In 2023, with little warning, the Safe Third Country Agreement (STCA) between Canada and the United States of America was amended. The additional protocol now precludes those crossing the border irregularly between ports of entry from Canada to the United States of America (USA), or vice versa, from being able to apply for asylum (save for a few limited circumstances). These changes follow a rise in unauthorized crossings, particularly from the USA into Canada, prompted, at least in part, by restrictive immigration policies put in place under the first Trump administration.

Arguments against the STCA have long emphasized the lack of harmonization across the two different asylum systems, claiming that some asylum-seekers are harmed by the barriers produced by the agreement.^[1] In particular, the American asylum system is criticized for not providing the same level of protection to certain groups as the Canadian asylum system does, including those fleeing gender-based violence.^[2] Legal challenges to the STCA remain underway in Canada, following a partial ruling in 2023 by the Supreme Court. This challenge emphasizes the differences between the Canadian and American asylum systems, noting that some asylum-seekers may face rejection of their claims in the US when the same claim would be successful in Canada.

This article will explore the Safe Third Country Agreement between Canada and the USA, in particular its recent expansion, as a barrier to accessing asylum. It ends with a reflection on the current, rapidly changing political landscape in the United States and the concerning changes to immigration policy. As the second Trump administration seems poised to make the United States increasingly hostile to migrants and other vulnerable groups, the premise that the US can be regarded as a ‘safe’ third country must once again be interrogated.

Introduction

For more than 20 years, Canada and the United States of America have maintained a Safe Third Country Agreement (STCA), which governs access to asylum for migrants seeking to move between the two countries. This agreement was the result of ongoing negotiations between the two states, which were made a priority by the USA following the attacks on September 11th, 2001.^[3] In 2002, the Immigration and Refugee Protection Act (IRPA) came into force in Canada as the primary piece of legislation governing immigration. Section 102 of this Act permits other countries to be designated as safe for the purposes of refugee processing, allowing for “sharing the responsibility for refugee claims” between states.^[4] The USA was designated as a Safe Third Country, and the STCA came into force on December 29^th, 2004.^[5]

The conditions of the STCA are such that asylum-seekers cannot travel from the United States to Canada and enter a claim of asylum at a land border port of entry, or vice versa, save for a few limited exceptions, as detailed in Article 4 of the agreement.^[6] Notably, however, the version of the STCA that came into force in 2004 only governed crossings that occurred at regular ports of entry – it did not apply to those who crossed the border irregularly. The Canada-USA border is vast, with extensive stretches of dense forest, open prairie, and mountainous terrain. At 8,891 kilometers, it is the longest land border in the world. As such, asylum-seekers have found points to cross this extensive border, circumventing the STCA, in pursuit of safety.

Advocates have long warned that preventing access to asylum at regular points of entry will cause migrants, particularly asylum-seekers and refugees, to take more dangerous, clandestine journeys.^[7] Following the implementation of the STCA, asylum-seekers have crossed the Canada-USA border under harrowing conditions. Some have lost fingers to severe frostbite.^[8] Others have lost their lives.^[9] In this way, the STCA contributes to rising border controls and migration externalization policies being implemented across wealthy, migrant receiving states worldwide, which result in tragedy.^[10]

Irregular Crossing at Roxham Road

In the case of asylum-seekers seeking to cross into Canada from the United States, these journeys overwhelmingly came to involve the site of Roxham Road. A rural crossing from New York state into the province of Quebec, Roxham Road became the primary irregular point of entry into Canada. In a primer on irregular migration published by the United Nations High Commissioner for Refugees in 2019, it was reported that 97% of irregular arrivals into Canada from the USA happened at Roxham Road.^[11] In 2017, irregular crossings began to increase at Roxham Road when more and more migrants within the USA were fearful of policies being implemented under the newly elected President Trump. Over 46,000 Haitians were at risk of deportation to Haiti when the Trump administration elected not to extend their Temporary Protected Status designation. “In April 2017, just 150 Haitians crossed into Canada at Roxham Road. The following month, the number increased to 1,355, and to 3,505 that June.”^[12] As these and other vulnerable migrants were already in the USA, they were subject to the conditions of the STCA, and therefore could only access safety in Canada by arriving irregularly.

These mobility patterns led the Royal Canadian Mounted Police (RCMP) to construct temporary buildings at this site of crossing. While Roxham Road was still an irregular crossing point, it became a relatively orderly and quasi-official site, where asylum-seekers would immediately go through health, criminality, and security screenings.^[13] The presence of the RCMP at this crossing point did not mitigate all risk, and deaths and injuries continued to happen along the New York-Quebec border, but it is likely that the structured nature of this crossing point reduced the number of such incidents along this border. While the response of the RCMP and the quasi-official nature of this crossing contributed to this, large credit is due to the local community surrounding Roxham Road, who provided direct support to asylum-seekers since numbers began to increase in 2017.^[14]

The orderliness of Roxham Road, however, contributed to its visibility as a site of irregular migration. In 2021, following the easing of restrictions that had been put in place due to COVID-19, there was a significant increase in the number of asylum-seekers crossing into Quebec. The RCMP presence, the temporary buildings, the signage at the border, and the concomitant rise in irregular crossings made Roxham Road, once a relatively unknown road south of Montreal, the topic of considerable media coverage and a highly politicized site.^[15] The provincial government of Quebec publicly put pressure on the Canadian federal government to close Roxham Road, citing concerns about the costs and strains on services they claimed would come from supporting an influx of asylum-seekers.^[16]

2023 Expansion of the STCA

The visibility and discourse surrounding Roxham Road seem undoubtedly entwined with the decision to expand the STCA. In March 2023, with little public awareness that such a change was coming, Canada and the USA signed an additional protocol to the STCA.^[17] While the changes had already been agreed upon in 2022, they were kept secret and announced just hours before the protocol took effect.^[18] The additional protocol significantly alters access to asylum across these two countries, as the STCA now applies to the entirety of the Canada-USA border, inclusive of “the land border between the ports of entry”.^[19] As a result, asylum-seekers who cross at Roxham Road are no longer eligible to enter a claim of asylum as soon as they enter Canada, unless they qualify under the limited exceptions to the STCA. This process of gradual illegalization of mobility through STCA is analyzed in another contribution to this series. With the additional protocol in place, crossings at the Roxham Road decreased. The infrastructure was steadily removed, the buildings demolished. In their place, a large sign now warns people in both French and English not to cross the border.^[20]

The additional protocol worsened concerns over how the STCA may result in increased human smuggling and trafficking at the Canada-USA Border. Under the additional protocol, asylum-seekers who cross the border irregularly and are able to remain undetected for fourteen days are still able to enter a claim of asylum after that period.^[21] The Canadian Government itself noted that:

There is an acknowledged risk that the Regulations may incentivize asylum claimants to enter Canada undetected, possibly leading them to seek assistance from human smugglers or taking dangerous routes to evade application of the STCA. Clandestine irregular routes could also increase the risks of human trafficking and sexual violence, often disproportionately targeted at migrant women, girls, and LGBTQI individuals. Further, children and elderly migrants could also be at greater risk if they choose to pursue crossings in remote locations during inclement weather. The vulnerabilities established by these situations can be exacerbated if irregular migrants try to remain undetected for 14 days once in Canada to avoid the new Regulations and turn to illicit networks for support.^[22]

Despite this acknowledged risk, the Canadian government offered no solution to mitigate these concerns while implementing the additional protocol. Just two weeks after the additional protocol came into force, eight migrants, including young children, drowned in the St. Lawrence River while trying to cross into the USA.^[23]

In a forthcoming article, myself, Dr. Alison Mountz and Dr. Kira Williams, examine data on recent unauthorized border crossings between Canada and the USA to understand the effects of the new regulations. Statistics published by various Canadian agencies, including the Immigration Refugee Board and Immigration, Refugees, and Citizenship Canada, indicate that while RCMP interceptions at the border have drastically reduced, there are still asylum-seekers who are identified as having arrived irregularly, making inland claims.^[24] While the number of claims has fallen, this indicates that there are still asylum-seekers making these unauthorized crossings. Organizations working with asylum-seekers in Canada have found that those who have recently arrived have been increasingly reliant on smugglers. In summer 2023, the FCJ Refugee Centre in Toronto found that among new arrivals that they were supporting who had crossed into Canada undetected, approximately 20-30% had relied on a human smuggler.^[25]

Is the USA a Safe Country for Asylum-Seekers?

The STCA continues to face legal challenges in Canada. The first challenge disputing the notion that the United States could be understood as a safe country was levied in 2005. While this challenge was unsuccessful, the applicants mounted a second challenge in 2017, which continues to be litigated. The basis of both challenges is that the USA cannot be understood as a safe country for all those seeking asylum.^[26] Twenty years since that first challenge, disputing the designation of the USA as a safe country for asylum remains an urgent matter. Within the first 100 days in office for his second term, President Trump took 181 executive actions related to immigration.^[27] This administration has announced their intention to engage in ‘mass deportations’, and they are pursuing arrangements with a variety of third states to achieve this. This includes sending Venezuelans from the USA to El Salvador, where migrants have been held in notorious prisons, as well as removing migrants to Costa Rica and Panama.^[28] Beyond those externalization efforts already in place, there are reports that the USA is seeking to remove migrants to Libya, a state where migrants are known to have been subject to horrific conditions and human rights violations. A director for Human Rights Watch described the prospect of a migration arrangement between the USA and Libya as “dystopian”.^[29]

In addition to worrisome new immigration policies enacted by the Trump administration, existing disparities across the Canadian and American asylum systems continue to call into question the validity of designating the USA as a safe third country for the purposes of asylum. Access to asylum across the United States is highly variable by location. Certain jurisdictions in the USA have been referred to as ‘Asylum Free Zones’, where nearly all asylum claims are rejected, seemingly regardless of the merits of the individual claims.^[30] A petition filed before the Inter-American Commission on Human Rights in December 2016 found that the rejection rate was as high as 98% in some of these jurisdictions.^[31] Data published by the Transactional Records Access Clearinghouse at Syracuse University indicate that in many of these so-called zones, approval rates have remained well below the national average in recent years.^[32] Advocates have also noted the ways in which the Canadian and American asylum systems differ in their treatment of gender-based claims. The courts in the USA have denied claims of women fleeing gender-based violence, causing concerns that women and non-binary asylum-seekers are at increased risk of refoulement.^[33] A Canadian House of Commons report from 2023 acknowledged concerns about the viability of gender-based asylum claims made in the US.^[34] The disparity in how asylum claims are adjudicated both across the United States and between Canada and the USA calls into question the core logic of the Safe Third Country Agreement, which includes the assertion that “the United States and Canada offer generous systems of refugee protection”.^[35]

Conclusion

The USA remains the only country that Canada has designated as a safe third country.^[36] According to the Canadian government, “Only countries that respect human rights and offer a high degree of protection to asylum-seekers may be designated as safe third countries.”^[37] Even prior to the election of Donald Trump, there have been serious concerns about whether or not the United States of America meets this definition. Now, with Trump as President for the second time, the USA has become an increasingly unsafe country for many of its most vulnerable inhabitants, including asylum-seekers.

Footnotes

1. Chishti, Muzaffar, & Getlatt, Julia. (27 April, 2023). Roxham Road Meets a Dead End? U.S.-Canada Safe Third Country Agreement is Revised. Migration Policy Institute. Retrieved from: https://www.migrationpolicy.org/article/us-canada-safe-third-country-agreement; Rehaag, Sean., & Aiken, Sherry. (2020, 24 July). Canadian court correctly finds the U.S. is unsafe for refugees. The Conversation. Retrieved from: https://theconversation.com/canadian-court-correctly-finds-the-u-s-is-unsafe-for-refugees-143239; Liew, Jaime, Molnar, Petra, & Young, Julie. (2023, 19 April). The new US-Canada border deal is inhumane – and deadly. Al Jazeera. Retrieved from: https://www.aljazeera.com/opinions/2023/4/19/the-new-us-canada-border-deal-is-inhumane-and ↑

2. Karri, Amala. (2023, 08 November). The U.S.-Canada Safe Third Country Agreement & Gender-Based Discrimination. RLI Blog on Refugee Law and Forced Migration. Retrieved from: https://rli.blogs.sas.ac.uk/2023/11/08/the-u-s-canada-safe-third-country-agreement-gender-based-discrimination/; Akibo-Betts, Sonia. (2005). The Canada-U.S. Safe Third Country Agreement: Why the U.S. is not a Safe Haven for Refugee Women Asserting Gender-Based Asylum Claims. Windsor Review of Legal and Social Issues, 19, 105-129. ↑

3. Ardalan, Sabrineh, & Kersley, Alexandra. (2023). Rolling Back Refugee Rights at the Canada-A Border. Refugee Responsibility Sharing – Challenging the Status Quo: A Special Issue, PKI Global Justice Journal, 6. ↑

4. Government of Canada. (2023). Canada-US Safe Third Country Agreement. Agreements. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html ↑

5. Ibid ↑

6. Government of Canada. (2023). Canada-US Safe Third Country Agreement. Agreements. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html ↑

7. Tremayne-Pengelly, Alexandra. (2022, 25 May). Canada’s refugee road: a lifeline for some, a political headache for others. The Guardian. Retrieved from: https://www.theguardian.com/world/2022/may/25/canada-refugee-asylum-seekers-roxham-road ↑

8. Froese, Ian. (20 March, 2023). Refugees who lost fingers to frostbite in near-fatal 2016 bid to cross border become Canadian citizens. CBC News. Retrieved from: https://www.cbc.ca/news/canada/manitoba/refugees-frostbite-become-canadian-citizens-1.6783528 ↑

9. Young, Julie, Martinez, Daniel E., Simburger, Dylan, & Granovsky-Larsen, Simon. (06 February, 2025). The hidden truth about migrant deaths at the Canada-U.S. border. The Conversation. Retrieved from: https://theconversation.com/the-hidden-truth-about-migrant-deaths-at-the-canada-u-s-border-247782#:~:text=Our%20research%20identified%2015%20deaths,both%20sides%20of%20the%20border. ↑

10. See, for example: Stierl, Maurice. (2019). Migrant Resistance in Contemporary Europe. New York: Routledge; Mainwaring, Cetta. (2019). At Europe’s Edge: Migration and Crisis in the Mediterranean. Oxford: Oxford University Press; Bialasiewicz, Luiza. (2012). Off-shoring and out-sourcing the borders of Europe: Libya and EU boder work in the Mediterranean. Geopolitics, 17(4). ↑

11. UNHCR Canada. (2019). What To Know About Irregular Border Crossings. Retrieved from: https://www.unhcr.ca/wp-content/uploads/2019/09/what-to-know-about-irregular-border-crossings-Aug2019-en.pdf ↑

12. Smith, Craig Damian. (16 October, 2019). Changing U.S. Policy and Safe-Third Country “Loophole” Drive Irregular Migration to Canada. Migration Policy Institute. Retrieved from: https://www.migrationpolicy.org/article/us-policy-safe-third-country-loophole-drive-irregular-migration-canada ↑

13. Steiner, Isabelle. (14 September, 2023). Safe Third Country Agreement Expansion Causes Asylum seekers to Explore New Routes. Wilson Center. Retrieved from: https://www.wilsoncenter.org/blog-post/safe-third-country-agreement-expansion-causes-asylum-seekers-explore-new-routes ↑

14. Ravensbergen, Frances. (06 March, 2025). How a small border community in Quebec built a support network for asylum seekers. Canadian Centre for Policy Alternatives. Retrieved from: https://www.policyalternatives.ca/news-research/how-a-small-border-community-in-quebec-built-a-support-network-for-asylum-seekers/ ↑

15. Major, Darren. (25 February, 2023). Roxham: The little country road that became a big political headache for the Trudeau government. CBC News. Retrieved from: https://www.cbc.ca/news/politics/roxham-road-explainer-1.6756753 ↑

16. Ibid ↑

17. Government of Canada. (2023). Canada-US Safe Third Country Agreement. Agreements. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html ↑

18. Chishti, Muzaffar, & Getlatt, Julia. (27 April, 2023). Roxham Road Meets a Dead End? U.S.-Canada Safe Third Country Agreement is Revised. Migration Policy Institute. Retrieved from: https://www.migrationpolicy.org/article/us-canada-safe-third-country-agreement ↑

19. Government of Canada. (2023). Additional Protocol to the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries. Agreements. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/additional-protocol.html ↑

20. Stevenson, Verity, & Oduro, Kwabena. (2023, 27 March). Migrants still attempting to cross Roxham Road, with news of Canada-U.S. deal slow to spread. CBC News. Retrieved from: https://ici.radio-canada.ca/rci/en/news/1966525/migrants-still-attempting-to-cross-at-roxham-road-with-news-of-canada-u-s-deal-slow-to-spread ↑

21. Government of Canada. (2023). Canada-US Safe Third Country Agreement. Agreements. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html ↑

22. Government of Canada. (23 March, 2023). Regulations Amending the Immigration and Refugee Protection Regulations (Examination of Eligibility to Refer Claim): SOR/2023-58. Canada Gazette, Part II, 157(8). ↑

23. Chishti, Muzaffar, & Getlatt, Julia. (27 April, 2023). Roxham Road Meets a Dead End? U.S.-Canada Safe Third Country Agreement is Revised. Migration Policy Institute. Retrieved from: https://www.migrationpolicy.org/article/us-canada-safe-third-country-agreement ↑

24. Immigration and Refugee Board of Canada. (2025). Irregular border crosser statistics. Statistics. Retrieved from: https://www.irb-cisr.gc.ca/en/statistics/Pages/Irregular-border-crosser-statistics.aspx#:~:text=A%20claim%20for%20refugee%20protection%20can%20be%20made%20by%20speaking,be%20referred%20to%20the%20IRB. ↑

25. Paperny, Anna Mehler. (02 September, 2023). Canada shut its land border ot asylum seekers. More refugees came anyway. Reuters. Retrieved from: https://www.ctvnews.ca/canada/article/canada-shut-its-land-border-to-asylum-seekers-more-refugees-came-anyway/ ↑

26. Bossin, Michael, & Demirdache, Laïla. (2023). Safe Third Country Litigation: Concealing Deficiencies in the U.S. Asylum System. Refugee Responsibility Sharing – Challenging the Status Quo: A Special Issue, PKI Global Justice Journal, 6. ↑

27. Chishti, Muzaffar, & Bush-Joseph, Kathleen. (24 April, 2025). In First 100 Days, Trump 2.0 Has Dramatically Reshaped the U.S. Immigration System, but Is Not Meeting Mass Deportation Aims. Migration Policy Institute. Retrieved from: https://www.migrationpolicy.org/article/trump-2-immigration-first-100-days ↑

28. Iorfida, Chris. (14 May, 2025). Where in the world is the U.S. trying to deport 3^rd-country migrants? CBC News. Retrieved from: https://www.cbc.ca/news/world/us-deportations-country-agreements-1.7530868 ↑

29. Human Rights Watch. (09 May, 2025). US: Don’t Forcibly Transfer Migrants to Libya. News Release. Retrieved from: https://www.hrw.org/news/2025/05/09/us-dont-forcibly-transfer-migrants-libya ↑

30. Washington, John. (18 January, 2017). These Jurisdictions Have Become ‘Asylum Free Zones’. The Nation. Retrieved from: https://www.thenation.com/article/archive/these-jurisdictions-have-become-asylum-free-zones/ ↑

31. Atkinson, Jeanne; Mendez, Michelle; Baluarte, David; Burrola, Atenas; Harris, Lindsay; Owings, Sarah; Manning, Stephen, & Bookey, Blaine. (2016, 02 December). Submission presented to Inter-American Commission on Human Rights, a special interest hearing on the Human Rights of Asylum Seekers in the United States. Retrieved from: https://cgrs.uclawsf.edu/sites/default/files/Human%20Rights%20of%20Asylum%20Seekers%20in%20US%20%5BPetitioners%5D_0.pdf ↑

32. Asylum Decisions through March 2025. Transactional Records Access Clearinghouse, Immigration Court Tool. Accessed here: https://tracreports.org/phptools/immigration/asylum/ (see Asylum Granted rates for locations like Atlanta, Charlotte, Houston). ↑

33. Ardalan, Sabrineh, & Kersley, Alexandra. (2023). Rolling Back Refugee Rights at the Canada-US Border. Refugee Responsibility Sharing – Challenging the Status Quo: A Special Issue, PKI Global Justice Journal, 6. ↑

34. Zahid, Salma. (2023). Asylum-Seekers at Canada’s Border: Report of the Standing Committee on Citizenship and Immigration. House of Commons, Canada. ↑

35. Government of Canada. (2023). Canada-US Safe Third Country Agreement. Agreements. Retrieved from: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html ↑

36. Ibid. ↑

37. Ibid. ↑