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Canada-U.S. Safe Third Country Agreement

This information has been prepared as a guide only. All refugee eligibility decisions made in Canada must be based on applicable legislation and policy.

Features

The Safe Third Country Agreement is an agreement between the governments of Canada and the United States to better manage the flow of refugee claimants at the shared land border.

Under the Canada-U.S. Safe Third Country Agreement, persons seeking refugee protection must make a claim in the first country they arrive in (United States or Canada), unless they qualify for an exception to the Agreement. Therefore, refugee claimants arriving from the United States at the Canada-United States land border may be allowed to pursue their refugee claims in Canada if they meet an exception under the Safe Third Country Agreement.

The Safe Third Country definition Agreement does not apply to U.S. citizens or to habitual residents of the United States who are not citizens of any country ("stateless persons").

Where the Agreement is in effect

The Safe Third Country Agreement applies only to refugee claimants who are seeking entry to Canada from the United States:

  • at Canada-United States land border crossings;
  • by train;
  • at airports, if:
    • a person seeking refugee protection in Canada who has been determined not to be a refugee in the United States, has been ordered deported from the United States and is in transit through Canada for removal from the United States.
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Exceptions to the Agreement

Exceptions to the Safe Third Country Agreement are based on principles that take into account the importance of family unity, the best interests of children and public interest.

There are four types of exceptions:

Despite qualifying for one of the exceptions outlined above, refugee claimants must still meet all other eligibility criteria of Canada's immigration legislation. For example, a person seeking refugee protection will not be eligible to make a refugee claim in Canada if he or she has been determined to be inadmissible to Canada on grounds of security, violating human or international rights, or criminality.

Family member exceptions

Refugee claimants may qualify under this category of exceptions if they have a family member definition in Canada who:
  • is a Canadian citizen;
  • is a permanent resident of Canada;
  • is a protected person under Canadian immigration legislation;
  • has made a claim for refugee status in Canada that has been accepted by the Immigration and Refugee Board of Canada (IRB), an independent organization;
  • has had his or her removal order stayed on humanitarian and compassionate grounds;
  • is the holder of a valid Canadian work permit;
  • is the holder of a valid Canadian study permit; or
  • is over 18 years old and has a claim definition for refugee protection that has been referred to the IRB for determination.

Unaccompanied minors exception

Refugee claimants may qualify under this category of exceptions if they are unaccompanied minors (under the age of 18) who:

  • are not accompanied by their mother, father or legal guardian;
  • have neither a spouse nor common-law partner; and
  • do not have a mother, father or a legal guardian in Canada or the United States.

Document holder exceptions

Refugee claimants may qualify under this category of exceptions if they:

  • hold a valid Canadian visa (other than a transit visa);
  • hold a valid work permit;
  • hold a valid study permit;
  • hold a travel document (for permanent residents or refugees) or other valid admission document issued by Canada; or
  • are not required (exempt) to get a temporary resident visa to enter Canada but require a U.S.-issued visa to enter the United States.

Public interest exceptions

Refugee claimants may qualify under this category of exceptions if:

  • They have been charged with or convicted of an offence that could subject them to the death penalty in the United States or in a third country. However, a refugee claimant will be ineligible to have his or her claim referred to the IRB if he or she has been determined to be inadmissible to Canada on grounds of security, violating human or international rights, or criminality.

  • They are nationals of countries for which Canada has imposed a temporary suspension of removals. However, a temporary suspension of removals does not apply to individuals who are determined to be inadmissible to Canada on grounds of security, violating human or international rights, or criminality. Currently, Canada has imposed a temporary suspension of removals on the following eight countries:

    • Afghanistan
    • Burundi
    • the Democratic Republic of the Congo
    • Haiti
    • Iraq
    • Liberia
    • Rwanda
    • Zimbabwe

Note: This list of countries may be subject to change. This list should serve as a guide only and is not intended to be an official acknowledgement of country conditions.

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Claiming refugee protection in Canada at the Canada-United States land border

Interview Process

Required documentation
All claimants seeking refugee protection will be asked to provide the border services officers with their passport or other documents such as travel documents, birth certificates and any other identity documents.

Screening process
All claimants seeking refugee protection must also undergo a screening process at the port of entry before being allowed to enter Canada. Border services officers:

  • will take a photograph of the claimant;
  • will take fingerprints of the claimant if he/she is over the age of 14 years old
  • will review available documentation in order to make their decision; and
  • may perform a search of the claimant and his/her goods coming to Canada.

The interview
A border services officer will interview the claimant and refer his/her claim to a second border services officer who will review the file and decide if the claimant is eligible to have his/her claim referred to the Immigration Refugee Board (IRB).

Note: The border services officer will not decide if the claimant is a Convention refugee or a person in need of protection. This decision is made by an independent organization, the Immigration and Refugee Board (IRB). It is the claimant’s responsibility to prove to the IRB that he/she is a Convention Refugee or a person in need of protection.

If the claimant does not speak English or French, an interpreter will assist the claimant by phone or in person and the claimant may ask questions if he/she does not understand what is being explained to him/her.

A refugee claimant is allowed to bring a third party with him/her to the interview. In this case however, the claimant should notify the border services officer before the interview begins. This person cannot speak on the refugee claimant’s behalf or interfere with the proceedings during the interview and cannot delay the process.

Referral to the Immigration and Refugee Board

Refugee claimant is found eligible
If the refugee claim is found to be eligible to be referred to the IRB:

  • the border services officer will provide the refugee claimant with a number of documents and an explanation of each document and its purpose;
  • the refugee claimant will be allowed to stay temporarily in Canada while waiting for a decision to be made by the IRB;
  • a removal order will be issued and will be conditional pending the decision by the IRB; or
  • if the refugee claimant is found not to be a Convention refugee or a person in need of protection by the IRB, the removal order will immediately come into force and the claimant will be required to leave Canada.

Although a refugee claimant may qualify for an exception under the Safe Third Country Agreement, he/she must meet all other eligibility requirements to have the refugee claim referred to the IRB.

Refugee claimant is not eligible
A refugee claimant will not be eligible to have his/her claim referred to the IRB if:

  • a refugee protection has been given to the claimant under the Immigration and Refugee Protection Act;
  • a prior claim for refugee protection has been rejected by the IRB;
  • a prior claim for refugee protection has been determined not to be eligible to be referred to the IRB;
  • a prior claim for refugee protection has been withdrawn or abandoned by the claimant;
  • the claimant has been recognized as a Convention Refugee by a country other than Canada and can be sent or returned to that country;
  • the claimant  had  arrived in Canada directly from a designated safe third country; or
  • the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
If the border services officer has determined that a refugee claimant is not eligible to make a refugee claim in Canada, his/her claim will not be referred to the IRB and he/she will be issued a removal order and immediately returned back to the United States.
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About the Agreement

The Canada-U.S. Safe Third Country Agreement allows the governments of both countries to share the responsibility of providing protection to those in need, enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of the Canadian and the United States refugee systems, and reduce abuse of both countries’ refugee programs.

The Agreement is part of the Smart Border Action Plan and builds on a strong history of Canada-United States cooperation on issues related to migration and refugee protection and came into effect on December 29, 2004.

The Safe Third Country Agreement marks the first time the legislative authority to designate a safe third country has been exercised in both Canada and the United States.

Year one review of the implementation of the Agreement

Under the Safe Third Country Agreement, the governments of Canada and the United States agreed to conduct a review of the first year of implementation of the Agreement in cooperation with the United Nations High Commissioner for Refugees (UNHCR). The review assessed the implementation of the Agreement and examined how effectively the bi-national policy objectives are being met.

For more information

Definitions

Safe third country

A safe third country is a country, other than Canada and the country of alleged persecution, where an individual may make a claim for refugee protection. In Canada, subsection 102(2) of the Immigration and Refugee Protection Act outlines the criteria for designating a country as a safe third country.

Subsection 102(2) -- The following factors are to be considered in designating a country as a safe third country:

  • whether the country is a party to the Refugee Convention and to the Convention Against Torture;
  • its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
  • its human rights record; and
  • whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

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Family member

The Safe Third Country Agreement recognizes a family member as the following:

  • spouse
  • legal guardian
  • child
  • father and/or mother
  • sister and/or brother
  • grandfather and/or grandmother
  • grandchild
  • uncle and/or aunt
  • nephew and/or niece
  • common-law partner
  • same-sex spouse

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Claim

A claim for refugee protection for the purpose of this exception means the family member's claim has not been withdrawn or declared abandoned by the family member or rejected by the IRB and any pending proceedings respecting the claim have not been terminated or nullified under Canadian immigration legislation.

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Date Modified: 2007-10-11

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