At the Canada–U.S. border, a decision made during an immigration interview can determine whether a family gets a hearing in Canada or is sent back across the line.
Thousands of people seeking refugee protection have been returned to the United States under the Safe Third Country Agreement, a long-standing arrangement now facing another constitutional test. Federal Court hearings beginning November 9, 2026, will revisit questions about equality rights and the impact of the policy on people fleeing persecution.
The dispute reaches beyond border management. It asks whether a system designed to divide responsibility between two countries offers meaningful protection to those whose circumstances make a return particularly dangerous.
The Border Returns Behind the Debate
Canada Border Services Agency figures demonstrate the scale of the policy, although publicly available totals require careful interpretation. From January 1 to November 17, 2025, the agency recorded 3,958 returns to the United States after asylum claims were found ineligible under the agreement. That included 2,567 people who approached official land crossings and 1,391 who crossed between ports of entry. The comparable full-year total for 2024 was 3,446. Because one period ends in November and the other covers twelve months, these numbers cannot establish an exact annual growth rate.
Nor should these returns be confused with every deportation carried out by Canadian immigration authorities. An ineligible claim under the agreement generally means Canadian officials have decided which country is responsible for examining it, not that a Canadian refugee tribunal has assessed and rejected the person’s account of persecution. That legal distinction matters enormously to someone who has reached the border after months or years of uncertainty. The question may be less about whether their fear is credible than whether they are allowed to explain it in Canada at all.
How the Agreement Determines Where People Can Claim Asylum
The Canada–U.S. Safe Third Country Agreement was signed in 2002 and took effect on December 29, 2004. Its central premise is that both countries offer functioning refugee-protection systems, so most people travelling overland must seek asylum in the first of the two countries they reach. For someone who has entered the United States and then arrives at a Canadian land crossing, that can mean being sent back to pursue protection in the American system. The rule also operates in the opposite direction, although geography means the northbound route attracts particular attention.
The agreement does not determine whether a person truly qualifies as a refugee. Instead, it allocates responsibility for considering the claim, subject to exceptions. Ottawa describes this system as a way of maintaining an orderly border and sharing obligations with its neighbour. Critics question whether the arrangement remains fair when asylum policies, detention practices and access to hearings can differ considerably between the countries. For applicants, the distinction between having a right to seek protection and having a place to exercise that right is anything but theoretical.
Why the 2023 Expansion Changed the Border
For nearly two decades, the agreement applied principally at official land ports of entry. That distinction helped make Quebec’s Roxham Road a prominent route for people entering Canada between designated crossings and then requesting asylum. In March 2023, Canada and the United States expanded the agreement to cover the entire shared land border, including internal waterways. Under the expanded rules, people claiming protection within 14 days of an irregular crossing generally became subject to return unless an exception applied.
The change altered the practical choices confronting families who feared returning to the United States. Crossing away from a checkpoint no longer automatically removed the agreement’s barrier. An independent 2026 policy study by University of Toronto law professor Audrey Macklin argued that restricting official routes can encourage more hazardous journeys and create opportunities for smugglers. Ottawa, meanwhile, reports a sharp decline in irregular asylum claims since the expansion. Those observations describe different parts of the same debate: fewer recorded claims do not, by themselves, resolve whether people have been safer or better protected.
The Exceptions That Can Change a Family’s Fate
The agreement is not an absolute prohibition on seeking refugee protection in Canada. Federal rules recognize four broad categories of exceptions: certain family connections in Canada, unaccompanied minors, holders of specified Canadian immigration documents and limited public-interest circumstances. For example, a claimant with an eligible close family member legally living in Canada may be able to proceed, while a person travelling alone under age 18 can qualify under the minor exception. A valid Canadian visa, study permit or work permit can also matter.
Yet an exception is not the same thing as an automatic grant of asylum. Officers must assess whether the claimant meets the relevant criteria and the other requirements of Canadian immigration law. A family’s situation can become especially complicated when one member qualifies and another does not. That is why details such as family relationships, available documents and a child’s circumstances can carry enormous weight during an encounter at the border. In a system often described through national totals, the decisive evidence may fit inside a folder carried by a parent.
The November Court Hearing Puts Equality Rights at the Centre
The latest hearing is scheduled at the Federal Court in Toronto for November 9, 10 and 12, with another date set for December 16, 2026. It concerns the long-running challenge to Canada’s designation of the United States as a safe third country. The central issue now is Section 15 of the Canadian Charter of Rights and Freedoms, which protects equality rights. Refugee advocates argue that the agreement does not affect all claimants equally and can place especially severe burdens on people whose persecution claims intersect with gender, race, sexuality or age.
Amnesty International Canada, the Canadian Council for Refugees and the Canadian Council of Churches are among the organizations involved alongside affected claimants. Supporters are also planning a public rally outside the courthouse as arguments begin. The gathering illustrates how a technical legal dispute has become an intensely personal national issue. The court is not simply being asked whether the two governments may cooperate on border processing; it must consider evidence about whether the legal scheme produces discriminatory consequences for particular groups seeking safety.
Why the Supreme Court Did Not End the Dispute in 2023
The constitutional fight has already travelled through several levels of Canada’s courts. A Federal Court judge ruled in 2020 that the framework violated Section 7 Charter protections involving life, liberty and security of the person. The Federal Court of Appeal set that decision aside in 2021. On June 16, 2023, the Supreme Court of Canada concluded that the regulation designating the United States as a safe third country did not itself breach Section 7. It accepted that legal mechanisms existed to prevent returns that would expose individuals to unconstitutional harm.
Those mechanisms, often called safety valves, include forms of discretionary relief and avenues for judicial intervention. Importantly, the Supreme Court did not decide the separate Section 15 equality argument. Because lower courts had not made the factual findings needed to resolve it, that issue was sent back to the Federal Court. The upcoming proceedings therefore are not a simple rerun of a case the Supreme Court already settled. They address a serious constitutional question that the country’s highest court expressly left open.
Why Women, Children and LGBTQ+ Claimants Feature Prominently
The equality challenge centres on the argument that a seemingly neutral border rule can produce unequal results. The applicants say racialized women and girls fleeing gender-based persecution, LGBTQ+ people and children may face distinctive risks when forced to rely on the American asylum system. Earlier proceedings included women who said they had escaped sexual violence, gang threats or other forms of persecution. Their concern is that differences in how protection claims are assessed can affect whether people fleeing those harms are recognized as refugees.
These are allegations being tested in court, not findings that every claimant in one of those groups will be mistreated or refused protection. Still, they reveal why the legal debate cannot be reduced to a comparison of national border statistics. A person fleeing threats from an armed group, a partner or a hostile community may have limited documents and little control over the route taken to safety. The court will examine whether the consequences of the agreement deepen disadvantages already experienced by people facing those circumstances.
A Honduran Family’s Experience Shows the Stakes
A separate court challenge launched in June 2026 puts a human face on concerns about the agreement’s safeguards. According to the Canadian Council for Refugees and Amnesty International, a Honduran couple and their young son sought protection in Canada after their U.S. asylum cases were closed. The father had family members in Canada, and advocates say Canadian border officers indicated that he and his son could enter but the mother could not. Rather than separate, the family returned together to the United States. They were subsequently detained and deported to Honduras, the organizations report.
The account is presented by the family and organizations bringing the litigation; their claims about Canadian officers’ failures have not been established as judicial findings. Amnesty uses pseudonyms to protect the family members’ identities and says they have been living in hiding after their return. Their experience illustrates the contested question at the heart of that separate lawsuit: whether safeguards meant to prevent a dangerous transfer can actually be accessed in time. It should not be confused with the November Section 15 hearing, although both cases scrutinize how the same agreement operates.
Ottawa Says the United States Remains a Safe Partner
The federal government continues to maintain that the United States meets the legal criteria for designation as a safe third country. Canadian law requires consideration of the neighbouring country’s refugee policies, human-rights record, international treaty commitments and arrangements for sharing responsibility. Immigration officials say they monitor developments in the United States and their possible consequences for its protection system. The government also argues that applying the agreement supports border integrity and allows authorities to process claims in an orderly manner.
That position faces pointed opposition from rights organizations, which argue that U.S. detention and deportation practices make returning some claimants unsafe. The disagreement is partly about evidence and partly about what Canada’s responsibilities require when a neighbouring country provides the first opportunity to seek asylum. For officials, uniform rules can make border decisions predictable. For a claimant describing a specific risk, a predictable process offers little reassurance unless it can also recognize an exceptional case. That tension helps explain why court supervision remains so consequential even while the agreement stays in force.
What Happens Next for Refugees and Border Policy
The court hearing arrives during a broader overhaul of Canada’s asylum procedures. On November 3, 2026, Ottawa brought new regulations into force to standardize online applications, introduce clearer processing timelines and specify exceptions to recently enacted eligibility restrictions. The government reported that asylum claims from January through August 2026 were 52% below the same period in 2025 and 68% below 2024. Those figures describe fewer people submitting claims in Canada; they do not measure how many people might still need protection after being turned away.
The November proceedings will not automatically suspend the Safe Third Country Agreement, and a court decision may come after the scheduled hearing dates. Depending on the evidence and the eventual ruling, further legal arguments, remedies or appeals could follow. In the meantime, the agreement and its exceptions remain operational, as do the separate rules governing eligibility and risk assessment. The lasting issue is whether efficiency and border control can coexist with protections that work when an individual presents a credible fear of serious harm. For families at a crossing, the answer has consequences long before a final judgment is released.
