Court of Appeal decision

The Federal Court rendered a decision on litigation challenging the STCA in July 2020. The Court found that the STCA and section 159.3 of the Immigration and Refugee Protection Regulations violated section 7 of the Canadian Charter of Rights and Freedoms. The Government’s appeal and the cross appeal were heard by the Federal Court of Appeal (FCA) in February 2021 and the decision was delivered on April 15, 2021.

The FCA upheld the validity of the Agreement and on June 14th, 2021, the Canadian Council for Refugees et al submitted their application for leave to appeal against the FCA decision to the Supreme Court of Canada (SCC). On December 16, 2021, the SCC granted the application for leave to appeal.

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