OTTAWA/TORONTO (Reuters) – A Canadian court on Wednesday ruled invalid a bilateral pact that compels asylum seekers trying to enter Canada via the American border to first seek sanctuary in the United States, saying U.S. immigration detention violates their human rights.
Under the Safe Third Country Agreement (STCA), asylum seekers who arrive at a formal Canada-U.S. border crossing going in either direction are turned back and told to apply for asylum in the first country they arrived in.
Lawyers for refugees who had been turned away at the Canadian border challenged the pact, saying the United States does not qualify as a “safe” country under U.S. President Donald Trump.
Federal court judge Ann Marie McDonald ruled that the agreement was in violation of a section of Canada‘s Charter of Rights that says laws or state actions that interfere with life, liberty and security must conform to the principles of fundamental justice.
McDonald suspended her decision for six months to give Parliament a chance to respond. The agreement remains in place during that time.
Nedira Jemal Mustefa, among the refugees turned back and on whose behalf a challenge was launched, described her time in solitary confinement in the United States as “a terrifying, isolating and psychologically traumatic experience,” according to the court ruling.
“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,” the judge wrote in her decision.
Amnesty International Canada, one of the groups that launched the legal challenge against the STCA, hailed the “landmark decision.”
“By turning people away, Canada is complicit in the serious human rights violations that these claimants experience in U.S. immigration detention,” said Justin Mohammed, human rights law and policy campaigner at Amnesty International Canada.
More than 50,000 people have illegally crossed the Canada-U.S. border to file refugee claims over the past four years, walking over ditches and on empty roads along the world’s longest undefended border.
Canada has sought to stem the tide of asylum seekers that flowed into the country starting in 2016, after Trump promised to crack down on illegal immigration.
Experts have said suspending the agreement would have huge implications for the Canada-U.S. relationship.
“We are aware of the Federal Court’s decision and are currently reviewing it,” said Mary-Liz Power, a spokeswoman for Public Safety Minister Bill Blair, who oversees Canada‘s border agency. “The Safe Third Country Agreement remains in effect.”
The ruling can be appealed to the Federal Court of Appeal and the Supreme Court if necessary. The U.S. Departments of Homeland Security and State did not immediately respond to requests for comment.
Canada has closed its border with the United States to non-essential travel due to the coronavirus pandemic.
In March, it said it would no longer accept irregular migrants trying to cross the border and would instead return them to U.S. authorities, who have said they will swiftly deport them back to their home countries.