This piece is by our intrepid associate, Ruth Dickey, who is well-known for her love of Canada.
Given the current mess that is the U.S. asylum system, it’s not surprising that many asylum seekers who first land in the United States have been heading North to make their claims in Canada. Perhaps they are lured there by faster asylum processing times and a more generous attitude towards refugees. While it may sound idyllic to roll out of your igloo in the morning, pick up your Tim Horton’s coffee, and commute to work on a polar bear, obtaining asylum in Canada after you’ve been in the United States may not be so easy.
The main problem in Canada for asylum seekers who have passed through the United States is something called the Canada-U.S. Safe Third Country Agreement (“STCA”). This treaty requires applicants to make their asylum claims in the first safe country they enter. Thus, if you first enter the United States, you have to make your asylum claim here. If you first enter Canada, you have to make your claim in that country.
The STCA has four exceptions: (1) The applicant has family members with lawful status in Canada; (2) The applicant is a minor travelling without a parent; (3) The applicant has a document that allows him to enter Canada; and (4) The applicant faces the death penalty. More details about these exceptions can be found here.
The most common exception is probably the family member exception; it may also be the exception that creates the most confusion, so let’s take a closer look. Under the STCA, the term “family member” is broadly defined, to include:
- spouse
- legal guardian
- child
- father and/or mother
- sister and/or brother
- grandfather and/or grandmother
- grandchild
- uncle and/or aunt
- nephew and/or niece
- common-law partner
- same-sex spouse
You can see that Canada allows people to meet the family-based exception with a wide range of relatives. Cousins are not on the list, but virtually all other categories of relatives are.
In our office, we currently represent several people who left the U.S. to seek asylum in Canada, only to be turned back at the border. One client hired us in 2014, after he attempted to enter Canada from the U.S. He had qualifying Canadian relatives who were naturalized citizens of Canada. However, he had no documentation to prove the relationships, and so Canadian border officials rejected his request for entry and quickly returned him to the United States.
Unlike many people who filed for asylum in 2014, our client was lucky enough to get a prompt interview. However, like many applicants, his decision was delayed. Only recently—a year and a half after his first interview—he was called for a second asylum interview where he was questioned about his trip to Canada. Unfortunately, a well-meaning, but not-so-well-informed relative in Canada tried to help our client while he was in Canadian custody, and made some contradictory statements to Canadian officials. The Asylum Officer had the records from Canada, and asked our client about the relative’s statements. Our client explained the situation as well as he could, and we are still waiting for a final decision.
There are some lessons to be drawn from this client’s ordeal. First, going from the U.S. to Canada can do more harm than good. Even if you don’t have some well-intentioned relative meddling in your case, it takes time for the Asylum Office to get Canadian immigration records and review them. That means more delay (on top of already long delays), and no one wants that. Also, if you already tried to seek asylum in Canada and were rejected, tell your lawyer and try to remember any communication that you or your relatives had with the Canadian authorities—the Asylum Officer will likely have access to your records, so plan accordingly.
Another lesson is that, if you are seeking a family exception–through your uncle, for example–you should bring civil records (and translations) demonstrating that you and your uncle are related. Our client’s experience shows that Canadian border officials will not necessarily wait around for you to collect these documents once you reach Canada. You need to have the documents with you before your trip.
Finally, if you do plan to seek asylum in Canada, and you are in the U.S., you would be wise to consult with a Canadian immigration lawyer before traveling. Maybe you qualify for an exception to the STCA and maybe you don’t. A Canadian lawyer familiar with that country’s immigration laws should be able to advise you before you take on the risk and expense of going to Canada for asylum.
There are certain advantages to asylum in Canada, and some people who pass through the U.S. are eligible to seek refuge in that country. But unless you plan ahead for your trip, you may end up back in the United States and worse off than when you started.
Hello,My name is Kejji Stella,
I’m from South Sudan..Is it possible for me to come to Canada and file for an asylum?
I have son who is four yours old and am a single mother..Life is so difficult..I want a better
future for my son.
Thank you
I am in the US. You would need to talk to a lawyer in Canada about that. Take care, Jason
Dear All,
I am an Indian national, based in the US. I wanted to reconfirm that do I have to file for asylum in USA 1st, wait for decision & only then I can file for Asylum in Canada if denied in the US, due to Canada-U.S. Safe Third Country Agreement.
Can someone please clarify this?
If your plan is to go to Canada after losing an asylum case in the US, you should talk to a lawyer in Canada before you go, so you know what you have to do. Take care, Jason
Hi Jason,
If someone be one of the exemptions to this agreement and request asylum from the US government at the border, how long does it take the process? (For example at New York borders) And during this period must they be imprisoned? Thank you much.
A person who seeks asylum at the border may very well be detained. If they are detained, they case probably takes 3 to 9 months, but it could be longer, especially if there is an appeal. It is possible to get released, though the government is trying hard to prevent that from happening and to keep everyone detained. If the person is released, the case probably takes 1 to 3 years, but again, it depends on the case and the judge. Take care, Jason
Hi Jason
I have lived in the US for six years with no green card and no asylum claim , with a child who is 17 now and who graduates from high school this June. its been tough living like this these past years and the situation is such that we cannot go back home due to familia issues. We intend crossing the border into Canada in the coming months to seek asylum. Also, do u think holding a Law degree from England will be a pro or a con? Please reply me. Thanks.
I do not know about this, but I recommend you talk to a lawyer in Canada before you try to go there, to make sure you are eligible for asylum or some other status. Take care, Jason
Hello Rose, I’ve been there and done that. You can try crossing the border either to Quebec or Manitoba because Canadian Authorities WILL turn you back if you crossed to Ontario “Niagara Falls” as for having a law degree this will definitely help preparing your case in Canada and probably find work in the legal field as you will be able to get Socia Insurance Number “SIN number” and work permit right after you enter/settle. Good luck
Hi Jason, how promising is asylum seeking in United State? I have a serious case to deal with some government officials in nigeria that are hell bent on running me over. Do asylum system in Us still work well? Can I come in with my family and declare for asylum?
The system is a mess, but it is probably better than the systems in most other countries. It just depends on the strength of your case. If you come to the US, you can seek asylum. If you ask for asylum as soon as you reach the airport, you wild likely be detained, so if you have a visa, it is better to enter the US, talk to a lawyer, and then file for asylum (which you must do within one year of arriving here). Take care, Jason
Can one apply directly for a Canadian visa and seek for asylum from Canada?
Good morning Jason,thank you for this useful information.I got an information that the best way to enter Canada is via America.With this your write up am beginning to think otherwise.Can we apply for Canadian visa directly and there after apply for asylum in Canada directly?Thanks for your anticipated response.
I am in the US – You should talk to a lawyer in Canada. Take care, Jason
Hello Jason, I’m a cameroonian presently in cameroon. can i travel with a student visa and seek asylum in canada? if yes, how long will it take for the final decision to come out?
I do not know about Canada; I am in the US. Talk to a lawyer there. Take care, Jason
Hello Jason…am enter America February 2017 through a friend that helped me escaped from been attack by political thugs in nigeria,I can’t return to nigeria to avoid being killed by thugs but am scared to claim assylum in the us because my case might be turn down,I heard canada is friendly to refugees…can I move to canada to claim assylum?
You have to be careful, as people who seek asylum at the border are often turned back and then detained by US border patrol. Talk to a lawyer in Canada for advice about this before you try to go there. Take care, Jason
I arrived united States seven weeks ago, but I intends to seek asylum in Canada next week.
What are the challenges and probability of accepting my claims in Canada.
If you were in the US and plan to go to Canada, you could be denied and returned to the US (where you might be detained). I recommend you talk to a lawyer in Canada about this before you go there. Take care, Jason
Hello Jason,
My husband just got to Canada seeking asylum a week ago.I and my kids still have valid b1/b2 visa can we still visit the U.S without being turned back since my husband has a pending asylum case.pls help me cos I don’t want to lose the visa.i
I do not know how a Canadian asylum case for him would affect your B visas, or whether it will have an effect. It is possible that the two countries will share info, so you should be prepared to explain why you plan to visit the US and that you will leave after your visit, in the event you are asked about this. Take care, Jason