Refugee Protection and the Canada-U.S. Safe Third Country Agreement.

• Author: El Fakhry Tuttle, Myrna
• Position: Special Report: Immigration Law

The right to be protected from persecution is an international human right. Under Canada's immigration laws, a person in Canada can claim status as a Convention Refugee or as a Person in Need of Protection.

Article 1 (2) of the United Nations 1951 Convention Relating to the Status of Refugees (the Convention Refugee) defines a refugee as:

"a person who has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Article 97 of Canada's Immigration and Refugee Protection Act (IRPA) defines a Person in Need of Protection as "a person who faces a danger of torture, risk to life or risk of cruel and unusual treatment or punishment, if he or she returns to their country of nationality or country of residence."

Canada is a signatory to the Convention Refugee which has been incorporated by Part 2 Divisions 1 & 2 of the IRPA. There are two ways to seek refugee protection in Canada: either at a port of entry (airport, seaport or land border) or at an Immigration, Refugees and Citizenship Canada (IRCC) office (see: Claiming Refugee Protection--1. Making a Claim, online: Immigration and Refugee Board of Canada).

In 2002, Canada and the U.S. signed an agreement called the Safe Third Country Agreement (STCA) allowing both countries to work together on managing refugee claims. STCA came into effect in 2004. Article 1 of the STCA defines a refugee status claim as "a request from a person to the government of either Party (Canada or the U.S.) for protection consistent with the Convention Refugee, the Torture Convention, or national laws of each Party."

The STCA does not apply to Canadian or U.S. citizens or those who, not having a country of nationality, are habitual residents of Canada or the United States.

Article 4 of the STCA provides that the Party of the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry. According to Article 1, country of last presence means that country, being either Canada or the

U.S., in...