Overlooking Lived Experiences: Access to Asylum & Canada’s Safe Third Country Agreement

Canada’s Safe Third Country Agreement limits who can seek asylum in Canada.

As access to asylum narrows in the United States, Canada’s continued reliance on the Safe Third Country Agreement (STCA) has drawn renewed attention. CMS affiliate and Law Professor Efrat Arbel traces STCA legal challenges from 2007 to 2023 to reveal how the courts erroneously focus on the way the law appears on the books, rather than how it operates on the ground.

“As Canada moves towards enhanced border restrictions, it is imperative for stakeholders to understand how the law actually operates at the land border, and to pay attention to the lived experiences of the people who cross it.”

Efrat Arbel

Associate Professor, UBC Peter A. Allard School of Law

Key Findings

The Canada-US Safe Third Country Agreement (STCA) limits access to refugee protection in Canada by disallowing asylum seekers who arrive from the United States from seeking refugee protection in Canada.
Asylum seekers at the Canadian land border are almost always returned to the U.S. The agreement assumes that asylum seekers have access to protection in the United States. Canadian law offers few, if any, meaningful legal avenues through which to contest returns.
Canadian appellate courts have not sufficiently addressed the realities of asylum seekers who reach Canada’s borders. Ongoing STCA challenges, including at the Supreme Court of Canada, have mischaracterized the agreement’s impacts and overlooked lived experiences.

Recommendations

As the legal challenges to the STCA continue, Canadian courts should evaluate the agreement’s legal validity by reference to how it operates in practice. This process should examine how the STCA operates on the ground, paying attention to lived experiences.
Courts should consider how asylum seekers’ positionality and vulnerabilities shape access to legal remedies. Without this, the STCA’s operations and effects cannot be fully understood.

Implications for Current Events

It has been one year since U.S. President Donald J. Trump signed an executive order titled “Protecting the American People Against Invasion” (EO 14159). Since then, the United States has ended asylum processing at all U.S. ports of entry, increased enforcement against noncitizens, increased deportations, and revoked other forms of humanitarian protection – like Temporary Protected Status – for those both seeking protection and individuals who had already been granted humanitarian protection.

UBC Professor Efrat Arbel’s research shows that under the STCA, asylum seekers are routinely turned back to the U.S., with almost no chance of accessing asylum or other forms of legal protection in Canada. The recent changes in the United States’ refugee determination laws provide yet more proof that the United States is not a “safe” country for refugees and should not be designated as such under Canadian law.

About the Authors

Efrat Arbel is an Associate Professor at the UBC Peter A. Allard School of Law. Her research is focused on Canadian immigration detention, refugee protection, and border governance. She has published widely in these fields. Her research has helped shaped law and policy in Canada and has introduced creative tools to advance legal education and public engagement.

Marjorie Rugunda is a PhD student in the department of Gender, Race, Sexuality and Social Justice at the University of British Columbia. She holds a BA degree from Rhodes University, South Africa and a Master’s degree from the University of Calgary. Her current research studies how institutions within Africa represent entrenched colonial legacies that shape contemporary social and political relations in (post)colonial contexts.

Original Research

Arbel, Efrat. “Border Trouble: Critical Reflections on the Canada–US Safe Third Country Agreement Litigation.” International Journal of Migration and Border Studies 8, no. 3–4 (2024)

Document details

This publication is part of the CMS Migration Insights Series. The research briefs synthesize peer-reviewed, published academic research by CMS affiliates.