ARCHIVED — Vol. 146, No. 25 — December 5, 2012

Registration

SOR/2012-244 November 23, 2012

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2012-1544 November 22, 2012

His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and sections 14 and 98.2 (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. The Immigration and Refugee Protection Regulations (see footnote 1) are amended by adding the following after section 174:

DIVISION 4.1

DESIGNATED FOREIGN NATIONAL — REQUIREMENT TO REPORT TO AN OFFICER

Regular reporting intervals

174.1 (1) For the purposes of subsection 98.1(1) of the Act, a designated foreign national referred to in that subsection who has not become a permanent resident under subsection 21(2) of the Act must report to an officer as follows:

  • (a) in person, not more than 30 days after refugee protection is conferred on the designated foreign national under paragraph 95(1)(b) or (c) of the Act; and
  • (b) once a year in each year after the day on which the foreign national first reports to an officer under paragraph (a), on a date fixed by the officer.

Reporting on request

(2) The designated foreign national must also report to an officer if requested to do so by the officer because the officer has reason to believe that any of the circumstances referred to in paragraphs 108(1)(a) to (e) of the Act may apply in respect of the designated foreign national.

Additional reporting requirements

(3) In addition to meeting the requirements of subsections (1) and (2), the designated foreign national must report to an officer

  • (a) any change in
    • (i) their address, not more than 10 working days after the day on which the change occurs, and
    • (ii) their employment status, not more than 20 working days after the day on which the change occurs;
  • (b) any departure from Canada, not less than 10 working days before the day of their departure; and
  • (c) any return to Canada, not more than 10 working days after the day of their return.

Cessation of reporting requirements

(4) The reporting requirements in subsections (1) to (3) cease to apply to the designated foreign national on the day on which they become a permanent resident.

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

1. Background

On June 28, 2012, Bill C-31, the Protecting Canada’s Immigration System Act (the PCISA), received Royal Assent. The PCISA amends the Immigration and Refugee Protection Act (IRPA) to give the Minister of Public Safety the authority to designate the arrival of a group of foreign nationals in Canada as an irregular arrival when, having regard to the public interest, one of two factors is present:

  • (a) the Minister is of the opinion that the examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — and any related investigations, cannot be conducted in a timely manner; or
  • (b) the Minister has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) [human smuggling] for profit, or for the benefit of, at the direction of or in association with, a criminal organization or terrorist group.

The designation of irregular arrivals will result in designated foreign nationals not being able to apply for permanent resident status for a period of at least five years, to a maximum of six years. The five-year bar will apply to all applications for permanent residence by designated foreign nationals, including through other immigration streams such as humanitarian and compassionate consideration or the family class.

The five-year bar on permanent residence is intended to act as a deterrent to participating in human smuggling.

2. Issue

The PCISA includes a requirement for a designated foreign national on whom refugee protection is conferred to report to an officer in accordance with the Regulations. It authorizes the making of regulations relating to this Reporting requirement.

3. Objectives

The objectives of these Regulations are to provide operational details relating to the reporting requirements for designated foreign nationals, including

  • the frequency of regular reporting;
  • the duration of the requirement to report; and
  • the requirement to report change in work status, change of address as well as departure and return to Canada.

The Regulations will ensure that the reporting requirement provided for in the PCISA is clearly and properly implemented.

The purpose of the reporting requirement is to keep track of the whereabouts of protected persons while they are barred from applying for permanent residence. Circumstances can change significantly in five years. Country conditions could improve, or protected persons could decide to return to their countries of origin. If any change occurs in the circumstances of the designated foreign national during that time that results in grounds for cessation of refugee protection, such proceedings can be initiated. This will ensure that permanent residence is only granted to those who continue to need Canada’s protection.

4. Description

The following amendments have been made to the Immigration and Refugee Protection Regulations:

  1. Initial reporting timeline

    The Regulations have been amended to specify that a designated foreign national on whom refugee protection is conferred must report to an officer, in person, within 30 days after the determination made by the Refugee Protection Division.

  2. Frequency of reporting

    The Regulations have been amended to specify that a designated foreign national on whom refugee protection is conferred must report to an officer on an annual basis following the initial reporting interview. If the officer has reason to believe the individual may be in a situation that could warrant cessation of refugee protection, the officer can require more frequent reporting. The method of reporting will be determined by the responsible Canadian Border Services Agency (CBSA) office, in accordance with current CBSA practices. The reporting requirement could include alternative reporting arrangements, such as telephone reporting, providing the responsible office is equipped to administer such arrangements.

  3. Circumstances in which the designated foreign national must notify an officer and time limits for notification

    The Regulations have been amended to specify that a designated foreign national must inform an officer of
    • (a) any change of address, within 10 working days of that change of address;
    • (b) any change in employment status (a loss or acquisition of employment, or a change in employers), within 20 work-ing days after that change; and
    • (c) any planned departure from Canada, at least 10 working days before that planned departure, and of any return to Canada within 10 working days after that return.
  4. Duration of the reporting period

    The Regulations have been amended to specify that the requirement to report will continue until the designated foreign national becomes a permanent resident.

    The PCISA bars the submission of an application for permanent residence for five years following the date of status determination, with an additional year added if the person does not comply with any conditions imposed on them. The reporting requirement will continue to apply for at least five and a maximum of six years after refugee protection status is conferred.

5. Consultation

The human smuggling provisions of the PCISA as a whole, including the disincentive provisions of the Bill, were debated during meetings of the Standing Committee. Discussions have focused on mandatory detention and the five-year bar on permanent residence, concerns which were reiterated during prepublication. Several stakeholders have expressed opposition to the five-year bar, of which the reporting requirement is a component, and some stakeholders raised more specific concerns regarding the reporting requirement itself.

The proposed Regulations were published in the Canada Gazette, Part I, on August 4, 2012, followed by a comment period of 30 days. Prepublication comments addressing the reporting requirements were received from five organizations. Stakeholders expressed concern that the reporting requirements were too onerous and could lead to refugees inadvertently failing to comply. One stakeholder expressed concern that the requirement to report 10 days before leaving Canada would not allow enough time for last-minute travel for family emergencies. In response, it should be noted that the consequence associated with failing to comply with reporting requirements (the additional year on the bar to permanent residence) only applies if the designated foreign national fails to comply “without reasonable excuse.”

Regarding the specific reporting requirements, one stakeholder commented on the requirement to report a change in employment status, expressing a concern that this information could be used by the government to question the state’s financial support of refugees who are designated foreign nationals, or that this information could be used in the context of an application for cessation of refugee protection. In response, it should be stressed that the reporting of employment information for the purpose of these Regulations is not intended to be used in this manner and that a lack of employment is not grounds for cessation under the IRPA. The purpose of reporting employment information is to help keep track of individuals in case there is reason to pursue cessation of protected person status. Another stakeholder was concerned that “change in employment status” could be interpreted to mean a wide variety of changes associated with employment. In response, the Regulatory Impact Analysis Statement (RIAS) has been updated to clarify that a change in employment status means a loss or acquisition of employment or a change in employers (i.e. losing a job or finding a new job).

6. Small business lens

There is no anticipated impact on small business, as the Regulations do not impose administrative burden or compliance costs on businesses.

7. Rationale

These Regulations are necessary to give effect to the reporting requirement in the PCISA. Requiring annual reporting after the initial 30-day reporting period until receipt of permanent residence, is intended to result in minimal inconvenience to designated foreign nationals. The frequency and duration of reporting and the areas of inquiry are linked to the objective of keeping track of the whereabouts of designated foreign nationals during the five-year bar on permanent residence. Requiring notification of change of address, change of employment status and travel outside of Canada will assist in identifying circumstances where cessation of refugee protection may be warranted and would ensure that client information is up to date in the event of a cessation proceeding.

8. Implementation, enforcement and service standards

The Regulations will come into force on the day on which they are registered.

Any designated foreign nationals who receive protected person status will be informed of their requirement to report as set out in these Regulations.

The consequence of not complying with this reporting requirement is an additional delay of one year before being permitted to apply for permanent residence.

9. Contact

Andre Baril
Director
Asylum Policy and Programs
Refugee Affairs Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Email: Andre.Baril@cic.gc.ca

Footnote a
S.C. 2012, c. 17, s. 32

Footnote b
S.C. 2001, c. 27

Footnote 1
SOR/2002-227