The U.S.-Canada Safe Third Country Agreement: A Vital First Step

By Mark Krikorian on October 16, 2002

Testimony prepared for the U.S. House of Representatives
Committee on the Judiciary
Subcommittee on Immigration, Border Security, and Claims
October 16, 2002

By Mark Krikorian
Executive Director, Center for Immigration Studies


The U.S.-Canada Safe Third Country Agreement, initialed by representatives of our two governments in August, sets an important precedent that will defend the integrity of our asylum system, improve our country's ability to control immigration, and enhance national security. It should be implemented as soon as possible.

The agreement, made pursuant to sec. 208(a)(1) of the Immigration and Nationality Act, would allow each country to return asylum claimants who passed through the other country without having to adjudicate their asylum claims. In other words, an alien would have to claim asylum protection in whichever country he reached first, and thus would not be permitted to transit through one country and then apply for asylum in the other.

This is consistent with the 1951 Geneva Convention on the Status of Refugees, the international agreement which laid the groundwork for the post-World War II refugee system. Article 31 of the convention implicitly assumes a safe third country system when it says "The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization..." Note, "coming DIRECTLY from a territory where their life or freedom was threatened", which assumes that the person seeking protection will not pass through other countries which could have offered him protection in order to make his claim in a country he likes better.

But the safe third country concept is not merely consistent with the Geneva Convention it is a logically and morally necessary part of any asylum system. Asylum is analogous to offering a drowning man a berth in your lifeboat, and a genuinely desperate man grabs at the first lifeboat that comes his way. A person who seeks to pick and choose among lifeboats is, by definition, not seeking immediate protection. Without the safe third country concept, any so-called "asylum" system is really nothing more than an alternate avenue of immigration.

And if asylum is just another immigration category, its rationale would disappear. Asylum is different from refugee resettlement, even though both policies relate to aliens who have been persecuted or have a well-founded fear of persecution. In refugee resettlement, our government chooses specific individuals overseas who fear persecution and brings them to the United States. The policy choice is made by Congress and the president and is thus an exercise of a sovereign state's plenary power over immigration.

Asylum, on the other hand, represents a nation's sacrifice of part of its sovereignty over immigration for humanitarian reasons, in order to offer protection to people (usually illegal aliens) who are fleeing genuine persecution. It is a kind of humanitarian pardon, or amnesty, for people who have broken the immigration law and have no other reason to be admitted into the country. If people who could have applied for protection elsewhere are allowed to enter into the asylum system, the curbs on a nation's sovereignty implicit in asylum can no longer be justified.

The logical and moral necessity of including the safe third country concept in asylum was not an issue during the Cold War, because asylum claimants were few in number and in the main came directly from behind the Iron Curtain. Also, the expense of air travel made it difficult for alien smugglers to move their customers through intermediate countries before arriving at a developed western democracy, where the asylum seekers would find not only protection but also extensive economic opportunities.

But with the end of the Cold War (and the declining cost of travel), the safe third country issue came to the fore. As early as 1990, Sweden returned African and Middle Eastern illegal aliens seeking asylum to Poland, which they had traversed before arriving in Sweden. And in 1992, the ministers responsible for immigration in what was then the European Community adopted a resolution establishing objective criteria for applying what they termed the "host third country" principle.

Most notable, though, was Germany's 1993 amendment to the Basic Law (its constitution) to incorporate the safe third country concept, in response to the fact that more than 400,000 illegal aliens claimed asylum in Germany in 1992. Combined with agreements with neighboring Poland and the Czech Republic to take back illegal aliens who passed through those countries on their way to Germany, this institutionalized the safe third country concept for the first time. It has since been adopted in some form by members of the European Union individually and through the Dublin and Schengen agreements.

And this is not an entirely new idea for the United States. Such an arrangement was foreseen in the INS asylum reform regulations that took effect in January 1995 (the provision permitting safe third country determinations was later codified in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996). And in October 1995, a "Memorandum of Agreement" was released outlining a safe third country arrangement between our country and Canada, though negotiations were suspended during the debate over immigration legislation in the 104th Congress, and were not resumed.

In the case at hand, the question is whether this draft agreement with Canada is in the interests of the United States. It is indeed likely, as some have observed, that in the short run, the United States will face a somewhat larger number of asylum claimants as a result of this agreement. This is because the United States is easier to get to (more international flights arrive here than in Canada and we have long land border with Mexico) while Canada has much more permissive asylum rules. The result is that more people pass through our country on the way to apply for asylum protection in Canada than vice versa.

While we can stipulate that the agreement will result in some increase in asylum requests in the United States, the magnitude of such an increase is open to debate. Once the option of transiting the United States in order to apply for asylum in Canada is eliminated, some significant number of those whose objective was Canada will choose not to come to the U.S. in the first place, opting instead to apply for asylum in an EU country. We cannot know, ahead of time, how many additional asylum claims for the U.S. will be generated by this agreement.

But even the likely increase in asylum claims is not an argument against this agreement. That is because this agreement is best seen as a first step in reaching similar deals with other safe countries transited by asylum seekers, notably the member states of the European Union. Significant numbers of asylum seekers arrive on flights from Western Europe to JFK and other East Coast airports, either independently or as part of organized smuggling operations. Application of the safe third country concept to all asylum claimants who passed through western Europe where they should have applied for asylum if they were genuinely seeking protection would reduce this flow significantly, increase the proportion who had legitimate claims to asylum, and allow generally for a more efficient and expeditious asylum process for those remaining.

But we will have no credibility in insisting on such agreements with EU nations if we reject this deal with Canada simply because it will lead to a modest increase in our asylum caseload. After all, in the case of a deal with EU countries, it would be they, on balance, who would have to take back more people, since the asylum-seeker flow across the Atlantic is mainly westbound. Only by first entering into an agreement that would result in an increase, however small, in our own caseload can we credibly approach the Europeans with a proposal that would shift back to them some of the asylum flow that they have been sending on to us.

A better-managed asylum system resulting from the incorporation of the safe third country principle would also yield security improvements. Six of the 48 foreign-born al Qaeda operatives who committed crimes in the United States over the past decade were applicants for asylum at some point, three of them at the time they took part in terrorism. One example is Abdel Hakim Tizegha, who took part in the 1999 Millennium Plot to blow up Los Angeles International Airport and/or Seattle's landmark Space Needle (See The Open Door: How Militant Islamic Terrorists Entered and Remained in the United States, 19932001, by Steven A. Camarota, Center for Immigration Studies Paper no. 21, http://www.cis.org/sites/cis.org/files/articles/2002/Paper21/terrorism.html.) Tizegha's asylum application was rejected in 1997 and the appeal was rejected in 1999, after which he moved to Canada and sought asylum there. He snuck back across the border in Washington State in 1999. Other terrorists who have exploited our asylum system were Sheikh Omar Abdel Rahman, spiritual inspiration for the 1993 plot to bomb New York landmarks; Ramzi Yousef, mastermind of the first World Trade Center attack; and Mir Aimal Kansi, who murdered two CIA employees in 1993.

In addition to the direct security benefits of a more tightly run asylum system applying the safe third country principle, the United States has an important security interest in Canada's applying the safe third country concept more broadly, especially to Europe. According to the Canada Security Intelligence Service, more than 50 terrorist groups have established themselves in Canada, due partly to the laxity of that country's asylum system. The Sikh or Tamil terrorists in Canada may be of little concern to us, but as James Bissett, former director of Canada's immigration service has pointed out, al Qaeda has also set up shop there and used the country as a jumping off point for attacks against the United States. (See "Canada's Asylum System: A Threat to American Security?," CIS Backgrounder, May 2002, http://www.cis.org/sites/cis.org/files/articles/2002/back402.html.)

For instance, Ahmed Ressam, an asylum seeker from Algeria who had not shown up for his Canadian asylum hearing, was apprehended in December 1999 while attempting to enter the United States with a trunk load of explosives in his car as part of the Millennium Plot. Ressam was a member of a Montreal cell of the Algerian Armed Islamic Group that has strong ties to Osama bin Laden's al Qaeda network. Attorney General John Ashcroft has also identified two former Montreal residents on the list of "most wanted" al Qaeda militants.

Canada first embraced the safe third country concept in its 1988 immigration law, but the provision was never implemented. The main sticking point was whether to include the United States in the list of safe countries. Many activist groups at the time argued that the United States could not be considered a safe country for Central American illegal aliens seeking asylum, but for diplomatic reasons, it would have been impossible to present a list of safe countries that did not include the United States. The solution was to ignore the provision altogether; in the words of the immigration minister at the time, "I am prepared to proceed with no country on the safe third country list."

Canada's new immigration law, which went into effect in June of this year, also includes a safe third country provision: "A claim is ineligible to be referred to the Refugee Protection Division if . . .(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence." If the past is any guide, once there is a safe third country agreement with the United States, there will be less political resistance within Canada to adding European nations to the list, should Canada's government think that advisable. This would make it more difficult for Islamist terrorist organizations to set up shop in Canada in preparation for attacks on the United States.

There are compelling reasons for rapid implementation of the U.S.-Canada Safe Third Country Agreement. It would, as the draft agreement itself points out, "strengthen the integrity" of the institution of asylum "and the public support on which it depends." It would serve as a vital first step toward improving management of our asylum system and making it more difficult for terrorists to exploit. And its implementation would contribute to Canada's own efforts to improve North American security.