Defining a “Safe” Third Country

Only countries that respect human rights and offer a high degree of protection to asylum-seekers may be designated as safe third countries. To date, the United States is the only designated safe third country. (Government of Canada, 2023)

The Immigration and Refugee Protection Act (IRPA) mandates the federal cabinet to ensure a continuing review of the United States’ human rights record and its “policies and practices with respect to claims under the Refugee Convention and obligations under the Convention Against Torture” (Immigration and Refugee Protection Act, 2001, s. 102).

These provisions exist because the legality of enforcing the Safe Third Country Agreement (STCA) with the United States depends on changeable facts on the ground in both countries. In 2023, the Supreme Court of Canada upheld the constitutionality of the STCA based on evidence about the operation of the U.S. asylum system as it existed at that time (Canadian Council for Refugees v. Canada [Immigration, Refugees and Citizenship], 2023). If changes to law, policy and practice in the United States mean that it is no longer a safe country for refugees to seek and obtain protection, then ongoing enforcement of the STCA violates Canada’s domestic and international legal obligations.

Since the second inauguration of U.S. President Donald Trump in early 2025, the Canadian government has persistently refused to explain in public or before a court of law whether it believes that the United States meets these standards, stating only that it continues to monitor the situation, and that the government’s assessment is confidential. The recent UN Human Rights Committee observations on Canada’s compliance with the International Covenant on Civil and Political Rights urged Canada to “review the designation of the United States as a safe third country to ensure that it fully complies with the principle of non-refoulement and guarantees effective access to fair and efficient asylum procedures and remedies” (UN Human Rights Office of the High Commissioner, 2026, para. 44).

However, given the Canadian government’s lack of transparency, it is not possible to determine whether the government is actually ensuring the required ongoing review, whether and how any review addresses the relevant factors listed in the Canadian legislation, and the evidence and reasoning supporting any conclusions reached about the safety of the United States.

The STCA provides three non-exclusive options to either party in the event that the other party is determined to no longer be safe:

• Create an exception to enforcement in a defined circumstance. This is most apt where the country is generally safe for asylum-seekers but not for specific subcategories of refugee claimants, such as women fleeing domestic violence.
• Immediately suspend the STCA for three months (renewable by an additional three months).
• Terminate the STCA with six months’ notice to the other party.

President Trump made mass deportation a key plank of his 2024 presidential campaign, denigrating non-citizens and asylum-seekers as criminals, security threats, vectors of disease, fraudsters, immoral people and culturally inferior.

Since his second inauguration, the Trump administration has advanced this agenda, setting a quota of 3,000 arrests per day, and pledging to deport one million people per year (the non-status population is estimated to exceed 11 million) through executive orders and agency policies, expansion of enforcement personnel and more infrastructure. Notably, the Trump administration is not only deporting people without status, or people convicted of non-immigration-related crime. It is also producing more people without status by cancelling their existing status, then proceeding to deportation.

The targets of enforcement action are not only people in the United States without status (the “undocumented”) and non-citizens who have committed criminal offences, but also asylum- seekers, permanent residents, and valid holders of temporary status such as foreign workers and international students, as well as recipients of Temporary Protected Status, and others benefiting from protections that are similar to, but less secure than, refugee status.

Trump’s recent budget allocated funds for immigration enforcement that exceed the military budget of every country in the world except the United States and China. The budget for Immigration and Customs Enforcement (ICE) exceeds all other federal law enforcement agency budgets combined, surpasses many NATO member defence budgets, and is almost the size of Canada’s defence budget (Taheri, 2026).

To assess whether the United States is a safe country under the STCA, one must consider whether its laws, policies and practices comply with international and domestic legal obligations and whether (at a minimum) the exercise of power by public officials complies with human rights, procedural fairness (“due process”) and the rule of law.

The treatment of asylum-seekers must also be analyzed against the broader landscape of public pronouncements and measures taken against non-citizens generally, as well as the accompanying arbitrariness that dispels confidence that public actors will operate within the bounds of law. The physical and rhetorical aggression of U.S. public officials against non-citizens is particularly distressing for asylum-seekers who may already be traumatized by past experiences and fear not only deportation, but a return to persecution.

Immigration Enforcement Under the Trump Administration

No field of governance has revealed the authoritarian and arbitrary disposition of the Trump administration more than immigration. Even conservative commentators, generally sympathetic to Republican policies, have documented and denounced “horrors” and “conditions amount[ing] to torture” affecting “people who have been accused of no crime” (Frum, 2025).

This pattern of violence is also imbued with officially condoned racial profiling of Latinos (Noem v. Perdomo, 2025), although nationals of all countries, including Canada, have also been caught in the dragnet. Nearly 150 Canadians, including toddlers, have been detained (Cabrera, 2025; Mojtehedzadeh et al., 2025).

International students and permanent residents have had their status revoked because of the political opinions they hold (or are imputed to hold) and have been arrested without warrant. People who have resided in the United States for decades, with families and jobs, have been deported with no due process.

The following section summarizes policies and practices that specifically target asylum-seekers and others seeking complementary protection (withholding/deferral of removal, Temporary Protected Status), or general policies directed at non-citizens that also apply to people in need of protection.

Ending asylum

On the day of his second inauguration, Trump issued Proclamation 10888, Guaranteeing the States Protection Against Invasion, indefinitely suspends the right to seek asylum at the Mexican border. The order describes the arrival of people there as an “invasion” and declares that the president can halt entry and deny access to asylum and other humanitarian protections until he deems the invasion over (President of the United States of America, 2025a). Anyone who entered the U.S. from Mexico after that date is also barred from seeking asylum from within the United States.

In 2023, the Biden administration introduced the CBP One app to enable U.S.-bound asylum-seekers in Mexico to make appointments to initiate processing at the border. In January 2025, Trump cancelled all outstanding appointments. In April 2025, the government revoked their provisional admission, terminated all benefits, and directed them to leave the United States immediately or face penalties, criminal prosecution and deportation.

The rebranded CBP Home app now directs migrants to register for “self-deportation.” These measures breach the United States’ core legal obligation under the UN Refugee Convention to determine the refugee claim of a person at or inside the border, and to protect refugees from being sent back to their home country.

In December 2025, the Trump administration announced an indefinite pause on the processing of all so-called “affirmative” asylum claims already in progress, pending “comprehensive review.” The policy memorandum issued by U.S. Citizenship and Immigration Services (2025) contemplates a review of all cases, including possible re-interview of asylum-seekers and reassessment of individual claims. In the meantime, affected asylum-seekers remain in limbo indefinitely.

Expedited removal

“Expedited removal” is a procedure dating to 1996 that enables ICE or CBP (Customs and Border Protection) to rapidly detain and deport undocumented migrants and others, including asylum-seekers, without the due process protections available in the regular process and without an opportunity for a hearing before an immigration judge who, despite the title is not an independent judge but rather an employee of the Department of Justice’s Executive Office of Immigration Review.

The opportunity to access the asylum process while in expedited removal is hindered by legal and logistical impediments, including a requirement to spontaneously assert and then satisfy an asylum officer of a “credible fear” of return to their country of origin or departure before they are even permitted to apply for asylum. Asylum-seekers sent back to the United States by Canada under the STCA are subject to expedited removal.

In a separate executive order in January 2025, Protecting the American People Against Invasion, Trump expanded the geographic and territorial scope of expedited removal (President of the United States of America, 2025b, Sec 9). Originally applied only within 100 miles of the U.S. border and only for 14 days post-entry, it has been extended geographically (to anywhere in the United States); temporally (to anyone who cannot prove they have resided in the United States for at least two years); and to anyone who entered irregularly (even asylum-seekers), or who was paroled (provisionally admitted) into the United States and then had their parole status terminated under new ICE guidelines (Immigration Forum, 2026).

Immigration officials now exercise broader discretion to revoke parole for the purpose of diverting more people from regular immigration proceedings into expedited removal. One widely publicized trap set by immigration officials involves Department of Homeland Security (DHS) lawyers seeking dismissal of regular immigration removal proceedings when asylum-seekers appear for routine Immigration Court appearances, then apprehending them when they leave the courtroom and placing them in expedited removal (Ainsley, 2025; Ferré-Sadurní, 2025; Immigration Policy Tracking Project, 2025). Similarly, ICE will order asylum-seekers who are living in the community to attend “check-ins” and then re-arrest and detain them.

The procedural unfairness of expedited removal and the catastrophic consequences of wrongful deportations of refugees back to the countries they fled have long been criticized as violations of due process and a breach of the United States’ legal obligation of non-refoulement (HIAS, 2025). A U.S. District Court Judge described expedited removal as riddled with procedural defects at multiple stages that create an intolerable risk that asylum-seekers will not have an effective opportunity to make their asylum claim, and that refugees will be wrongly removed to a country where they face persecution (Make the Road New York v. Noem, 2025).

Arrest and arbitrary detention

In the Canadian constitutional challenge to the STCA launched in 2018, the Federal Court found that a litigant who was sent back to the United States under its terms was subject to detention in inhumane conditions that would “shock the conscience” of Canadians (The Canadian Council for Refugees et al. v. Minister for Immigration and Minister for Public Safety, 2020).

However, the Supreme Court recast the evidence to find that the Federal Court exaggerated the likelihood of detention and that the refugee’s mistreatment in detention was atypical and unforeseeable by Canadian authorities, meaning that no responsibility could be attributed to Canada for returning her to the United States. Therefore, the Supreme Court concluded that Canada’s enforcement of the STCA did not breach the Canadian Charter of Rights and Freedoms (Blum & Macklin, 2025).

U.S. arrest and detention practices, and conditions in detention, have deteriorated since Trump reassumed office. A recent judgment described the warrantless seizure and imprisonment of non-citizens by immigration enforcement as a “systematic” assertion of “raw force” that places it “beyond the reach of ordinary legal description” and renders it “an assault on the constitutional order” (Urquilla-Ramos v. Trump, 2026).

The number of people detained daily has ramped up to record levels. As of February 2026, almost 70,000 people, including at least 4,000 children, are detained across the United States (Blitzer, 2026 ; TRAC, 2026a). The One Big Beautiful Bill recently approved by Congress allocates $45 billion to migrant detention over the next four years to raise the number of people detained daily to 100,000 (Jordan & Ulloa, 2025). Recent reports describe the government’s focus on the purchase of giant warehouses, with a view to retrofitting them to detain thousands of people in a single facility according to a model inspired by Amazon’s logistics network.

In addition to the widespread privatization of immigrant detention, the second Trump administration is also using military bases to detain migrants, including Fort Bliss in Texas, formerly the site of Japanese internment during the Second World War. Asylum-seekers are swept up in this massive expansion of migrant detention (Da Silva, 2026). DHS has directed ICE officials that non-citizens (including asylum-seekers) who entered irregularly will be subject to mandatory detention without bail until their asylum or withholding of removal case is decided (Kagan, 2025; Lyons, 2025).

Furthermore, anyone currently in expedited removal proceedings is automatically detained and, will not be released no matter how long the duration of proceedings. As the number of people detained soars, and ineligibility for bail extends the length of detention, the Trump administration is also lowering the standards for treatment of detainees.

U.S. and international organizations have long documented abusive practices and inhumane detention conditions (Southern Poverty Law Center, 2016). However, the brutality of the detention system is growing, along with its sheer scale (Dholakia, 2025; Jordan & Ulloa, 2025).

As the detention infrastructure spreads, the number of people detained surges and the duration of detention lengthens, so too does the magnitude of abuse. Families are separated, and children are detained in violation of a 1997 court-ordered settlement restricting detention of children to 30 days (Wimbish, 2026). Media and civil society continue to report about abusive, violent, overcrowded, filthy and unsafe conditions for both adults and children, inadequate food or water, exposure to extreme temperatures, mistreatment of pregnant women and medical neglect (American Immigration Council, 2026; Ansari, 2025; Da Silva, 2026; Ossoff, 2025). In recent months, several District Courts have made preliminary rulings that ICE detention practices constitute degrading and inhumane conditions that likely breach the U.S. Constitution (Barco Mercado v. Noem et al., 2025; Moreno Gonzalez et al. v. Noem, 2025; Pablo Sequen v. Albarran, 2025; Perdomo v. Noem, 2025) Forty-two people (including at least one Canadian) have died in detention from January 2025 to March 2026 (Glawe, 2026; Kocher & Sawyer, 2026).

Most detention facilities are located in the southern United States, in remote locations that are inaccessible to legal counsel and to family. People are often shunted and transferred, and disappear into the detention network and cannot be readily located or contacted by family, friends or legal counsel (American Immigration Council, 2026). The reason for detaining people automatically, indefinitely and without bail is not that the vast majority of people pose a flight risk or are dangerous. Rather, it is to inflict enough suffering “for people to give up their cases because they can’t bear to be in ICE detention” (Da Silva, 2026; Kagan, 2025, para. 3). Detaining non-citizens to coerce them into giving up their legal rights is unlawful. This punitive motive for detention and the inhumane conditions of detention are widely documented and systemic and clearly constitute violations of domestic and international human rights obligations binding on the United States.

Limited access to counsel

Most asylum-seekers are legally unrepresented and, as of 2022, almost 80 per cent of detained non-citizens did not have access to counsel (ACLU, 2022 ; American Immigration Council, 2025). There is good reason to suppose that access to counsel has only deteriorated since 2025.

In March 2025, Trump issued a memorandum disparaging lawyers who represent asylum-seekers, threatening them with unspecified penalties and alleging they “frequently coach clients to conceal their past or lie about their circumstances when asserting their asylum claims, all in an attempt to circumvent immigration policies enacted to protect our national security and (to) deceive the immigration authorities and courts into granting them undeserved relief” (President of the United States of America, 2025d). In March 2026, Attorney-General Pam Bondi even attempted to block state bar associations from investigating and disciplining Department of Justice lawyers for unethical conduct that breaches codes of professional ethics (Department of Justice, 2026)

Asylum denial rates

Asylum denial rates fluctuate over time, so one must be cautious in drawing inferences about the integrity of asylum adjudication from the fact that rates may increase or decrease. U.S. asylum denial rates have at various times been higher than, lower than and similar to current rates, and to Canadian rates. Having said that, from September 2023 to April 2025, asylum acceptance rates plummeted from 56 per cent to less than 20 per cent. The decline has never been as rapid or steep in U.S. history, although it is important to note that it began under the prior Biden administration (Kocher, 2025). In June 2026, only six per cent of all asylum cases were accepted (TRAC, 2026b).

Temporary Protected Status (TPS) and humanitarian parole

TPS and humanitarian parole are subsidiary and time-limited but renewable forms of country-specific protection available to hundreds of thousands of people in the United States who have fled natural disasters, armed conflict and refugee-causing conditions.

In June 2026, a majority of the U.S. Supreme Court upheld the revocation of TPS for 330,000 Haitians and several thousand Syrians. The dissent quoted statements about Haitians from President Trump and members of his administration. These statements disclosed flagrant racial animus that should, under U.S. law, render the policy unconstitutional (Mullin v. Doe, 2026). As of September 2026, Haitians whose TPS was revoked are being deported to Haiti, even though many have asylum claims pending. Haiti is a country in turmoil so extreme that the U.S. State Department and Global Affairs Canada caution against any travel to Haiti for any reason, warning of extreme security risks, kidnapping, gang violence and civil unrest.

TPS has also been revoked for Venezuela, Sudan and Afghanistan, catapulting almost one million people into irregular status, apprehension, detention and expulsion (Council on Foreign Relations, 2025; Olivares, 2026b).

Third country removal

As of March 2026, the United States has entered into Asylum Cooperative Agreements (ACA) with Belize, Ecuador, Guatemala, Honduras, Liberia, Paraguay and Uganda. Just as the STCA enables Canada to shift its asylum obligations to the United States, these bilateral agreements allow the United States to do the same by sending asylum-seekers to the named third countries. An ACA permits the United States to deny asylum-seekers access to protection in the United States, and instead authorizes removal to an ACA country, where asylum-seekers can allegedly seek and obtain refugee protection (CLINIC, 2026). Unlike the STCA, these are not formally reciprocal agreements — they only contemplate removal in one direction, from the United States to the third country. This difference can be overstated, however, because, as explained in a previous brief (Macklin, 2026), the STCA has always been primarily about sending asylum-seekers back to the United States, and rarely from the United States to Canada.

A genuine difference between the STCA and the ACAs is that an asylum-seeker can be sent to an ACA third country even if they never transited through it en route to the United States. The terms of the ACAs are variable, and most are vague and do not contain operational detail. All parties to ACAs are low-income countries, and it is not clear what positive or negative incentives the United States offered to these states to secure their participation (Third Country Deportation Watch, 2026a).

Some ACA countries also have abysmal human rights records. To choose one example, the 2024 State Department report on Honduras summarizes its findings as follows: “Significant human rights issues included credible reports of: arbitrary or unlawful killings; disappearances; torture or cruel, inhuman, or degrading treatment or punishment; arbitrary arrest or detention; and serious restrictions on freedom of expression and media freedom, including threats against media members by criminal elements’’ (Department of State, 2024, Executive Summary section). Honduras is one of the most violent countries in the world, has the highest rate of femicide in the Americas and is itself a significant source country of refugees (Human Rights Watch, 2024). It does not have a functioning asylum system (Third Country Deportation Watch, 2026b).

ICE lawyers ask immigration judges to “pretermit” (summarily reject) asylum claims because the person could be sent to an ACA country that would assume responsibility for the asylum claim. In that case, the immigration judge need not consider the asylum claim and can simply issue a removal order to the ACA country. Over 30,000 asylum claims have been pretermitted between August 2025 and June 2026 (Human Rights First, 2026).

The prospect of Canada returning an asylum-seeker (without a hearing) to the United States under the STCA, only to have the U.S. remove them (without a hearing) to Honduras, Guatemala, Uganda or one of the other ACA countries led the United Human Rights Committee to express concern to Canada “about the potential consequences this may have for asylum seekers transiting through [the United States], including risk of ‘chain refoulement’” (UN Human Rights Office of the High Commissioner, 2026, para. 43). Chain refoulement describes the process whereby asylum-seekers are sequentially expelled by states under third country agreements and effectively deprived of the ability to obtain refugee protection anywhere. Canada violates its own international legal obligations under the International Covenant on Civil and Political Rights (as well as the UN Refugee Convention) when it participates in chain refoulement.

The United States has also entered into various bilateral deportation agreements with third countries to accept deported non-citizens who have no connection to the destination country. These include people who have the status of deferred or withholding of removal based on refugee-like circumstances and/or risk of torture. Deportation can happen in as little as six hours after notice to the person concerned, without access to counsel or recourse, and with no consideration of the risk of torture or persecution in the third country.

The most notorious example was the unprecedented invocation of the 1798 Alien Enemies Act to round up Venezuelan men (some of whom were TPS holders or asylum-seekers) and render them to the notorious CECOT mega-prison in El Salvador (President of the United States of America, 2025c). Other third-country destinations include Djibouti, Eswatini, South Sudan, Costa Rica, Panama, Rwanda, Uganda and Libya (ICE, 2025). All are in the Global South and most are impoverished, have abysmal human rights records and/or ongoing conflict, and are among the low- and middle-income countries that already host over 70 per cent of the world’s refugees.

A majority of the U.S. Supreme Court authorized continuation of these removals pending the progress of ongoing litigation in lower courts challenging the legality of these agreements. Justice Sonia Sotomayor dissented, emphasizing that the U.S. actions flagrantly violate both U.S. and international law.

Accountability and oversight

Former Homeland Security Secretary Kristi Noem recently slashed the budgets and staff of three DHS offices that had been tasked with oversight of the operations of agencies such as CBP and ICE, covering issues such as racial profiling, harassment and unprofessional conduct. Although members of Congress have the legal authority to enter detention facilities without prior notice to conduct oversight, the Trump administration has denied them access (American Immigration Council, 2026; Olivares, 2026a).

Defiance of the rule of law at all levels of the U.S. government — including concealment of identity of immigration enforcement officers, non-compliance with judicial orders, breaches of due process, arbitrary and unlawful use of state violence, and the absence of transparency and accountability — make it impossible for non-citizens (and citizens) to confidently predict if, when or why they will be subjected to abuse of state power. The absence of oversight also means they will have no meaningful recourse.

This barrage of measures is being challenged on constitutional and administrative grounds in courts at all levels across the United States. However, the courts cannot keep up with the deluge of cases, nor offer timely remedies. Only a tiny fraction of affected people can obtain counsel and litigate. Moreover, even where litigation is successful, the Trump administration can and does evade compliance. Perhaps most significantly, the government may lose individual cases and, for example, release a person from detention, but it does not alter subsequent practice. The warrantless arrests, unlawful detention, denial of counsel and wrongful deportation persist uninterrupted. And finally, even if many lower courts have resisted the assault on the rule of law and fundamental rights of non-citizens, the record of the current U.S. Supreme Court gives no reason for optimism. The majority of the U.S. Supreme Court found insufficient reason to halt or even suspend (pending final decisions on the merits) racial profiling, expulsion to South Sudan and Guatemala, racist revocation of TPS for Haitians, and deflection of asylum-seekers at the Mexican border (Department of Homeland Security v. D.V.D., 2025; Mullin v. Al Otro Lado, 2026; Mullin v. Doe, 2026; Noem v. Vasquez Perdomo, 2025).

Canada’s Legal Obligation and Policy Options

The United States is not presently a safe country to seek or obtain refugee protection. Asylum-seekers and others in need of protection are at risk of human rights violations ranging from denial of due process to unlawful searches, to arbitrary arrest, to punitive and inhumane detention, to unlawful expulsion to a country where they may face persecution or torture. The facts on the ground today are different than in 2023, when the Supreme Court of Canada issued its judgment in Canadian Council for Refugees v. Canada. Conditions for asylum-seekers in the United States are much worse, more pervasive and systemic — and they are well known. Were the constitutional test articulated in Canadian Council for Refugees v. Canada applied to today’s facts, it seems arguable that the outcome should be different. The impact of the STCA on asylum-seekers who might otherwise seek protection in Canada would be grossly disproportionate to Canada’s putative objective of “sharing responsibility” for refugee protection with the United States.

The legality of the STCA depends on both Canada and the United States being safe countries in which to seek and obtain refugee protection. The United States is not presently safe. By knowingly returning asylum-seekers back to an unsafe United States, Canada becomes complicit in the consequential harm inflicted on asylum-seekers.

At present, Canada is not considering whether conditions in the United States warrant making more policy exceptions to enforcement, much less suspending the STCA. Instead, it is doubling down on enforcement of the STCA, by applying it even more strictly than in the past. For example, a young Haitian man made his way to the Canadian border in December 2025 to seek refugee protection in Canada. He was eligible for the STCA kinship exception because his aunt lives in Montreal. He was denied entry to Canada because his aunt happened to be temporarily outside Canada for a family emergency. That is not a legal basis for refusal. He was returned to the in the United States, immediately detained by ICE and remains there pending deportation to Haiti, with no opportunity to make an asylum claim (Keung, 2026). Experienced lawyers report that Canadian border officials increasingly impose financially and logistically onerous evidentiary demands (DNA tests, multiple documentary sources, etc.) to prove kinship, which in turn provide a pretext for denying eligibility for the STCA family exception. And finally, the risk that the STCA would become a job creation program for smugglers has proven true, just as the Parliamentary Committee on Citizenship and Immigration cautioned in 2002 (Macklin, 2026). A recent U.S. media report quoted RCMP reports that smugglers charge asylum-seekers $1,000 to assist them in crossing the border into Canada (Hughes, 2026). If asylum-seekers could ask for asylum by presenting themselves at a port of entry — as they did prior to the STCA — they would not be driven into the hands of smugglers.

The mistreatment of asylum-seekers in the United States is widely reported, and the causal effect of the STCA on smuggling was anticipated. This provokes inquiry into why Canada not only continues to enforce the STCA, but is enforcing it ever more restrictively. If the STCA is indeed predicated on the genuine availability of refugee protection in either country, the actions of Canadian border officials and policymakers cannot be rationalized. However, if Canada’s objective is simply to reduce the number of asylum-seekers who seek and obtain refugee protection in Canada, Ottawa’s conduct is explicable. If the United States is unsafe for asylum-seekers and refugees, it is foreseeable that at least some people in the U.S. might try to seek protection elsewhere, including Canada. And so, from the perspective of a Canadian government intent on reducing its responsibility to protect refugees, the STCA must be enforced more harshly, not in spite of the fact that the United States is unsafe for asylum-seekers, but because the United States is unsafe for them.

As explained in the companion brief (see Macklin, 2026, in this series), the STCA is the cause, not a solution, for irregular entry by asylum-seekers. Moreover, barring asylum-seekers from seeking protection because Canada does not want more of them is not a lawful purpose of the STCA. That is not sharing, but rather abdicating, responsibility for protecting refugees. Canadians are accustomed to our geographic isolation from regions that produce refugees. This has insulated Canada from confronting the immediate impact of people fleeing state repression and armed conflict. Countries near Sudan, Ukraine, Syria and Venezuela do not have that luxury. Canada cannot so easily distance itself from its moral or legal obligations in the unprecedented turmoil created by the Trump administration.

Although continued enforcement of the STCA under current conditions is legally and morally indefensible, it is obvious that Canadian politicians worry that suspending it would increase the number of asylum-seekers in the United States who seek refugee protection in Canada in a safe and regular manner (as they could do until 2005). In a climate of growing opposition to immigration, where migrants and asylum-seekers are blamed for housing shortages, inflation and a range of other social ills, politicians fear a swift and harsh public backlash if they are not seen to be “controlling the border” by excluding asylum-seekers.

There is a principled and a pragmatic response to this political concern. Canada voluntarily assumed a legal obligation toward refugees when it signed the optional protocol to the UN Refugee Convention in 1969. No one forced it on Canada. In comparative terms, Canada is hardly outperforming other states in its duty to protect refugees.

The spontaneous arrival of people seeking refugee protection is anticipated by the Refugee Convention and does not denote a loss of control over the border, because no country controls the external forces that impel people to seek refugee protection, or the accident of geography. The EU was dramatically more affected by the Syrian crisis than North America, but Turkey, Lebanon and Jordan bore the brunt of the exodus because they were even closer to it. 

Governments have options in how they anticipate, talk about and manage the arrival of asylum-seekers. This is a matter of political leadership. Former German chancellor Angela Merkel demonstrated this kind of leadership in reassuring Germans that they could manage the admission of almost one million Syrian asylum-seekers in 2015, and Germans stepped up.

Former prime minister Stephen Harper refused to resettle Syrians but Justin Trudeau reversed that decision when he became prime minister in 2015 and Canadians stepped up. Recently, Toronto Mayor Olivia Chow strongly objected to the federal government’s refusal to provide the city with adequate financial assistance for some 3,500 refugee claimants who rely on the city’s shelter system, but she did not resort to anti-refugee, blame-the-victim rhetoric.

I want to remind everyone that Toronto is built and shaped by successive waves of refugees. … Our city is a beacon of hope for many around the world, which is why so many arrive in Toronto every day with hope for building a better life for themselves and their families. … Once again, let’s work together to give a good start in Canada for those who are fleeing war, famine and persecution — and get the message out that the federal government must not walk away from their responsibility to provide the funds to do so. (Lavoie, 2025, para. 9)

Politicians need not pander to real or anticipated negative public opinion or, worse yet, cultivate it. They can lead.

The pragmatic response recognizes the futility of what Karine Côté-Boucher and others aptly call the “containment fantasy” — the fallacy that “with the right border enforcement, Canada could make spontaneous refugees disappear” (Côté-Boucher et al., 2023, p. 420). A pragmatic response requires transitioning from an exorbitant and futile campaign-in-perpetuity to build a physical or technological wall along an almost 9,000-kilometre border.

As discussed in the companion brief (Macklin, 2026, the first part of the IRPP’s series on the Safe Third Country Agreement), the Canadian government has cut funding for improving the refugee-determination system and mitigating backlogs. Instead, it invested $1.3 billion in militarizing the border against the entry of asylum-seekers who would not resort to irregular entry but for the existence of the STCA itself, following President Trump’s allegations concerning fentanyl and human trafficking from Canada into the United States, which he used as a pretext for imposing tariffs (White House, 2025).

This is a costly mistake. Canada should redirect resources toward anticipating and managing the potential movement of asylum-seekers impelled by the unsafe conditions created by the U.S. government. This achievement is neither impossible nor unprecedented if accompanied by political will. Two examples are illustrative of the potential for innovation.

First, in response to the Russian invasion of Ukraine in 2022, Canada developed the online Canada-Ukraine Authorization for Emergency Travel (CUAET) program — a bespoke visitor visa that Ukrainians, spouses and dependent children could use to travel to Canada on a multiple-entry 10-year visa and stay up to three years at a time. CUAET holders could also obtain work and study visas, and apply for refugee status. Canada issued more than 960,000 such visas with an 81 per cent approval rate. About 300,000 Ukrainians arrived under this program from 2022 to 2024 (Government of Canada, 2024).

Second, to manage the high number of asylum-seekers at the U.S.-Mexico border, the Biden administration introduced a phone app (the CBP One app) that enabled asylum-seekers on the Mexican side near the border to securely upload biographical information and to schedule appointments for asylum screening at one of several designated ports of entry.

It was intended to ensure regular and orderly processing at official ports of entry during anticipated periods of high demand. Unfortunately, the app used a defective technology and the policy regarding its use was also flawed. Nevertheless, the potential for technology to play a constructive role in managing the admission of refugees remains underdeveloped.

There is no doubt that it would be costly for Canada to enhance capacity to process more asylum-seekers in a safe and orderly way at ports of entry if the STCA were suspended or terminated. The expenses include the costs currently borne by provinces and cities for housing and services. It would, however, be less costly — financially, politically and morally — than sinking $1.3 billion (so far) on militarizing the border to address a problem of irregular migration and people smuggling caused by the STCA. Asylum-seekers will not resort to smugglers if they can seek protection at a port of entry.

To solve these problems, Canada should:

• Immediately suspend operation of the STCA because the United States is not a safe country to seek or obtain refugee protection.
• Provide formal notice of its intention to withdraw from the STCA in six months if conditions do not materially improve.
• Alleviate the risk of irregular entry and human smuggling that the STCA created by restoring asylum-seekers’ ability to request refugee protection at ports of entry along the Canada-U.S. border.
• Reverse the refugee ineligibility for people who made asylum claims in the United States before entering Canada, or for people who cross irregularly.
• Demonstrate leadership in preparing Canadians for a potential and manageable increase in the arrival of asylum-seekers fleeing the United States. This includes placing Canada’s moral and legal obligations in the global context and resisting scapegoating of refugees.
• Develop a protocol for communicating with asylum-seekers located in the United States that takes advantage of privacy-protecting technology to facilitate orderly and efficient processing that commences prior to their physical arrival at the border.
• Reallocate as needed the $1.3 billion committed to militarizing the Canadian border against “irregular” entry and to build and restore capacity in operating a system of regular, orderly, humane and efficient admission, reception and adjudication of asylum-seekers’ applications for refugee protection.
• Work with provinces and municipalities to ensure adequate preparations, arrangements and support.

The Canadian government has shown no indication that it intends to suspend or renegotiate the STCA, or even to supplement existing exceptions to STCA exclusion. If anything, recent enforcement decisions point toward a determination to maximize denial of access to protection in Canada, despite the known consequences to asylum-seekers’ lives and safety. That political reality does not change what is legally and morally required. These recommendations follow from the legal analysis presented in this brief, independent of whether the current government is prepared to act on them.

The legality of continued enforcement of the Canada-U.S. Safe Third Country Agreement depends on the United States being a safe country for asylum-seekers to seek and obtain refugee protection. The United States has manifestly, demonstrably become unsafe. The appropriate policy response is to suspend the STCA unless and until the United States is safe. This requires leadership in reassuring Canadians that its government can manage a potential increase in the number of asylum-seekers. It has already designated $1.3 billion to managing Canada’s border, and directing as many of these funds as necessary to the orderly, regular and safe processing of asylum-seekers through Canada’s ports of entry is the optimal and just means for efficiently managing the border, preventing human smuggling, and meeting Canada’s domestic and international legal obligations toward refugees.

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This Policy Brief was published as part of the Canada’s Changing Immigration Landscape series from the Centre of Excellence on the Canadian Federation. The manuscript was copy-edited by Jim Sheppard, proofread by Zofia Laubitz, editorial co-ordination was by Prasanthi Vasanthakumar, production was by Chantal Létourneau and art direction was by Anne Tremblay.

Canada’s Changing Immigration Landscape is a partnership between the Centre of Excellence on the Canadian Federation at the IRPP, the Institute for Research on Migration and Society at Concordia University (IRMS) and the Centre for Migration Studies at the University of British Columbia (CMS). All publications in this series are under the direction of Charles Breton, Executive Director of the Centre of Excellence on the Canadian Federation, Mireille Paquet, Director of IRMS, and Irene Bloemraad, Co-director of CMS.

Audrey Macklin is Professor of Law and Chair in Human Rights at University of Toronto, and a Fellow of the Canadian Institute for Advanced Research. She teaches, researches and publishes on migration, citizenship, refugees, administrative law and human rights.

A French translation of this text is available under the title L’Entente entre le Canada et les États-Unis sur les tiers pays sûrs  : un refuge pour ou contre les réfugiés ?

To cite this document:

Macklin, A. (2026). The Canada-U.S. Safe Third Country Agreement: Safe for refugees or safe from refugees? Institute for Research on Public Policy. https://doi.org/10.26070/hh9z-ec89