Safe Third Country Agreement: Canada Court Tests US Safety

The Safe Third Country Agreement, the 2004 pact that lets Canada turn most asylum seekers back to the United States at the land border, is facing a new constitutional test in Canada’s Federal Court in Toronto. Amnesty International Canada, the Canadian Council for Refugees and the Canadian Council of Churches, joined by former refugee claimants, opened hearings on Nov. 9 arguing that Canada can no longer treat the United States as safe for refugees, the groups said in announcing the case. The outcome will decide whether the northern border stays closed to most asylum seekers coming from the United States.

The case asks whether Canada violates its own Charter of Rights and Freedoms by designating the United States a “safe third country” when, the applicants argue, U.S. detention and deportation practices fall hardest on racialized women, LGBTQI+ people and children. The Canadian Council for Refugees said the groups want the U.S. designation struck down.

The equality question the Supreme Court of Canada left open

This is the second round of a fight that began in 2017. The Federal Court struck down the U.S. designation in 2020, the Federal Court of Appeal reversed it in 2021, and on June 16, 2023, the Supreme Court of Canada upheld the agreement under section 7 of the Charter, which protects life, liberty and security of the person. The court relied on the law’s “safety valves,” such as humanitarian discretion to exempt a person from return, The Guardian has reported. It did not decide the section 15 equality claim and sent it back to the Federal Court, according to Amnesty and the refugee council. That claim is what is being argued now.

The applicants now have a different record than in 2023. Their releases point to mass ICE detention and deportation since January 2025, and Ketty Nivyabandi, secretary general of Amnesty International Canada’s English-speaking section, said the United States “is not a safe place for migrants and refugees.” ICE has reported record arrests and removals for fiscal 2026, as covered in the ICE deportation record, and the administration has expanded third-country removals. The open question is whether a Canadian court reads those trends as proof that the U.S. system is unsafe for refugee claimants in particular.

Ottawa has held its position. Immigration, Refugees and Citizenship Canada told Truthout it “can’t comment on matters before the courts” and said the agreement is designed to keep the border “safe and well-managed.” An IRCC briefing binder prepared this year says the United States remains the only country designated under Canada’s immigration law and that Canada “continuously monitors developments in the U.S.” The government maintains the United States still meets the agreement’s legal requirements, The Guardian reported.

Where asylum claims in Canada actually come from

In March 2023 the agreement was extended from official land ports to the entire border, including waterways. According to IRCC, irregular crossings fell from an average of 165 a day before then to 13 a day since. Yet land-border claims, open only to people who fit an exception, rose in 2025 while Canada’s total fell by about a third.

Point of claim	2024	2025
Inland offices	111,265	77,625
Airports	42,620	11,740
Land border ports	14,770	19,635
All asylum claims	about 173,000	114,515

Asylum claims received in Canada, calendar years 2024 and 2025. Source: IRCC briefing material for the House of Commons immigration committee, April 22, 2026.

Based on those IRCC figures, land-border claims grew about 33 percent in 2025 while airport claims fell more than 70 percent. IRCC says much of the Quebec land-border traffic is Haitian nationals with family in Canada entering at Lacolle, the same nationality now facing the end of Haiti TPS in the United States.

How long this could take, and what a win would change

A Federal Court ruling is likely months away, and the last round took six years to pass through three courts. A government loss would almost certainly be appealed, and in 2020 the Federal Court suspended its ruling to give Ottawa time to respond, so even a win would not open the border overnight.

If the designation fell, people in the United States could again file claims at Canadian ports of entry, and northbound movement by people with pending or failing U.S. cases would likely rise. That flips the usual debate, in which Washington presses Mexico and Central America to hold migrants. Here a court in Toronto will help decide whether Canada keeps holding the northern line.

Questions about the northern border

Can someone in the US still make a refugee claim at a Canadian land border crossing under the Safe Third Country Agreement?

Only if they fit an exception. Exceptions cover, among others, unaccompanied minors and people with qualifying family members in Canada, which is why IRCC reports that Haitians with relatives in Canada drive much of Quebec’s land-border traffic. The test applies person by person: The Guardian described a Honduran family in which the father and son qualified through relatives in Canada and the mother did not.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds an LL.M. from California Western School of Law, San Diego and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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