CIMM – Asylum and Safe Third Country Agreement – November 29, 2022

Key Messages

• Canada remains firmly committed to upholding a fair and compassionate refugee protection system.
• Immigration, Refugees and Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA) are working together to streamline and process claims as quickly as possible to allow for referral to the Immigration and Refugee Board for final decision making.
• The Canada-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.

Supplementary Messages

Safe Third Country Agreement (STCA)

• 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.

Asylum Claim Volumes

• The number of asylum claims for 2022 is already on track to significantly exceed previous years. From January to October 2022, over 72k asylum claims have been made across Canada, surpassing the pre-COVID annual high of 64k claims in 2019. ^{Footnote 1}
• Budget 2022 earmarked $1.3B over the next 5 years and $331M ongoing for Canada’s asylum system. IRCC is taking a collaborative approach with partner departments and provinces to addressing 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.

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.

Work Permit Access

• Refugee claimants are issued a work permit after their claim has been determined eligible and referred to the Refugee Protection Division of the Immigration and Refugee Board (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, 2022 to enable asylum claimants to receive a work permit 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 Modernization

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

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.

If Pressed: U.S. Approach To Gender-Based Violence

• Since June 2021, the U.S. reversed restrictions on the ability for asylum claims to be considered based on domestic violence, gang violence or family relationships.
• IRCC continues to monitor all developments in U.S. asylum policy as part of the STCA review process.

If Pressed: Pre-STCA Process At The Canada-U.S. Border

• Under the STCA, foreign nationals making a refugee claim at a port of entry along the Canada-U.S. border are returned to the U.S. to pursue their asylum claim, unless they are subject to an exception under the Agreement (e.g. have family in Canada).
• Prior to entry into force of the STCA, foreign nationals making a claim at the land border with the U.S. were subject to the same eligibility and admissibility assessments of those making a refugee claim at an airport or an IRCC or CBSA inland office.

Supporting Facts And Figures

Number of Asylum Claims ^{Footnote 2}

Asylum Intake By Year (2002-2021) ^{Footnote 3}

Eligibility Determinations And Work Permit Issuance ^{Footnote 4}

• As of October 31, 2022, there were 7.3K claims pending eligibility at IRCC and 26.8K pending at CBSA, for a total of 34.1K.
  • During the 8 week period ending on Sep 30, 2022, 80% of IRCC’s eligibility determinations were finalized in 91 days or less.
• As of October 31, 2022, there were approximately 2K initial work permits pending.
  • During the 8 week period ending on October 31, 2022, 80% of the work permit (s.61) applications took 31 days or less to be processed.

Background

Safe Third Country Agreement

• The Safe Third Country Agreement between Canada and the United States (U.S.) is part of the U.S.–Canada Smart Border Action Plan.
• 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.
• Despite qualifying for one of the exceptions outlined above, refugee claimants must still meet all other eligibility criteria of Canada's immigration legislation. For example, a person cannot have been determined to be inadmissible to Canada on grounds of security, violating human or international rights, or criminality.
• If the foreign national meets one of the exceptions under the STCA, and is not inadmissible to Canada, then the claim is processed the same as those who make a claim at an airport, or an IRCC or CBSA inland office.
• Persons determined 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 for 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 6-12 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) in 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.
• Unlike Canada, the U.S. has not codified rules for gender-based asylum claims. As a result, the circumstances under which victims of gender-based violence have been granted asylum in the U.S. have fluctuated over the last few decades, depending on court decisions and different administrations’ policies on immigration.
• Under the Trump Administration, actions were taken to restrict access to asylum – including specifically barring victims of domestic and gender-based violence from receiving protection. These actions were reversed in 2021 by the Biden Administration, which also directed the Attorney General and the Secretary of Homeland Security to pursue regulatory changes to address such circumstances.

Pre-2004 Process At The Canada-U.S. Border

• Prior to the implementation of the Canada-U.S. Safe Third Country Agreement (STCA) in late 2004, all foreign nationals who arrived from the U.S. at a land port of entry to make a refugee claim, were subject to the general requirements of the Immigration and Refugee Protection Act and the Immigration and Protection Regulations which required an in-person immigration examination. All foreign nationals at Canadian Ports of Entry were met by an immigration officer. Canada Border Services (CBSA) officers were and continue to be, designated immigration officers.
• During the examination, the claimant had to answer questions from the officer for the purpose of verifying their identity, this process included the collection of biometrics (fingerprints and photograph). Officers also assessed the admissibility of the foreign national by initiating criminal and background checks and determined the eligibility of the refugee claim for referral to the Immigration and Refugee Board of Canada.
• These foreign nationals were subject to the same eligibility and admissibility assessments that other foreign nationals were when making a refugee claim at an airport or an Immigration, Refugees and Citizenship Canada (IRCC) or CBSA inland office. Factors determining an individual’s eligibility to make a refugee claim include whether the claimant has committed a serious crime, made a previous claim in Canada, or received protection in another country.
• With the implementation of the STCA on December 29, 2004, foreign nationals who approach a CBSA Port of Entry along the Canada-U.S. land border and make a refugee claim, are subject to an additional provision representing the STCA; if they do not meet one of the exceptions to the STCA and their claim is determined ineligible due to the application of the Agreement, the foreign national in question is returned to the U.S. to pursue their refugee claim there.