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Because US Can't Be Counted On To Uphold Basic Rights, Canadian Court Strikes Down Asylum Agreement

"The Federal Court confirmed what we have been saying for years: sending refugees back to the United States is not safe."

by Andrea Germanos

In a decision hailed as a win for refugee rights, a federal judge in Canada ruled Tuesday that the "Safe Third Country Agreement" between Canada and the U.S. is invalid because it fails to guarantee migrants' rights to liberty and security, in effect an admission that the U.S. is not a safe country for those seeking refugee protection.

Canadians for Justice and Peace in the Middle East called the ruling "a victory for asylum seekers."

The bilateral agreement known as STCA, which went into effect in 2004, requires migrants presenting themselves at official Canada-U.S. border points of entry to be returned to the country where they first arrived to present their claims under the assumption that claimants "could have found effective protection" in either of the two countries.

The Canadian Council for Refugees (CCR), Amnesty International, and the Canadian Council of Churches brought forth the challenge along with refugee claimants including Nedira Mustefa, an Ethiopian national.

Mustefa tried in 2017 to enter Canada from the U.S. but was returned to American soil where she was immediately imprisoned and held in solitary confinement for one week—a time she told the court was "a terrifying, isolating, and psychologically traumatic experience." She was then detained with others who had criminal convictions and "did not know when [she] would be released, if at all."

Justice Ann Marie McDonald wrote that that the agreement violates Charter-granted rights and said "Canada cannot turn a blind eye" to what happened to Mustefa. From her ruling:

The applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the U.S. Although the U.S. system has been subject to much debate and criticism, a comparison of the two systems is not the role of this court, nor is it the role of this court to pass judgment on the U.S. asylum system. The narrow focus here is the consequences that flow when a refugee claimant is returned to the U.S. by operation of the STCA. The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by U.S. officials. In my view, the risk of detention for the sake of "administrative" compliance with the provisions of the STCA cannot be justified. Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.

In a statement welcoming the ruling, CCR president Dorota Blumczynska said: "The court could hardly fail to be moved by the testimonies of the appalling experiences of people in the U.S. immigration detention system, after Canada closed the doors on them. Their experiences show us—and convinced the court — that the U.S. cannot be considered a safe country for refugees."

The agreement remains in effect, however, because McDonald gave the Canadian government six months to respond. An appeal is possible.

In light of that time frame, Alex Neve, secretary general of Amnesty International Canada, said "it is imperative that Canada immediately end the return of claimants to the U.S."

Neve said the pact has been "the source of grave human rights violations for many years, unequivocally confirmed in this ruling."

"That cannot be allowed to continue one more day," he said, "and is of even greater concern now given the prevalence of Covid-19 in immigration detention in the United States."

Andrea Germanos is a staff writer at Common Dreams.

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