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Refugee Rights

Federal Court rules that U.S. ‘not safe’ for asylum seekers

In 2017, Nedira Mustefa sought refugee protection at the Canadian border and found herself in solitary confinement in a small cold cell with no blanket and little food in a U.S. prison, without being charged for any crime. Her story is the real-life outcome of something called the Safe Third Country Agreement (STCA) between Canada and the United States. Under this agreement Canada sends refugee claimants back to the U.S., assuming it is a safe country for asylum seekers. Her case, along with seven others, became part of a court challenge of the STCA, with the support of the Canadian Council of Refugees, the Canadian Council of Churches, and Amnesty International. 

On July 22, 2020, Federal Court Justice Ann McDonald found the evidence to be a “shock to the conscience” and declared that their basic human rights were violated. She cited the evidence to show that the outcomes contradict the stated purpose of the agreement. For these reasons she ruled that the agreement is unconstitutional and gave the federal government six months to change it. The ruling was welcomed by many churches who sponsor refugees and advocate for the rights of refugees as a justice issue. 

Stop returning claimants

This ruling confirms what refugees, churches and others have been saying for some time. The ruling is strong because of the extensive and compelling evidence brought forward by the legal team, led by highly regarded refugee lawyer Andrew Brouwer. Similar real-life experiences were shared with federal officials earlier, but they continued to claim that the U.S. treats asylum seekers fairly, in spite of the evidence. The judgment is also noteworthy because the Federal Court does not easily over-rule parliamentary decisions.  

The Canadian Council of Churches (CCC), along with other organizations, followed the ruling with a letter asking for two actions. First, immediately stop turning over refugee claimants to the U.S., given the documented evidence of what happens to them.

Secondly, the CCC asked the federal government to accept the ruling and suspend the STCA rather than appealing the decision to higher courts.  

On the other side of the border, a National Public Radio report called the ruling a harsh rebuke of U.S. policy and quoted U.S. refugee lawyers who said that conditions have become even worse than the evidence in this court case. That adds weight to the CCC call to immediately stop sending refugee claimants back for what the judge ruled to be inhumane treatment and a violation of their rights as persons, regardless of their life story. 

Appeal ignores basic rights

Initially, Public Safety Minister Bill Blair said the agreement remains in effect while they study the ruling, citing January 22, 2021 as the date the court ruling comes into effect. Right now COVID-19 border closures mean fewer claimants at border crossings. The judge found no evidence to support government claims that suspending the agreement would overwhelm Canada’s refugee system.

It was a surprise when Minister Blair stated on a Friday afternoon, August 21, that the government will appeal the decision. Legal clarity was given as the reason for the appeal, without providing any substantive information to the parties involved or the public. Appeals take a long time to work through the courts, putting refugee claimants back into jeopardy.

If Canada sends refugee claimants back to the U.S. when the border opens, it will be, with full knowledge, complicit in arbitrary detention in inhumane conditions and deportation back to countries where they are likely to be tortured, in violation of Canadian law and international laws that Canada supposedly upholds. There is a possibility that the results of the November election in the U.S. lead to a change in the way the U.S. treats refugee claimants. 

Conscience and Parliament 

The Conservative Party issued a statement supporting an appeal of the decision, without addressing the substance of the ruling. That raises questions about whether the Conservative Party supports such basic human rights as freedom from arbitrary imprisonment and torture, as well as questions about its support for the rights of refugees. The New Democratic Party expressed support for suspending the STCA, a position it also advanced during earlier parliamentary discussions. The Green Party has supported ending the STCA for some time, highlighting U.S. discriminatory treatment of some claimants as one reason to end it. The Bloc Quebecois called for an end to the STCA in 2019 as a response to the increase in illegal crossings into Quebec at Roxham Road, and as part of its demand that Quebec have more control over immigration policy. 

This is one issue where members of parliament who act on conscience, across party lines, could pressure the government to do the right thing. When parliament returns in September, will they stand up to protect the basic rights of people like Nedira who are fleeing persecution and looking for a safe place to rebuild a life? 


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