Vol. 151, No. 16 — April 22, 2017

Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring departments

Department of Public Safety and Emergency Preparedness
Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Prescribed conditions

Allegations of inadmissibility pursuant to section 34 of the Immigration and Refugee Protection Act (IRPA) [http://laws-lois.justice.gc.ca/eng/acts/i-2.5/fulltext.html] are significant because they assert that an individual may be inadmissible for engaging in activities that could pose a security risk. Given the significance of these allegations, measures to manage the risk that these individuals pose are essential and a priority for the Canada Border Services Agency (CBSA or “the Agency”). (see footnote 1) Presently, permanent residents and foreign nationals (non-citizens) who are either alleged or determined to be inadmissible to Canada on grounds of security are subject to varying levels of immigration control. When these non-citizens are not detained, various IRPA decision-makers, at different junctures along the immigration enforcement continuum, have discretionary authority to impose conditions on the non-citizen that the decision-maker considers necessary in the circumstances. (see footnote 2) This approach has resulted in an inconsistent application of conditions with respect to security inadmissibility cases. Insufficient or inconsistent monitoring of these individuals could pose a potential risk to public safety, and could create greater difficulty in enforcing removal orders and added costs to locate individuals for enforcement purposes. For example, the conditions can vary, and persons who have to report to the CBSA may have to report weekly, monthly or less frequently.

Technical amendments to the Immigration and Refugee Protection Regulations

The CBSA was created in 2003. It amalgamated customs personnel (from the former Canada Customs and Revenue Agency) with border and enforcement personnel (from Immigration, Refugees and Citizenship Canada [IRCC] and the Canadian Food Inspection Agency) to form a federal agency responsible for border services, customs and immigration enforcement. Responsibility for the administration of the IRPA as it relates to examination at ports of entry, enforcement (including arrest, detention, investigations, hearings and removal), certain serious inadmissibility grounds, and Ministerial relief (see footnote 3) were transferred from IRCC to the CBSA. However, the Immigration and Refugee Protection Regulations (IRPR) [http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/fulltext.html] have never been updated to reflect this delineation of responsibilities.

Background

Prescribed conditions

The IRPA governs the inadmissibility of foreign nationals and permanent residents (non-citizens) to Canada. Objectives of the IRPA include protecting the health and safety of Canadians, maintaining the security of Canadian society and denying access to Canadian territory to persons who are criminals or security risks. One element of Canada’s efforts to maintain security is to deny immigration status in Canada to non-citizens who pose security risks. Pursuant to section 34 of the IRPA, a non-citizen is “inadmissible on security grounds for:

Where the disclosure of information or other evidence that is relevant to the inadmissibility would be injurious to national security or endanger the safety of any person if disclosed, the person may be subject to a certificate, on security grounds, under section 77 of the IRPA. (see footnote 4) (see footnote 5)

The Minister of Public Safety and Emergency Preparedness is responsible for policies related to the enforcement of the IRPA, including inadmissibility on security grounds. (see footnote 6) Associated amendments to the IRPA were introduced under Bill C-43, the Faster Removal of Foreign Criminals Act (FRFCA), which received royal assent on June 19, 2013. These legislative amendments were intended to establish the legislative framework and to authorize subsequent regulatory amendments that, together, would provide for a consistent baseline of monitoring and control under the IRPA of non-citizens who are either alleged or determined to be inadmissible to Canada on security grounds. These legislative changes are to be brought into force through an order in council concurrently with associated regulations prescribing a consistent and transparent baseline of conditions that would be imposed by a decision maker. In this context, a decision maker could be a CBSA officer, the Immigration Division (ID) of the Immigration and Refugee Board (IRB), the Minister of Public Safety and Emergency Preparedness, or the Federal Court (FC), depending on the circumstances. Conditions would be applied on all non-citizens who are not detained and are alleged to be inadmissible on grounds of security (subject to either an inadmissibility report on security grounds, which has been referred to the ID, or a certificate, on security grounds, which has been referred to the FC) or who have been determined to be inadmissible on grounds of security and are awaiting removal from Canada.

Objectives

These proposed regulatory amendments would create a baseline of consistent and transparent conditions to be imposed on non-citizens who are not detained and are subject to an inadmissibility report or a certificate on security grounds which has been referred to the ID or the FC, respectively, or who have already been found inadmissible on grounds of security. These prescribed conditions would enhance case management from the time that the individual is referred to the ID or FC until they are removed from Canada or relieved of their inadmissibility. Ultimately, the objective is to ensure that these individuals receive adequate monitoring, and thus prevent potential threats to public safety, manage costs to locate them for IRPA enforcement purposes and reduce difficulty in enforcing removals.

The proposed regulatory amendments would also update the IRPR to accurately reflect the current policy and operational responsibilities of the CBSA that flow from section 4 of the IRPA and the Ministerial Responsibilities Under the Immigration and Refugee Protection Act Order (http://gazette.gc.ca/rp-pr/p2/2015/2015-07-01/html/si-tr52-eng.php), which was published in the Canada Gazette on June 11, 2015. (see footnote 7)

Description

Prescribed conditions

The FRFCA introduced legislative changes to the IRPA to allow for baseline prescribed conditions and require that they be imposed on non-citizens in the following circumstances:

The proposed regulatory amendments would prescribe that in these aforementioned circumstances, the following requirements will be imposed:

While the proposed regulatory amendments set a consistent baseline of transparent conditions, it is important to note that decision-makers may decide to impose additional as well as more stringent conditions where appropriate pursuant to their existing powers under the IRPA.

Technical amendments to the Immigration and Refugee Protection Regulations

The proposed technical amendments to the IRPR would clarify that the CBSA shares responsibility, or is otherwise implicated, along with IRCC, for the following:

Furthermore, these proposed regulatory amendments would clarify that the CBSA is responsible for

These technical amendments are intended to accurately reflect current roles and responsibilities. They will not result in any change to existing business processes.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as the regulatory amendments apply to individuals, not businesses.

Small business lens

The small business lens does not apply, as the regulatory amendments apply to individuals, not businesses.

Consultation

Non-government stakeholders were given the opportunity to participate in the legislative development of the FRFCA. At this time, minimal concerns were raised with respect to the introduction of prescribed conditions for non-citizens who are either alleged or determined to be inadmissible to Canada on security grounds. During testimony at the Standing Committee on Citizenship and Immigration, prior to the FRFCA receiving royal assent, one stakeholder suggested that the mandatory imposition of prescribed conditions would deprive individuals who are facing allegations of inadmissibility on security grounds of fair consideration of their actual circumstances. It was moreover suggested that there were already adequate measures in the IRPA to impose conditions when deemed necessary.

The views expressed during the legislative process were considered in the development of the proposed regulatory amendments. The proposed conditions were designed to establish a transparent baseline of monitoring and control of non-citizens who are either alleged or determined to be inadmissible to Canada on security grounds. They are not unduly onerous or restrictive. Any other conditions imposed by a decision maker, including reporting conditions, will continue to take individual circumstances into account.

It is important to note that regulations prescribing conditions are not new in the context of immigration enforcement. For instance, in the 2001–2002 fiscal year, regulatory amendments were introduced to prescribe conditions that must be imposed where the Immigration Appeal Division imposes a stay of removal. (see footnote 9) At that time, in the prepublication consultation period, no significant external stakeholder comments or concerns were received in relation to these prescribed conditions. The conditions proposed herein are similar, and are targeted to a narrower population with links to security inadmissibility under the IRPA.

A notice of these proposed regulatory amendments has been available to the general public online on the CBSA website since 2014. (see footnote 10) As of January 2017, no stakeholders have contacted the CBSA to express an interest in these proposed regulatory amendments.

External stakeholders were given the opportunity to participate in the regulatory development process prior to prepublication. On May 13, 2016, the following key external stakeholders were invited to participate in the development of these proposed regulatory amendments through a 30-day consultation period on the Consulting with Canadians website:

In response to this consultation, two stakeholders provided comments, which were both supportive in nature. One stakeholder commented that the prescribed conditions should be extended to apply to other grounds of inadmissibility related to public safety and security, including the following: human or international rights violations; serious criminality; criminality; or organized crime. However, the imposition of prescribed conditions on a class of individuals that are subject to these additional inadmissibility grounds is beyond the scope of the present initiative. The other stakeholder suggested that the reporting obligation be increased to weekly; however, this change could make these regulations overly burdensome and costly to the Government of Canada. Moreover, it is important to note that these proposed baseline conditions do not prevent decision-makers from exercising existing authorities to impose additional conditions, including increasing the reporting frequency, as deemed necessary given the particular circumstances of a given case.

Rationale

Prescribed conditions

Where warranted under the Act, individuals who are alleged or determined to be inadmissible on grounds of security may be detained. In other circumstances, individuals may not be detained or may be released from detention, for instance, while the allegations made against them are investigated or while they challenge their removal orders. Given that conditions are imposed at the discretion of the decision-maker, they have proven to be inconsistently imposed for security inadmissibility cases.

The regulatory amendments are intended to address this gap. They will ensure that these individuals receive adequate baseline monitoring, thus mitigating risks to public safety. These regulatory amendments will also help in the management of costs associated with inland immigration enforcement, including investigations and removals.

Technical amendments to the Immigration and Refugee Protection Regulations

The proposed technical amendments to the IRPA are housekeeping in nature, and will not have any impact on operational practices as they are designed to more accurately reflect the current responsibilities of the CBSA and IRCC under the IRPA.

Implementation, enforcement and service standards

Prescribed conditions

Going forward, upon these proposed regulatory amendments (and associated legislative provisions) coming into force, a decision-maker will be required to impose, at a minimum, the prescribed conditions on non-citizens in the following circumstances:

To support implementation, operational guidance will be published at the time of the coming into force of the regulatory amendments.

With respect to the reporting condition, while the presumptive condition will be monthly, the decision-makers may also use other discretionary powers under the IRPA (see footnote 11) to impose a condition to report more or less frequently when the monthly frequency is not appropriate to address individual circumstances. Given the seriousness of the security inadmissibility ground, and the intention of these proposed regulatory amendments to establish a minimum baseline of monitoring of these individuals, it is expected that decision-makers would carefully consider the circumstances of the case and decide to impose any reduced reporting frequency only on an exceptional basis.

While decision-makers will still be able to use their discretionary authority to impose any additional conditions they consider appropriate in the circumstances, (see footnote 12) the prescribed conditions will be obligatory and will cease to apply in the following circumstances: if the person is detained; they are found not inadmissible; they are granted Ministerial relief; (see footnote 13) or their removal order is enforced. (see footnote 14) It should also be noted, for greater certainty, that the imposition of the condition to produce identity documents does not restrict any powers of an officer to seize documents that exist within the IRPA and its regulations. (see footnote 15)

In order to ensure that a baseline level of monitoring and control is achieved amongst the entire population of non-citizens alleged or determined to be inadmissible on grounds of security, transitional provisions included in the FRFCA allow for prescribed conditions to also be imposed on the existing population of security inadmissibility cases. Currently, there are approximately 150 non-citizens who are alleged or determined to be inadmissible on grounds of security, who are in Canada and who could be subject to prescribed conditions retrospectively.

Upon these proposed regulatory amendments coming into force, CBSA officers will have the authority to impose the prescribed conditions on this existing population when circumstances permit, (see footnote 16) and if they are not currently detained or subject to release conditions imposed by the ID or the FC. In those latter cases, because the CBSA cannot amend conditions imposed by an independent body, the Minister of Public Safety and Emergency Preparedness may make an application to the ID or FC to have the prescribed conditions imposed if existing conditions do not already address the potential risks that they pose and the CBSA’s operational monitoring responsibilities. The CBSA will establish an operational plan related to the retrospective application of conditions, to ensure that an appropriate baseline level of monitoring and control is achieved amongst the entire population of non-citizens alleged or determined to be inadmissible on grounds of security.

Contact

Richard St Marseille
Manager
Immigration Enforcement Policy Unit
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613-954-3923
Email: IEPU-UPELI@cbsa-asfc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1), section 17, paragraphs 26(e), 53(a), (d) and (e) (see footnote a), 61(a) (see footnote b), (a.3) (see footnote c) and (b) and 87.2(1)(a) (see footnote d) and subsection 140(3) of the Immigration and Refugee Protection Act (see footnote e), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice and be addressed to Richard St Marseille, Manager, Immigration Enforcement Policy Unit, Programs Branch, Canada Border Services Agency, 100 Metcalfe Street, 10th Floor, Ottawa, Ontario K1A 0L8 (email: IEPU-UPELI@cbsa-asfc.gc.ca).

Ottawa, April 13, 2017

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Paragraph 26(b) of the Immigration and Refugee Protection Regulations (see footnote 17) is replaced by the following:

2 (1) Paragraph 48(1)(a) of the Regulations is replaced by the following:

(2) Paragraph 48(2)(a) of the Regulations is replaced by the following:

3 Subsection 49(3) of the Regulations is replaced by the following:

Return of deposit

(3) If an officer determines that the person or group of persons in respect of whom the deposit was required has complied with the conditions imposed, the deposit shall be returned.

4 (1) The portion of section 234 of the French version of the Regulations before paragraph (a) is replaced by the following:

Application de l’alinéa 50a) de la Loi

234 Il est entendu que, pour l’application de l’alinéa 50a) de la Loi, une décision judiciaire n’a pas pour effet direct d’empêcher l’exécution de la mesure de renvoi s’il existe un accord entre le procureur général du Canada ou d’une province et l’Agence des services frontaliers du Canada prévoyant :

(2) Paragraphs 234(a) and (b) of the English version of the Regulations are replaced by the following:

5 Paragraph 240(1)(b) of the Regulations is replaced by the following:

6 (1) Paragraph 247(1)(a) of the Regulations is replaced by the following:

(2) Paragraphs 247(1)(c) and (d) of the Regulations are replaced by the following:

7 Paragraph 248(d) of the Regulations is replaced by the following:

8 Part 15 of the Regulations is replaced by the following:

PART 15

Prescribed Conditions

Inadmissibility on grounds of security — conditions

250.1 For the purposes of subsections 44(4), 56(3), 58(5), 58.1(4), 77.1(1) and 82(6) of the Act, the conditions that must be imposed on a foreign national or permanent resident are the following:

Immigration Appeal Division — conditions

251 For the purposes of subsection 68(2) of the Act, the conditions that must be imposed on a foreign national or permanent resident by the Immigration Appeal Division are the following:

9 Section 252 of the Regulations is replaced by the following:

Custody of seized thing

252 A thing seized under subsection 140(1) of the Act shall be placed without delay in the custody of the Department or the Canada Border Services Agency.

Coming into Force

10 These Regulations come into force on the day on which section 19 of the Faster Removal of Foreign Criminals Act, chapter 16 of the Statues of Canada, 2013, comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

[16-1-o]