Montreal, Canada – It was in early April 2017 when Nedira Mustefa, an Ethiopian woman living in the United States from a young age with no immigration status, came to the Canadian border in search of protection.
After 30 hours of questioning, Canadian officials turned their backs on her, pointing to an agreement between two neighboring countries that would allow Canada to return most asylum seekers from the US to its borders.
Returning to the US, Mustefa was detained at a correctional facility in New York State for a month, including a week in solitary confinement, which she described as “a terrifying, isolated and traumatic experience” . She said she was fed pork against her belief as a Muslim woman, unable to use blankets during the day despite the freezing cold and not knowing when she would be released. .
Her experience has been included in a legal challenge seeks to overturn the bilateral Safe Third National Agreement (STCA), which human rights advocates believe violates the rights of refugees and Canada’s own constitution, known as the Charter of Rights and Self. due to Canada.
But the Federal Court of Appeal on Thursday sided with the Canadian government and maintain the agreement, now forcing the litigants to decide whether to ask the country’s highest court to accept the case – and ultimately determine whether America is a safe place for refugees.
The judge said that a subordinate court was wrong in rule last year that STCA was unconstitutional.
“We are very disappointed,” said Justin Mohammed, a human rights advocate and advocate at Amnesty International Canada, one of the groups involved in the legal challenge.
“There are no doubt that there are people returned to the US who are suffering serious human rights violations by the US government,” Mohammed told Al Jazeera, adding that Amnesty and others are review their next steps, including a possible request to appeal to the Supreme Court of Canada.
According to STCA, Signed in 2002, asylum seekers had to claim protection in the first country they landed in, the US or Canada. The idea that underpins the agreement is that both countries are “safe” and give everyone access to fair refugee status systems. In practice, that means most people trying to make a claim at a Canadian port of entry are back in the United States.
But Canadian law allows asylum seekers to apply for protection once in Canada – and this loophole has pushed thousands of people to make sometimes dangerous trips the US-Canada land border is 6,416 km (3,987 miles) long.
For years, human rights advocates and refugees have raised concerns that Canada is violating its obligations under its constitution, as well as under international law, by enforcing the STCA. The current case is not the first to seek to challenge the deal, after attempts from more than 10 years ago finally failed.
However, when thousands of asylum seekers left the US for Canada since 2017, it was largely motivated by former US President Donald. Trump’s anti-immigration policiesAnother legal case has been brought against the agreement. In July 2020, the Canadian Federal Court ruled that STCA violates the rights of refugees, their freedom and security, as well as their equal rights, guaranteed by the charter.
This week’s appeal court ruling overturns that and means the agreement is upheld.
Jamie Liew, an immigration attorney and professor at the Faculty of Law at the University of Ottawa, said: “I think the reality that people experience is completely ignored in this decision,” said Jamie Liew, a law. Immigration and patchwork “.
“It really raises the question of future cases where people can claim their charter. [rights] violated. What is the threshold now? It sets a really high standard for anyone feeling the impact a government decision has on their lives, ”Liew told Al Jazeera.
“I think it is an appealable decision,” she added. I think the parties will appeal, and I think there is a very good chance that the leave will be approved ”.
The Government of Canada applauds the appellate court’s decision, saying that “STCA has served Canada well for 16 years, ensuring that our common border remains well managed”.
“Canada remains committed to maintaining a fair and compassionate refugee protection system and STCA remains a comprehensive means of processing compassionate, fair and orderly asylum requests at borders. mainland Canada-United States, ”it said in one declare.
But Maureen Silcoff, president of the Canadian Association of Refugee Lawyers, said the ruling “represents a step backwards to human rights in Canada” because the evidence presented in lower court shows the risks that refugees must take to face being sent back to the US, including many being jailed under extreme conditions.
She explained, the US refugee system was more limited in Canada, especially for those fleeing gender-based violence, while refugees had to file their claims within a year of their arrival. arrival, a limitation that many cannot meet.
Silcoff told Al Jazeera that there are “serious defects in the US refugee system” and the long-term injuries many refugees face should force Canada “to be careful about not just shutting down for groups, simply because the refugee system exists in the United States ”.
The number of asylum seekers sent back under the STCA has been low in recent years – 4,400 people have been deported between 2016 and the end of September 2020, according to government data. release last year – also shows Canada has enough resources to handle border claims, she added.
“They make up a very small percentage of all asylum applications in Canada, but for each individual, slammed the door in their face at the border is a life-changing decision for sometimes dire consequences. “