The Canadian government reportedly wants the United States to close a loophole in what’s known as the Safe Third Country Agreement (STCA).

The agreement allows Canada to send asylum-seekers back to the U.S. if they come to the border. But the deal only applies at official ports-of-entry, and not when asylum-seekers cross the border elsewhere — the loophole that Canada apparently wants eliminated.

Expanding the STCA to cover irregular crossings would mean that thousands of asylum-seekers would be sent back to the U.S. after making their way to the Canadian border in the wake of worsening conditions there under President Donald Trump.

The current American administration, however, is unlikely to tweak the agreement. Trump doesn’t like refugees. He has imposed travel bans on refugees selected for resettlement; attempted to block entry to asylum-seekers arriving in a “caravan” at the southern U.S. border; he’s scorned an agreement to transfer 1,250 refugees from Australian detention facilities to the U.S. as “the worst deal ever.”

The STCA has barred thousands of asylum-seekers from Canada. Prior to its implementation, approximately 10,000 asylum-seekers entered Canada via the United States each year. Some 200 went in the other direction. In this context, Trump is unlikely to expand the STCA. If anything, he’d want to cancel it outright to decrease the number of refugees in the U.S.

The STCA’s 9-11 history

It’s worth recalling the history of the STCA. Canada had long pushed for the STCA because of the lopsided flow of asylum-seekers, but the U.S. refused for years. After the 9-11 attacks, when border security was of utmost concern, Canada essentially pulled a fast one by offering enhanced information-sharing and common border security measures in exchange for the STCA.

However, Canada would have agreed to these measures regardless because disruption to the cross-border flows of goods and services hurts Canada’s economy. In essence, Canada got the STCA for nothing.

In the Trumpian world view, this is another “worst deal ever,” and it fits into his claim that “very smooth” Canada has “taken advantage” of the U.S. for years.

If the United States isn’t likely to agree to expand the STCA, what is going on here?

Simple. This is crass political theatre.

‘Beating up on refugees’

The ruling Liberals are facing attacks by the opposition Conservatives who have returned to beating up on refugees as a show of “toughness.” In response to growing numbers of asylum-seekers irregularly crossing the Canada-U.S. border, the Liberals must be seen to be taking action, even if that action is futile.

Still, something meaningful needs to be done.

One could debate whether the agreement was ever good policy. There’s a Constitutional challenge under way about whether it’s even lawful. But, regardless, it’s clearly not working now.

The more asylum-seekers resort to irregular crossings to circumvent the STCA, the more these sites are normalized as unofficial crossings. The longer this goes on, the less effective the STCA will be at deterring future asylum-seekers from coming to Canada via the U.S.

At the same time, if specific unofficial crossings are blocked off, asylum-seekers will simply move to other, more dangerous crossings. Every country that has built barriers has seen asylum-seekers driven to increasingly desperate and dangerous measures.

Alan Kurdi — the child whose death en route to seeking asylum in the European Union sparked Canada’s most recent refugee resettlement program — and the thousands of migrants who have died trying to evade ever-increasing surveillance at the U.S.-Mexico border are stark examples of this tragic phenomenon.

In other words, if Canada blocks places like Roxham Roadon the Québec/New York state border, refugees will cross remote fields in Manitoba during snowstorms. Asylum-seekers take these kinds of risks on a daily basis around the world.

If expanding the agreement is not viable, if erecting barriers is terrible policy, and if the status quo is not working — what can be done?

Also simple.

Do away with the STCA

It’s time for Canada to suspend the STCA. Asylum-seekers should be able to make refugee claims at regular ports-of-entry. At the same time, the government should calibrate funding and staffing levels for the Immigration and Refugee Board to the number of claims in the system.

This would ensure that people who meet the refugee definition are recognized in a timely manner and put on the path to successful settlement, while those who do not need Canada’s protection can quickly be removed. And it’s worth a reminder: Most are likely to meet the legal test to stay.

Suspending the STCA is not a radical proposal. Asylum-seekers made claims at the Canada-U.S. border for decades pre-STCA and the system worked fine.

Suspending the STCA will not harm Canada’s relationship with the U.S., or the ongoing NAFTA negotiations. The Americans would happily discard the STCA.

Suspending the STCA is also politically viable. It will not end Conservative opposition attacks. But rather than defending inaction on so-called “illegal” border crossings, the Liberals can instead punch back and say that they respect international refugee law.

They can ask whether the Conservatives want Canada to deport refugees — and how that squares with the lessons that Canada was supposed to have learned from the days of none is too many, when Canada had one of the worst records among Western countries of providing refuge for European Jews fleeing the Holocaust. They can ask whether the Conservatives care about the tragic deaths of Alan Kurdi and thousands of other desperate asylum-seekers around the world.

Most importantly, by suspending the STCA, Canada can show that there is an alternative to the xenophobic extreme-right policies taking parts of the world by storm.

Instead of building walls, we can adopt evidence-based policies that comply with international law and that make our country a better place for everyone. And we can show that the sky will not fall if Canada hosts a few thousand more people who face persecution, torture and even death.

If not now, when?

Authors:Sean Rehaag Associate Professor, Osgoode Hall Law School, York University, Canada  Sharry Aiken Associate Professor of Law, Queen's University, Ontario

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