CIMM – Asylum and Safe Third Country Agreement– November 18, 2022

Key Messages

• Canada remains firmly committed to upholding a fair and compassionate refugee protection system.
• The Canada-United States (U.S.) Safe Third Country Agreement (STCA) enables both countries to work together to ensure the compassionate, fair and orderly processing of asylum claims at our shared border.
• Immigration, Refugees and Citizenship Canada (IRCC) continues to work with the Canada Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP), as well as affected provinces and municipalities, to respond to claim volumes.
• IRCC and CBSA are working together to streamline and process claims as quickly as possible to allow for referral to the Immigration and Refugee Board (IRB) for final decision making.
• Per the STCA, individuals should continue to seek asylum in the first safe country in which they enter after fleeing persecution.

Supplementary Messages

• We are committed to protecting the safety of Canadians and keeping our border secure, while ensuring that asylum claimants are treated with compassion and afforded due process under the law.
• The STCA is founded on the belief that both Canada and the U.S. maintain refugee protection programs that meet international standards and both have mature legal systems that offer procedural safeguards. The STCA remains important for managing asylum claims at the Canada-U.S. land border.

If Pressed: STCA Modernization

• Canada continues to work with the U.S. on a range of important border issues, including the STCA.

Asylum claim volumes

• The number of asylum claims for 2022 is already on track to significantly exceed previous years. From January to September 2022, over 62K asylum claims have been made across Canada, approaching the pre-COVID annual high of 64K claims in 2019.^{Footnote 1}
• Budget 2022 earmarked $1.3B over the next five years and
  $331M ongoing for Canada’s asylum system. IRCC is taking a collaborative approach with partner departments and provinces to address the large flow of asylum claimants entering Canada.

Irregular migration (Roxham Road)

• There has been a significant rise in the number of asylum claimants crossing at Roxham Road, Quebec since November 21, 2021 when pandemic related border measures for asylum claimants were lifted.
• The Government of Canada has responded by increasing operational capacity at the border; introducing new processing innovations within the asylum system; investing in temporary housing supports; and dedicating new funding to increase the capacity of the asylum system.
• IRCC continues to work with other federal departments and provincial and municipal partners to maintain operational plans and respond to the high numbers of irregular arrivals.

If Pressed: Closing Roxham Road

• Entry into Canada by foreign nationals, including asylum claimants at Roxham Road, was significantly restricted between March 2020 and November 2021. These temporary restrictions were in place to protect the public health of Canadians in the face of COVID-19, when other border and travel restrictions were in place.
• The current public health environment no longer provides sufficient grounds for such extraordinary restrictions.

If Pressed: Human smuggling at the Canada-U.S. border

• The Government of Canada will continue to discourage irregular crossings into Canada. We encourage those interested in coming to Canada to use regular immigration pathways.
• Coming to Canada via irregular routes can be dangerous, exposing individuals to exploitation of smugglers and other threats. IRCC continues to support the RCMP and CBSA in their efforts to detect and disrupt human smuggling networks, and to combat international criminal organizations that seek to profit from the desperation and vulnerability of others.
• Canada cooperates closely with international partners to prevent and disrupt migrant smuggling attempts destined for Canada by land, air, or sea. The Government of Canada will continue to work with domestic law enforcement agencies and international partners to uphold the rule of law
• For more specifics on these efforts we would defer to the RCMP and CBSA.

Asylum eligibility determinations

• Over recent years, we have made great strides in processing more applications virtually, streamlining our processes and increasing flexibility to respond to the current circumstances and we will continue to test further innovative approaches.
• Given the high volumes, claimants are currently facing longer than usual wait times for eligibility determinations. Claimants are typically issued an Acknowledgement of Claim, which also acts as their certificate for Interim Federal Health coverage, within three days of making a claim. IRCC and CBSA are working to address the existing inventories of claims awaiting an eligibility determination.

If Pressed: Work permit access

• Refugee claimants are only able to be issued a work permit after their claim has been determined eligible and referred to the Refugee Protection Division of the IRB.
• We understand that getting access to work permits is a critical step in ensuring claimants can be self-sufficient and access stable accommodation as they wait for a decision on their asylum claim.
• A new temporary public policy was implemented on November 16 to provide asylum claimants with timely access to open work permits prior to the referral of their claim to the IRB. This will empower asylum claimants to work while they await a decision on their claim, in turn reducing demand on provincial shelters and social support systems.

If Pressed: STCA litigation

• The legislative framework for the STCA was upheld by the Federal Court of Appeal in April 2021. The STCA continues to be in effect while the Supreme Court of Canada litigation is underway. No further comments will be provided at this time.

Supporting Facts And Figures

Eligibility determinations and work permit issuance^{Footnote 3}

• As of October 4, 2022, there were 6.3K claims pending eligibility at IRCC and 25K pending at CBSA, for a total of 31.1K.
  • During the eight week period ending on September 30, 2022, 80% of IRCC’s eligibility determinations were finalized in 91 days or less.
• As of October 4, 2022, there were approximately 1.7K initial work permits pending.
  • During the eight week period ending on September 30, 2022, 80% of the work permit (s.61) applications took 20 days or less to be processed. Generally, a work permit may only be issued to a claimant whose claim has been determined eligible to be referred to the Refugee Protection Division.

Background

Safe Third Country Agreement

• The STCA, in effect since December 2004, requires that asylum claimants seek protection in the first safe country that they enter (i.e., either Canada or the U.S.). The objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, reduce abuse and share responsibility for providing protection to those who meet the refugee definition.
• It only applies to asylum claimants who seek to enter Canada from the U.S. at a designated land port of entry. It does not apply to those who cross irregularly. It also does not apply to U.S. citizens; claimants with family in Canada; unaccompanied minors; holders of certain Canadian documents (such as visas or work or study permits); and public interest exceptions.
• Persons who are not eligible to make an asylum claim in Canada under the STCA are immediately returned to the U.S., where they can request protection from the U.S.
• Modernizing the STCA remains a priority to the Government of Canada. While media coverage and statements by the Prime Minister, Minister Mendicino and Minister Fraser have publicly confirmed that work with the U.S. is underway, no further details can be shared publicly due to the sensitive nature of the discussions.
• The legislative framework for the STCA was upheld by the Federal Court of Appeal in April 2021. This decision was appealed. The STCA continues to apply at the Canada-U.S. border, while the Supreme Court of Canada considers the case. A decision is expected six to 12 months following the hearing held on October 6, 2022.

Review of the U.S. as a safe third country

• The Department continually monitors the U.S. in accordance with subsection 102(2) of the Immigration and Refugee Protection Act: 1) whether the country is party to the Refugee Convention and Convention Against Torture; 2) its policies and practices with respect to claims and with respect to its obligations under the Convention Against Torture; 3) its human rights record; and 4) whether it is party to an agreement with Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Media coverage on human smuggling along the Canada-U.S. border

• RDI and CBC have reported that irregular border crossings between Canada and the U.S., including at Roxham Road, are being supported by organized criminal networks in Mexico, the U.S., and Canada. These networks are helping to smuggle individuals both into Canada, as well as southbound into the U.S. Many but not all of the smuggled individuals seek to claim asylum; some are coming for other reasons, including perceived economic opportunities.^{Footnote 4}
• While Roxham Road constitutes the preferred route for persons seeking asylum in Canada, other smuggled migrants are using different irregular points along the border to cross into Canada from the U.S., or vice versa. Some of these routes have been deadly. In January 2022, for example, media reported on an Indian family of four who died in southern Manitoba while attempting to cross irregularly into the U.S.^{Footnote 5}