Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2020-92
Canada Gazette, Part II, Volume 154, Number 10
SOR/2020-92 April 22, 2020
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2020-262 April 20, 2020
Whereas, pursuant to subsection 5(2) footnote a of the Immigration and Refugee Protection Act footnote b, the Minister of Public Safety and Emergency Preparedness has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations to be laid before each House of Parliament, in the annexed form;
Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 5(1), paragraphs 53(a) and (g) and section 61 footnote c of the Immigration and Refugee Protection Act footnote b, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Regulations Amending the Immigration and Refugee Protection Regulations
1 Section 46 of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:
46 Sections 47 to 49 apply to deposits and guarantees required under subsections 44(3), 56(1), 58(3) and 58.1(3) of the Act and section 45 of these Regulations.
2 Section 47 of the Regulations is amended by adding the following after subsection (3):
Factors to consider
(4) An officer, the Immigration Division or the Minister must consider the following factors in assessing whether the person who posts a guarantee has the ability to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed:
- (a) their relationship to the person or group of persons in respect of whom the guarantee is required;
- (b) their financial situation;
- (c) any previous history posting a guarantee;
- (d) their criminal record; and
- (e) any other relevant factor in determining their ability to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed.
Coming into Force
3 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.)
In correspondence dated June 18, 2015, the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) advised that paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations (IRPR), which governs the eligibility for a guarantor, should be amended to include a non-exhaustive list of factors that must be considered when assessing a prospective guarantor’s capacity to ensure a third party’s compliance with conditions imposed. The Canada Border Services Agency (CBSA) agreed with this recommendation.
A technical issue was also identified by the CBSA; it has been determined that a minor amendment is necessary to align the IRPR with the Immigration and Refugee Protection Act (IRPA) to improve consistency.
Finally, and more recently, the World Health Organization (WHO) declared an outbreak of what is now known as COVID-19 coronavirus disease to be a pandemic on March 11, 2020. The Government of Canada is implementing a comprehensive strategy with layers of precautionary measures to limit the introduction and spread of COVID-19 coronavirus disease. In this context, there may be an increased reliance on conditions and on deposits or guarantees under the IRPR to encourage and promote compliance with orders and regulations made under the Quarantine Act or the Emergencies Act.
The Minister of Public Safety and Emergency Preparedness (the Minister) is responsible for the administration and enforcement of the IRPA, including policy responsibility pertaining to the regulations governing deposits and guarantees. The provisions governing the deposits and guarantees framework are found in sections 45 to 49 of the IRPR.
Deposits and guarantees are tools available to applicable decision makers under the IRPA, which may be required in an effort to foster a person’s compliance with any conditions imposed under the Act. As an illustrative example, a deposit or guarantee could be required by an officer in an effort to ensure that a person who is granted temporary entry to Canada, but is believed to be inadmissible appears for their admissibility hearing in Canada.
The term “decision makers” includes an officer of either the CBSA or Immigration, Refugees and Citizenship Canada (IRCC), the Minister, or the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB). The decision maker responsible in a particular case depends on the circumstance in which deposits or guarantees are being used and is specified in the IRPA.
Deposits and guarantees can be applied by a decision maker under the following circumstances:
- persons seeking entry into Canada;
- persons subject to an inadmissibility report, an admissibility hearing or a removal order; and/or
- persons released from immigration detention.
Among the conditions that are imposed on a person or persons in respect of whom a guarantee is required, certain conditions are mandatory in all cases. For example, persons are to
- provide the address of the person posting the guarantee and to advise IRCC or the CBSA, as the case may be, before any change in that address; and
- present themselves at the time and place that an officer or the ID requires them to appear to comply with any obligation imposed on them under the Act.
Other conditions are discretionary and established by the decision maker, on a case-by-case basis, to address specific concerns and take the individual circumstances of a person into account.
A guarantor is a third party who guarantees to the applicable decision maker that the person concerned will comply with their conditions. Subsection 47(2) of the IRPR requires that a guarantor must
- be a Canadian citizen or a permanent resident, and be physically present and residing in Canada;
- be able to ensure that the person or group of persons concerned will comply with the conditions imposed; and
- present to an officer evidence of their ability to fulfil the obligations arising from the guarantee.
Originally, the SJCSR sought an explanation from the CBSA as to how a prospective guarantor could “ensure” that the person concerned will comply with the conditions imposed on them. The CBSA responded that there are a number of factors likely to be considered on a case-by-case basis, which are currently outlined in operational guidance to assist officers in decision-making. These include:
- the relationship of the proposed guarantor to the person concerned;
- the proposed guarantor’s financial situation;
- previous history as a guarantor or a surety; and
- consideration of any prior criminal activity.
The CBSA also noted that other factors pointing to the proposed guarantor’s capacity to supervise the person concerned may be relevant on a case-by-case basis.
The SJCSR acknowledged that the circumstances of each case would vary, but nevertheless asserted that providing this minimum, non-exhaustive set of prescribed factors for decision makers is necessary to avoid potential inconsistent application. The SJCSR recommended that the IRPR be amended to outline these minimum factors for a decision maker to consider when assessing the eligibility of a potential guarantor.
In the context of COVID-19, and to the extent that conditions imposed under the IRPR begin to incorporate compliance with respect to emergency orders or regulations made under the Quarantine Act or Emergencies Act, a transparent and consistent decision-making framework with respect to guarantors is of increased importance. A guarantor’s ability to ensure the compliance of a person with respect to whom a guarantee is required becomes an increasingly important and relevant factor for decision makers to consider in a pandemic situation. Additional relevant factors could include whether the proposed guarantor can demonstrate knowledge and understanding of any emergency or quarantine orders in effect, and/or the guarantor’s ability to monitor, inform and influence the person concerned to comply with such orders.
The CBSA also identified a technical issue that required an amendment to align cross-references to the IRPA in the IRPR. Legislative amendments to the IRPA made in 2010 and 2012 caused renumbering of certain sections. However, references to these sections in the IRPR were not amended at that time. This technical amendment corrects these references in the IRPR.
The amendments address the recommendations raised by the SJCSR, and aim to
- ensure consistent application of the new provision among applicable decision makers; and
- make technical amendments to align the IRPR with the IRPA.
The following is a list of the amendments that have been made.
Paragraph 47(2)(b) of the IRPR
To address the concern raised by the SJCSR, a new subsection 47(4) establishes a non-exhaustive list of factors that must be considered by a decision maker when determining the guarantor’s capacity to ensure compliance with any conditions imposed. The factors are as follows:
- The relationship of the guarantor to the person concerned;
- The guarantor’s financial situation;
- Any previous history as a guarantor
- Consideration of a guarantor’s criminal record; and
- Any other relevant factor in determining the capacity of the guarantor to ensure that the person concerned will comply with the conditions imposed.
Technical coordinating amendments
Technical coordinating amendments to section 46 of the IRPR are also required to align cross-references to the IRPA in the IRPR, due to the renumbering of various sections of the Act. When the IRPA was amended in 2010 and 2012, the coordinating regulatory amendments were inadvertently not made. Therefore, the application section has added reference to subsection 58.1(3), and has renumbered section 56 to subsection 56(1).
From December 7, 2018, to January 7, 2019, the proposed regulatory amendments were posted on the CBSA and Consulting with Canadians websites. The following stakeholders were notified of the public consultation:
- Amnesty International
- British Columbia Civil Liberties Association
- Canadian Association of Refugee Lawyers
- Canadian Association of Professional Immigration Consultants
- Canadian Bar Association
- Canadian Centre for Missing Children
- Canadian Civil Liberties Association
- Canadian Council for Refugees
- Canadian Police Association
- Federation of Law Societies of Canada
- Immigration and Refugee Board of Canada
- Law Society of Ontario
- Ontario Council of Agencies Serving Immigrants
- Quebec Bar Association
- Raoul Wallenberg Centre for Human Rights
- Table de concertation des organismes au service des personnes réfugiées et immigrantes
Two submissions were received in response to this consultation opportunity. The feedback from stakeholders was generally supportive of this initiative to ensure consistent, transparent and uniform application of a minimum baseline of factors by all decision makers with respect to guarantors and depositors.
One stakeholder contended that there is strong regional variation in the bonds (deposits or guarantees) framework, and that consideration of bondspersons (depositors or guarantors) needs to be done in a way that ensures the liberty of all persons is protected in an equitable way, without discrimination. This recommendation was considered, and the CBSA has determined that a person’s personal circumstances can be included in the decision maker’s assessment of the suitability of the proposed guarantor as part of “any other relevant factor” to consider. Though it has not been included as a standalone factor, considerations around non-discrimination and equity will be included in operational guidance following the coming into force of this regulatory amendment. In addition, the CBSA notes that Enforcement Manual 8 (ENF8), which provides operational guidance around the deposits and guarantees framework, was revised in 2017 to further clarify these and other considerations in order to more consistently apply the framework nationally and reduce the likelihood of regional variations.
Another stakeholder recommended that the requirements to consider the bondsperson’s “criminal record and potential criminal associations” be amended to mandate the consideration of prior criminal convictions only, not “potential criminal associations.” This feedback was taken into consideration and adopted in the drafting of this amendment.
The overall scope and focus of these amendments responds to the concerns raised by the SJCSR. The stakeholder recommendations have been considered and, where possible, they have been incorporated.
The amendments also provide a clearer, more transparent and consistent foundation for decision makers, such as CBSA officers, and members of the Immigration Division of the Immigration and Refugee Board, as they are increasingly required to consider factors in relation to new IRPR conditions linked to compliance with any orders or regulations made under the Quarantine Act and the Emergencies Act. Though the scope of the amendments has not changed in light of the current public health pandemic, in this context decision makers may increasingly rely on deposits and guarantees as an alternative to immigration detention, or as a tool to ensure compliance with conditions on entry to Canada. As the public consultation process preceded the current public health situation, related considerations had not been articulated in the original consultation notice.
Modern treaty obligations and Indigenous engagement and consultation
Constitutional and modern treaty implications were considered and none have been identified.
This proposal addresses recommendations and concerns raised by the SJCSR. More specifically, the SJCSR suggested establishing in the regulations a non-exhaustive list of factors that must be considered when assessing a prospective guarantor’s capacity to ensure compliance by the person subject to conditions imposed by an officer. These factors were previously available to the public in the web-published Enforcement Manual 8 (ENF8), which is a guidance document utilized by the CBSA and IRCC. To ensure they are binding on all relevant decision makers, the above-noted list of minimum factors must be set out in the IRPR. This is anticipated, moreover, to provide greater transparency, precision and coherence to the deposits and guarantees framework.
Benefits and costs
These amendments codify existing policy and practices into the IRPR; no additional costs to the Government of Canada, businesses, consumers, nor Canadians are expected. Officers will receive updated field guidance on how the amendments are to be applied. Updating associated policy guidance will be done within existing resources.
Small business lens
These regulatory amendments will not result in costs for small businesses.
These amendments introduce a minimum set of general factors in the IRPR, which currently exist in operational policy. These amendments will not result in any change (increase nor decrease) in administrative burden on business. Therefore, the one-for-one rule does not apply.
Regulatory cooperation and alignment
This regulatory amendment is not part of an existing regulatory cooperation initiative, nor does it have any linkage to international agreements or obligations.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that the amendments would not have a positive or negative environmental impact; therefore, a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this amendment.
Implementation, compliance and enforcement, and service standards
Since these amendments primarily codify current practice concerning deposits and guarantees as found in the Enforcement Manual 8 (ENF8) into the IRPR, the CBSA will issue an operational bulletin advising officers of these amendments and update the relevant sections of the Enforcement Manual where necessary. The Agency will also notify the Immigration and Refugee Board so as to facilitate their operational guidance to be ready for implementation. These amendments come into force on the day on which they are registered.
Richard St Marseille
Strategic Policy Branch
Canada Border Services Agency
100 Metcalfe Street, 10th Floor