U.S. asylum seekers: Is Canada an option?
This article was prepared with the assistance of summer law student Madeline Meilun
With major changes occurring in U.S. immigration proceedings, many individuals either facing deportation or otherwise arriving in Canada are considering claiming refugee status as an option.
Canadian immigration authorities require the following specific factors to qualify for refugee status and protection:
- A well-founded fear of persecution
- A danger of torture
- A risk to life
- A risk of cruel and unusual treatment or punishment
Unfortunately for American citizens and others living in the U.S. in non-immigrant or protected status, while they may have an interest in immigrating to Canada, they will face difficulty claiming refugee status. This is due to the Canada-U.S. Safe Third Country Agreement (STCA).
The STCA is an agreement between the United States and Canada to secure the land border and help both governments better manage access to the refugee system in each country. Under the STCA, Canada considers the United States as a “Designated Safe Third Country”. Aligned under the agreement, both countries consider the other to uphold principles of fundamental justice and a shared responsibility to protect human rights and freedoms, allowing refugees to request protection in either country.
The key feature of the STCA is that refugee claimants are required to request refugee protection in the first safe country where they land, be it Canada or the United States. Being a citizen of or having made a claim for refugee status in either country, individuals are generally not permitted to make a refugee claim in the other.
What this essentially means is that individuals looking to enter Canada along the U.S. land border are typically not eligible to make a refugee claim, due to the requirement to request refugee protection in the first safe country where they are or land. In light of the principles of the STCA, the option to claim refugee status between Canada and the U.S. is not possible, unless individuals meet one of the relevant exceptions under the STCA.
Exceptions
There are four exceptions to the STCA rules, which primarily consider the importance of family unity, the best interests of children and the public interest:
1. Family member exception
Under the family member exception, individuals may make a refugee claim if they have a family member who:
- Is a Canadian citizen or permanent resident
- Is a protected person under Canadian immigration legislation
- Has made a refugee status claim in Canada that has been accepted by the Immigration and Refugee Board
- Has a removal order that has been stayed on humanitarian and compassionate grounds
- Holds a valid Canadian work or study permit
- Is over 18 years old and has a pending claim for refugee protection
2. Unaccompanied minors exception
Individuals may make a refugee claim if they are under the age of 18 and are not accompanied by a mother, father or legal guardian, have neither a spouse nor common-law partner and do not have a mother, father or legal guardian in Canada or the United States.
3. Document holder exception
Individuals may make a refugee claim if they:
- Hold a valid Canadian visa, a valid work or study permit, travel document (for PRs or refugees) or other valid admission document issued by Canada
- Are exempted from requiring a temporary resident visa to enter Canada but require a U.S.-issued visa to enter the U.S.
4. Public interest exceptions
An individual that has been charged with or convicted of an offence that could subject them to the death penalty in the U.S. or a third country could also be eligible.
Alternate options for immigrants
However, there are other options and immigration processes for those in the U.S. looking to immigrate to Canada that are more obtainable, depending on individual circumstances:
- Express entry
- Provincial nominee programs (PNPs)
- Family sponsorship
- Start-up or investment visas
- Employer-sponsored work permits
There are several immigration pathways to Canada to suit a variety of applicants with different backgrounds and goals. From skilled workers to family sponsorships, there are several options that may align with your individual circumstances. Each pathway has its own requirements and benefits, but all aim to support Canada’s economic growth and strengthen its communities by welcoming individuals who can contribute to the country’s diverse and dynamic society.
For further information on this announcement and other immigration-related issues, contact a member of MLT Aikins Immigration team today.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.