A Canadian Federal Court judge has ruled that Canada must reassess its reciprocal refugee-protection agreement with the United States, stating that the US is not in compliance with international refugee conventions. Attorney David Cohen comments on the implications for Canada immigration.

The Canada-US Safe Third Country Agreement (STCA), effective since 2004, requires that, in most situations, asylum-seekers make their refugee claim in the country where they first land (United States or Canada). Thereafter, they are not permitted to make an asylum application in the other country. The agreement is based on the understanding that asylum-seekers will receive the same standard of refugee protection in both countries.

The STCA has enabled Canada to send refugee applicants back to the US, significantly reducing the number of asylum claims in Canada. "The problem is," explains Canadian immigration attorney, David Cohen, "many asylum-seekers who are sent back to the US are detained or deported, whereas they may not have been in Canada. The two countries treat refugee claimants quite differently, with different definitions of what is a ‘legitimate fear of persecution’." Mr. Justice Michael Phelan, the Federal Court judge involved in the case, stated that current US policies and practices do not meet the established conditions to authorize Canada to enter into a STCA, as they are not in compliance with the Refugee Convention requirements or the United Nations Convention Against Torture prohibition. As a result, he ruled that the STCA is in violation of the Canadian Charter of Rights and Freedoms.

The Canadian Council for Refugees, which mounted the legal challenge against the STCA, maintains that the US is not a safe country for refugee claimants. The STCA currently remains in effect, as the Federal Court has given both parties until January 14, 2008 to make and respond to submissions for an appeal. "If the STCA is abolished, Canada can expect to see a significant increase of refugee-claimants from the United States," asserts Cohen.

Comment by Canadian Immigration Attorney David Cohen.

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