Vol. 147, No. 25 — December 4, 2013
SOR/2013-210 November 25, 2013
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2013-1281 November 25, 2013
Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness have caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;
Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, pursuant to subsections 5(1) and 14(1) and (2) (see footnote c) and sections 26 (see footnote d), 53 (see footnote e) and 150 of the Immigration and Refugee Protection Actb, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. Section 179 of the Immigration and Refugee Protection Regulations (see footnote 1) is amended by striking out “and” at the end of paragraph (e), by adding “and” at the end of paragraph (f) and by adding the following after paragraph (f):
- (g) is not the subject of a declaration made under subsection 22.1(1) of the Act.
2. Section 182 of the Regulations is replaced by the following:
182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.
DECLARATION UNDER SUBSECTION 22.1(1) OF THE ACT
182.1 If the Minister makes a declaration under subsection 22.1(1) of the Act in respect of a foreign national, the foreign national is considered to have been given notice of the declaration if
- (a) notice is sent by mail to their last known address;
- (b) notice is sent to their last known email address;
- (c) notice is provided to them by hand, including at a port of entry; or
- (d) notice is sent or provided by other reasonable means, if it is not possible to give notice by one of the means referred to in paragraphs (a) to (c).
182.2 (1) A foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act may make written submissions to the Minister as to why the declaration should be revoked or why its effective period should be shortened.
(2) The written submissions must be made within 60 days after the day on which the notice of the declaration is sent or provided to the foreign national, as the case may be.
3. (1) The portion of subsection 183(5) of the Regulations before paragraph (a) is replaced by the following:
Extension of period authorized for stay
(5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until
(2) Section 183 of the Regulations is amended by adding the following after subsection (5):
(5.1) Subsection (5) does not apply in respect of a foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act.
4. Paragraph 228(1)(c) of the Regulations is amended by striking out “or” at the end of subparagraph (iv), by adding “or” at the end of subparagraph (v) and by adding the following after subparagraph (v):
- (vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order; and
5. The Regulations are amended by adding the following before section 259:
258.1 For the purposes of paragraph 148(1)(a) of the Act, a person who is the subject of a declaration made under subsection 22.1(1) of the Act is a prescribed person unless they hold a valid temporary resident permit issued under section 24 of the Act.
COMING INTO FORCE
6. 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.)
The federal government has exclusive jurisdiction over Canada’s admissibility policy, which is administered by the Department of Citizenship and Immigration (CIC) and the Canada Border Services Agency (CBSA) at all points of service (i.e. outside Canada, ports of entry, and inland). The Immigration and Refugee Protection Act (IRPA) provides a high-level framework that aims to reap the economic, social and cultural benefits of immigration, while protecting the health, safety, and security of Canadians. The IRPA’s objectives are achieved, in part, through a set of nine inadmissibility provisions that control the admission of individuals to Canada. The Minister of Citizenship and Immigration (Minister of CIC) is responsible for six of these provisions (criminality, health, financial reasons, misrepresentation, non-compliance, and inadmissible family members), while the Minister of Public Safety is responsible for three (security, human or international rights violations, and organized criminality).
In 2010, CIC launched a review of theIRPA’s inadmissibility and related provisions in consultation with the CBSA and other federal partners. The purpose of the admissibility review was to ensure that officials continue to have the tools necessary to maintain the integrity of Canada’s immigration system. This review also examined a number of recurrent issues that have surfaced since the implementation of the IRPA in 2002, such as expediting the removal process for individuals inadmissible for serious criminality, and greater facilitation for low-risk travellers.
The admissibility review resulted in the Faster Removal of Foreign Criminals Act (“the Act”), which contains a number of legislative amendments to the IRPA to enhance the safety and security of Canadians; strengthen the integrity of the immigration program; and facilitate entry for low-risk individuals in order to further support Canadian interests.
Included in the Act is a new authority for the Minister of CIC to declare that a foreign national may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations for a period of up to three years. This authority came into force on August 30, 2013. This new authority, and the regulations which support it, are the focus of this Regulatory Impact Analysis Statement.
Issues and objectives
Foreign nationals can be admitted to Canada if they have applied for temporary resident status, meet the requirements of that class and are not inadmissible. The provisions governing inadmissibility are found in sections 34 to 42 of the IRPA (which list specific grounds of inadmissibility such as health, security and criminality). While IRPA provides for authority for the Minister to review cases and permit entry in justifiable circumstances to applicants who are inadmissible, without the new authority for refusal, there was no equivalent authority to deny entry to individuals who are not inadmissible, but to whom the Minister may wish to refuse status based on the public interest.
The new authority more closely aligns Canada’s authorities with those found in the legislation of Canada’s key international partners, such as the United States (U.S.), the United Kingdom (U.K.), and Australia. For example,
- In the U.K., the Home Secretary has the power to personally order an individual excluded from the U.K. in cases where their presence would not be conducive to the public good. For example, this can be done on the basis of national security, foreign policy, public order, or serious criminality. The Secretary does not delegate this power to other officials.
- In Australia, the Minister for Immigration, Multicultural Affairs and Citizenship has the authority to refuse or cancel a visa on national interest grounds. In addition, Australia’s immigration law allows for visa refusals and cancellations by the Minister or delegate based on foreign policy interests and the likelihood that an individual will promote or participate in violence if allowed to enter or remain in Australia.
- In the United States, the Secretary of State may direct a consular officer to refuse a visa if necessary for U.S. foreign policy or security interests. The Secretary of Homeland Security can delegate the authority to immigration officers to revoke a visa. Additionally, the President may restrict international travel to the United States and suspend the entry of certain individuals (both immigrants and non-immigrants) whose presence would be considered detrimental to the U.S.
The regulatory changes discussed below support the effective implementation of the new authority for refusal and further enhance the safety and security of Canadians, better support the Government of Canada’s priorities and public policy statements, and provide flexibility to respond to changing international circumstances.
The regulatory amendments in relation to the new authority for refusal under subsection 22.1(1) of IRPA ensure that foreign nationals who are subject to a declaration by the Minister under the authority cannot become a temporary resident on the basis of public policy considerations, for a period of up to three years. The Minister may, at any time, revoke the declaration or shorten its effective period. At the expiration of the declaration period, another declaration by the Minister may be made, resulting in a new declaration period of up to three years. There is no limit on the number of times the authority can be exercised. The authority is intended to be used in exceptional circumstances only, and decision-making cannot be delegated below the Minister.
Illustrative guidelines have been made publicly available on the Department’s Web site to inform the public about the types of behaviours or circumstances that may give rise to public policy concerns. The guidelines include, for example, a foreign national who promotes or glorifies terrorist violence, a senior official of a government against which Canada has imposed sanctions, or a corrupt foreign official. The guidelines can be found at www.cic.gc.ca/english/department/media/backgrounders/2012/2012-10-24.asp.
Specifically, the regulatory amendments support the effective implementation of the new authority by
- providing that, before an officer issues a temporary resident visa to a foreign national, it is established that the foreign national is not the subject of a declaration made by the Minister under the new authority (section 179);
- providing that, before an officer restores a foreign national’s temporary resident status, it is established that the foreign national is not the subject of a declaration made by the Minister under the new authority (section 182);
- preventing the possibility of implied continuation of temporary resident status for foreign nationals who are subject to a declaration made by the Minister under the new authority [subsections 183(5) and (5.1)];
- authorizing the Minister’s delegate to issue a removal order, without referring the matter to the Immigration Division, where the inadmissibility is for failure to comply with the obligation to not seek to enter or remain in Canada as a temporary resident while the subject of a declaration made by the Minister, and specifying that the removal order is an exclusion order [paragraph 228(1)(c)];
- providing for the process to be followed in making decisions under the new authority, including
- providing that notice of the declaration is considered to have been given to the foreign national if the notice is sent or provided by certain means. Specifically, that notice is considered to have been given when notice of the declaration is sent to the last known address of the foreign national by letter or email, is provided directly to the foreign national, including at a port of entry, or, if it is not possible to inform the foreign national by one of the means listed above, is sent or provided by other reasonable means (section 182.1); and
- providing that a foreign national who is the subject of a declaration made by the Minister may, within 60 days of notice being given, make written submissions to the Minister about why the Minister should revoke the declaration or shorten the period of validity of the declaration (section 182.2).
- providing that a person who owns or operates a vehicle or a transportation facility must not carry to Canada a person who is subject to a declaration made by the Minister under the new authority, unless the foreign national has been issued a temporary resident permit.
In 2012–2013, stakeholders were invited to testify before the House Standing Committee on Citizenship and Immigration, and the Standing Senate Committee on Social Affairs, Science and Technology on Bill C-43, the Faster Removal of Foreign Criminals Act, which included the legislative provision for the new authority for refusal. During these meetings, stakeholders were asked to state their position and opinions on the Bill, and answer questions from parliamentarians.
Some interest groups welcomed the introduction of the new authority for refusal on public policy grounds and supported it on the basis that the provision gives the government stronger legal tools to deny entry to Canada to those who pose a risk to Canada, and brings Canada in line with countries such as Australia and the U.S., which have similar provisions.
However, some stakeholders expressed concern that the illustrative guidelines are non-binding. Other stakeholders were concerned that the new authority is too broad, and that it gives the Minister a tool that could be used on the basis of political ideology rather than public policy.
As a result of these consultations, the Bill was amended to include an annual reporting requirement to Parliament on the use of the new authority, including the number of instances it is used, and the public policy considerations on which the decisions were based. The Annual Report to Parliament on Immigration is publicly available on the CIC Web site.
The “One-for-One” Rule does not apply to these Regulations as there will be no additional administrative costs imposed on Canadian business. Current administrative guidelines for transportation companies related to the management of travellers will be used to implement the new authority for refusal, including procedures related to the collection, storing or reporting of information to Government.
Small business lens
The small business lens does not apply to these Regulations. It is anticipated that the majority of cases will involve individuals travelling with return tickets on commercial vehicles, which are not considered by definition “small business,” and/or individuals from visa-required countries, in which case they would be refused a visa to travel to Canada.
It should be acknowledged that in the unlikely circumstance that an individual under declaration from a visa-exempt country uses the services of a small, private, Canadian transportation company such as a general aviation company, the owner may bear some costs to return the designated individual who is refused entry to Canada. These costs would have been incurred in the baseline as the operator would have been responsible for returning the foreign national. Thus, there are no incremental impacts.
Nevertheless, it is assumed that individuals under declaration from visa-exempt countries flying to Canada would most likely do so on a commercial carrier. Thus, the small business lens would not apply.
The Regulations for the new authority for refusal make an important contribution to the objectives of the IRPA, including enhancing the safety and security of Canadians and promoting international justice.
The new authority for refusal and associated regulatory amendments that implement the provision allow the Minister of Citizenship and Immigration to more effectively promote and defend Canada’s public policy interests. The amendments ensure that foreign nationals engaged in behaviours which may give rise to public policy concerns, such as those set out in the publicly available list of guidelines, can be denied temporary resident status. The authority addresses cases where a foreign national may not otherwise be considered to be inadmissible under the IRPA provisions; however, they are nonetheless promoting or perpetuating activities that are contrary to Canadian public policy.
Review of the Regulations revealed cost-neutral impacts on business, consumers or other levels of government. No new processes are envisaged for transport companies to administer the removal of individuals under declaration. Current procedures related to management of travellers will continue to apply. The new authority for refusal will not impact Canadian citizens or permanent residents and is expected to be used only in exceptional cases for foreign nationals.
Implementation, enforcement and service standards
An illustrative list of behaviours which may give rise to public policy concerns is available on the CIC Web site. In addition, CIC will compile cases as they arise and report the number of instances the authority is used and the public policy considerations on which the decisions were based annually to Parliament.
CIC and the CBSA will also update field manuals and inform officers of their roles in enforcing the Regulations.
The new authority for refusal will be enforced as per IRPA and the Immigration and Refugee Protection Regulations, including the regulatory amendments described in this document.
Migration Control and Horizontal Policy Division
Citizenship and Immigration Canada
365 Laurier Avenue W