Federal court rules U.S. unsafe for refugees


In a stunning decision released last week, our federal court struck down our agreement with the United States, which renders refugee claimants seeking entry to Canada by land ineligible to make a claim here.

 




In December 2004, Canada and the U.S. implemented an agreement in which each declared the other a “safe country” for refugee claimants.

 




Canadian refugee advocates became concerned for the fate of asylum seekers destined here who, they believed, would be unfairly denied needed protection down south.

 




The “Safe Third Country Agreement” addressed this concern by requiring our federal cabinet to conduct a “continuing review” of the policies and practices of the “safe country,” i.e. the U.S.





Our cabinet never conducted the reviews, but Canadian refugee advocacy groups did. They brought their findings to court and alleged the U.S. was not, in fact, safe for those seeking safe haven.





Our federal court agreed.





The court found the experts presented by the applicants were more credible, “both in terms of their expertise and the sufficiency, directness and logic of their reports” than the experts marshalled by our government.





The court couldn’t understand why our government didn’t bother to conduct the required review of American refugee practices even after the release of the Maher Arar report, which put into serious question U.S. assurances that it does not deport people to places where they may be tortured.





The court didn’t set out to decide which system was better or more generous. Instead, it sought to determine if the U.S. was meeting the minimum standards required of it.





The court was troubled by many deficiencies. For example, the U.S. generally bars asylum claims after one year of the claimants’ arrival. The court ruled this could disproportionately affect gays who may have to deal with cultural issues of shame, and women who may be unaware that spousal abuse may give rise to protection. Also, the U.S. Patriot Act renders refugees ineligible for protection if they are deemed to have given “material support” to a terrorist organization even where it is done under duress. In contrast, Canada makes allowances for duress, i.e. when it gave protection to a woman who was forced to cook for the Liberation Tigers of Tamil Eelam.





The groups had evidence that claimants in the U.S. were more likely to be detained and had less access to counsel than claimants here. The court, however, couldn’t find proof these factors would result in the actual denial of asylum.





The court’s 124-page decision is not likely to be the last word on the matter since it has given the parties the opportunity to propose questions for appeal.





Therefore, the current situation will stand … for now.




metro@migrationlaw.com