I’m in the U.S. Can I Claim Refugee Status in Canada?

Since the U.S. election, a number of U.S. citizens and foreign nationals living in the United States have reached out to us to find out about claiming refugee status in Canada. Navigating Canada’s immigration system requires a thorough understanding of the eligibility criteria and legal framework that define who qualifies for refugee protection.

Canadian immigration law recognizes two main categories of individuals eligible to claim refugee protection: Convention Refugees and Persons in Need of Protection. A Convention Refugee is someone who has a well-founded fear of persecution due to race, religion, nationality, membership in a particular social group, or political opinion. This individual must be outside their country of nationality or habitual residence and unable or unwilling to seek protection from their home country due to this fear.

A Person in Need of Protection, on the other hand, is someone already in Canada who would face a risk of danger if returned to their home country. This includes risks of torture, threats to life, or cruel and unusual treatment or punishment. In such cases, the claimant must demonstrate several key factors: that they cannot seek protection in their country of origin, that the risk they face is not widespread among others in their country, and that the danger is not inherent to lawful sanctions or caused by a lack of medical or health care in their country.

Another critical component of refugee protection claims is the concept of Internal Flight Alternative (IFA). A claimant will not succeed in their application if Canadian decision-makers determine that the individual could reasonably relocate within their home country to avoid persecution. The IFA must also be viable, meaning that relocation would not be unreasonable in the claimant’s specific circumstances.

For U.S. citizens, meeting these stringent criteria is particularly challenging. For instance, American LGBTQ+ individuals who fear persecution in the United States may consider making a refugee claim in Canada. However, the presence of safe states and cities in the U.S. where they can avoid persecution makes it difficult to argue that they face consistent, unavoidable risks across the country. As such, claims based on sexual orientation or gender identity are unlikely to succeed unless it can be proven that there is no safe haven within the U.S. Those seeking to relocate to Canada for political or social reasons rather than fear of persecution are generally encouraged to explore other immigration pathways, such as work permits or permanent residency, as these claims do not meet the standards for refugee protection. The same applies to those upset about the incoming government’s likely vaccine related policies.

Foreign nationals living in the U.S. face additional barriers due to the Canada-U.S. Safe Third Country Agreement (STCA). This agreement stipulates that refugee claimants must seek protection in the first safe country they enter. Since the United States is designated as a safe third country, most claimants arriving in Canada from the U.S. are barred from making a refugee claim. Exceptions to the STCA exist, including for individuals with close family members in Canada or those holding certain immigration documents. Additionally, U.S. citizens and stateless persons who are habitual residents of the United States are not subject to the STCA. In short, the agreement presents a significant obstacle for foreign nationals in the U.S. who seek refugee protection in Canada.

For individuals interested in moving to Canada, it is essential to understand that refugee protection is not the only option. Other immigration pathways, such as work permits or permanent residency programs, may provide a more viable route. If you or a loved one is considering immigrating to Canada, consulting with a knowledgeable immigration professional can help identify the best pathway to achieve your goals. Our team at Borders Law Firm is here to assist you with tailored advice and comprehensive support. Book a paid consultation to find out more.