Processing in-Canada claims for protection: The Safe Third Country Agreement

As per (R159.4) the Agreement applies to:

• Land border ports of entry where the person arrives from the U.S.A. (includes arrivals by car, train, bus, foot or other means not excluded by the Agreement);
• 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 conducting the examination of persons seeking to enter Canada; and
• Airports, when the person has not had a refugee claim determined in the U.S.A., has been ordered removed from that country, and while in transit through Canada, makes a refugee claim to a Canadian officer.

As per (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;
• A Port of Entry that is a marine port, including a ferry landing;
• Airports (see Where the Agreement applies above, for the exception); and
• Claims made at inland offices.

American citizens regardless of where they reside and stateless persons if the U.S.A. is their country of former habitual residence, do not fall under the Agreement; therefore, their refugee claim cannot be determined ineligible under A 101(1) (e).

In order to establish whether a person is considered a former habitual resident of the U.S.A., two conditions must be met:

• The person should be stateless;
• The person must have established de facto residence in the U.S.A.

The UNHCR defines a “stateless person” as a person who is not considered a national by any State under the operation of its law. It is the action of a government that makes a person stateless, not just a declaration of statelessness by the person. This view is supported by the Canadian courts 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.

Principles for establishing statelessness and country of former habitual residence:

When assessing a claim of statelessness, it is important to ascertain that the statelessness has been imposed on the person as a result of the application of a state’s laws which are beyond the power of the person to control and not just by the person’s own claim; 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 in a number of decisions by the Federal Court, a country may be a country of former habitual residence even if the claimant is not legally able to return to that country.

Under the Agreement, stateless persons whose country of former habitual residence is the U.S.A. are exempted from the Agreement; as such, claims for refugee protection made by these individuals cannot be determined ineligible under A101(1)(e).

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

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

It is necessary to distinguish between individuals who were residents as opposed to others who merely transited through the U.S.

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) states that any person being removed from the U.S.A. and who is in transit through Canada, who makes a refugee claim in Canada and whose refugee claim has been rejected by the U.S.A., will not have access to Canada’s asylum system. In such a case the person should be allowed to continue en route to the country to which they are being removed.

If an individual is being removed from the U.S.A. and is in transit through Canada, but has never had a refugee claim determined in the U.S.A., Article 5(b)(ii) of the Agreement states that such individuals should be returned to the U.S.A. to have their refugee claim examined in that country.

The Agreement is not applicable to claimants who enter between ports of entry (R159.4). A land border port of entry is any designated land port of entry as in Schedule 1 of the Regulations.

“Arrival” at a land border port of entry generally includes persons:

• presenting themselves for inspection at a port of entry
• coming or attempting to come into the country through a port of entry (whether or not they present themselves for inspection)
• apprehended or continuously observed crossing the land border by a port official, within the physical boundaries of the port or in the immediate vicinity of the port.

Exceptions under R159.5 apply at land ports of entry only.

See the full ports of entry list

Exceptions to the Safe third country Agreement

In most cases a decision as to whether an exception applies to a case should be made on the day the refugee claim is made, 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 exception to the Agreement can be found below in the section: Threshold of proof for determination of eligibility for an exception to STCA.

If a claim is not eligible for referral to the RPD because the STCA applies (101(1)(e)), and yet the claimant claims that they do fall under an exemption, list all contradictions in the interview notes and, if applicable, explain lack of credibility in detail, 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 U.S.A. qualifies for an exception to the Agreement. In this situation entry to Canada is permitted as per R39(a) and the person is allowed to make a refugee claim.

“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 persuade, 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.

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

Claimants may not be aware of the existence of exceptions to the Agreement. Ask probing questions to ensure that claimants have an opportunity to explore all options. The questions below are examples only, and all areas of investigation must be explored.

Questions may include but are not limited to:

• Are you a permanent resident of Canada?
• Are you a citizen of the United States of America?
• Are you a citizen of any other country?
• Do you have a family member in Canada? If yes, what is the relationship?
• 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 United States?
• In what country were you before arriving in the United States?
• Were you ever charged with or convicted of a crime in the United States or 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?

Take detailed notes of the 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 101(1)(e), it is necessary to:

• have a completed and signed application
• issue the ineligibility document
• input data in SSI
• advise U.S.A. officials
• remove the person to U.S.A. .

Foreign nationals whose refugee claims are ineligible pursuant to A101(1)(e) should be removed to the U.S.A. on the same day [A49(2)(a)]). They are not entitled to apply for a PRRA. There is no requirement for a passport or travel document. Under the Agreement, both countries have 90 days within which to return ineligible claimants.

Removal procedures

Officers effecting removals to the U.S.A. must do the following:

• advise the person that they will be returned to the U.S.A.
• Fax Notification Form (IMM5569) entitled “Notification of the return of a non-resident alien under the terms of the Agreement between Canada and the United States for Co-operation in the examination of refugee status claims by nationals of third countries” to the designated U.S.A. official at the receiving port of entry. Then telephone to confirm that the person will be returned. Both the fax and the phone call are a notification to the United States authorities rather than a request.

• seize any fraudulent document;
• take copies of all genuine documents and return the originals to the ineligible claimant if they are not being escorted back to the U.S.A.
• fax copies of any fraudulent documents to the U.S.A. officials
• if the person will be escorted, the escort officer should keep the documents and give them to the U.S.A. officials
• complete statistical report for RHQ
• enter records including IMM 0056 (Certificate of Departure) in FOSS.

To the person being returned to the U.S.A. give copies of the:

• Notification Form (IMM 5569)
• A44 (1) Report
• negative eligibility decision
• removal order.

In most cases ineligible claimants will be returned to the U.S.A. unescorted. However, minor children or uncooperative and/or dangerous persons should be escorted. Officers at ports of entry will continue to determine the need for an escort based on the criteria outlined in ENF 10, Section 23 (PDF, 869.84 KB). An escort may also be advisable if there is a serious concern about the ineligible claimant destroying documents.

As a result of a negative eligibility decision under the Agreement, it is necessary to share with U.S.A. officials certain biographical, personal information about the claimant at the time of removal. Information shared is subject to the Privacy Act and in accordance with the Canada-US Statement of Mutual Understanding on Information Sharing 2003 (SMU) and its Asylum Annex. The following information may be disclosed:

• port and date of entry to Canada
• location of Canadian processing office
• surname and given name
• address
• sex
• date and place of birth
• exception(s) applied for
• travel document or travel document number (genuine or fraudulent).

Information should be shared using the most secure and efficient method.

Further instructions:

• Information-sharing manual (PDF, 192.69 KB)
• Reviewing CPIC and NCIC
• Information-sharing with the United States (PDF, 374.21 KB)

Each port must track Safe Third Country removals and prepare required statistical reports for national monitoring and evaluation of the Agreement.

FOSS Records for STCA

The “Eligibility Results and Referral” screen in the Refugee Monitoring Menu tracks Safe Third statistics.

Enter information in the field “Exception Req. (Y/N)” to record whether or not the claimant requested an exception. Only in cases where the claimant is a U.S.A. citizen or former habitual resident of the U.S.A., may this field be left blank due to the fact that U.S.A. citizens and former habitual residents are exempted from application of the STCA.

The type of exception will be entered as a code which will record the category of the exception applied for. Up to 2 codes can be entered, each separated by a comma. In the case of a claimed exception because of an anchor relative, an NCB should be added in FOSS to indicate the exception used and details of the claimed relative. Coding information for STCA can be found in the FOSS system user guide.