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Feds to appeal ruling that struck down Safe Third Country Agreement

Kikome Afisa, right, is comforted as she along with others protest outside the Federal Court of Canada building for a hearing of the designation of the U.S. as a safe third country for refugees in Toronto on Monday, Nov. 4, 2019.
Kikome Afisa, right, is comforted as she along with others protest outside the Federal Court of Canada building for a hearing of the designation of the U.S. as a safe third country for refugees in Toronto on Monday, Nov. 4, 2019. Nathan Denette/CP

Ottawa is appealing a court ruling that struck down a key refugee agreement between Canada and the United States, Public Safety Minister Bill Blair said Friday.

The Federal Court of Canada ruled last month that elements of the law underpinning the pact violate the constitutional guarantee of life, liberty and security.

The declaration of invalidity was suspended for six months, leaving the law in place until mid-January.

Read more: Safe Third Country Agreement ruled unconstitutional — here’s what could happen next

Under the Safe Third Country Agreement, which took effect in 2004, Canada and the U.S. recognize each other as safe places for potential refugees to seek protection.

It means Canada can turn back asylum seekers who arrive at land ports of entry along the Canada-U.S. border on the basis they must pursue their claims in the U.S., the country where they first arrived.

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Potential refugees arriving from the U.S. by air, by sea or between land ports, however, are eligible to have their claims referred to Canadian officials. The exception has spurred the arrival of thousands of people in Canada through unofficial border crossings — including one between New York state and Quebec — in recent years.

In a statement Friday, Blair said there are factual and legal errors in some of the Federal Court’s key findings.

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“There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law,” he said.

Canadian refugee advocates have firmly opposed the deal, arguing the U.S. is not always a safe country for people fleeing persecution.

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Several refugee claimants took the case to court along with the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International, who participated in the proceedings as public interest parties.

Read more: Federal Court rules Canada-U.S. Safe Third Country Agreement unconstitutional

In each case the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at a Canadian land entry port from the U.S. and sought refugee protection.

They argued in court that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks in the form of detention and other rights violations.

In her decision, Federal Court Justice Ann Marie McDonald concluded that the Safe Third Country Agreement results in ineligible claimants being imprisoned by U.S. authorities.

Detention and the consequences flowing from it are “inconsistent with the spirit and objective” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the charter, she wrote.

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“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.”

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Upon release of the ruling, public interest parties who took part in the case swiftly called on the federal government not to appeal the court decision, and to stop sending people back to the U.S. under the agreement.

In his statement, Blair said the agreement with the U.S. “remains a comprehensive vehicle” to uphold a compassionate, fair and orderly refugee protection system, based on the principle that people should claim asylum in the first safe country in which they arrive.

Canada “continues to engage actively” with Washington on the refugee pact, ensuring the agreement reflects Canada’s commitment to its international obligations, “while continuously co-operating on how we manage our shared border,” he added.

Read more: Where do major parties stand on the Safe Third Country Agreement?

NDP immigration critic Jenny Kwan said Friday the appeal means the Liberals would rather let asylum seekers “suffer under Donald Trump’s rules than stand up for human rights and Canadian values.”

“This is not only a violation of basic human rights enshrined in the charter, it’s a violation of international law and puts asylum seekers’ lives at risk. It’s a heartless and shameful act. It’s un-Canadian,” Kwan said in a statement.

Conservative immigration critic Peter Kent noted Friday his party has been calling on the government to close “the long-standing loopholes” in the Safe Third Country Agreement.

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“While we are pleased the government has decided to appeal this ruling, Canadians’ confidence in the immigration system has been rocked by years of Justin Trudeau’s failure to address these concerns, and his failure to restore integrity and compassion to the immigration process,” Kent said in a statement.