Canada’s federal court has invalidated its Safe Third Country Agreement (STCA) with the United States in place since 2004 because it has determined that the US violates the human rights of refugees. An STCA requires an asylum-seeker to seek protection in the first safe country they reach. Under this agreement, both countries have been able to turn back asylum-seekers attempting to enter at official crossings because they each recognized the other as safe places to seek refuge.
In a 60-page ruling, Judge Ann Marie McDonald ruled the deal as a violation of Canada’s Charter of Rights that prevents the government from impeding the right to life, liberty and security. The deal was thus declared unconstitutional because of the US government’s practice of imprisoning migrants and asylum-seekers, citing the conditions asylum-seekers face in detention, including the lack of access to adequate health care and legal counsel.
Judge McDonald found the experience of Nedeira Mustefa particularly compelling, a Muslim asylum-seeker from Ethiopia. After Canada returned her to the United States, Mustefa was detained and placed in solitary confinement, where despite telling guards of her religious beliefs, she believes she was fed pork, was placed in solitary confinement, which she said was “a terrifying, isolating and psychologically traumatic experience”
The judge said “Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the US by Canadian officials are detained as a penalty”
The court ruling is suspended for six months to give Parliament time to respond, which it can appeal, and litigants could potentially appeal to the Supreme Court of Canada. Otherwise, the ruling is set to go into effect on January 22.
The agreement has been under fire in Canada since the election of Donald Trump, who has actively sought to limit asylum, refugee resettlement and immigration in the United States, as well as detain and separate migrants. With increasing arrivals of Central American asylum-seekers who are fleeing violence, gang violence, crime but also the impacts of climate change and climate variability that has exacerbated poverty and left many parts food insecure, the US has pursued and entered into Safe Third Country Agreements with several Central American countries.
University of California, Hastings College of Law professor Karen Musalo, who testified on behalf of litigants, called the decision “an indictment of the inhumanity of the American detention system for asylum-seekers.”
We could not agree more.
(BBC, Washington Post, NY Times)
