Over the past decades, there have been several amendments to the US and Canada’s immigration and refugee policies, as well as major developments across the disciplines of international migration and refugee law. This study tackles the Safe Third Country Agreement (STCA) between the US and Canada, which effectively entered into force in the year 2004. The study examines the trajectory of this agreement, the debates and arguments that surrounded it during its early stages, as well as how these debates have evolved alongside developing forced migration realities since the STCA’s implementation. It looks into whether or not these developments challenge the STCA, render it ineffective, and consequently put US-Canadian relations into question. It addresses international mechanisms, local realities and bilateral factors, which contribute to the refugee/migration debate between the two states – namely the 1951 Refugee Convention and the 1967 Protocol. It aims to determine the extent to which the international refugee crisis, the Trump Administration, and developments in international law have affected the status of the STCA and subsequently, the relationship between the US and Canada.

Textprobe: Kapitel A Recent Timeline of Migration to North America: This section will address the most relevant historical and policy moments in both the United States’ and Canada’s migration history. The timeline will address policy angles, major historical moments, as well as developments in bi-lateral relations, which affected the current standing of North American migration. This timeline intends to highlight the major instances, which shaped the potential development of the Safe Third Country Agreement as the main governing mechanism of both migration into Canada and into the US, and their bilateral border security and management efforts within the larger migration discourse following the agreement. For the purpose of this research, the timelines will go from the beginning of the 20th century (1906-1907) up into the modern era (the last decade). A Recent Timeline of Migration to the United States: US immigration peaked in 1907, with 1.3 million people entering the country through Ellis Island alone. As of February 1907, amid prejudices in California that an influx of Japanese workers would cost white workers farming jobs and depress wages, the United States and Japan signed the Gentlemen’s Agreement. With this agreement, Japan agreed to limit Japanese emigration to the United States to certain categories of business and professional men. In return, President, Theodore Roosevelt urged San Francisco to end the segregation of Japanese students from white students in San Francisco schools. By 1910, an estimated three-quarters of New York City’s population consisted of new immigrants and first-generation Americans. The United States’ earlier evident experiences of xenophobia came in 1917, when it reached new highs on the eve of American involvement in World War I. Moreover, the Immigration Act of 1917 established a literacy requirement for immigrants entering the country and halted immigration from the majority of Asian countries. In May 1924, the US’s Immigration Act limited the number of immigrants permitted to enter the United States annually through nationality quotas – an entirely larger human rights debate that will be left out of this study. Under the new quota system, the United States issued immigration visas to a mere two percent (2%) of the total number of people of each nationality in the United States at the 1890 census. At the time, this law preferred immigration from Northern and Western European countries. Only three countries Great Britain, Ireland and Germany accounted for seventy percent (70%) of all issued visas. Immigration from Southern, Central and Eastern Europe was much more limited. The Act completely excluded immigrants from Asia, aside from the Philippines, which was an American colony at the time and had preferential treatment. In the wake of the quota limits set in place by the 1924 law, illegal immigration to the United States increased substantially – the reason for this was explained earlier in this section. In the same year, the US Border Patrol is established to ‘crack down’ on illegal immigrants crossing the Mexican and Canadian borders into the United States. Many of these early border crossers were Chinese and other Asian immigrants, who had been barred from entering legally. Labor shortages during World War II prompted the United States and Mexico to form the Bracero Program in 1942, which allowed Mexican agricultural workers to enter the United States temporarily. The program lasted until 1964, but arguably still acts as one of the major influences of the Mexican-US migration relationship to this date. However, the United States did not pass the nation’s first refugee and resettlement law until 1948, namely in order to manage with the influx of European migrants seeking permanent residency in the United States in the post-World War II era. The Displaced Persons Act of 1948 authorized for a limited period of time, the admission of 200,000 European displaced persons (DPs) for permanent residency. By 1952, the Immigration and Nationality Act also known as the McCarran-Walter Act, formally ended the exclusion of Asian immigrants to the United States. Between 1956 and 1957, The US would go on to admit the first wave of Cold War refugees, admitting roughly 38,000 immigrants from Hungary after a failed uprising against the Soviets. The United States would admit over 3 million refugees during the Cold War. This first wave of accepted refugees would be followed by the admittance of roughly 14,000 unaccompanied children between 1960 and 1962 who fled Fidel Castro’s Cuba to come to the United States as part of a secret, anti-Communism program called Operation Peter Pan. In 1965, the Immigration and Nationality Act revamped the American immigration system. The Act ended the national origin quotas enacted in the 1920s which favored some racial and ethnic groups over others. The quota system is eventually replaced with a seven-category preference system emphasizing family reunification and skilled immigrants – another pivotal historical reference to the predicaments surrounding migrants’ abuse of these categorical preferences. Upon signing the new bill, President Lyndon B. Johnson, labeled the former immigration system ‘un-American,’ and stated the new bill would correct a ‘cruel and enduring wrong in the conduct of the American Nation.’ During the following five years, immigration from war-torn regions such as those in Asia, including Vietnam and Cambodia, would more than quadruple, with family reunification becoming a driving force in US immigration processes, applications and admittance. In 1986, President Ronald Reagan signed into law the Immigration Reform and Control Act, also referred to as the Simpson-Mazzoli Act, which granted amnesty to an estimated 3 million immigrants formerly living ‘illegally’ or ‘unauthorized’ in the United States. By 2001, US Senators Dick Durbin and Orrin Hatch proposed the first Development, Relief and Education of Alien Minors (DREAM) Act, which would provide a pathway to legal status for Dreamers, undocumented immigrants brought to the United States illegally by their parents as children. The bill did not pass, but does eventually laid the foundation more than a decade later for the Deferred Action for Childhood Arrivals (DACA) which temporarily shielded some Dreamers from deportation, but did not provide a path to citizenship. This act was signed by President Barack Obama in 2012. In 2017, President Donald Trump issued two executive orders, both titled ‘Protecting the Nation from Foreign Terrorist Entry into the United States’, also referred to as ‘The Muslim Ban’, which ultimately aimed at banning travel and immigration from six majority Muslim countries (Chad, Iran, Libya, Syria, Yemen, Somalia) in addition to North Korea and Venezuela. That year in April, travel restrictions on Chad were lifted, and by June, the United States Supreme Court upheld a third version of the ban on the remaining seven countries. A Recent Timeline of Migration to Canada: Canada’s Immigration Act of 1906, introduced a selective immigration policy and broadened categories of ineligible immigrants, formalizing a deportation process and granting the government discretionary powers over admission procedures and decisions. Adopted policies under this Act focused on immigrants’ cultural and ethnic origins rather than their economic standings or potential. This Act further extended eligibility to immigrants with cases of mental illness, epilepsy or physical disability if they belonged to an immigrant family capable of providing sufficient financial support. The 1910 Immigration Act gave Canada’s Cabinet almost full power to issue orders-in-council so as to regulate the flow, ethnic origin and occupational qualifications of immigrants. Under the 1910 Act, the Canadian Cabinet could stipulate exclusionary and deportation criteria without interference from the government’s legislative and judicial arms. ‘Undesirable immigrants’ under the Act included but were not limited to: prostitutes, pimps, vagrants and inmates of jails, hospitals and insane asylums. The Act introduced the concept of status linked to length of residence (obtained after three years of residence in Canada), which protected immigrants from deportation. Women outside of Canada who were married to naturalized immigrants were not considered Canadian and were required to meet the legal requirements to be admitted into the country under specific visas. The Naturalization Act of 1914 further instilled rigid requirements to obtain a certificate of naturalization. Residents were now required to live in Canada for five years before submitting an application. Candidates were judged on their ‘moral character’ and had to have adequate knowledge of one of Canada’s official languages, either English or French. The decision was left to the good will of the government, which had discretionary powers to determine which permanent residents would benefit from this Act. The Act retained the stipulation that married women take their husband’s nationality (and therefore lose their own). The Canadian Department of Immigration and Colonization was established in 1917 (remaining functional until 1936, and followed by the Department of Citizenship and Immigration in 1950), and stood as the first and original Department of Citizenship and Immigration Canada (DCIC). Just two years later in 1919, an Act to amend the Immigration Act expanded the categories of prohibited immigrants and the restricted category of political dissidents. The executive branch could prohibit or limit the number of immigrants belonging to any nationality or race, by reason of any economic, industrial or other condition temporarily existing in Canada. Eligible individuals would be able to bring to Canada the following family members only: father or grandfather over age 55, spouse, grandmother, and any widowed or unmarried daughter who would have been otherwise excluded due to illiteracy. One of Canada’s more questionable Acts in the migration spectrum, the Chinese Immigration Act 1923 banned the entry of individuals who identified as Chinese. Chinese immigrants who have already entered Canada and resided there legally, were required to register and were authorized to travel to and from China, but not to bring more family members into the country. The 1931 Order-in-council restricted immigration to agriculturalists with financial resources, wives and children of Canadian residents and British subjects and American citizens with sufficient means to provide for their own needs until they found employment. In compliment of these restrictions, the Immigration Act of 1952 further codified existing practices and maintained the discretionary power of the executive branch and government officials with regard to selection, admission and deportation processes. The Federal Cabinet was authorized to prohibit immigrants on the basis of: nationality, ethnicity, occupation, ‘peculiar’ customs, inability to adapt to the climate and ‘probable’ inability to become assimilated – all of which carry not only vague interpretations, but also do not dictate clear definitions for each of the aforementioned categories. The 1967 Order-in-council introduced the implementation of a points-based system so as to further equip immigration officials with ‘objective’ assessment criteria. The sponsored class would include only family members, henceforward referred to as ‘dependents’. Another category, identified as ‘nominated’, was introduced with the aim of identifying other family members required to use the points system but benefiting from additional points by virtue of their family ties. The first formal discussions about refugees in Canadian migration legal frameworks came with the Immigration Act of 1967. It organized immigration based on annual plans stipulating numbers and further organized individuals into three categories: independent, family class (i.e. sponsored or assisted) and humanitarian (i.e. refugees and asylum seekers). This Act gave the authority to the Executive Branch to determine, through regulatory means, members of the family class who could be sponsored by a permanent resident or a Canadian citizen. Section 4 of this Act, more specifically, limited the members of this class to spouses, fiancées, unmarried children under the age of 21, parents and grandparents 60 years or older or under the age of 60 if these persons and their spouses were incapable of gainful employment or if widowed, brothers and sisters, nieces and nephews, unmarried orphaned grandchildren under 18 years of age, and children under the age of 13 whom the sponsor intended support. The most groundbreaking aspect of this Act was the establishment of two classes of refugees: one corresponding to the definition set out in the United Nations Convention of 1951, and an expanded class that included individuals who did not fulfill the UN criteria but were experiencing the same level of danger and threat to their lives as what was referred to at the time as ‘UN refugees’. May 1991, witnessed the establishment of Occupational Classification: the list of jobs in demand in each of Canada’s provinces – linking migration to a prospect of ensured employment and economic demands and needs. Nearly one decade later, the Immigration and Refugee Protection Act (IRPA) continued to be the centerpiece of immigration legislation in Canada, and further lay out the technical features of the new immigration policy. Section 12 of the IRPA lists the members comprising the family class: ‘A foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.’ It is through the IRPA that common-law and conjugal partners, including those in same-sex arrangements, became legally eligible for family reunification in the eyes of Canadian law. The amendments to the IRPA under the 2008 Budget Implementation Act gave Citizenship and Immigration Canada discretionary power to refuse an immigration application even if the applicant fulfills the program criteria. An increase in the Minister’s power, enabling him or her to issue instructions on the processing of applications to ensure that it is conducted in a manner that ‘best supports the attainment of the immigration goals established by the Government of Canada’ (IRPA, subsection 87.3(2)). Most recently the ‘Protecting Canada’s Immigration System Act’ of 2012 stipulated that a sponsored person is required to wait five years, even if he or she gains citizenship, before sponsoring a spouse. If a couple has no children at the time of the sponsorship application, the sponsored person must live with the sponsor for two years, on penalty of having his or her conditional permanent resident status revoked. However, if the separation is due to violence or neglect on the part of the sponsor or a member of his or her family, the sponsored person may apply for an exemption from the rule but must prove that the mistreatment occurred and led to the breakdown of the relationship.

• international law

• immigration

• refugee

• United States

• Canada

• border

• deportation

Dr. Jasmin Lilian Diab (she/her) is a Canadian-Lebanese writer, researcher, university professor, editor and consultant in the areas of Migration, Gender and Conflict Studies. She currently serves as a tenured Assistant Professor of Migration Studies at the Lebanese American University’s Department of Social Sciences. In previous roles, she served as the Refugee Health Program Coordinator at the American University of Beirut's Global Health Institute (GHI), as well as the MENA Regional Focal Point on Migration of the UN General Assembly-mandated UN Major Group for Children and Youth. She is a Senior Consultant on Refugee and Gender Studies at Cambridge Consulting Services, a Research Affiliate at the Centre for Refugee Studies at York University, a Scholar in Forced Displacement at University of Ottawa’s Human Rights Research and Education Centre, and a Junior Fellow and Program Lead at the Global Research Network’s 'War, Conflict and Global Migration' Think Tank. She holds a PhD in International Relations and Diplomacy with an emphasis on Asylum, Refugees and Security from the esteemed Center for Diplomatic and Strategic Studies (CEDS) of the School of Advanced International and Political Studies at INSEEC U. in Paris, and is the recipient of the CLS 2021 Bursary Award to complete her Postdoctoral research on 'Bridging the Gap between Social Protection and the Humanitarian Response in Times of COVID-19: The Case of Lebanon's Refugees and Good Practices' at LAU-University of Oxford’s Centre for Lebanese Studies.