Government Response to the Report of the Standing Committee on Citizenship and Immigration

Safe Third Country Regulations

May 2003

To better understand the Government's response to the Standing Committee's report, it is important to consider the broad purpose of the Safe Third Country Agreement and the transparent and consultative process that characterized its development and will continue to characterize its implementation and review.

The Safe Third Country Agreement is built on the foundation that both Canada and the United States maintain refugee protection programs that meet international standards and both have mature legal systems that offer procedural safeguards. The primary purpose of the Agreement is to reinforce refugee protection by establishing rules for the sharing of responsibility for hearing refugee claims between Canada and the United States. The United Nations High Commissioner for Refugees (UNHCR) has stated that responsibility-sharing agreements between states can, where appropriate safeguards are in place, enhance the international protection of refugees by ensuring the orderly handling of asylum applications. Another purpose is to reduce the misuse of our respective asylum systems and to restore public confidence. Many refugee claimants who arrive in Canada pass up the opportunity to seek protection in other countries, such as the United States, that have asylum systems that meet the same high standards as Canada's own determination process. This is undermining public confidence in the integrity of our refugee determination system and has weakened public support for our protection programs. It is also expected that the Agreement will reduce backlogs and improve the efficiency of Canada's refugee determination system, allowing Canada to better respond to the needs of refugees.

The UNHCR supports the objectives of the Agreement and considers that both Canada and the United States meet their international obligations. Senior Canadian and American government officials met with the UNHCR in Geneva and were assured of its willingness to support the successful implementation of the Agreement through an explicit role in its implementation and monitoring.

The Agreement was developed through a transparent and consultative process. Canada and the United States are committed to further consultation in both the implementation and the review and monitoring of the Agreement. The regulatory process reflects the same commitment to transparency and consultation. A number of the comments received from the Standing Committee and from the public consultation process will be reflected in the final regulations and/or in the monitoring/review process.

Recommendation 1

The Committee recommends that the government seek assurances that people returned to the United States under the Agreement will not face expedited removal proceedings.

Response: The Government conducted its own careful review of the American asylum system before entering into the Agreement with the United States. It concluded that both Canada and the United States meet international refugee protection standards. This conclusion is supported by the UNHCR. Monitoring and review processes will enable the Government to assess on an on-going basis whether international standards for refugee protection continue to be met.

The Government recognizes the importance of ensuring that persons returned under this agreement will have access to the American asylum system. To this end, the credible-fear component of the expedited removal process in the United States is consistent with international obligations. In any event, as the Agreement concerns returns at our common border, assurances were received from senior U.S. officials during the course of negotiations that U.S. implementing regulations would not treat persons returned under the Agreement as "arriving aliens", the only category of persons subjected to expedited removal.

Recommendation 2

The Committee recommends that until such time as the American regulations regarding gender-based persecution are consistent with Canadian practice, women claiming refugee status on the basis that they are victims of domestic violence be listed as an exempt category under section 156.9 of the proposed regulations.

Response: The Government is concerned that victims of domestic violence, and other forms of gender based persecution have access to a refugee determination system that meets international standards. In drafting the Safe Third Country Agreement, the Canadian government conducted its own gender-based analysis and commissioned an expert review of the American asylum system, including the treatment of gender-based refugee claims. While there may be some differences in approach on individual cases, it is Canada's position that, at a policy level, the approaches are substantively similar. Acknowledging the on-going debate, however, a review of these types of cases will form part of the review and monitoring process. The details of the review, including data needs, research issues and analysis will be undertaken in partnership with the UNHCR and relevant non-governmental organizations. Citizenship and Immigration Canada (CIC) will also consult with other government departments, including Status of Women Canada. The Government will be in a better position to assess the impact of the Safe Third Country Agreement on different groups after its implementation, once the data has been gathered and analyzed.

Recommendation 3

The Committee further recommends that gender-based analysis be part of the ongoing monitoring of the Agreement to ensure that victims of domestic violence are not adversely affected.

Response: The Government agrees that monitoring of the Agreement will include gender-based analysis. The Government will be in a better position to assess the impact of the Safe Third Country Agreement on different groups, including victims of domestic violence, after the Agreement is implemented, once the data from the monitoring process has been gathered and analyzed.

Recommendation 4

The Committee recommends that the government seek assurances from the United States that claimants returned under the Agreement will not be precluded from accessing the American asylum system on the basis that they have been in the United States for one year or more.

Response: The Government is satisfied that claimants returned under the Agreement will not be precluded from a fair protection decision in the U.S. on the basis that they have been in the U.S. for one year or more.

The U.S. requirement that claims must be made within one year of arrival is not inconsistent with the principle of non-refoulement (i.e., non-return). Statistical evidence indicates that the vast majority of applicants coming from the U.S. make a claim in Canada within a matter of days or weeks of their arrival. Moreover, the U.S. immigration legislation provides exceptions to the one-year time limit where there is a change in circumstances or extraordinary circumstances. Further, persons falling outside of the one-year time limit and not falling within an exception, although excluded from the asylum process will still be eligible for withholding of removal and protection from refoulement under the 1951 Refugee Convention and the Convention Against Torture.

Recommendation 5

The Committee recommends that, as part of the monitoring of the implementation of the Agreement, the issues of "irregular migration" and people smuggling be closely watched. Should the Agreement fail to decrease the number of claims being referred to the Immigration and Refugee Board, and should an increase in the number of illegal entries to Canada be apparent, the government must be prepared to exercise its authority to suspend or terminate the Agreement.

Response: The Government is concerned about illegal entry into Canada and people smuggling and, to the extent it is possible to determine, will include this as part of the monitoring/review process. On these issues, however, the Safe Third Country Agreement cannot be viewed in isolation. The Safe Third Country Agreement is only one component of the 30-Point Action Plan developed from the Smart Border Declaration signed by Canada and the United States in December 2001. The success or failure of the Agreement cannot be measured strictly on the basis of a decrease in the number of claims referred to the Immigration and Refugee Board or any increase in illegal entries.

Recommendation 6

The Committee recommends that the regulations include an exception for claimants with de facto family members in Canada who serve or have served as their primary support mechanism.

Response: The provisions in the present Agreement are consistent with Canada's immigration regulations and go far beyond those found in other international agreements such as the Dublin Convention (which limits consideration to a spouse and dependent child). Further expansion of these provisions would be inconsistent with existing legislative principles and undermine the effectiveness of the Agreement.

Recommendation 7

The Committee recommends that section 159.5(b) of the Regulations be changed to clearly include all protected persons under the Act.

Response: The Government agrees that 159.5(b) of the Regulations should extend to all protected persons under the Act, and will be amending the proposed regulations to ensure that this is clear.

Recommendation 8

The Committee recommends that the definition of family in the regulations be changed to provide that a person not be granted entry to Canada to pursue a refugee claim on the basis that his or her spouse or common-law partner is in Canada, if the spouse or common law partner in Canada was permitted entry on the basis that her refugee claim concerns domestic violence.

Response: The Government acknowledges that domestic violence and other similar crimes are serious issues. We have taken measures to address these kinds of criminal activities in the context of the Immigration and Refugee Protection Act, which now prevents persons convicted of a crime related to domestic abuse, for which no pardon has been granted, or in the case of a foreign conviction where rehabilitation can not be demonstrated, from sponsoring a member of the family class. We believe that issues of domestic violence are best dealt with through our domestic social, judicial and law enforcement system. Any potential changes to the definition of family in the regulations will be addressed in the context of the Government's commitment to include gender-based analysis (GBA) in the monitoring of the Agreement at the one year point and also in the government's commitment to ensure that a GBA perspective is part of the on-going monitoring of the Agreement.

Recommendation 9

The Committee recommends that an unaccompanied child be defined as a minor separated from both parents and not accompanied by a person over 18 who by law or by custom has the responsibility for looking after the child.

Response: The Government agrees that the definition of "unaccompanied minor" should be amended to better reflect the intent of the Agreement and international standards governing the best interests of the child. It will amend the proposed regulations to ensure that it encompasses only those situations where the adult accompanying the child is either a parent or has lawful responsibility for the child.

Recommendation 10

The Committee recommends that section 159.6 of the Regulations include a provision allowing for the non-application of the Agreement in any additional situations the Minister determines to be in the public interest.

Response: The Government agrees that the public interest exception provided for in the Agreement is important. While the regulations codify specific examples of where the public-interest exception should be exercised, it is not possible to exhaustively describe in sufficiently objective criteria all the situations where the public interest exception should be exercised. Accordingly, the regulations are intended to be supplemented by guidelines outlining further situations where the Minister may exercise his discretion in the public interest.

Recommendation 11

The Committee recommends that francophone claimants should, in the public interest, be permitted to have their claims heard in Canada.

Response: The Government has carefully considered the Committee's advice with respect to the exercise of discretion in favour of French-speaking refugee claimants. The Government's view is that it would not be appropriate for Canada to take responsibility for refugee claimants solely on the basis of their language ability. Language skills are considerations that relate to the settlement of migrants, not the protection of refugees. In consultation, the governments of Quebec and New Brunswick have indicated their support for the Government's position.

Recommendation 12

The Committee recommends that claimants who may succeed in a claim for refugee protection under the Immigration and Refugee Protection Act but, because of the nature of their claim, would not be protected in the United States, should, in the public interest, be permitted to have their claims heard in Canada.

Response: The Agreement is concerned with ensuring access to a fair process, rather than securing a particular outcome. Accordingly, the regulations incorporate specific examples of where it is in the public interest to ensure access to a Canadian process. As described above, the specific public interest examples in the regulations are intended to be supplemented by guidelines.

Recommendation 13

The Committee recommends that additional resources be provided to the Department to meet the demands that will result from the implementation of the Agreement. The government must closely monitor the effects of the Agreement and assemble "SWAT teams" that can be deployed quickly should bottlenecks appear.

Response: The Government agrees that it will need to monitor the effects of the Agreement closely and reallocate resources where appropriate to ensure its effective implementation. At this time, it is not anticipated that additional resources will be required for Citizenship and Immigration Canada.

Recommendation 14

The Committee recommends that the regulations specifically state that they are to be interpreted in a manner sensitive to the difficulties that may be faced by claimants in providing proof that they are eligible to have their claims heard in Canada, and that claimants should be given the benefit of the doubt.

Response: The Parties agreed that the balance-of-probabilities standard, or its equivalent, would be used to determine whether an applicant qualifies for an exception under the Agreement. The Government agrees that eligibility decisions must be in made in a manner sensitive to the difficulties that may be faced by claimants in providing proof, and this will be reflected in the operations manual, rather than in the regulations.

Recommendation 15

The Committee recommends that the regulations provide for an effective and transparent internal review mechanism before returning someone to the United States to make a claim.

Response: The Government agrees with the Standing Committee that there is a need for an effective internal review mechanism before returning someone to the United States to make a claim. The Statement of Principles to the Agreement provides that: (1) two different port of entry officers be involved in the decision-making process; (2) that the applicant be provided with the opportunity to understand the basis for the proposed decision; and, (3) the applicant have an opportunity to provide corrections or additional relevant information, provided it does not unduly delay the process. The operations manual provides guidelines to officers addressing these three conditions. Further, there is the possibility for judicial review of any decision. Both the Statement of Principles and the operations manual will be made available to the public.

Recommendation 16

The Committee recommends that the provisions of the supplementary draft agreement be incorporated into the main Agreement.

Response: In negotiating Article 9 of the Agreement, the terms of a draft supplementary agreement were discussed. These terms were incorporated into the draft supplementary agreement that has been communicated to the United States through diplomatic channels. Although both the draft supplementary agreement and the Safe Third Country Agreement address the same general subject matter, i.e., refugees, they are not part of a single agreement. As the Committee notes, Article 9 of the Agreement is reciprocal, that is, either Party may ask for assistance with resettlement, with the terms of any supplementary agreement to be the subject of negotiation. As circumstances change, it may be in the Parties' interest to accept more or fewer referrals or indeed none. If the supplementary agreement were incorporated into the main agreement, it would bind either Party to a specified number of referrals. The Government is, however, concerned that the process be transparent and, for this reason, any referrals under a supplementary agreement will be included within the target figure for government assisted refugees made public each year.

Recommendation 17

The Committee recommends that when the Department performs a full review of the Agreement one year after its implementation, it should report its findings to this Committee. The Department's report to the Committee should include the following information:

• the number of claimants returned to the United States under the Agreement, including their countries of origin;
• the number of claimants returned to Canada under the Agreement, including their countries of origin;
• the number of claimants granted exemptions by each country, specifying the category;
• the number of claims made at inland offices during the period, as well as the number of claims made at inland offices in the same time period in the year preceding the Agreement;
• the number of claims made at airports during the period, as well as the number of claims made at airports in the same time period in the year preceding the Agreement;
• a report on human smuggling and human trafficking activity into Canada during the period;
• detention statistics for land ports of entry during the period, as well as detention statistics for the same time period in the year preceding the Agreement;
• reports on any migrants killed or injured in the course of attempting illegal entry into Canada;
• a summary of the concerns of non-governmental organizations brought to the attention of the Department; and
• any other significant concerns that come to the attention of the department, including any unintended or unanticipated effects of the Agreement.

Response: The Government agrees with the broad thrust of these recommendations and is currently working with the UNHCR with input from non-governmental organizations and the United States government to identify appropriate measures for monitoring the impact of the Agreement.

The Government recognizes the Committee's interest in the review of the Agreement one-year after its implementation. The Government will keep the Committee informed of the results of this review.

Minister of Public Works and Government Services Canada, 2003
Cat. no. Ci-51-141/2003
ISBN 0-662-67350-6
C&I-536-04-03