Recent developments on the U.S.-Canada border and in Europe showcase two very different approaches to how nations share responsibility for asylum seekers. Last month, President Joe Biden and his Canadian counterpart Prime Minister Justin Trudeau announced an expanded version of a two decade old safe third country agreement between the United States and Canada. The agreement allows each country to return asylum seekers to the other. In contrast, the European Union has famously opened its gates to those fleeing Ukraine after the Russian invasion, allowing asylum seekers to live and work anywhere in the 27-coutnry bloc.
These models, while divergent, underscore the centrality of responsibility sharing arrangements in the current migration and asylum policy debate. Responsibility sharing is about broadening the circle of actors that assume responsibility for asylum seekers beyond the State of arrival through hosting or other forms of support. But although both models could be deemed progressive under certain criteria, the EU’s model for Ukraine is far superior to the U.S.-Canada model from the vantage point of asylum seekers and host States alike because it does not hinge on an asylum seeker’s initial country of entry.
The U.S.-Canada agreement also highlights the shortcomings of the prevailing approach that only considers whether third countries that accept asylum seekers turned away by countries of arrival are safe. The Biden administration terminated similar Trump-era agreements with unsafe countries while expanding the one with Canada, and United Nations High Commissioner for Refugee’s (UNHCR) guidelines on safe third country agreements similarly focus on safety. But a broader perspective, one that accounts for today’s reality of mass influxes of migrants and asylum seekers in several regions of the world, is urgently needed. Responsibility sharing arrangements should not only consider the safety of third host countries. They should pull together resources and hosting commitments from multiples stakeholders to create better conditions for asylum seekers and host countries alike.
The U.S.-Canada Agreement
During President Biden’s first visit to Canada last month, the two countries announced a hitherto confidential 2022 pact to expand the existing Canada-U.S. Safe Third Country Agreement (STCA). The U.S. Department of Homeland Security then published the rule implementing U.S. commitments to the STCA shortly after the announcement. Originally signed in 2002, the agreement allows the United States and Canada to turn away asylum seekers who cross the border at a port of entry and instead requires them to apply for asylum in their first safe country of transit. The United States is the only country designated “safe” under the Canadian Immigration and Refugee Protection Act. According to the Canadian government, “[t]he Agreement helps both governments better manage access to the refugee system in each country for people crossing the Canada–U.S. land border.”
The recently negotiated additional protocol to the agreement and its implementing measures expand the scope of the original STCA by also covering asylum seekers crossing the border irregularly. If an asylum seeker crosses between ports of entry and seeks refugee protection less than 14 days after the day of irregular entry, they will be turned back to the country from which they had crossed. This expansion appears to have been driven by Canadian pressure to stem irregular land crossings from the United States. The agreement has been heavily criticized on the Canadian side for sending asylum seekers back to the United States, where they have faced harsh treatment including detention and family separations.
U.S. willingness to enter into an expanded safe third country agreement with Canada stands in sharp contrast with the Biden administration’s position on such agreements with other countries. Shortly after coming into office, the Biden administration suspended and then terminated three agreements of this type with Guatemala, Honduras and El Salvador. Officially known as Asylum Cooperative Agreements (ACAs), these agreements were part of the Trump administration’s attempt to relocate asylum seekers and deflect applications to third countries in central America. The three countries agreed to accept asylum seekers from the U.S., process their applications, and ratchet up their efforts to address illegal migration to the United States through their territory. In return, they were promised economic benefits.
Yet, the “benefits” came after the Trump administration significantly cut aid to the three countries to pressure them into signing the agreements. Furthermore, the agreements were widely condemned for deflecting asylum seekers to unsafe, poor countries where they had little chance of receiving adequate protection. In previous work, we argued that these agreements were a far cry from genuine refugee responsibility sharing. They were in fact regressive instruments that represent what we call “responsibility dumping” – diverting asylum seekers to less affluent, less institutionally competent, less safe countries without contributing funds or assistance to ensure their safety.
In defending policies designed to deflect migrants and asylum seekers to central American countries, the Trump administration asserted that those policies were in line with similar policies of other liberal democracies, including EU member States. Such policies, it maintained, require seekers of international protection to apply for asylum in the first safe country through which they travel. UNHCR has accepted the practice of diverting asylum seekers to “safe third countries” in principle and has focused on setting out adequacy criteria for what would count as “safe.”
The EU Model
The EU Dublin Regulations, the instrument that allocates responsibility for processing asylum claims among EU member States, do in fact enshrine a similar principle requiring protection seekers to apply for asylum in the EU member State of first entry.
Yet, the context in which the Dublin Regulations operate is entirely different than the dynamic between the United States and Central American countries. The Dublin Regulations deflect applicants from one EU country to another. Even the weakest EU member States have resources, institutions, and safety conditions that are far superior to those of Guatemala, Honduras, and El Salvador. The Dublin Regulations are therefore far less regressive in relative terms than the Trump-era approach of Asylum Cooperative Agreements.
What is more, recent experience has shown that the Dublin system collapses under pressure. The EU has now suspended Dublin’s first country of entry principle several times in favor of more ambitious responsibility sharing arrangements to address migration crises that break with the first country of entry principle. In 2015, the EU decided to centrally relocate160,000 asylum seekers from Greece and Italy and distributed them among all member States based on an objective distribution formula. And most recently, responding to the mass displacement following the Russian invasion of Ukraine, the EU activated for the first time the EU Temporary Protection Directive, a 2001 directive issued in response to the war in the Balkans to address mass influxes of individuals fleeing conflict. The EU Council granted Ukrainian nationals and others fleeing Ukraine the right to live, work, and receive benefits in any EU country – regardless of initial point of entry. Thus far, EU member States have taken in an estimated 4 million Ukrainians under the Temporary Protection Directive.
Moving the Focus from Country of Initial Entry
The new iteration of the Canada-U.S. STCA is closer to the Dublin regulations than to the Trump era ACAs with the three central American countries. Like EU member States, the United States and Canada are comparatively affluent, institutionally robust and safe countries. The STCA is therefore considerably more progressive than the Trump-era ACAs.
Nonetheless, the comparison to the EU again raises questions about the inherent effectiveness of responsibility sharing models that hinge on the country of initial entry. An emerging EU model applied in 2015 and most recently in Ukraine is indifferent to the country of initial entry. In its most generous form, the EU responsibility sharing model even allows asylum seekers to decide for themselves where to go, potentially leading to better outcomes for individuals and integration in host countries.
Responsibility sharing models that do not hinge on country of initial entry help prevent a common pattern that emerges during times of crisis: one or several countries located closer to sources of migration and mass displacement must often process the bulk of asylum claims and shoulder housing responsibilities. The result of rapid arrival of migrants to frontline countries has often been the creation of refugee and displacement camps – including closed camps, which at times prevent residents from leaving. Camps often offer inadequate conditions for migrants and have negative impact on the surrounding area, attitudes toward migrants in border communities, and their access to legal protection. The European Court of Justice recently found one such camp on the Hungarian border, the Röszke transit zone, to be an unlawful detention site because of its prison-like characteristics and the fact that migrants were effectively not allowed to leave.
Under the analytical framework that we have proposed in previous work, the U.S.-Canada safe third country agreement and recent EU asylum and migration measures are both progressive responsibility sharing models in the basic sense. They shift asylum seekers from frontline host countries to countries that are at least as affluent, as institutionally robust and (arguably) as safe. But the EU model is a far better approach because it allows for more effective and planned-out distribution of responsibility among host States. It eliminates pathologies created by the emphasis in current migration and refugee law on the point of initial entry. Perhaps the objectives of the U.S.-Canada safe third country arrangements would be better served by a deeper mutual understanding about allocating responsibility and obligations for asylum seekers. It is unlikely to be advanced by myopic focus on asylum seekers’ choice of route.