Processing in-Canada claims for protection: Safe Third Country Agreement (STCA)

As per Immigration and Refugee Protection Regulations section (R159.4) the Agreement applies to:

• land border ports of entry where the person arrives from the US (including arrivals by car, train, bus, foot, or other means not excluded by the agreement)
• locations along the Canada-US land border (including the waters along or across the border) that are not ports of entry, when the person makes a refugee claim within 14 days of entering Canada^{Footnote 1}
• arrivals by train, where the passengers are either examined at the border, or inland when the location has been designated as a port of entry for the purpose of examining persons seeking to enter Canada
• airports, when the person has not had a refugee claim determined in the US, has been ordered removed from that country and, while in transit in Canada, makes a refugee claim to a Canadian officer

As per section (R159.4) the agreement does not apply to

• a location that is not a designated port of entry, such as a point of entry to Canada between designated ports of entry, when the person does not make a refugee claim within 14 days of entering Canada
• a port of entry that is a marine port, including a ferry landing
• airports (refer to the “Where the agreement applies” section above, for the exceptions)
• claims made at inland offices unless it is believed that the claim was made within 14 days of the claimant entering Canada at a location that is not a port of entry

US citizens, regardless of where they reside, and stateless persons if the US is their country of former habitual residence, do not fall under the agreement; therefore, their refugee claim cannot be determined ineligible under Immigration and Refugee Protection Act, paragraph 101(1) (e).

A person is considered a former habitual resident of the US if they meet these two conditions:

• The person is stateless.
• The person has established de facto residence in the US.

The UN Refugee Agency (UNHCR) defines a “stateless person” as a person who is not considered a national by any state under the operation of its law. The actions of a government make a person stateless, not just a person making a declaration of statelessness. The Canadian courts support this view in that the condition of not having a country of nationality must be one that is beyond the power of the person to control. In other words, one cannot “choose” to be stateless.

The UNHCR definition of a “stateless person” is in section (Immigration and Refugee Protection Regulations (justice.gc.ca) R159.1.

Principles for establishing statelessness and country of former habitual residence

When assessing a claim of statelessness, it is important to ascertain that the statelessness is not just the person’s own claim, but has been imposed on the person as a result of the application of a state’s laws that are beyond the power of the person to control; otherwise, a person could claim statelessness merely by renouncing their former citizenship.

The concept of “former habitual residence” is only relevant when the claimant is stateless, that is, the claimant does not have a country of nationality. The country of former habitual residence does not have to be the country where the claimant fears persecution. The term “former habitual residence” implies a situation where a stateless person took up residence in a given country without a requirement for a minimum period of residence. Furthermore, as supported by a number of Federal Court decisions, a country may be a country of former habitual residence even if the claimant is not legally able to return to that country.

Stateless persons whose country of former habitual residence is the US are exempted from the agreement; as such, claims for refugee protection made by these individuals cannot be determined ineligible under paragraph A101(1)(e).

In order to assess whether the person is a former habitual resident of the US, officers should consider whether the claimant has established a significant period of de facto residence in the US. To assist in this assessment, officers may ask questions about the length of residence in the US and where appropriate, request documents attesting to residence in the US. The following are some examples of documents that may assist in establishing de facto residence in the US:

• immigration status
• a driver’s licence
• a social security card
• bank cards and deposit books
• utility bills

It is necessary to distinguish between individuals who were residents and those who were merely in transit in the US.

Normally claimants who arrive at an airport are exempt from the agreement and are permitted to apply for refugee protection in Canada.

However, article 5(b)(i) of the agreement states that any person being removed from the US and who is in transit in Canada, who makes a refugee claim in Canada and whose refugee claim has been rejected by the US, will not have access to Canada’s asylum system. In such a case, the person should be allowed to continue to travel to the country to which they are being removed.

If an individual is being removed from the US and is in transit in Canada but has never had a refugee claim determined in the US, article 5(b)(ii) of the agreement states that this individual should be returned to the US to have their refugee claim examined in that country.

Exceptions to the STCA

In most cases, on the same day that the refugee claim is made, a decision should be made on whether or not an STCA exception applies, or in the case of late arrivals, the next day.

Information on the threshold of proof required (balance of probabilities) for claimants to establish their eligibility for an STCA exception can be found below, in the section “Threshold of proof for determination of eligibility for an exception to the STCA .

If a claim is not eligible for referral to the Refugee Protection Division because the STCA applies (refer to paragraph A101(1)(e)), and yet the claimant claims that they do fall under an exemption, an officer should list all contradictions in the interview notes. They should explain the lack of credibility in detail, if applicable, including the lack of credibility of any claimed anchor relative.

The exceptions are detailed below.

Under Article 4(2)(a) and 4(2)(b) of the Agreement, a family member of a claimant means one of the following:

• A spouse, son, daughter, parent, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew. Under the STCA, in-laws are not considered family members; and
• a legal guardian provided the claimant is under 18 years of age. A guardian is a person who has custody of the claimant or who is empowered to act on the claimant’s behalf by virtue of a court order or written Agreement, or by operation of law.

A marriage that took place abroad must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law. The onus is on the applicant to prove that their marriage is legal where it took place. Canada recognizes common-law and same-sex spouses as family members for purposes of the Agreement. The U.S.A. may not recognize common-law and same sex relationships for the purposes of the Agreement.

and

A claimant arriving from the U.S.A. qualifies for an exception and will not be returned to the U.S.A. if they have:

• A family member who is a Canadian citizen or a permanent resident under the Act and who is in Canada at the time the claim is made
• A family member in Canada who is a protected person within the meaning of subsection A95(2)
• A family member in Canada who is a person in favour of whom a removal order has been stayed in accordance with Section R233 (H&C considerations)
• A family member 18 years of age or older who is physically in Canada, has made a refugee claim that has been referred to the RPD, and
  • the claim has not been rejected or declared abandoned or withdrawn
  • the RPD proceedings have not been terminated under subsection A104 (2), and
  • with respect to a positive RPD decsion, the claim has not been nullified under 104(2)
• A family member who is 18 years of age or older and holds a valid work or study permit (other than the holder of a permit that does not confer status), and who is in Canada at the time the refugee claim is made.

For more information about marriages, common-law and same-sex spouses:

• Processing members of the family class
• Spouse and common-law partner in Canada class.

When a claimant identifies a family member in Canada, the officer must be satisfied that the relationship is one that qualifies the claimant for an exception. The standard of proof is “balance of probabilities”. The claimant is responsible to provide information to establish the relationship and status of the family member.  However, in some cases written documentation, such as birth, marriage certificates etc. may not be available. In such cases, credible testimony may be sufficient provided the officer is satisfied with respect to the claimed relationship. If the testimony is not sufficient, attempt to confirm family relationships and that the relative has the necessary status in Canada. This may be done by:

• contacting the claimed relative;
• review of documents provided by the claimant
• FOSS checks
• review of files held by other CBSA offices
• review of IRB records
• checking city directories, telephone books, internet sites, etc.
• statutory declarations (may be useful but are not required).

Any contradictions or inconsistencies that result in doubt about the claimed relationship should be documented in detail.

Persons identified as a family member in Canada

There is no support expected from the anchor relative. It is sufficient for the claimant to establish that a relative exists and that the relative has the required status in Canada. The anchor relative has no say in whether or not the claimant is allowed to enter Canada.

If the anchor relative has a FOSS ID:

• put a general information (“12”) NCB in FOSS to indicate that this person was identified as an anchor relative.
• read NCBs to determine if the anchor relative has been identified by other claimants. Multiple use of the same anchor relative could merit investigation.

An unaccompanied minor is eligible for an exception to the Agreement and should not be returned to the U.S.A. For the purposes of the STCA an unaccompanied minor is eligible to make a refugee claim in Canada under circumstances in which the minor child:

• is under 18 years of age and is not accompanied by a mother, father or legal guardian, has neither a spouse nor a common-law partner; and
• does not have a mother or father or a legal guardian in Canada or the U.S.A.

Obtain the names of both parents, check to see if either of the parents are in Canada and consider contacting American officials to determine if the parents are present in the U.S.A.

For more information on refugee children refer to procedures for minor children.

A claimant arriving from the U.S.A. will not be returned to the U.S.A. if they are the holder of any of the following valid documents, excluding any document issued solely for the purpose of transit through Canada:

• a permanent resident visa or a temporary resident visa;
• a temporary resident permit issued by the Canadian government;
• a valid work permit;
• a valid study permit;
• travel documents issued to permanent residents by the Canadian government;
• refugee travel papers issued by Immigration, Refugees and Citizenship Canada (IRCC)’s Passport Program.

A person who does not require a visa to travel to Canada, but who required a visa to enter the U.S.A., meets an STCA exception. If a claimant does not require a visa to enter Canada or the U.S.A., the Agreement applies.

For more information:

• Countries whose citizens require a visa to travel to Canada
• Countries in the U.S.A. Visa Waiver Program (USWVP)

Article 6 of the Agreement provides that either Canada or the U.S.A. may decide to adjudicate any claim where to do so would be in the public interest.

Section R159.6 states that a claimant will not be returned to the U.S.A., if the claimant:

• Has, in the U.S.A. or another country, been charged with or convicted of an offence that is punishable by the death penalty.

The burden of proof is on the claimant to prove that they would be subject to the death penalty.

Such claimants are still subject to the normal ineligibility criteria, including A101(1)(f).

A person who is immediately returned to Canada after having been denied entry by the US qualifies for an exception to the agreement. In this situation, entry to Canada is permitted as per section R39(a), and the person is allowed to make a refugee claim that, as per section R159.01, would not be determined ineligible under paragraph A101(1)(c).

The term “balance of probabilities” is the civil standard of proof used in administrative tribunals, unless otherwise specified. It means that the evidence presented must show that the facts as alleged are more probable than not. Accordingly, a party having the burden of proof by a balance of probabilities must be able to prove, by the evidence, that a claim or a fact is more probably true than not true and that the evidence presented must favour or outweigh opposing evidence.

As a standard of proof, “balance of probabilities” is higher than “reasonable grounds to believe” but lower than the “beyond a reasonable doubt” standard used in criminal proceedings.

Claimants may not be aware of the existence of exceptions to the agreement. Officers need to ask probing questions to ensure that claimants have an opportunity to explore all options. The questions below are only examples. All areas of investigation must be explored.

Questions may include:

• Are you a permanent resident of Canada?
• Are you a citizen of the US?
• Are you a citizen of any other country?
• Do you have a family member in Canada? If yes, what is your relationship with them?
• What is that family member’s status in Canada?
• What is your age?
• Did you obtain a visa to enter Canada?
• What country did you travel from?
• Did you obtain a visa to enter the US?
• In what country were you before arriving in the US?
• Were you ever charged with or convicted of a crime in the US or in any other country?

Questions for persons under 18 years of age who are not accompanied by a parent or legal guardian:

• Where is your mother?
• Where is your father?
• Do you have a legal guardian?

Officers must take detailed notes of their review of each possible exception to the agreement. This is especially important if the claimant claims to have a family member in Canada but is unable to provide proof. The notes will be instrumental in proving that the exception was properly investigated and the eligibility decision well-founded.

When claimants are found ineligible under paragraph A101(1)(e), it is necessary to

• have a completed and signed application
• issue the ineligibility document
• input data in the Support System for Intelligence (SSI)
• advise US officials
• remove the person to the US

Foreign nationals whose refugee claims are ineligible as per paragraph A101(1)(e) should, when possible, be removed to the US on the same day (refer to paragraph A49(2)(a)). These claimants are not entitled to apply for a pre-removal risk assessment. No passport or travel document is required. Under the agreement, both countries have 90 days to return ineligible claimants.

Removal procedures

Removal of STCA Additional Protocol cases from a port of entry (POE) may take place immediately following the interception near the POE (for example, on the same day) or within 90 days of the interception, including at CBSA inland offices. CBSA officers should refer to existing removal guidance (enforcement manual ENF10).

Specifically for STCA Additional Protocol cases, officers will be required to provide the following documentation to the Customs and Border Protection officials in the US:

• a determination of (negative) eligibility decision
• a copy of the removal order
• a statutory declaration attesting to evidence of determination under the Additional Protocol