Regulations Amending the Immigration and Refugee Protection Regulations (Examination of Eligibility to Refer Claim): SOR/2023-58

Canada Gazette, Part II, Volume 157, Number 8

Registration
SOR/2023-58 March 23, 2023

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2023-260 March 23, 2023

Whereas, under subsection 5(2)footnote a of the Immigration and Refugee Protection Act footnote b, the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations (Examination of Eligibility to Refer Claim), substantially in the annexed form, to be laid before each House of Parliament;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Examination of Eligibility to Refer Claim) under subsections 5(1) and 102(1) of the Immigration and Refugee Protection Act footnote b.

Regulations Amending the Immigration and Refugee Protection Regulations (Examination of Eligibility to Refer Claim)

Amendments

1 The Immigration and Refugee Protection Regulations footnote 1 are amended by adding the following after section 159:

Definition of prior claim

159.01 For the purposes of paragraph 101(1)(c) of the Act, prior claim means a claim for refugee protection that was made under section 99 of the Act, other than a claim that was determined to be ineligible to be referred to the Refugee Protection Division under paragraph 101(1)(e) of the Act if the foreign national who made that claim is subsequently seeking to re-enter Canada in circumstances where they have been refused entry to the United States without having a refugee claim adjudicated there.

2 (1) The definition Agreement in section 159.1 of the Regulations is replaced by the following:

Agreement
means the Agreement done at Washington, D.C. on December 5, 2002 between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, including any modifications or additions made in accordance with its terms. (Accord)

(2) Section 159.1 of the Regulations is amended by adding the following in alphabetical order:

stateless person
means a person who is not considered a national by any state under the operation of its law. (apatride)

3 (1) Paragraph 159.4(1)(a) of the Regulations is replaced by the following:

(2) Section 159.4 of the Regulations is amended by adding the following after subsection (1):

Exception — land border other than ports of entry

(1.1) Paragraph 101(1)(e) of the Act applies to a claimant who enters Canada at a location along the Canada – United States land border — including the waters along or across that border — that is not a port of entry and makes a claim for refugee protection less than 14 days after the day on which the claimant enters Canada unless the claimant establishes that any of paragraphs 159.5(a) to (h) applies to the claimant.

4 The portion of section 159.5 of the Regulations before paragraph (a) is replaced by the following:

Non-application — claimants at land ports of entry

159.5 Paragraph 101(1)(e) of the Act does not apply if a claimant who seeks to enter Canada at a location other than one identified in paragraphs 159.4(1)(a) to (c) establishes that

5 The portion of section 159.6 of the Regulations before paragraph (a) is replaced by the following:

Non-application — claimants at land ports of entry and in transit

159.6 Paragraph 101(1)(e) of the Act does not apply if a claimant establishes that the claimant

Coming into Force

6 These Regulations come into force on the day on which the Additional Protocol to the Agreement between the Government of the United States of America and the Government of Canada for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries enters into force.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Since 2017, Canada has seen historic volumes of irregular arrivals along the Canada-United States (U.S.) border, primarily at known irregular border crossings, such as Roxham Road, Quebec, by individuals looking to claim asylum in Canada. Numbers hit unprecedented levels in 2022 with almost 40 000 asylum seekers entering Canada between ports of entry (POEs), putting significant pressure on Canada’s asylum system, as well as government resources at all levels. Updates to the Regulations are required to allow for the modernization of the Safe Third Country Agreement (STCA).

Operational needs have identified two areas related to grounds for exemption and exception under the STCA that require clarification: the definition of statelessness and the authority for Canadian officers to allow individuals, previously deemed ineligible under the STCA, and refused re-entry by the U.S., to enter Canada to make their claim. Currently, officers rely on operational guidance for determination of statelessness and on an Immigration and Refugee Protection Regulations (IRPR) provision that allows re-entry to Canada of individuals with a removal order who are refused entry by the destination country.

Background

The Immigration and Refugee Protection Act (IRPA) permits the designation of countries for the purpose of sharing the responsibility for refugee claims, referred to as a safe third country. The concept, accepted by the United Nations Refugee Agency, is based on the principle that asylum claimants should seek protection in the first safe country they enter after leaving their country of persecution. As such, only countries that respect human rights and offer a high degree of protection to asylum seekers may be designated. Currently, the U.S. is the only country designated by Canada.

The STCA, in place since 2004, restricts access to the Canadian asylum system to those who arrive at designated POEs along the Canada-U.S. land border. Individuals who meet an exception or exemption to the STCA are eligible to claim asylum in Canada; those who do not meet an exception or exemption are returned to the U.S. to file their asylum claim there. Individuals who arrive between POEs (irregular arrivals) at the land border are not subject to the STCA; they are allowed to enter Canada to file a claim and are subject to the same criteria, requirements, and considerations as people who make a claim while already in Canada.

Since 2017, there has been a surge in individuals who enter Canada irregularly and claim asylum, thereby avoiding the application of the STCA. Irregular arrivals averaged approximately 20 000 a year between 2017 and 2019 and surged to approximately 40 000 arrivals in 2022. This surge has undermined the intent of the Canada-U.S. STCA to ensure asylum claims are made in the first safe country of arrival, and the principle of shared responsibility and joint orderly management of asylum claims along the border. It also risks eroding public confidence in Canada’s border management capacity and its rule-based asylum and immigration systems. These challenges have been reflected in negative media coverage expressing concerns about fairness in the immigration system, maintaining border protection, backlog of processing asylum applications, and the degree of services provided to asylum claimants compared to those for Canadians.

The Government has taken actions to discourage prospective irregular arrivals, including targeted domestic and international communications, and social media campaigns to correct misinformation, as well as increased promotion of alternative pathways. These measures were not sufficient to curb the rise in the number of asylum claims by irregular arrivals.

Following negotiations with the U.S., both countries signed an additional protocol to the STCA (the Protocol). The Protocol expands the application of the STCA to individuals who make an asylum claim within 14 days of crossing in between POEs along the land border, including internal waterways.

Objective

The objectives of these changes to the IRPR are to apply the STCA consistently to all individuals entering Canada from the U.S. at the land border, regardless of where they enter, to ensure orderly and consistent handling of asylum claims in line with the principles of STCA; to reinforce border integrity between Canada and the U.S.; and to strengthen public confidence in the integrity of the asylum system.

The intended outcomes of the Regulations are to reduce the number of irregular arrivals in Canada, by ensuring the ability to operationalize the Protocol, allowing improved management of asylum claims across the shared border, as well as potentially creating a deterrent for individuals seeking to enter irregularly and claim asylum. A reduction in irregular arrivals may also reduce pressures on all levels of government by reducing the need for services such as interim housing.

These changes also deliver on the Government’s priority to modernize the STCA and are undertaken in the context of ongoing Government efforts to promote regular and complementary pathways to Canada and discourage the use of irregular routes and illicit networks.

Description

The IRPR are being amended to expand the application of the STCA restrictions to include anyone who enters in between POEs along the Canada-U.S. land border and makes a claim for asylum within 14 days. This includes internal waterways, like lakes and rivers, that run along and across the shared border. Both individuals who cross regularly and irregularly will now be returned to the U.S. unless they meet an exception or exemption to the STCA.

Amendments are also being made to clarify the definition of stateless person, who is exempt from the STCA, and the authority of immigration officers to allow individuals determined ineligible under the STCA to have their claim redetermined if they are refused re-entry by the U.S. and be allowed to make their claim in Canada. These changes will improve consistency of application by officers across the country.

Regulatory development

Consultation

Public consultations were not undertaken prior to the entry into force of the Regulations, as public awareness of changes to eligibility at the border may have created a surge of people seeking to enter Canada irregularly to evade the new requirements. It may also have provided opportunities for individuals or illicit networks to establish ways to evade the new Regulations. Any increase in volumes of irregular asylum claimants would have further exacerbated pressures on the asylum system, interim housing, and other social services.

Modern treaty obligations and Indigenous engagement and consultation

No modern treaty implications are anticipated, as the amendments focus on the eligibility of foreign nationals to access Canada’s asylum system. However, some Indigenous communities near the border may be impacted by potential changes in irregular migration routes. Any potential impacts on Indigenous territories will be closely monitored, and steps taken to engage Indigenous communities and their police services as appropriate moving forward. Such engagement with communities and police services is expected to include proactive offers of technical briefings to communities which may be impacted (e.g. border communities). This will be done as part of broader stakeholder engagement, as well as leveraging other opportunities through existing policing or cross-border collaboration networks.

Instrument choice

The application of the STCA is established in the Regulations; regulatory amendments are required to change its application. As a result, no other instruments were considered.

Regulatory analysis

Benefits and costs

An important first step in developing a cost-benefit methodology is establishing a baseline scenario against which options may be measured. For this analysis, the baseline is a scenario where the STCA continues to apply only at official ports of entry and established irregular entry points continue to be utilized by individuals seeking to evade application of the STCA. Moreover, officers would continue to rely on operational guidance documents when considering exemptions from the STCA for stateless individuals and when managing cases where the U.S. refuses re-entry to an individual, resulting in potentially inconsistent application.

The baseline scenario is then compared against the regulatory scenario, where the STCA will apply across the entirety of the Canada-U.S. land border, including waterways that run along and across the border, the definition of statelessness will be clarified in the Regulations for the purpose of considering exemptions from the STCA for stateless individuals, and the approach to cases where the U.S. refuses re-entry to an individual will be clarified in the Regulations to ensure a consistent approach by officers.

Assumptions for the analysis were based on Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC) datasets, and subject matter expertise. A cost-benefit analysis report is available upon request at the point of contact provided at the end of this document.

The costs and benefits of the amendments are estimated for 10 periods of 12 months, covering 2023 to 2032.

Costs

The total costs of the regulatory amendments are estimated at $61.5 million present value (PV) over 10 years. These costs reflect transition costs, upfront capital costs, and ongoing processing, operations, and enforcement costs to the Government of Canada. Benefits are addressed qualitatively.

Transition costs to the Government of Canada include costs for communications products, IT costs, updates to program delivery instructions, other administrative materials, and training costs. These costs will be incurred in the year 2023 and are estimated at approximately $0.56 million (PV).

There are also expected to be upfront capital costs for the Government. These include costs for vehicles, as claimants will need to be transported both from entry points to POEs, and after the eligibility assessment, back to U.S. POEs for return, or to provincial shelters if deemed eligible to make a claim. In the current context, most individuals are turned back to the U.S. from the POE at which they arrived. Following the regulatory amendments, individuals will in some cases need to be returned to the U.S. from various POEs and inland office locations. As a result, additional vehicles are required. There are also expected to be acquisition and installation costs for office equipment, and costs for renovations to create additional processing spaces such as interview rooms. This is due to the fact that the regulatory amendments which support the operationalization of the updated STCA may result in more dispersed arrival points for asylum claimants across the Canada-U.S. border. Total upfront capital costs are estimated at $1.28 million (PV) over 10 periods.

Ongoing costs to Government include costs to both IRCC and CBSA. For IRCC, this includes ongoing administrative and communications costs, costs related to online claims processing, as well as legal costs. IRCC will support the implementation of the amendments by developing new processes, operational guidance, and instructions to identify claims subject to the Protocol for referral to CBSA for investigation, or to the Refugee Protection Division (if subject to an STCA exemption or exception, or the Regulations do not apply). IRCC will work to monitor and identify these processes to address issues as they arise.

CBSA will also incur costs, as the amendments are expected to increase the geographic dispersion of arriving asylum claimants, resulting in increased pressures on some POEs and a need for increased inland processing capacity. As such, additional resources will be required for tasks, such as eligibility determinations, investigations, intelligence, reviews, infrastructure oversight, litigation, and vehicle maintenance. CBSA will also incur costs to process removals from POEs and inland office locations, in addition to turning individuals back at the border. Total ongoing processing, operations, and enforcement costs to IRCC and CBSA are estimated at $59.61 million (PV) over 10 periods.

Under the baseline scenario, the Royal Canadian Mounted Police (RCMP) already engages in activities to enforce border integrity and detect, disrupt, and respond to illicit cross-border movement of goods and people, and they will continue to engage in these activities as they are part of their core mandate. Also under the baseline scenario, the RCMP will receive funding related to broader initiatives to replace and modernize Intelligence, Surveillance, Reconnaissance (ISR) equipment on aircraft that has reached the end of its lifecycle, and to form a new multidisciplinary project team to help determine technological and resource-based requirements moving forward. For the purposes of the cost-benefit analysis, these activities are not treated as incremental. It is acknowledged that investment in these new resources will likely help support border security operations by maintaining and enhancing situational awareness, in support of realizing the broader objective of a reduction in irregular migration following implementation of the regulatory amendments.

The regulatory amendments, however, may impose some resource pressures on the RCMP, as new irregular migration patterns may emerge. Some migration routes may be in remote areas and with a greater degree of dispersion, as individuals may seek to evade the application of the regulatory changes and attempt to enter Canada undetected seeking to claim asylum. Over time, and depending on migration flows and patterns, there may be further pressure on RCMP resources. It will be challenging for the RCMP to consistently enforce the Regulations given the size and terrain of Canada’s landscape, challenges posed by Indigenous and private lands, as well as the limitations of existing border technology (e.g. sensors, cameras). Responding to reports of border crossings and intercepting irregular migrants between the ports is resource intensive and risks diverting policing resources. To mitigate these challenges, the RCMP will closely monitor the situation following implementation of the regulatory amendments and reallocate existing resources towards any high-risk areas that are identified.

The amendments will impose potential costs or risks on asylum claimants who may wish to evade the STCA and its principles of where protection should be claimed. Asylum seekers determined to enter Canada, and unable to do so through an STCA exemption or other regular pathway, may look to evade application of the STCA by attempting to cross in more remote areas, and remain undetected until they are eligible to make a claim for asylum. In these instances, claimants may face increased danger, such as involvement with human smugglers and may be at risk for physical, mental, or financial abuse. They may also face risks from exposure to extreme weather conditions if they cross at remote locations or fail to secure access to shelter. This could increase the health and security risks of living in dangerous natural habitats, as well as a possible lack of access to food, water, health care, and other basic services.

To mitigate risks to asylum claimants, the Government will monitor irregular migration routes to inform operations strategies, target enforcement and outreach activities in response to observed changes in irregular migration patterns and respond to any misinformation identified through social media monitoring. Moreover, the Government will develop communications strategies which highlight the risks associated with irregular migration in remote locations to deter individuals from undertaking potentially dangerous journeys.

The regulatory amendments are also expected to impose some costs on local police. There is a risk of increased pressure on police in border communities and in popular destination cities to respond to calls, conduct investigations related to irregular migration, and to respond to suspected cases of human smuggling. The capacities and operations of local police may be further impacted by evolving migration routes. These risks will be mitigated through engagement with local police to identify operational gaps and provide guidance.

Benefits

The increasingly high volume of irregular migration each year adds significant pressure on an already backlogged asylum system and decreases public confidence in Canada’s ability to manage the border and its immigration and asylum programs. Applying the STCA criteria for asylum eligibility across the entirety of the Canada-U.S. land border will improve border integrity and support the standardized treatment of arrivals, irrespective of where they choose to cross. Overall, this will reinforce public confidence in Canada’s approach to managing asylum seekers and its shared border with the U.S., while upholding Canada’s humanitarian values.

The integrity of the asylum system will be further enhanced by ensuring a consistent interpretation and application of the exemptions to the STCA by CBSA and IRCC officers through the clarifications made to the definition of statelessness and approach to individuals to whom the U.S. has refused re-entry. The regulatory amendments will provide clear authorities and guidance to the officers, thereby supporting consistency in their decision-making and reducing legal risks.

The regulatory amendments are expected to benefit Canadians by potentially reducing the volume of irregular arrivals into Canada along the Canada-U.S. land border, as individuals may be deterred from crossing irregularly or be returned to the U.S. under the expanded provisions of the STCA. However, it is acknowledged that the impact on asylum volumes is dependent on many factors, including the ability to effectively address border crossings as new irregular routes emerge and the risk that individuals will continue to evade application of the STCA. As such, the extent to which volumes may be reduced is largely unknown and the magnitude of this impact cannot be estimated; therefore, for cost-benefit analysis purposes, the benefits of a reduction in asylum claimants are not quantified or monetized.

Should the amendments reduce the volume of irregular arrivals as intended, there would be significant potential benefits for the Government. A reduction in irregular arrivals would help alleviate pressure on government resources, as it is costly for IRCC and CBSA to process claims, conduct investigations and removals, and provide temporary shelter, where applicable. Moreover, a reduction in irregular arrivals would also result in benefits for provinces and municipalities, as the level of social services they would be required to provide (such as temporary housing, health care, etc.) would also decrease.

These changes will benefit Canada in its bilateral relationship with the U.S. on migration issues, as both countries conclude and bring into force the negotiated agreement. In addition, should the Protocol deter irregular migration, it will ensure predictability at the border for officers and applicants on both sides of the border.

Cost-benefit statement
Monetized costs
Impacted stakeholder Description of cost Base year (Period 1) Other relevant years (Period 6) Final year (Period 10) Total (present value) Annualized value
IRCC and CBSA Transition costs $564,103 $0 $0 $564,103 $80,316
Capital and infrastructure costs $1,126,600 $219,200 $0 $1,282,887 $182,654
Processing, operations and enforcement costs $8,095,304 $7,592,957 $7,546,935 $59,606,832 $8,486,672
All stakeholders Total costs $9,786,007 $7,812,157 $7,546,935 $61,453,821 $8,749,642
Qualitative impacts

Positive impacts

Negative impacts

Small business lens

Analysis under the small business lens concluded that the Regulations will not impact Canadian small businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no incremental change in administrative burden on business and no regulatory titles are repealed or introduced.

Regulatory cooperation and alignment

The regulatory changes align with the U.S. regulations, as application of the STCA and the Protocol must be consistent on both sides of the border due to the binational nature of the agreement.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

Irregular migrants are a diverse group of individuals with a wide variety of intersectional identity factors, including country of origin, ethnicity, religion, gender, age, and sexual orientation. From January 2017 to December 2022, approximately 42% of asylum claimants who crossed irregularly identified as female and 31% were minors. Based on the data of top countries for irregular claims from January 2017 to December 2022, a high percentage of claimants are from countries that are home to racialized populations who face continued insecurity, including Haiti, Turkey, Colombia, India, Pakistan, and Nigeria.

There is an acknowledged risk that the Regulations may incentivize asylum claimants to try to enter Canada undetected, possibly leading them to seek assistance from human smugglers or taking dangerous routes to evade application of the STCA. Clandestine irregular routes could also increase the risks of human trafficking and sexual violence often disproportionately targeted at migrant women, girls, and LGBTQI individuals. Further, children and elderly migrants could also be at greater risk if they choose to pursue crossings in remote locations during inclement weather. The vulnerabilities established by these situations can be exacerbated if irregular migrants try to remain undetected for 14 days once in Canada to avoid the new Regulations and turn to illicit networks for support.

Existing information on socio-demographic characteristics of population who crossed the border irregularly since 2017 is a useful starting point to help make assumptions on who may choose to enter irregularly in the future, to help better understand the vulnerabilities these groups may face and inform any future program or policy responses. Moving forward, where possible and in accordance with privacy obligations, data on gender, age and country of persecution will be collected through the early implementation of the Regulations to develop communication strategies and adjust processes over the medium-term based on a gender-based analysis plus (GBA+).

Implementation, compliance and enforcement, and service standards

These regulatory amendments come into force upon ratification of the Protocol to the STCA.

To implement the new Regulations, training and operational guidance has been provided to frontline officers to apply the Regulations consistently across the border upon entry into force; this includes instructions on operational procedures when encountering irregular arrivals who make a claim within 14 days of crossing.

New communications material explaining the application of the new requirements have been developed and published online. IRCC, CBSA, and RCMP will work collaboratively to monitor the impact of the Regulations.

Contact

Jessy El-Choueiry
Director
Cross-Border Migration Policy and Engagement Division
Immigration, Refugees and Citizenship Canada
Email: IRCC.APBReg-RegDGPA.IRCC@cic.gc.ca