Concerns
about
the US-Canada Safe-Third Country Agreement
rightly continue in April 2019 with the new
possibility of its extension to all persons
coming from the US into Canada. Concerns
involve the basic human rights requirement in
the Americas that everyone deserves an
individual hearing of risks before being
passed to any other country – including the
other country in an asylum sharing agreement.
The
Safe Third Country Agreement is an attempt
to create a principled asylum sharing
agreement between two countries, Canada and
the US. A serious flaw in most such
agreements is that they do not adequately
address the need to ensure protection of
persons being transferred from threats that
arise from flaws in procedures in the
receiving country that is deemed safe. An
agreement simply allocates a person to this
or that country to seek asylum there without
taking into account whether that country’s
procedure is capable of recognizing certain
groups of persons as refugees.
Efforts
for agreement on asylum sharing go back a
long way to the early days of the
application of the 1951 Refugee Convention
and 1967 Protocol. The Executive Committee,
EXCOM, of the UN High Commissioner for
Refugees, UNHCR, produced Conclusions on
Refugee Protection. Refugees
without an Asylum Country, Conclusion
No.15 (1979) was the foundation for asylum
sharing in general, and for Large Influxes
and for Individual Asylum Seekers. Individual
Asylum
Seekers are what the Safe Third Country
Agreement allocates. The Conclusion gives
principles to allow States to produce
criteria for deciding which country should
be asked to assume responsibility for an
asylum claim. One principle assigns
asylum based on a “connection” with one of
the States:
“Where,
however, it appears that a person, before
requesting asylum, already has a connection
or close links with another State, he may if
it appears fair and reasonable be called
upon first to request asylum from that
State;”
One
of
the general principles speaks of a
particular kind of connection with another
State – a family member with a status to
remain there:
(e) In the interest
of family reunification and for humanitarian
reasons, States should facilitate the
admission to their territory of at least the
spouse and minor or dependent children of
any person to whom temporary refuge or
durable asylum has been granted;
Unfortunately,
EXCOM
Conclusion No.15 does not raise principles
to deal with a protection risk posed by the
asylum sharing arrangement itself.
Protecting the individual who faces a risk
if returned should be the first priority in
dealing with asylum seekers. Some risk can
come from either country involved in sharing
in the granting of asylum if one country is
unwilling or unable to provide protection to
members of some ethnic, religious or social
groups.
Historically,
risks have come from an asylum system unable
to provide a fair hearing for certain groups
within the US as a result of its dominant
political positions of the day. In the 1980s
the US asylum procedures could not recognise
refugees from Guatemala or El Salvador. At
that time Canada issued regulations allowing
Salvadorians and Guatemalans to be resettled
to Canada from its embassies and consulates
in the US. This scheme anticipated a risk of
increased arrivals at the Canadian border.
Fear
of lack of protection in the US is evidently
one reason for people to come from the US to
Canada to ask for asylum. It is surprising
that the STC Agreement fails to recognize
this possibility by making some strong
affirmation of the signatory States’ aim to
ensure protection of anyone seeking asylum
on their territory extending to the risks
from the application of the asylum sharing
agreement. Lack of adequate procedures in
Canada to ensure protection from such risks
in the US is a problem with the Canada-US
STC Agreement.
The
mechanical
return of persons without adequate checks on
the safety of doing so has been a matter of
international human rights violations. The
European Court of Human Rights found rights
violations when Belgium returned asylum
seekers to Greece, their country of first
entry into Europe, without adequate
procedural protection from the possibility
that inadequate Greek procedures would send
them on to a country of persecution. The
judgment also found that returning persons
to the detention and living conditions in
Greece amounted to sending them to degrading
treatment. (European Court of Human Rights,
MSS v
Belgium & Greece, Application
No.3096/09, Judgment 21 January 2011).
There
is
a similar fair trial due process issue in
the UN model extradition treaty. Extradition
is different but it is a related agreement
because extradition, like asylum sharing,
involves transferring custody of a person
from one government to another (See Tom
Clark in Cooperation with Francois Crépeau,
Human
Rights in Asylum Sharing and other Human
Transfer Agreements, 22 NQHR 217,
June 2004.). Extradition is transfer for a
criminal trial. Asylum sharing is transfer
for a status determination. The UN model
treaty for extradition permits no transfer
to another State, that is no extradition,
when there is a risk of consequential
torture or cruel or unusual treatment or
punishment. It also requires no transfer
when there is lack of the minimal guarantees
for fair trial criminal proceedings in the
receiving country. This is a fair trial as
set out in the UN Covenant on Civil and
Political Rights, Article 14. (UN Model
Treaty on Extradition, UN Doc. A/RES/45/116,
14 December 1990, Annex, Article 4.).
The
UN
reference to fair trial criminal proceedings
when transferring a person under extradition
has particular relevance for immigration
proceedings in the Americas. In the
Americas, the Inter-American Commission on
Human Rights has made clear that American
Declaration Article XXVI Right
to due process applies to immigration
proceedings. The Commission also found that
American Convention, Article 8, Right
to a Fair Trial, [the entire article]
establishes a baseline of due process to
which all migrants whatever their status
have a right (Inter-American Commission on
Human Rights, Report
on Immigration in the United States …,
OAS Doc. OEA/Ser.L/V/II.,
Doc. 78/10, 30 December 2010, paras. 56 & 58).
Thus
the
human rights obligations in the Americas
call for particularly robust fair trial
procedures in immigration procedures. Yet
reference to such human rights obligations
for due process in asylum proceedings is
missing from the STC Agreement.
An
asylum
sharing agreement in the Americas should
make an over-riding commitment to protection
of the individual from the full range of
consequential risks of the transfer of
persons - including not only the substantive
risk of return to torture or cruel or
inhuman treatment or punishment, but also
the lack of a fair trial due process to
properly adjudicate such risks. Such a
commitment to protection would reflect the
current state of international human rights
law concerning return agreements as revealed
in jurisprudence of the international human
rights treaty bodies.
Beyond
the
fundamental need to protect the person,
there is the secondary question of referral
to a country for an asylum hearing based on
“connection” in the 1979 EXCOM Conclusion
No.15. When a proposed STC Agreement was
first a leaked draft in the early 1990s,
there was no provision for referring persons
to a Canadian asylum hearing when they had a
family connection in Canada. Some raised
concerns - notwithstanding a general dislike
of a STC Agreement. The current STC is the
better for a reference to family connection
as a basis for deciding which country hears
an asylum claim.
However,
the
original notion of “connection” in
Conclusion No.15 is distinct from family.
Wider connection criteria have not been
included in the STC Agreement itself -
beyond the provision allowing for a State to
exercise discretion to hear a person’s
asylum claim.
“Connection”
has
been used in practices for the resettlement
of refugees. Vietnamese known to have worked
with the Americans were resettled to the US
in the aftermath of the war in Vietnam.
Afghani interpreters who worked with
Canadians in pre-2014 Afghanistan have an
arguable connection with Canada. Persons who
worked with Canadian companies overseas
should be deemed to have a connection with
Canada. Criteria along these lines should be
added.
In
sum,
pointing out the broad problems with the STC
Agreement that should be addressed can be
helpful. Adding protection elements to
ensure protection for individuals and groups
from all the risks of return to the other
country, including the risk of an unfair
hearing, is the biggest gap to be closed. It
calls for robust fair hearing requirements
in both countries. Additional criteria
allowing for a case to be heard based on a
“connection” as well as a family member in
one of the countries would bring the STC
Agreement closer to the original UNHCR
framework for asylum sharing.