In order to put an end to this “forum shopping” under the STCA and its Canadian legislation that is able to make it possible, asylum seekers generally must apply for asylum in the first “safe” country in which they enter. Under Section 159.3 of the Immigration and Refugee Protection Regulations, the United States is considered a “safe” country under the Immigration and Refugee Protection Act (IRPA).  In a decisive decision this summer, a Canadian federal judge ruled that the United States is not a safe country for asylum seekers. In that statement, the court stated that the Safe Third Country Agreement between the United States and Canada – which requires refugee claimants to apply for refugee protection in the first country they arrive in and is based on the assumption that both countries are “safe” for asylum seekers – is contrary to the Canadian Charter of Rights and Freedoms and is inconsistent with the Convention. Although the verdict will not take effect for six months and the Canadian government has recently appealed, the decision is nevertheless a turning point for the rights of asylum seekers in the United States and Canada. Julie Taub, an immigration and refugee lawyer, says the Canada Border Services Agency has lost capacity since the agreement was put in place in late 2004 and would be “overwhelmed” if the agreement was repealed.  The agreement represented a long-standing desire of the Canadian government to limit the number of refugee claimants, since potential claimants are much more likely to travel to Canada by land via the United States to make a claim than in the opposite direction. Although the United States initially resisted Canada`s proposal because it meant that it had to deal with more complainants, after 2001, the Bush administration accepted this request in exchange for Canada`s cooperation with other U.S. security priorities. Conventions on safe third-country nationals are not explicitly mentioned in the 1951 Refugee Convention or the 1967 Protocol on the Status of Refugees.
Rather, their legitimacy derives from Article 31 of the 1951 Convention, which states that a refugee should not be punished for illegal entry into a country if he arrives directly from a country where he is threatened.