Regulations Amending the Immigration and Refugee Protection Regulations (Ports of Entry): SOR/2024-258

Canada Gazette, Part II, Volume 158, Number 26

Registration
SOR/2024-258 December 9, 2024

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2024-1297 December 9, 2024

Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Ports of Entry) under subsection 5(1) and section 26footnote a of the Immigration and Refugee Protection Act footnote b.

Regulations Amending the Immigration and Refugee Protection Regulations (Ports of Entry)

Amendment

1 Section 26.1 of the Immigration and Refugee Protection Regulations footnote 1 is renumbered as subsection 26.1(1) and is amended by adding the following:

Class of foreign nationals

(2) The Minister may also, on the basis of those factors, specify whether a service set out in subsection (1) is provided to a specified class of foreign nationals at a specified port of entry.

Coming into Force

2 These Regulations come into force on December 18, 2024, but if they are registered after that day, they come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The provisions in the Immigration and Refugee Protection Regulations (IRPR) which govern the immigration services that the Minister of Public Safety and Emergency Preparedness (the Minister) may specify as provided at a designated port of entry are ambiguous.

While it is clear that the Minister may specify that prescribed immigration services are available or not available to any person, it is less clear that the Minister’s authority includes the ability to also specify classes of persons who may access prescribed immigration services at a designated port of entry. The amendment to these Regulations makes explicit the Minister’s authority to specify classes of persons who may access prescribed immigration services at a designated port of entry explicit.

Background

In the spring of 2020 amendments were made to the IRPR to provide necessary authorities to ensure the ongoing integrity of Canada’s borders in response to the COVID-19 pandemic and other evolving circumstances. The IRPR amendments provided stronger authorities to the Minister to designate ports of entry, and to specify which immigration services may be provided at those ports of entry while taking factors such as the operational capacity of the Canada Border Services Agency (CBSA) into account.

The Regulations allow the Minister to specify which prescribed immigration services are available at a designated port of entry. They also allow the Minister to specify days and hours of operation of that port of entry, and to identify business days and hours of operation, including for the delivery of prescribed immigration services. The Minister may make available, or restrict, prescribed immigration services to all persons. This authority was designed to provide for flexibility in prescribed immigration service delivery where needed, and to be able to be minimally restrictive where use of the authority is necessary given the operational capacity of the CBSA.

In accordance with the Regulations, some services are non-discretionary, in so far as they must be provided at all designated ports of entry, including inadmissibility determination, processing of visitors, entry of persons by right for Canadian citizens, permanent residents, and persons registered under the Indian Act, and processing of asylum claims. There has been considerable growth in immigration and asylum-related processing requirements at Canada’s ports of entry. In 2023, Canada welcomed almost 805 000 non-permanent residents, including temporary residents (foreign workers, international students) and asylum claimants, and 471 550 permanent residents. Canada has also experienced unprecedented volumes of asylum claimants. In 2019, the CBSA processed 29 365 asylum claims at ports of entry; in 2023, the Agency processed 72 320 claims at ports of entry.

In order to maintain operational capacity needed for non-discretionary activities at Canada’s ports of entry, some service refinements have been required. On May 27, 2024, service restrictions were implemented on a class of persons who were engaged in “flagpoling” at certain ports of entry in the provinces of Quebec, Ontario, and British Columbia. The class of persons defined as “flagpolers” are temporary residents who exit to the United States and re-enter Canada within 24 hours to access prescribed immigration services such as the processing of work permits, study permits, and confirmations of permanent resident status. The service restrictions specify days and hours of service within which applications made by flagpolers at specified locations will be processed. This change has introduced greater predictability for the CBSA in terms of when the twelve designated ports of entry may expect to receive immigration applications from flagpolers.

In terms of client volumes, considering the period from May 30, 2024, to August 31, 2024, the average daily rate of flagpolers decreased from 151 per day to 87 per day, which represents a 42% decrease in volume. At the same time, the daily average rate of flagpolers at all other ports of entry increased by 13%, or from a daily average of 60 to 68 applications. While the increased volume of flagpoling applications at other ports of entry is likely a result of the imposition of the service restrictions, the same conclusion cannot be drawn for the overall decrease in flagpoling applications. Concurrent policy changes, not related to these service restrictions, were implemented by Immigration, Refugees and Citizenship Canada (IRCC); as of June 21, 2024, IRCC implemented a new policy on post-graduate work permit applications, which included the elimination of the ability for all foreign nationals (including flagpolers) to apply for these permits at Canada’s ports of entry.

The decision to utilize the Regulations to implement the above-noted service restrictions was made taking the factors prescribed in the regulations into account, including the frequency of persons arriving in the area, the need for CBSA services, and the operational capacity of the CBSA. The practice of flagpoling contributes to congestion at the border and diverts operational capacity of the CBSA away from non-discretionary business activities, such as facilitating travel and trade, the interdiction of inadmissible persons and the processing of asylum claimants at Canada’s ports of entry. It also negatively affects border processing capacity in the United States. Prior to limiting access to specified times, large volumes of flagpoling applicants were contributing to increased border wait times and overcrowding at ports of entry, often waiting for hours, at times with family and children, in an effort to flagpole. Health and safety concerns were also arising as applicants were attempting to walk through traffic in areas not designed for pedestrians, on highway medians between Canada-United States ports of entry.

Objective

This amendment makes explicit the authority of the Minister to specify classes of persons who may access prescribed services at ports of entry. Use of the authority in this way allows for service refinements to be implemented with respect to classes of persons rather than having to impose service restrictions on all foreign nationals when the operational capacity of the CBSA is strained.

Description

Section 26.1 of the Regulations has been amended to make explicit the Minister’s authority to specify whether the following services may be provided to a class of persons at a specific port of entry:

Regulatory development

Consultation

No consultations with the public or stakeholders, nor prepublication, have taken place with respect to the regulatory amendment.

Modern treaty obligations and Indigenous engagement and consultation

An assessment of modern treaty implications did not identify any impacts on modern treaties.

Instrument choice

Given that the authorities of the Minister are set in the Regulations, no other instrument is available to implement the change.

Regulatory analysis

Baseline scenario

Under the baseline scenario, the Minister has the authority to specify which of the discretionary prescribed immigration services listed in R26.1 may be provided to all foreign nationals, at a designated port of entry. Under the baseline scenario, the authority has been used to establish specified days and hours of service for flagpolers at certain ports of entry in the Quebec Region (Armstrong, Saint Armand/Phillipsburg, Saint Bernard-de-Lacolle, and Stanstead), Southern Ontario Region (Peace Bridge, Rainbow Bridge, and Queenston-Lewiston Bridge), and Pacific Region (Abbotsford-Huntingdon, Aldergrove, Boundary Bay, Douglas, and Pacific Highway).

Regulatory scenario

Under the regulatory scenario, the Minister’s authority to specify that the discretionary prescribed immigration services listed in R26.1 may be provided to (or restricted) to all foreign nationals or to classes of persons has is explicit.

Benefits and costs

Where service restrictions for a class of persons are implemented at a given port of entry there would be some impacts on the CBSA and on foreign nationals who are part of that class of persons. There could be benefits to the CBSA in terms of greater predictability to help in planning for necessary operational capacity at this location. At the same time, the restrictions could result in some clients choosing to make their immigration applications at other, non-impacted, ports of entry. Alternatively, they could choose to adjust their schedules and to seek the immigration service at the port of entry within the newly specified days and hours of service. Lastly, others may instead choose to apply for the service from IRCC within Canada rather than flagpole which could include these clients accounting for related processing times in their decisions as to when to apply so as to minimize disruptions on themselves.

The regulations can benefit the vast majority of travellers, including asylum claimants, Canadian citizens, permanent residents of Canada, and persons registered under the Indian Act. This is because the authority allows for pressures at the border to be alleviated in a minimally restrictive way without having to impose service restrictions on all foreign nationals, or without having to adjust the overall port of entry days and hours of operation for all travellers. The majority of travellers could experience benefits, for instance, in terms of lesser likelihood of border wait times that may otherwise have materialized as a result of people applying for discretionary immigration services at Canada’s ports of entry.

However, the overall level of impact will depend on how the authority is implemented in practice over time. It is not possible at this time to assess the impacts of future decisions on additional use of the authority. Should the authority need to be utilized in the future, for instance, for reasons of pandemic or emergency or unsustainable growth in non-discretionary service requirements at the border, there could be impacts among implicated cohorts. This could include impacts on their ability to access discretionary immigration services at specific locations, dates, and times, longer processing times, or having to access the related immigration services from within Canada.

Small business lens

The small business lens does not apply, as there are no associated impacts on businesses.

One-for-one rule

The one-for-one rule does not apply, as there is no impact on business.

Regulatory cooperation and alignment

There is no official regulatory cooperation or alignment component associated with the amendment. Nevertheless, United States officials have identified flagpoling as an operational strain for their border authorities as it can divert resources away from core business activities to redirect temporary residents of Canada back to Canada for Canadian immigration service processing. Any efforts to reduce flagpoling at Canada’s ports of entry are expected to be welcomed by the United States.

Effects on the environment

In accordance with the Cabinet Directive on Strategic Environmental and Economic Assessment (SEEA), a preliminary scan concluded that an SEEA is not required.

Gender-based analysis plus

No impacts based on gender and other identity factors have been identified for this proposal. Depending on how the authority may be utilized in the future, there could be some impacts on certain groups. Should the authority be utilized in the future any related impacts will be assessed and mitigated to the extent possible by adopting a minimally restrictive approach.

Implementation, compliance and enforcement, and service standards

Implementation

This amendment to the IRPR will come into force on the day on which it is registered. No immediate implementation steps are required as the CBSA has already established specific days and hours of service that are available for flagpolers seeking prescribed immigration services at specified locations.

For any future use of the authority, the related Government of Canada website that outlines online service channels to which persons in Canada can apply and identifies the related business days and hours of operation for flagpoling services will continue to be available to the public.

All decisions to designate ports of entry specify available prescribed immigration services, and to specify related days and hours of service, and classes of foreign nationals must take into account the following factors prescribed in the IRPR: 1) the frequency of persons arriving from abroad; 2) the need for CBSA services in the area; 3) the operational requirements of transporters; 4) relevant arrangements with other federal departments and agencies; 5) any orders or regulations made by the Governor in Council under the Emergencies Act or the Quarantine Act prohibiting entry to Canada; and 6) the operational capacity of the CBSA. Within the framework provided by the Regulations, the Minister may use this authority where warranted circumstances, including but not limited to pandemics, emergencies, and significant volumes of non-discretionary cross-border flows (e.g. asylum volumes) that could strain the CBSA’s operational capacity.

Contact

Richard St Marseille
Director General
Immigration and Asylum Policy Directorate
Canada Border Services Agency
100 Metcalfe Street
Ottawa, Ontario
K1A 0L8
Email: iepu-upeli@cbsa-asfc.gc.ca