Safe Third Country and Non-Refoulement: Legal and Ethical Dilemmas in U.S. Asylum Policy Refugee & Law Series (4)

Introduction

In recent years, the United States has turned more to policies like "safe third country" agreements to handle asylum claims. These "safe third country" agreements have led to a debate about the national commitment to non-refoulement. This is the international legal principle that prevents the return of individuals to places where they could face harm.

This article examines the safe third-country policies, their origins and applications, the legal obligations under international and U.S. law, and the ongoing legal and humanitarian concerns regarding how such agreements may compromise non-refoulement protections.

What is a Safe Third Country Agreement?

A Safe Third Country Agreement (STCA) allows one country to deny asylum seekers access to its asylum system on the basis that the person could have sought protection in another "safe" country they passed through. The logic is that if the asylum seeker is truly fleeing danger, they should have applied in the first safe country they reached.

The United States currently maintains one formal STCA with Canada, signed in 2002 and enacted in 2004. Under this agreement, asylum seekers arriving at a land border port of entry from the U.S. to Canada (or vice versa) can be turned back if they did not first claim asylum in the other country.

However, during the Trump administration, the U.S. tried to expand STCA to Guatemala, Honduras, and El Salvador. The Trump administration believes that these countries could act as safe third nations for Central American asylum seekers. However, critics quickly opposed these efforts, pointing to the weak asylum systems and high levels of violence in those countries.

International Legal Obligations: The Principle of Non-refoulement

The 1951 Refugee Convention, to which the U.S. is a signatory party, establishes the principle of nonrefoulement. Article 33 of the Convention states that:

"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened…"

This basic principle is reflected in U.S. law through the Refugee Act of 1980. The act includes these obligations in domestic laws. It demands that each fear-based claim be considered on an individual basis before someone can be removed from the premises.

Critics argue that the safe third country model, in its expanded and expedited form, undermines legal protections. The legal principle of protecting refugees may be compromised by denying access to comprehensive asylum hearings, relying on broad assumptions of safety in other countries, and failing to monitor the treatment of transferred asylum seekers.

Legal Challenges and Human Rights Concerns

U.S.–Canada STCA Legal Challenge:

In 2020, a Canadian Federal Court decided that the U.S. was no longer a safe place for asylum seekers because of the risk of detention and deportation. Although the Canadian Supreme Court eventually reversed this Federal Court ruling in 2023, it raised new questions about the changed view that the U.S. asylum system treats all claimants fairly.

Expanded Agreements in Central America:

Arrangements with Guatemala (2019), Honduras (2020), and El Salvador (2020), which were made during the first Trump administration, resulted in consequences where many Central American asylum seekers sought protection in countries that had limited asylum systems, weak rule of law, and widespread violence. The Biden administration suspended these agreements in 2021; however, legal remnants and enforcement uncertainties persist.

Title 42 and Border Expulsions:

 Though not a safe third-country policy per se, the use of Title 42 public health orders during the pandemic enabled the U.S. to rapidly expel migrants—including asylum seekers—without processing their claims, raising similar concerns about mass refoulement.

Ethical and Policy Considerations

Critics say that STCA and similar policies breach the principle of asylum law. The concerns include, among others, the following.

• Assumed Safety Without Due Process: Countries labeled "safe" often cannot process asylum claims or protect vulnerable people, such as LGBTQ+ individuals, women escaping domestic violence, or indigenous communities.

  
  

• Lack of Judicial Oversight: Fast-track removals under these agreements often deprive individuals of their right to legal counsel and their right to appeal.

  
  

• Geopolitical Leverage: The U.S. has, at times, pressured less-resourced countries into signing agreements that benefit U.S. policy but strain local systems.

  
  

• Impact on Regional Stability: Overburdened systems in Mexico and Central America are seeing growing refugee populations without corresponding international support.

  
  

Policy Recommendations

1. Restore Individualized Hearings: Reaffirm asylum seekers' right to full case-by-case adjudications before removal or transfer.

   
   

2. Limit or Redefine STCA Use: Safe third-country designations should be based on independent assessments of a nation's ability to ensure fair asylum procedures and human rights protections.

   
   

3. Regional Cooperation with Oversight: Encourage the development of multilateral regional asylum frameworks that include shared responsibilities, independent monitoring, and humanitarian aid.

   
   

4. Uphold non-refoulement as a Core Value: Ensure that all U.S. asylum policies, agreements, and removals are aligned with the Refugee Convention and U.S. domestic law.

   
   

5. Promote Transparency and Congressional Review: Require public disclosure of the terms, metrics, and human rights implications of all future STC agreements.

   
   

Conclusion

The goal of STCA concept is to control asylum flows and prevent "asylum shopping." However, STCA faces both legal and ethical issues simultaneously. Asylum is a universally recognized human right, not a privilege based on geopolitical convenience. Accordingly, the U.S. should balance its strategic interests with its humanitarian responsibilities.

In reaffirming the principle of non-refoulement, the U.S. can lead by example—building a system that is not only efficient but fair, humane, and lawful.

Bibliography

United Nations High Commissioner for Refugees (UNHCR). "The 1951 Refugee Convention." Accessed July 2025. https://www.unhcr.org/1951-refugee-convention.html

Human Rights Watch. "Deportation with a Layover: Failure of Protection under the US-Guatemala Asylum Cooperative Agreement." May 19, 2020. https://www.hrw.org/report/2020/05/19/deportation-layover/failure-protection-under-us-guatemala-asylum-cooperative

American Immigration Council. "A Guide to Title 42 Expulsions at the Border." Updated June 2023. https://www.americanimmigrationcouncil.org/fact-sheet/guide-title-42-expulsions-border/