Asylum Law in North America

Canada and the United States are both international leaders in the admission of refugees. The chapter first discusses and compares the domestic asylum determination system in Canada with that of the United States, followed by an overview of their respective refugee resettlement programs overseas, which largely take place outside of the rule of law. The Canadian section includes an overview of the 2002 Canada-US Safe Third Country Agreement (STCA), which remains in effect but has twice been challenged on constitutional grounds thus far. The chapter makes reference to the tension between domestic constitutional norms, the rights of refugees in international law (Hathaway, The rights of refugees under international Law, 2nd ed. Cambridge University Press, Cambridge, 2021), and the growing preference of both Canada and the United States to treat refugees as “migrant[s] who the government may have reason to select” (Galloway Rights and the re-identified refugee: An analysis of recent shifts in Canadian law. In Kneebone S, Stevens D, Baldassar L (eds) Refugee protection and the role of Law: conflicting identities. Routledge, London and New York, 2014, 38) by securitizing asylum and by deterritorializing their borders throughout. It shows that this preference is at least in part anchored in a much older tradition of admitting refugees via discretionary humanitarian admission schemes, shielded from judicial oversight.