Canada rules U.S. Safe Third Country agreement unconstitutional

A Canadian court has ruled its government's agreement with the United States concerning asylum seekers unconstitutional, stating it could not turn a blind eye to the detention of refugees by its southern neighbor. Handout photo/Office Congresswoman of Doris Matsui/UPI

July 23 (UPI) — A Canadian court on Wednesday ruled a U.S.-Canada agreement to deny entry to certain asylum seekers invalid, stating sending refugee claimants back to the United States where they risk imprisonment is unconstitutional.

Under the Safe Third Country Agreement, which was signed in December of 2002 and implemented in 2004, refugees seeking asylum at a Canadian land port are ineligible to make a claim if they had first traveled through a designated safe country, such as the United States.

In her ruling Wednesday, Justice Ann McDonald said the agreement was unconstitutional as sending refugee applicants to possible detention in the United States denied them their rights to life, liberty and security as guaranteed under the Canadian Charter of Rights and Freedoms.

“For the reasons outlined below, I have concluded that the actions of Canadian authorities in enforcing the STCA result in ineligible STCA claimants being imprisoned by U.S. authorities. I have concluded that imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by section 7 of the Charter,” she said.

The case was brought to the court by refugee advocacy groups including the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and others, on behalf of asylum seekers who were deemed ineligible to apply for refugee status in Canada and sent back to the United States due to the agreement.

In her ruling, McDonald stated her suspension of the agreement will not take effect for six months to allow Parliament time to respond.

Both the Canadian Ministry of Public Safety and Emergency Preparedness and the U.S. Department of Homeland Security have been contacted for comment.

The Canadian Council of Refugees cheered the decision as “a great victory for advocates” and called on the Canadian government to not appeal the decision.

“The court could hardly fail to be moved by the testimonies of the appalling experiences of people in the U.S. immigration detention system, after Canada closed the doors on them,” Dorota Blumczynska, president of the Canadian Council of Refugees, said in a statement. “Their experiences show us — and convinced the court — that the U.S. cannot be considered a safe country for refugees.”

Alex Neve, secretary general for Amnesty International Canada, called for the Canadian government to now end the practice of sending refugees back to the United States.

“While the federal court has provided the government with six months leeway, it is imperative that Canada immediately end the return of claimants to the U.S.,” Neve said in a statement. “The Safe Third Country Agreement has been the source of grave human rights violation for many years, unequivocally confirmed in this ruling.”

According to court documents, Nedira Jemal Mustefa of Ethiopia had attempted to apply for asylum in Canada but was denied as she had been in the United States where she was returned and detained by authorities in solitary confinement at the Clinton County Correctional Facility.

In her affidavit, she said she did not know how long she was to be detained, describing her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.”

She also said she lost 15 pounds as she skipped meals believing that she was being fed pork despite her repeated attempts to tell guards that she could not eat it due to her religion.

She said she “felt scared, alone and confused at all times” and that she “did not know when [she] would be released, if at all,” the court document states.

McDonald said in her ruling that her decision will provoke a reaction from U.S. officials, but while it isn’t the court’s job to pass judgment on the U.S. asylum system, it is its job to look at the consequences of sending refugee claimants back to the United States.

“In my view, the risk of detention for the sake of ‘administrative’ compliance with the provisions of the STCA cannot be justified,” she wrote. “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 U.S. by Canadian officials are detained as a penalty.”


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