# Canadian Refugee Procedure/IRPR s. 159 - Safe Third Countries
## IRPR s. 159 - Determination of Eligibility of Claim

The text of the relevant section of the regulation reads:

### Section 102 of the Act concerns eligibility to claim, the safe third country agreement, and the criteria for listing a country

Section 102 of the IRPA reads as follows:
For more detail and context, see: Canadian Refugee Procedure/100-102 - Examination of Eligibility to Refer Claim#IRPA Section 102: Regulations and Safe Third Country Agreement.

### Text of the Safe Third Country Agreement

The above regulatory provisions implement the text of the Safe Third Country Agreement in Canadian law; see this citation for the text of the agreement between Canada and the US itself and the 2022 additional protocol amending the agreement. The additional protocol came into effect In March 2023, when Canada and the U.S. announced the Additional Protocol to the STCA that would expand its scope to apply across the entire land border, and not merely at official ports of entry.
See also: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#Responsibility sharing and burden sharing between states are fundamental principles of the Refugee Convention and Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”.

### Factual background to the Safe Third Country Agreement

The political background against which the safe third country agreement operates is the much higher number of refugee claims that Canada receives per capita than does the United States. The United States and Canada are both popular asylum-seeker destinations that conduct Refugee Status Determination on a relatively large scale. The United States consistently receives more asylum applications than any other country; in 2012, it received 17.4% of the total number of asylum applications lodged worldwide. Canada tends to hover in the top five receiving countries; in 2008 it was the second most popular and in 2012 it was sixth, with 4.3% of worldwide applications. As is apparent, Canada receives far more asylum seekers per capita than does the United States - during the five-year period between 2006 and 2010, for example, Canada received one asylum application for every 236 residents; in the United States, the ratio was one asylum application per every 1200 residents. Furthermore, many claimants in Canada have traversed the United States before arriving in this country. For example, from 1995 to 2001, approximately one-third of all refugee claims in Canada were made by claimants known to have arrived from or through the U.S.
Legislative provisions regarding safe third countries have been part of the Immigration Act since 1988. At that point, the provision was enacted, but no country was listed. For more detail, see: Canadian Refugee Procedure/History of refugee procedure in Canada#Post-IRPA measures.

### The "Direct Back Policy"

See: Canadian Refugee Procedure/IRPR ss. 28-52 - Conduct of Examination#IRPR s. 41 - Direct back.

### Section 159.3: Countries are designated where they, among other things, comply with Article 33 of the Refugee Convention

Article 33(1) of the Refugee Convention provides that:
   No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
Article 33(1) has long been interpreted as prohibiting not only the direct return of refugees to the country where they fear persecution, but also their indirect return via a third country. See: Canadian Refugee Procedure/Principles for the interpretation of refugee procedure#The Act should be interpreted in a way that prevents the possibility of “refugees in orbit”.

### Constitutionality of the Safe Third Country Agreement with the United States

The constitutionality of the Safe Third Country Agreement regime has been repeatedly challenged in Canadian courts. All of the challenges to it have been dismissed. The first two challenges were dismissed for procedural reasons - by the Supreme Court of Canada in 1992 and the Federal Court of Appeal in 2008. The third challenge resulted in the Supreme Court of Canada partially upholding the constitutionality of the regime in 2023, while remitting a gender-based aspect of the challenge to the Federal Court for future proceedings.

## References

* ↑ Government of Canada, Final Text of the Safe Third Country Agreement, December 5, 2002 <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html> (Accessed August 22, 2020).
* ↑ Government of Canada, Final text of the Additional Protocol to the Safe Third Country Agreement, March 2022 and April 2022 <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/additional-protocol.html> (Accessed December 28, 2023).
* ↑ Parliament of Canada, Library of Parliament, Overview of the Canada–United States Safe Third Country Agreement, Revised on: 2023-09-01 <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/202070E#:~:text=the%20decision.86-,5%20Renegotiation%20and%20Expansion%20of%20the%20Canada%E2%80%93United%20States%20Safe,at%20official%20ports%20of%20entry.> (Accessed December 28, 2023)..
* ↑ Hamlin, Rebecca. Let Me Be a Refugee: Administrative Justice and the Politics of Asylum in the United States, Canada, and Australia. New York: Oxford University Press, 2014. Print. Page 26.
* ↑ Francois Crepeau, The Foreigner and The Right to Justice in The Aftermath of September 11, Refugee Watch Newsletter, <http://refugeewatch.org.in/RWJournal/25.pdf> (Accessed June 26, 2021) at item 1.6.
* ↑ R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 532.
* ↑ Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 SCR 236, <https://canlii.ca/t/1fsg5>, retrieved on 2021-04-24. "The constitutionality of the safe third country provision was first challenged in 1989, immediately after the amended Immigration Act, 1976 came into force and more than a decade before the Canada–U.S. STCA was implemented. In Canadian Council of Churches v Canada,63 the Supreme Court of Canada disallowed the challenge on the ground that the Canadian Council of Churches lacked standing." - Library of Parliament, Overview of the Canada–United States Safe Third Country Agreement, 2021-01-15 <https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/202070E> (Accessed October 6, 2022).
* ↑ Canadian Council for Refugees v. Canada, 2008 FCA 229 (CanLII), [2009] 3 FCR 136, <https://canlii.ca/t/1z69f>, retrieved on 2021-04-24.
* ↑ Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17 (CanLII), <https://canlii.ca/t/jxp04>, retrieved on 2023-07-02.