The government appealed McDonald`s decision and argued that there would be « irreparable harm » to the rule of law and the common good if the border agreement were overturned. Persons who have been convicted of a serious criminal past are prohibited from seeking the protection of refugees, regardless of how they enter the country. Concerns have been raised about the lack of security legislation for refugee protection in the United States. This security problem and argument give refugees legitimate reasons to turn around in Canada to lead a better life. On December 29, 2005, a group of refugee and human rights organizations (in Canada and the United States) launched legal action against the U.S. claim as a safe third country for asylum seekers. This action was supported by prominent figures such as Justice Michael Phelan of the Federal Court of Canada on November 29, 2007 and many others. Julie Taub, an immigration and refugee lawyer, says the Canada Border Services Agency has lost capacity since the agreement was put in place in late 2004 and would be « overwhelmed » if the agreement was repealed.  At the last hearing before Stratas J., counsel for this group argued that there would be an « increase » in new asylum seekers at the border, if the agreement is struck down, would be « speculative » and « hypothetical ».
Under the agreement, refugee claimants must apply for refugee protection in the first safe country they arrive in, unless they are entitled to a waiver from the agreement. McDonald gave the government until the end of January to prepare for the break of the agreement because it understood that it was in the public interest not to terminate the agreement immediately. Under the agreement, refugee claimants must apply in the first country they arrive between the United States or Canada, unless they are entitled to a waiver. For example, asylum seekers who are citizens of a country other than the United States and who arrive from the United States at the land border between Canada and the United States can only assert their rights to refugees in Canada if they fulfill an exception under the Safe Third Country Agreement. Under the Third Country Security Agreement, in effect since December 2004, Canada and the United States declare the other country safe for refugees and close the door to most refugees at the U.S.-Canada border. The RAC continues to call on the Canadian government to withdraw from the safe third country agreement. Shortly after its entry into force, the CCR participated in legal action against the designation of the United States as a safe third country. The Federal Court of Justice ruled that the United States is not a safe third country, but the decision was overturned on appeal for technical reasons (for more information, click here).
The agreement helps both governments better manage access to the refugee system in each country for people crossing the land border between Canada and the United States. The two countries signed the agreement on 5 December 2002 and came into force on 29 December 2004. Conventions on safe third-country nationals are not explicitly mentioned in the 1951 Refugee Convention or the 1967 Protocol on the Status of Refugees. Rather, their legitimacy derives from Article 31 of the 1951 Convention, which states that a refugee should not be punished for illegal entry into a country if he arrives directly from a country where he is threatened. The Office of the United Nations High Commissioner for Refugees (UNHCR) has itself warned against over-interpreting safe third country agreements, although it acknowledges that they may be acceptable in certain circumstances.  Such ambiguities have prompted some Canadian legal experts to question the legality of the Canada-U.S. safe third country agreement.  As of February 2017, more and more refugees have begun to cross the Canadian border at locations other than official border checkpoints.