Blog post by Amala Karri, a postgraduate student in Refugee and Forced Migration Studies at the University of Oxford

In 2004, Canada and the United States enacted a Safe Third Country Agreement (STCA). Since both countries were safe for asylum-seekers, they decided, anyone who claimed asylum at a port of entry from Canada to the United States or vice versa would be turned away. This March, President Biden and Prime Minister Trudeau announced that they had decided to expand the agreement to cover the entire border, including the areas between official ports of entry. This policy decision is dangerous: not only does the United States have a track record of detaining, deporting, and otherwise mistreating asylum-seekers, but it has an especially poor record when it comes to women seeking asylum. Upon the announcement of the expansion, refugee advocates immediately sued the Canadian government. The Supreme Court of Canada unanimously rejected their arguments that the policy violates the rights to life, liberty, and security, but its ruling left some hope for opponents of the policy. Specifically, the judges asked a federal court to rule on whether the STCA might constitute gender-based discrimination—and thus a violation of Canada’s equal protection clause. The federal court’s decision is pending.

The STCA clearly constitutes gender-based discrimination. The United States does not provide the same level of protection to people fleeing gender-based persecution, who are overwhelmingly women, as it does to other asylum-seekers. While the STCA has existed, the U.S. has rejected claims for asylum from large numbers of people fleeing gender-based persecution, a violation of the right to equal protection.

Why is this the case? For one, while Canadian law explicitly recognises gender-based persecution as grounds for asylum, U.S. law is unclear. Treatment of gender-based violence cases varies depending on the presidential administration. For example, during the Obama Administration, a 2014 case involving a pregnant Guatemalan woman fleeing abuse set the precedent of granting asylum to domestic violence survivors. Four years later, however, the Trump Administration’s attorney general, Jeff Sessions, overturned that precedent. “Generally,” Sessions wrote, “claims by aliens pertaining to domestic violence…will not qualify for asylum.” Three years after that, the Biden Administration overturned Attorney General Sessions’ ruling, once more allowing judges to grant asylum on the basis of domestic violence. While judges may currently grant asylum on the basis of domestic violence, most claims were denied even before Sessions’ ruling, and a future Administration could easily return to Sessions’ standard. Indeed, in a 2007 ruling on the original STCA, a federal judge found that the vagueness of U.S. law put survivors of domestic violence at risk of deportation to their home countries; the ruling was subsequently overturned on a technicality.

In addition, the United States requires that people apply for asylum within one year of arrival in the country. This disadvantages claimants fleeing gender-based persecution, who are more likely than others to delay their claims due to trauma, shame, cultural norms, or a lack of evidence. Applying for asylum and having to tell one’s story, including graphic and invasive details, to asylum officers can retraumatise or shame applicants. In many cultures, such topics are stigmatised, and claimants may be reluctant to share what happened to them with strangers.

The evidence is clear: the treatment of women seeking protection from gender-based violence or persecution in the U.S. violates their right to equal protection. The Canadian asylum system, unlike the American one, recognises gender-based persecution as legitimate grounds for asylum and provides people with more time to file their claims.

What would it mean for the Canadian court to rule that the STCA violates the equal protection clause? They could find that the entire STCA is unconstitutional and overturn it entirely, or they could find that its application to people fleeing gender-based persecution is unconstitutional and simply overturn that part. The former remedy is preferable. Due to the factors discussed above, applicants may not reveal to border officials that they are fleeing gender-based persecution, leading to the deportation of women and victims of gender-based violence to the U.S. The only way to avoid such deportations is to overturn the entire agreement.

Outside of Canada, gender-based arguments could play a role in future challenges to STCAs. For example, the U.S. currently has an agreement with Mexico that allows it to send foreign nationals who passed through Mexico on their way to the U.S. back to Mexico. In challenging this agreement, advocates in the U.S. could point to the unequal treatment of women seeking asylum in Mexico. While American judges may be reluctant to rule against Mexico for responding poorly to gender-based asylum claims, given the U.S.’ own track record, advocates could demonstrate that migrants in Mexico face high levels of sexual violence. Furthermore, U.S. courts have found in some cases that Mexico does not provide women with adequate protection from gender-based persecution. Mexico is just one example; the E.U. sends asylum-seekers back to Turkey, for instance, despite research that has shown that Syrian refugee women in Turkey experience gender-based violence.

The Canadian court has yet to rule on the gender argument. But this court and others worldwide should recognise that sending women to countries without a codified right to asylum from gender-based persecution is a form of gender discrimination.

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