Who Can Make a Refugee Claim at the US/Canada Border?

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Under the Safe Third Country Agreement [STCA], a treaty between the United States and Canada,1 as implement in Canada’s laws,2 most people cannot make a refugee claim to stay in Canada at the US/Canada land border. If they are in the United States, they are expected to make a refugee claim there instead. However, there are exceptions:

Family Member Exception

You can make a refugee claim in Canada at the US/Canada border if you can show that you have a particular family member (parent, child, spouse, brother or sister, uncle or aunt, niece or nephew, grandparent) who has one of the listed kinds of status in Canada (including citizen, permanent resident, recognized refugee, or person who has passed certain steps in making a refugee claim) – this person is usually called the “anchor relative”. More information on the requirements and evidence can be found here. This exception is found in Article 1(1)(b) (which defines family member) and Article 4(2)(a) and (b) of the STCA.

Unaccompanied Minors Exception

A minor (person under 18 years old) who is single (not married and no common-law partner), and who is (1) not accompanied by their mother, father or legal guardian; and (2) whose mother, father or legal guardian is not in Canada nor in the United States, can make a claim at the border. This exception is found in Article 4(2)(c) of the STCA.

Note that if mother, father or legal guardian is in Canada, then the minor may be able to make a claim under the Family Member Exception.

Note also that a minor cannot be an “anchor relative”, so a minor cannot be sent ahead alone to enable the rest of the family to make claims later.

Document Holder Exceptions

A person who has a valid visa or permit, or under some circumstances who does not need such a visa or permit to enter Canada may make a refugee claim at the border; this exception is found in Article 4(2)(d) of the STCA. For example a person may apply if they:

  • hold a valid Canadian visa (other than a transit visa)
  • hold a valid work permit
  • hold a valid study permit
  • hold a travel document (for permanent residents or refugees) or other valid admission document issued by Canada, or
  • are not required (exempt) to get a temporary resident visa to enter Canada but require a U.S.–issued visa to enter the U.S.

Persons holding a Canadian visa, permit, or travel document are a relatively straightforward exception.

The last category, that of people entitled to enter Canada without a visa, but who did require a visa to enter the United States, raises some interesting exceptions.

Needing a US Visa but NOT a Canadian Visa

The list of citizenships that entitle one to enter Canada without a visa are governed by Section 1903 and Schedule 1.14 of the Regulations. Canada and the United States have similar immigration goals, policies, and concerns, and generally visa exemptions overlap.5

The following countries are those that, as of posting, it appears that citizens do not need a visa to enter Canada, but do need a visa to enter the US: Barbados,6 Bulgaria,7 Cyprus,8 Papua New Guinea,9 Samoa,10 Solomon Islands,11 the Vatican/the Holy See, and the United Arab Emirates.12

The situation is less clear for people from the following countries, who may or may not need visas to enter the United States (but are exempt in Canada): Bahamas,13 certain citizens of Hong Kong, and other British overseas citizens.

In 202314 and 2024 (from January 1 to September 30),15 several of these countries did give rise to claims:

Country2023 Q1-Q42024 Q1-Q3
Bahamas578 claims referred, 358 accepted, 705 pending409 claims referred, 188 accepted, 760 pending
Barbados212 claims referred, 105 accepted, 228 pending338 claims referred, 37 accepted, 495 pending
Bulgaria30 claims referred, 0 decided, 33 pending0 claims referred or decided, 72 pending
Cyprus0 claims referred, decided, or pending0 claims referred, decided, or pending
Hong Kong91 claims referred, 95 accepted, 52 pending110 claims referred, 77 accepted, 85 pending
Papua New Guinea0 claims referred, decided, or pending0 claims referred, decided, or pending
Samoa0 claims referred, decided, or pending0 claims referred, decided, or pending
Solomon IslandsN/A0 claims referred, decided, or pending
United Arab Emirates34 claims referred, 32 accepted, 33 pending28 claims referred, 0 decided, 50 pending

British Nationality & Hong Kong

For people from most countries – very much including Canada – there is no meaningful distinction between “citizen” and “national”. Britain is a major exception, as there are no less than six (or more!) categories of British nationality. Persons who think or know they have status as a “British Overseas Territories citizen”, “British Overseas citizen”, “British National (Overseas)”, or were born in a current or former British possession, colony, or territory, should consult with a lawyer about whether their status allows them to make use of this exception.

Public interest exceptions

Article 6 of the STCA states that: “Notwithstanding any provision of this Agreement, either Party may at its own discretion examine any refugee status claim made to that Party where it determines that it is in its public interest to do so.”

A person who has been charged with, or convicted of, an offense carrying the death penalty, in the US or in a third country, as long as they are also not inadmissible to Canada on the grounds of security, for violating human or international rights, or for serious criminality, or if the Minister finds the person to be a danger to the public. While the overall similarity between US and Canadian criminal law in terms of how serious offences are considered means that a person charged with a death penalty offense in the US is almost certainly inadmissible to Canada, there are several death penalty offenses internationally that – depending on the circumstances – might not render a person inadmissible. Those would include some drug crimes, and “moral” crimes such as adultery or apostasy (which are not crimes at all in Canada).

  1. Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, 5 December 2002, [2004] Can. T.S. No. 2, online: https://www.treaty-accord.gc.ca/Treaty_Docs/PDF/104943.pdf and https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html. It was recently amended by the Additional Protocol to the Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, 29 March/14 April 2023, CTS 2023/3, online: https://www.treaty-accord.gc.ca/Treaty_Docs/PDF/105722.pdf and https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/additional-protocol.html. ↩︎
  2. Immigration and Refugee Protection Act, SC 2001, c. 27, s. 101(1)(e), states that a claim cannot be referred to the refugee board if “the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence”. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 159.3, designates the US as such a country. ↩︎
  3. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 190, https://canlii.ca/t/7xsp#sec190. In addition to persons listed in Schedule 1.1, the countries/citizenships specified in s. 190 are: British citizens (s. 190(1)(b)(i)); British overseas citizens who are re-admissible to the United Kingdom (s. 190(1)(b)(ii)); British overseas citizens who derive that citizenship through birth, descent, naturalization or registration in one of the British overseas territories of Anguilla, Bermuda, British Virgin Islands, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn Island, Saint Helena or Turks and Caicos Islands (s. 190(1)(b)(iii)); holders of a passport issued by the United Kingdom to a British Subject which contains the observation that the holder has the right of abode in the United Kingdom (s. 190(2)(e.1)); US citizens or permanent residents (s. 190(1)(c)); certain recognized diplomats (s. 190(2)(a)); holders of passports/travel documents issued by the Vatican/the Holy See (s. 190(2)(b)); holders of Israeli passports (s. 190(2)(c)); persons holding either a a passport issued by the Hong Kong Special Administrative Region of the People’s Republic of China or a passport issued by the United Kingdom to a British National (Overseas), as a person born, naturalized or registered in Hong Kong (s. 190(2)(d) and (e)); holders of an ordinary passport issued by the Ministry of Foreign Affairs in Taiwan that includes the personal identification number of the individual (s. 190(2)(f)); and holders of certain Romanian passports (s. 190(2.1)). ↩︎
  4. Immigration and Refugee Protection Regulations, SOR/2002-227, Schedule 1.1, https://canlii.ca/t/7xsp#sec365. The countries listed are: Andorra, Australia, Austria, Bahamas, Barbados, Belgium, Brunei Darussalam, Bulgaria, Chile, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Federal Republic of Germany, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Republic of Korea, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Sweden, Switzerland, and United Arab Emirates. ↩︎
  5. At the end of 2024, the US ended the practice of listing US Visa Waiver program countries in regulations; see “Update to Procedures for Listing Designated Countries and Location of List”, The countries benefiting from the US Visa Waiver program, as listed by the US Department of State, can be found at https://travel.state.gov/content/travel/en/us-visas/tourism-visit/visa-waiver-program.html#reference and https://www.dhs.gov/visa-waiver-program. The program is established under 8 USC 1187/INA § 217. At time of writing, the included countries are: Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Qatar, Romania, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and the United Kingdom (British citizens must have the unrestricted right of permanent abode in England, Scotland, Wales, Northern Ireland, the Channel Islands, and the Isle of Man). Separate agreements allowing travel to the US without a visa, generally, are in place for citizens of Canada and Bermuda (see https://travel.state.gov/content/travel/en/us-visas/tourism-visit/citizens-of-canada-and-bermuda.html); as well as citizen of the Republic of the Marshall Islands and Federated States of Micronesia (see https://www.uscis.gov/sites/default/files/document/news/Micronesia_MarshallIslFS.pdf), and citizens of the Republic of Palau (see https://www.uscis.gov/working-in-the-united-states/status-of-citizens-of-the-republic-of-palau-fact-sheet). ↩︎
  6. As noted at the page of the US Embassy in Barbados (https://bb.usembassy.gov/visas/) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  7. As noted at the page of the US Embassy in Bulgaria (https://bg.usembassy.gov/visas/) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  8. As noted at the page of the US Embassy in Cyprus (https://cy.usembassy.gov/important-visa-information/) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  9. As noted at the page of the US Embassy in Papua New Guinea (https://pg.usembassy.gov/visas/) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  10. As noted at the page of the US Embassy in Samoa (https://ws.usembassy.gov/visas/) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  11. As noted at the page of the US Embassy in Papua New Guinea (https://pg.usembassy.gov/visas/) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  12. As noted at the page of the US Embassy in the UAE (https://ae.usembassy.gov/visas/#wizard) and implied by the fact that it is not on the Visa Waiver Program list. ↩︎
  13. Bahamians and citizens of the British overseas territory of the Turks and Caicos Islands may travel to the United States without a visa but only if they go through pre-clearance in Nassau, as set put at the US CPB website: “Bahamian Citizen Document Requirements”, https://www.help.cbp.gov/s/article/Article-1295?language=en_US. ↩︎
  14. Canada, IRB, “Claims by Country of Alleged Persecution – 2023”, online: https://www.irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2023.aspx. ↩︎
  15. Canada, IRB, “Claims​ by Country of Alleged Persecution – January to September​​ 2024”, dated to 30 September 2024, online: https://www.irb-cisr.gc.ca/en/statistics/protection/Pages/RPDStat2024.aspx. ↩︎
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