A Canadian federal court decision on Wednesday brings into question whether Canada can send asylum seekers back to the U.S. The decision states that sending asylum seekers back to the U.S. is a violation of the Canadian Charter of Rights and Freedoms.
The federal court decision affirms what activists on both sides of the border have been saying for years, that the U.S. under President Trump is not a safe place for asylum seekers or refugees.
Background
After the election of Donald Trump, Canada saw a large increase in the number of asylum seekers coming from the U.S. The people attempting to flee the U.S. were either in the U.S. as undocumented or had previously received protected status that they feared would be in jeopardy under President Trump’s hardline rhetoric about immigration.
The federal court decision
The case was brought to the courts by a coalition of advocacy groups, including the Canadian Council for Refugees and Amnesty International, on behalf of several test plaintiffs. Nedira Jemal Mustefa, an Ethiopian woman who had lived in the United States since she was 11 years old, was one of those plaintiffs.
Nedira attempted to cross the Canadian border in April 2017 but was denied entry and returned to U.S. authorities. She was held for 30 days in a maximum-security prison in the U.S., the first seven days being spent in solitary confinement.
It was Nedira’s experience that Federal Court Justice Ann Marie McDonald leaned on in her ruling. “The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” she wrote. “The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the (Safe Third Country Agreement) or the foundational Conventions upon which it was built. … For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.”
The Safe Third Country Agreement
The court decision on Wednesday could have major impacts on the Safe Third Country Agreement between the U.S. and Canada. Under the agreement, refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement. To date, the U.S. is the only country designated as a safe country under the 2004 Agreement.
What comes next for asylum seekers?
It’s not entirely clear what happens next. Federal Court Justice Ann Marie McDonald gave a six-month grace period before her ruling comes into effect. There is a U.S. presential election in November which could mean regime change in U.S. politics and that could restore America’s designation as a safe country under the Agreement.
What is clear is that Canada has reaffirmed our obligations to treat people who come here humanely. Regardless of how they arrived and whatever immigration status they might have, asylum and refugees are human beings entitled to fair treatment under the Canadian Charter of Rights and Freedoms.
Lauren Boorman
Adam Pinsky