|
![](/web/20061026005747im_/http://www.cic.gc.ca/images/common/yellow_line.gif) |
Home » Policy
and Regulations » Agreements » Safe Third Country
Final Text of the Safe Third Country Agreement
This is the text of the Agreement that was signed by officials of Canada and
the United States on December 5, 2002, as part of the Smart
Border Action Plan. The Agreement allows both countries to more effectively manage the flow
of refugee claimants.
![line](/web/20061026005747im_/http://www.cic.gc.ca/images/common/rule.gif)
AGREEMENT
BETWEEN
THE GOVERNMENT OF CANADA
AND
THE GOVERNMENT OF THE UNITED
STATES OF AMERICA
FOR COOPERATION IN THE EXAMINATION
OF REFUGEE STATUS CLAIMS
FROM NATIONALS OF THIRD COUNTRIES
THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED
STATES OF AMERICA (hereinafter referred to as “the Parties”),
CONSIDERING that Canada is a party to the 1951 Convention relating
to the Status of Refugees, done at Geneva, July 28, 1951 (the “Convention”),
and the Protocol Relating to the Status of Refugees, done at New York,
January 31, 1967 (the “Protocol”), that the United States
is a party to the Protocol, and reaffirming their obligation to provide
protection for refugees on their territory in accordance with these instruments;
ACKNOWLEDGING in particular the international legal obligations
of the Parties under the principle of non-refoulement set forth in the
Convention and Protocol, as well as the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New
York, December 10, 1984 (the “Torture Convention ”) and reaffirming
their mutual obligations to promote and protect human rights and fundamental
freedoms.
RECOGNIZING and respecting the obligations of each Party under
its immigration laws and policies;
EMPHASIZING that the United States and Canada offer generous
systems of refugee protection, recalling both countries’ traditions
of assistance to refugees and displaced persons abroad, consistent with
the principles of international solidarity that underpin the international
refugee protection system, and committed to the notion that cooperation
and burden-sharing with respect to refugee status claimants can be enhanced;
DESIRING to uphold asylum as an indispensable instrument of the
international protection of refugees, and resolved to strengthen the
integrity of that institution and the public support on which it depends;
NOTING that refugee status claimants may arrive at the Canadian
or United States land border directly from the other Party, territory
where they could have found effective protection;
CONVINCED, in keeping with advice from the United Nations High
Commissioner for Refugees (UNHCR) and its Executive Committee, that agreements
among states may enhance the international protection of refugees by
promoting the orderly handling of asylum applications by the responsible
party and the principle of burden-sharing;
AWARE that such sharing of responsibility must ensure in practice
that persons in need of international protection are identified and that
the possibility of indirect breaches of the fundamental principle of
non-refoulement are avoided, and therefore determined to safeguard for
each refugee status claimant eligible to pursue a refugee status claim
who comes within their jurisdiction, access to a full and fair refugee
status determination procedure as a means to guarantee that the protections
of the Convention, the Protocol, and the Torture Convention are effectively
afforded;
HAVE AGREED as follows:
ARTICLE 1
- In this Agreement,
- “Country of Last Presence” means that country,
being either Canada or the United States, in which the refugee claimant
was physically present immediately prior to making a refugee status
claim at a land border port of entry.
- “Family Member” means the spouse, sons, daughters,
parents, legal guardians, siblings, grandparents, grandchildren,
aunts, uncles, nieces, and nephews.
- “Refugee Status Claim” means a request from
a person to the government of either Party for protection consistent
with the Convention or the Protocol, the Torture Convention, or
other protection grounds in accordance with the respective laws of each
Party.
- “Refugee Status Claimant” means any person
who makes a refugee status claim in the territory of one of the
Parties.
- “Refugee Status Determination System” means
the sum of laws and administrative and judicial practices employed
by each Party’s national government for the purpose of adjudicating
refugees status claims.
- “Unaccompanied Minor” means an unmarried refugee
status claimant who has not yet reached his or her eighteenth birthday
and does not have a parent or legal guardian in either Canada or
the United States.
- Each Party shall apply this Agreement in respect of family members
and unaccompanied minors consistent with its national law.
ARTICLE 2
This Agreement does not apply to refugee status claimants who are citizens
of Canada or the United States or who, not having a country of nationality,
are habitual residents of Canada or the United States.
ARTICLE 3
- In order to ensure that refugee status claimants have access to
a refugee status determination system, the Parties shall not return
or remove a refugee status claimant referred by either Party under the
terms of Article 4 to another country until an adjudication of the
person’s refugee status claim has been made.
- The Parties shall not remove a refugee status claimant returned
to the country of last presence under the terms of this Agreement to
another country pursuant to any other safe third country agreement or regulatory
designation.
ARTICLE 4
- Subject to paragraphs 2 and 3, the Party of the country of last
presence shall examine, in accordance with its refugee status determination
system, the refugee status claim of any person who arrives at a land border
port of entry on or after the effective date of this Agreement and
makes a refugee status claim.
- Responsibility for determining the refugee status claim of any
person referred to in paragraph 1 shall rest with the Party of the
receiving country, and not the Party of the country of last presence, where
the receiving Party determines that the person:
- Has in the territory of the receiving Party at least one family
member who has had a refugee status claim granted or has been granted
lawful status, other than as a visitor, in the receiving Party’s
territory; or
- Has in the territory of the receiving Party at least one family
member who is at least 18 years of age and is not ineligible to
pursue
a refugee status claim in the receiving Party’s refugee status
determination system and has such a claim pending; or
- Is an unaccompanied minor; or
- Arrived in the territory of the receiving Party:
- With a validly issued visa or other valid admission document,
other than for transit, issued by the receiving
Party; or
- Not being required to obtain a visa by only the receiving
Party.
- The Party of the country of last presence shall not be required
to accept the return of a refugee status claimant until a final determination
with respect to this Agreement is made by the receiving Party.
- Neither Party shall reconsider any decision that an individual
qualifies for an exception under Articles 4 and 6 of this Agreement.
ARTICLE 5
In cases involving the removal of a person by one Party in transit through
the territory of the other Party, the Parties agree as follows:
- Any person being removed from Canada in transit through the United
States, who makes a refugee status claim in the United States, shall
be returned to Canada to have the refugee status claim examined by
and in accordance with the refugee status determination system of Canada.
- Any person being removed from the United States in transit through
Canada, who makes a refugee status claim in Canada, and:
- whose refugee status claim has been rejected by the United
States, shall be permitted onward movement to the country to
which the person is being removed; or
- who has not had a refugee status claim determined by the United
States, shall be returned to the United States to have the refugee
status claim examined by and in accordance with the refugee status
determination system of the United States.
ARTICLE 6
Notwithstanding any provision of this Agreement, either Party may at
its own discretion examine any refugee status claim made to that Party
where it determines that it is in its public interest to do so.
ARTICLE 7
The Parties may:
- Exchange such information as may be necessary for the effective implementation
of this Agreement subject to national laws and regulations. This information
shall not be disclosed by the Party of the receiving country except
in accordance with its national laws and regulations. The Parties shall
seek to ensure that information is not exchanged or disclosed in such
a way as to place refugee status claimants or their families at risk
in their countries of origin.
- Exchange on a regular basis information on the laws, regulations
and practices relating to their respective refugee status determination
system.
ARTICLE 8
- The Parties shall develop standard operating procedures to assist
with the implementation of this Agreement. These procedures shall
include provisions for notification, to the country of last presence,
in advance
of the return of any refugee status claimant pursuant to this Agreement.
- These procedures shall include mechanisms for resolving differences
respecting the interpretation and implementation of the terms of
this Agreement. Issues which cannot be resolved through these mechanisms
shall be settled through diplomatic channels.
- The Parties agree to review this Agreement and its implementation.
The first review shall take place not later than 12 months from the
date of entry into force and shall be jointly conducted by representatives
of each Party .The Parties shall invite the UNHCR to participate
in this review. The Parties shall cooperate with UNHCR in the monitoring
of this Agreement and seek input from non-governmental organizations.
ARTICLE 9
Both Parties shall, upon request, endeavor to assist the other in the
resettlement of persons determined to require protection in appropriate
circumstances .
ARTICLE 10
- This Agreement shall enter into force upon an exchange of notes
between the Parties indicating that each has completed the necessary
domestic legal procedures for bringing the Agreement into force.
- Either Party may terminate this Agreement upon six months written
notice to the other Party.
- Either Party may, upon written notice to the other Party, suspend
for a period of up to three months application of this Agreement.
Such suspension may be renewed for additional periods of up to three
months. Either Party may, with the agreement of the other Party, suspend
any part of this Agreement.
- The Parties may agree on any modification of or addition to this
Agreement in writing. When so agreed, and approved in accordance
with the applicable legal procedures of each Party, a modification
or addition shall constitute an integral part of this Agreement.
IN WITNESS WHEREOF, the undersigned, being duly authorized by
their respective governments, have signed this Agreement.
DONE at Washington D.C., this 5th day of December
2002, in duplicate in the English and French languages, each text being
equally authentic.
![signature](/web/20061026005747im_/http://www.cic.gc.ca/english/policy/images/safe-sig-1.gif) |
|
![signature](/web/20061026005747im_/http://www.cic.gc.ca/english/policy/images/safe-sig-2.jpg) |
FOR THE GOVERNMENT
OF CANADA |
|
FOR THE GOVERNMENT
OF THE UNITED STATES
OF AMERICA |
![line](/web/20061026005747im_/http://www.cic.gc.ca/images/common/rule.gif)
Procedural Issues Associated with
Implementing the
Agreement for
Cooperation in the Examination of
Refugee Status
Claims from
Nationals of Third Countries
Statement of Principles
The Parties intend to act according to the following principles:
- Opportunity for Third Party During Proceedings. Provided no undue
delay results and it does not unduly interfere with the process, each
Party will
provide an opportunity for the applicant to have a person of his or
her own choosing present at appropriate points during proceedings related
to
the Agreement. Details concerning access to proceedings will be set
out in operational procedures.
- Proof of Family Relationship. Procedures will acknowledge that the
burden of proof is on the applicant to satisfy the decision-maker that
a family relationship exists and that the relative in question has
the required status. Credible testimony may be sufficient to satisfy
a decision-maker
in the absence of documentary evidence or computer records. It may
be appropriate in these circumstances to request that the applicant and
the relative provide
sworn statements attesting to their family relationship.
- Standard for Determining Eligibility for an Exception to the
Agreement. The United States will use the preponderance of evidence standard to
determine whether an applicant qualifies for an exception under the Agreement.
Canada
will use the balance of probabilities standard to determine whether
an applicant qualifies for an exception under the Agreement. These standards
are functionally equivalent.
- Review. Each Party will ensure that its procedures
provide, at a minimum: (1) an opportunity for the applicant to understand
the basis
for the proposed
determination; (2) an opportunity for the applicant to provide
corrections or additional relevant information, provided it does not
unduly delay
the process; and (3) an opportunity for the applicant to have a separate
decision-maker,
who was not involved in preparing the proposed determination, review
any proposed determination before it is finally made.
- Record of Interview and Eligibility Determination. Upon request
and subject to national law, Canada and the United States will share
all written
materials pertaining to whether an applicant qualifies for an exception
under the Agreement. Subject to national law, this information will
also be available to the applicant.
- Requests to Reconsider Exception Determinations. Each Party will
have the discretion to request reconsideration of a decision by either
Party
to deny an applicant’s request for an exception under the Agreement
should new information, or information that has not previously been
considered, come to light.
- No Reconsideration of Positive Determinations. Neither Party will
reconsider any decision that an applicant qualifies for an exception
under the Agreement.
- Timeframe for Return Under the Agreement. Returns
to the country of last presence under the Agreement must take place within
90 days after
the original refugee status claim is made.
|