Montreal, Canada – It was early April 2017 when Nedira Mustefa, an Ethiopian who had lived in the United States since her childhood but had no immigration status, reached the Canadian border in search of protection.
After 30 hours of questioning, the Canadian authorities turned their backs on him, pointing to an agreement between the two neighboring countries which allows Canada to summarily return most of the asylum seekers who arrive at its border from the United States.
Returning to the United States, Mustefa was held in a New York State prison for a month, including a week in solitary confinement, which she described as “a terrifying, isolating and psychologically traumatic experience.” . She said she was pork-fed against her beliefs as a Muslim woman, that she couldn’t use blankets during the day despite the freezing cold, and that she didn’t know when she would be released.
His experiences have been included in a legal challenge seeking to overturn the Bilateral Safe Third Country Agreement (STCA), which human rights advocates say violates refugee rights and Canada’s own constitution, known as the Canadian Charter of Rights and Freedoms .
But on Thursday, the Federal Court of Appeal sided with the Canadian government and confirmed the agreement, now forcing litigants to decide whether to ask the country’s highest court to take up the case – and ultimately determine whether the United States is a safe place for refugees.
Judges said lower court made a mistake decision last year the STCA was unconstitutional.
“We are very disappointed,” said Justin Mohammed, human rights law and policy activist at Amnesty International Canada, one of the groups involved in the legal challenge.
“Without a doubt, there are people who are being returned to the United States and who face serious human rights violations by the American authorities,” Mohammed told Al Jazeera, adding that Amnesty and other litigants are considering their next steps, including a possible appeal to the Supreme Court of Canada.
As part of the STCA, sign in 2002, asylum seekers must apply for protection in the first country in which they arrive, either the United States or Canada. The idea behind the deal is that both countries are “safe” and provide people with access to fair refugee determination systems. In practice, this means that most people who attempt to make a claim at a Canadian port of entry are returned to the United States.
But Canadian law allows asylum seekers to seek protection once in Canada – and this loophole has grown thousands of people for sometimes dangerous hikes across the 6,416 km (3,987 mile) Canada-US land border.
For years, human rights and refugee advocates have raised concerns that Canada is violating its obligations under its own constitution, as well as under international law, by enforcing the STCA. The current case is not the first to seek to challenge the deal, after an effort more than 10 years ago that ultimately failed.
Yet while thousands of asylum seekers have left the United States for Canada since 2017, driven in large part by former US President Donald Trump’s anti-immigrant policies, another lawsuit was launched against the agreement. In July 2020, the Federal Court of Canada ruled that the STCA violated refugees’ right to life, liberty and security, as well as their right to equality, guaranteed by the Charter.
This week’s appeals court ruling overturns that and means the deal remains in place.
“I think the reality of people’s lives was completely ignored in this decision,” said Jamie Liew, immigration lawyer and professor at the Faculty of Law at the University of Ottawa, adding that the appeals court said the evidence was “individualized and piecemeal.”
“This really raises questions about future cases where people might claim that their charter [rights] are violated. What is the threshold now? This sets the bar very high for anyone who has felt the impact of a government decision on their life, ”Liew told Al Jazeera.
She added: “I think this is a decision that can be appealed. I think the parties will appeal and I think there is a very good chance that leave will be granted.
The Canadian government welcomed the decision of the Court of Appeal, stating that “the STCA has served Canada well for 16 years, ensuring that our shared border remains well managed”.
“Canada remains firmly committed to maintaining a fair and compassionate refugee protection system and the STCA remains a comprehensive vehicle for the compassionate, equitable and orderly processing of asylum claims at the Canada-US land border,” he said. he said in a statement. declaration.
But Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, said the ruling “represents a step backwards for human rights in Canada” as evidence presented to the lower court shows the risks to which the refugees face when returned to the United States, many of them imprisoned in harsh conditions.
The US asylum system is more restrictive than in Canada, especially for people fleeing gender-based violence, she explained, while refugees must apply within a year of arrival. a restriction that many cannot meet.
Silcoff told Al Jazeera that there were “serious flaws in the US asylum system” and that the lasting trauma many refugees face should force Canada “not to just shut the door on groups of people, simply because an asylum system exists in the United States. “.
The low number of asylum seekers returned under the STCA in recent years – 4,400 people were deported between 2016 and the end of September 2020, according to government figures published last year – also indicates that Canada has the resources to process applications at the border, she added.
“They represent a very small percentage of all refugee claims in Canada, but for every person, having their door slammed in their face at the border is a life-changing decision with sometimes disastrous consequences.