Last July, the Federal Court of Justice declared the STCA unconstitutional because it violated „the right to life, liberty and security of the person“ as guaranteed by the Canadian Charter of Rights and Freedoms. The case was filed by Amnesty International, the Canadian Refugee Council and the Canadian Council of Churches on behalf of several complainants. The judge`s decision upheld the argument made for years by human rights and refugee advocates that the United States, especially under the Trump administration, is not a safe place for refugees. Canada closed its border with the United States because of the coronavirus pandemic for non-essential travel. The agreement does not apply to U.S. citizens or ordinary U.S. residents who are not nationals of a country („stateless“). The agreement represented a long-standing desire of the Canadian government to limit the number of people applying for refugees, as potential applicants are much more likely to travel to Canada by land via the United States to assert a right than in the opposite direction. Although the United States initially resisted Canada`s proposal because it meant that it had to deal with more complainants, after 2001, the Bush administration accepted this request in exchange for Canada`s cooperation with other U.S. security priorities.
The Immigration and Refugee Protection Act (IRPA) requires ongoing review of all countries designated as safe third countries. The purpose of the review procedure is to ensure that the conditions that led to deportation as a safe third country remain met. That changed with the election of President Donald Trump in 2016 on a platform that was particularly hostile to migrants and his government`s announcement in 2017 that it would end the term temporary protection status (GST). While the largest group of people receiving GST was from El Salvador (approximately 200,000), the name also included nearly 60,000 Haitians who have been living and working in the United States since a devastating earthquake in their country in 2010. The Safe Third Country Agreement applies to refugee claimants who wish to travel to Canada or the United States at Canada-U.S. border crossings (including rail). It also applies to airports where a person seeking protection in Country B has not been identified as a refugee in Country A and is transiting in Country A as part of his removal. Subsequently, the number of refugees arriving at the border decreased. In addition, under „temporary agreements“ between the United States and Canada, refugee claimants entering official country ports, aviation and seaports should be returned to the United States. Meanwhile, the Safe Third Country Agreement remains in force, while the federal government is appealing the Federal Court of Justice`s decision, although Amnesty International and others have called for the agreement to be suspended immediately.
Julie Taub, an immigration and refugee lawyer, says the Canada Border Services Agency has lost capacity since the agreement was put in place in late 2004 and would be „overwhelmed“ if the agreement was repealed.  Safe third country conventions are not explicitly mentioned in the 1951 Convention on the Status of Refugees, nor in the 1967 Protocol on the Status of Refugees. Rather, their legitimacy derives from Article 31 of the 1951 Convention, which states that a refugee should not be punished for illegal entry into a country if he arrives directly from a country where he is threatened. The Office of the United Nations High Commissioner for Refugees (UNHCR) has itself warned against over-interpreting safe third country agreements, although it acknowledges that they may be acceptable in certain circumstances.  Such ambiguities have prompted some Canadian legal experts to question the legality of the Canada-U.S. safe third country agreement.  Experts said that the suspension of the agreement would have a huge impact on the United States.