This is not a new story. Alastair Clarke has been presentations on how refugees have been fleeing the USA to come to Canada for many years. He has been interviewed on the CBC The House podcast on this topic back in 2018. He gave a presentation to lawyers at the national CBA Immigration Conference on this topic. Even when he was in law school back in 2006, he worked as a Summer Student at a legal aid clinic in Toronto and that was part of the job. That was many years ago. The laws have changed. Political leaders have changed. The constant is that, even after 18 years, people are seeking safety within Canadian borders. They come to find a better life for themselves and their families.
The Safe Third Country Agreement (STCA) has been part of Canadian law for 20 years. Refugee claimants who are coming from the USA must understand how the STCA may affect their claim. If they do not fall under one of the exceptions, that may have serious legal implications. In March 2023, the Trudeau government and the Biden administration forged an amendment to the STCA to expand its application. Over the past year, this has meant that more refugee claimants may be sent back to the USA. It means that many people who are trying to find safety in Canada, are not able to have their claims heard by the IRB-RPD.
Recently, a group from Chad entered Manitoba from the USA to seek refugee status. This group of 7 were stopped by the RCMP. Before that, another group of 4 were also stopped. It is not clear whether any of them will be able to access the refugee determination system.
CBC News came to CIL to interview Alastair Clarke on the potential options for these individuals. Parts of the interview have been reported:
Winnipeg-based immigration lawyer Alastair Clarke, who has worked with hundreds of Chadians, says the situation there is dire.
Since the death of then president Idriss Deby in 2021, there’s been political unrest, leading to the government targeting political opponents, student groups and “anyone who is perceived to be against the government,” said Clarke.
“I will tell you that from my experience dealing with hundreds of claimants from Chad, that I’m not surprised that these individuals are coming to Canada to find safety.”
Canada, with its large francophone community, is appealing for many people leaving Chad, where French is an official language, he said.
The above is true. CIL provides services in French to the francophone community and we have represented many, many claimants from Chad. We did an unofficial count in the office and, if we include all the family members, our work has helped more than 500 people from Chad.
Some of the interview is also on the CBC News channel on YouTube.
Alastair also provided insight into how the STCA operates:
Under the Safe Third Country Agreement between Canada and the U.S., asylum seekers must apply for refugee status in the first of the two countries they enter.
However, before March 2023, that only applied to people arriving at official border crossings.
A loophole in the agreement allowed migrants to make asylum claims if they arrived in Canada from the United States between official ports of entry — for example, through “farmers’ fields down along the border near Emerson,” said Clarke.
Now, that loophole has been closed and the agreement applies to the entire land border.
Clarke said now, if someone crosses irregularly into Canada, is caught within 14 days of entry and doesn’t qualify under one of the agreement’s exemptions, they’ll be turned back over to
U.S. authorities.
The Canada Border Services Agency said in an emailed statement that if a person is found to have an eligible refugee claim, their file will be referred to the Immigration and Refugee Board for consideration, and the person will be allowed to enter Canada to pursue their claim.
But Clarke said there’s “significant misinformation and disinformation out there,” meaning some people still think they can make a refugee claim based on the old Safe Third Country rules.
“Sometimes in those situations, they try to make their claim in Canada, but they’re not eligible,” said Clarke.
“Then they’re turned over to the American authorities, they’re sent back to the United States, and those cases are extremely heartbreaking.”
Indeed, when CIL gets a call from someone who did not understand the STCA and they tried to enter without that understanding, it is truly heartbreaking.
For example, the “family member” exemption of the STCA only allows for blood relatives. CIL got a call from a woman with her 2 children who were at the border. Her sister-in-law was waiting for them. The sister-in-law was able to show their family connection. The CBSA Officer, however, explained that a sister-in-law is not a blood relative and, therefore, the woman does not qualify per the STCA. Her children, on the other hand, have a blood relationship with their aunt so they could enter. That would mean, of course, that the mother would be separated from her children. The children could enter and have their refugee claim heard while the mother was sent back to the USA.
The above is not fiction. That happened. They called our office too late. They called after they had already made the decision. The children entered Canada and the mother stayed in the USA.
Through significant work, we were able to bring the mother to Canada. These cases are very tough.
The Safe Third Country Agreement between Canada and the U.S. which came into effect in 2004, was 
“(The agreement) takes back Canada’s commitment to refugees and makes Canada (go back) on its obligations to protect the rights of refugees,” said Abdikheir Ahmed, a member of the Immigration Matters in Canada Coalition. “The rally demands the government of Canada suspends the Safe Third Country Agreement with the United States.”
