Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2024-284

Canada Gazette, Part II, Volume 159, Number 1

Registration
SOR/2024-284 December 16, 2024

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2024-1360 December 16, 2024

Whereas, under 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, 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 Public Safety and Emergency Preparedness, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations under sections 5footnote c and 53footnote d of the Immigration and Refugee Protection Act footnote b.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendment

1 Section 243 of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

Payment of removal costs

243 (1) Unless expenses incurred by His Majesty in right of Canada have been recovered from a transporter, a foreign national who is removed from Canada at His Majesty’s expense shall not return to Canada if the foreign national has not paid to His Majesty the removal costs of

Exception — medical escort

(2) Despite paragraph 1(b), a foreign national who is removed by air under medical escort is subject to the removal cost set out in paragraph (1)(a).

Non-application — under 18

(3) Subsections (1) and (2) do not apply to a foreign national who is under 18 years of age at the time the removal order is made.

Transitional Provision

2 Section 243 of the Immigration and Refugee Protection Regulations, as it read immediately before the day on which these Regulations come into force, continues to apply with respect to a foreign national who was 18 years of age or older at the time the removal order was made and who was removed before the day on which these Regulations come into force.

Coming into Force

3 These Regulations come into force on April 1, 2025, 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

Removal costs are costs incurred for the removal of a foreign national from Canada. The Immigration and Refugee Protection Regulations (IRPR) allow for removal costs to be recovered from foreign nationals who seek to return to Canada if these foreign nationals were previously removed at the expense of the Government of Canada. Currently, the IRPR sets the recoverable removal cost amounts based on the destination of removal, which does not reflect actual costs associated with removals. This regulation amends and modernizes this fee structure.

Background

Budget 2019 provided the Canada Border Services Agency (CBSA) with $382 million over five years to enhance the integrity of Canada’s borders and asylum system, while implementing a comprehensive Border Enforcement Strategy (BES). Updating the recovery of removal costs is part of CBSA’s effort to refine its removal strategy.

In July 2020, the Office of the Auditor General (OAG) released a report on its audit of immigration removals, noting some key challenges with the removals program. One of the challenges identified was the lack of available incentives for foreign nationals to comply voluntarily with removal orders. Those observations were reiterated by the Standing Committee on Public Accounts (PACP) in its spring 2021 report, entitled Immigration Removals. In response, the CBSA has committed to several actions, including refining its removal strategy and promoting voluntary compliance. This regulation updates the fees associated with the recovery of removal costs and supports the Government’s response to the audit’s main findings and the related deliverables included in the Government Response to the PACP report.

The Immigration and Refugee Protection Act (IRPA) and the IRPR establish the legal framework governing the removal of persons who are not authorized to enter or to remain in Canada. Under the framework, many foreign nationals have the opportunity to apply for a Pre-Removal Risk Assessment (PRRA) which stops the removal to a country where their life would be at risk, or where they would face persecution or be in danger of torture or other cruel or unusual treatment or punishment. However, once all recourse is exhausted and the removal order becomes enforceable, the foreign national must leave Canada immediately and the IRPA requires the CBSA to enforce the removal as soon as possible.

In most cases, persons under a removal order can leave Canada voluntarily and pay their own removal costs, in which case they would not be subject to a recovery of removal fees, as defined under this regulation. The IRPA and IRPR allow for the Government to recover removal costs from transportation companies that are liable for transporting inadmissible foreign nationals to Canada. Conversely, the CBSA is liable for the removal costs when the person under an enforceable removal order is unwilling or unable to pay for their removal and a transporter liability cannot be identified.

Removal cost amounts specified in section 243 of the IRPR have remained unchanged since they came into force in 1993. The costs are considered debt to the Crown and subsection 145(3) of the IRPA provides authority for this debt to be collected at any time. In practice, removal costs are only recovered when a foreign national seeks to return to Canada as there are no mechanisms that would allow the Government of Canada to collect those costs without an existing application to return to Canada. The majority of costs are recovered abroad by Immigration, Refugees and Citizenship Canada (IRCC) when foreign nationals previously removed at the expense of the Government submit an application for a temporary or a permanent resident visa, work or study permit or for an electronic travel authorization (eTA). Depending on the type of removal order issued, foreign nationals previously removed who seek to return may be required to first obtain an Authorization to Return to Canada (ARC). The ARC process assesses the extent to which the circumstances that led to the original findings of inadmissibility have changed. If the authorization is approved, the foreign national would be required to repay their removal costs as specified in section 243 of the IRPR. There are also circumstances where removal costs may be recovered at a Port of Entry (POE) directly by the CBSA where foreign nationals may arrive at a POE and be processed. This is limited to foreign nationals exempt from the eTA requirement pursuant to subsection 7.1(3) of the IRPR, which is comprised mainly of United States citizens, and visa-exempt persons seeking entry by land/rail/marine modes (since eTA is only required for air travel). The recovery of removal cost framework does not recover all of the costs of the removal program. For instance, removal costs for those who were removed from Canada at the expense of the Government and choose not to make an application to return to the country at a later date are not recovered under this regulatory framework.

Objective

The objective of the regulations is to update the recovery of removal costs framework to reflect contemporary business practices and program costs. The recovery of removal cost framework is also in place to help incentivize voluntary compliance with removal orders, whereby the persons concerned may depart Canada at their own expense and not be subject to this framework.

Description

Removal costs apply to the issuance and administration of all removal orders. The regulations replace the geographic-based fee structure for removals to the United States or St. Pierre and Miquelon ($750) and the fee for removals to elsewhere ($1,500) into a single fee for an unescorted removal cost of $3,840 and an escorted removal cost of $12,880.

The regulations exempt individuals who are below the age of 18 at the time a removal order was issued against them from the requirement to pay removal costs; this includes persons covered by the original fees set under these regulations.

In order to recognize that escorted removals may be required for medical cases, for reasons beyond the control of the individual, the regulations stipulate that the escorted fee does not apply in these cases, and instead the unescorted fee would apply. Further, as costs related to land removals are less than other types of removals, the regulations stipulate that foreign nationals subject to escorted land removals would only be responsible for paying the unescorted fee.

Regulatory development

Consultation

A public consultation notice was published on the CBSA’s website and the Consulting with Canadians website from May 16, 2020, until June 15, 2020. The proposal was published in the Canada Gazette, Part I, on December 2, 2023, and was open for comments until January 16, 2024. The proposal included the unescorted and an escorted removal fee ($3,739 and $12,541 respectively). Since then, the removal costs have been adjusted with April 2024 CPI (increasing to $3,840 and $12,880 respectively). Additionally, it was proposed to have an additional fee of $1,495 if the foreign national had also been detained for the purpose of removal. Exemptions would have been available, among others, to minors, who would not be subject to the detention fee and will only be charged the unescorted fee, even if they were removed under escort.

The following organizations submitted their comments during the consultation period in the Canada Gazette, Part I: Amnesty International Canada (English Speaking), Canadian Bar Association (Immigration Law Section), Canadian Association of Refugee Lawyers, Canadian Council for Refugees, the Canadian Association of Professional Immigration Consultants, Centre for Refugee Children. The CBSA also received a joint submission from 19 legal scholars specializing in immigration and refugee law from universities across Canada and from four individuals. Stakeholders raised the following concerns:

Stakeholders also generally disagreed that the proposal would increase voluntary compliance with removal orders, as it does not account for those who may be unable to comply voluntarily.

After considering feedback received during the Canada Gazette, Part I, consultations, the regulatory proposal has been revised.

The proposed detention fee has been withdrawn. It should be noted, however, that detention for the purpose of removal is an important contributor to costs of removal, and these costs to Government which are necessary to maintain public safety and the integrity of Canada’s immigration and asylum systems are increasing over time. That said, given the complexities associated with assessing detention costs, and that they would be collected only from a small number of individuals as detention rates are quite low, a decision has been made to withdraw the detention costs from the regulatory framework.

The proposed application of the revised fee framework to minors was also removed from the proposal. Based on comments received, an exemption from repaying removal costs was introduced for persons who became a subject of a removal order as minors. The exemption applies retroactively. Fully exempting minors from removal costs will lessen the cumulative financial burden for individuals returning as families to Canada, supporting family reunification, while still incentivizing individuals to comply with a removal order.

The proposal was not amended in response to comments on the level of the fee, and the inclusion of staff and administrative costs. The objective of the revised framework is to accurately reflect the costs of removals incurred by the CBSA. Those costs are mostly comprised of personnel costs related to the administration of the removal programs, which account for approximately 75% of the total costs. The purchase of airline tickets and other non-staff costs account for the remaining 25%. Furthermore, the calculation of the revised fees is based on direct costs of the Removals program and excludes costs related to other enforcement activities that the CBSA may need to undertake in the course of a removal, such as investigations, arrest, detention, compliance monitoring, and internal service costs.

The proposal was not amended in response to stakeholders’ concerns related to a possible discriminatory effect the revised framework may have on vulnerable persons. The regulatory framework does not have a discriminatory effect and there are existing mechanisms to accommodate unique circumstances where facilitation may be appropriate. For example, inadmissible individuals who did not voluntarily comply with an enforceable removal order and were removed at the Government’s expense who lack the ability to repay the cost of their removal may apply for a Temporary Resident Permit (TRP). These applications would be considered on a case-by-case basis to determine whether the application outlines sufficiently compelling reasons to overcome the inadmissibility and facilitate their return to Canada. A foreign national can also apply for a permanent resident status or an exemption from any requirement under the IRPA based on humanitarian and compassionate (H&C) considerations, including consideration related to the best interest of the child. A TRP or approval based on H&C grounds would allow them to return to Canada, despite the outstanding fees.

Modern treaty obligations and Indigenous engagement and consultation

As required by the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaty implications was conducted. The assessment examined the geographical scope and subject matter of the regulations in relation to modern treaties in effect and did not identify any potential modern treaty impacts or obligations. The Indigenous Affairs Secretariat within the CBSA was consulted on the regulatory changes. The Agency will continue to assess potential impacts as new modern treaties are implemented.

Instrument choice

Other than a change to the IRPR, maintaining the current framework while leveraging provisions of the Service Fees Act (SFA), which entered into force in 2018, was also considered. Specifically, a new provision in section 17 of the SFA has allowed for fees to be annually adjusted under the Consumer Price Index (CPI) without a need for frequent regulatory changes. However, the CPI adjustment can only be applied effective April 1, 2019, meaning that the base fee in 2019 could only be equal to the 1993 removal fees, which would not serve to modernize the framework. While also requiring a regulatory change, adjustment to the fees amount based solely on CPI being applied retroactively as of 1993 was also considered. In that regard, the unescorted fee generally aligns with inflationary increases if applied to the removal fee of $1,500 that currently applies to removals outside of the United States and St. Pierre and Miquelon. However, this approach would not properly account for CBSA staff costs and additional costs related to escort and would only result in a portion of current removal costs being recovered. Consequently, amending the regulatory framework in the IRPR that not only accounts for inflationary increases but also allows aligning removal fees charged with the actual costs incurred by the CBSA has been determined to be the most feasible option.

Regulatory analysis

Benefits and costs

The estimated costs and benefits are based on the assumption that the number of persons from whom removal costs are recovered will remain the same, at an average of 348 foreign nationals per year, based on data from 2015–16 to 2019–20. During that period, the CBSA removed between 8,000 and 11,000 foreign nationals a year, and paid for the removal of 35% of those cases. Of the 348 foreign nationals removed from whom removal costs were recovered, 315 (90.5%) were removed to countries other than the United States and St. Pierre and Miquelon and 33 (9.5%) were removed to the United States or St. Pierre and Miquelon, bringing $497,100 annually on average for the Government in repaid removal costs. At the same time, the total removals at the expense of the Government of Canada was comprised of 15.8% escorted removals and 84.2% unescorted removals. The benefits are reduced by 20% to account for an estimated reduction in revenue due to the exemption for minors. No reductions were made to account for a possible decrease in the average number of persons seeking to return to Canada who are liable for removal costs due to increased voluntarily compliance with removal orders.

Consequently, the monetized benefits have been established based on the estimated revenue from the new fees, as follows:

All costs and benefits are then presented over 10 years in Present Value using a Discount Rate of 7%.

In the cost-benefit analysis published in the Canada Gazette, Part I, the revenues were estimated to be $11.2 million Present Value (PV). However, due to the introduction of a full exemption for minors and withdrawal of the additional detention fee, the revenues have been revised downwards to $8.0 million Present Value (PV) for the Government over a 10-year period following implementation. Additional benefits that are not accounted for in the monetized analysis include increased voluntary compliance with removal orders to avoid liability for removal costs, which could result in more foreign nationals paying for their own removal or cooperating with the CBSA, thus not requiring an escort.

Some communications costs will be incurred in relation to the implementation of the new regulation and communicating the new fee structure to the public, such as revisions of program policy, training and operational guidance to officers. These costs have been included in the monetized analysis estimated at $20,000 one-time resource costs.

Other implementation costs, such as updates to operational manuals and monitoring of the new framework as well as ongoing IT maintenance costs are expected to be minimal and are addressed qualitatively.

The CBSA has also incurred $2.2 million in IT costs to create a functionality to enable automated creation of removal cases, a component of the Government-funded Asylum Interoperability Project. However, those costs have already been incurred thus are treated as sunk costs. They are excluded from the cost-benefit analysis.

Cost-benefit statement
Monetized benefits
Impacted stakeholder Description of benefit Base year Other relevant years Final year Total (present value) Annualized value
Government Revenue generated from collection of fees $1,068,900 $8,551,202 $1,068,900 $8,033,033 $1,143,723
All stakeholders Total benefits $1,068,900 $8,551,202 $1,068,900 $8,033,033 $1,143,723
Monetized costs
Impacted stakeholder Description of cost Base year Other relevant years Final year Total (present value) Annualized value
Government Communication $20,000 $0 $0 $20,000 $2,848
All stakeholders Total costs $20,000 $0 $0 $20,000 $2,848
Summary of monetized benefits and costs
Impact Base year Other relevant years Final year Total (present value) Annualized value
Total benefits $1,068,900 $8,551,202 $1,068,900 $8,033,033 $1,143,723
Total costs $20,000 $0 $0 $20,000 $2,848
Net impact $1,048,900 $8,551,202 $1,068,900 $8,013,033 $1,140,876

Small business lens

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

One-for-one rule

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

Regulatory cooperation and alignment

There is no regulatory cooperation or alignment (with other jurisdictions) component associated with the amendments.

Effects on the environment

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

Gender-based analysis plus

This regulation would not impact who is determined to be inadmissible and issued a removal order. In 2018, of removal orders issued to foreign nationals authorized entry to Canada (an appropriate proxy for immigration documents holders), 44% were female and 56% were male. From a review of persons who repaid their removal costs between 2016–17 and 2019–20, 62% were male, 37.5% female and the remaining gender was other or unknown. Approximately 5% of previously removed persons were below the age of 18 at the time they made the application to return to Canada, and it is estimated that approximately 20% were a minor at the time they were removed. It can be expected that the changes will have a positive impact on this population, given minors will be fully exempted from the recovery of removal costs. However, an increase in fees may disproportionately affect the ability of low-income groups to pay.

During various consultations, stakeholders also expressed concerns that the cost-recovery fees are excessive for vulnerable persons (i.e. persons living with disabilities, mental illness and victims of gender-based violence), racialized and low-income individuals and would impede family reunification. Recognizing the fees may have a negative impact on some vulnerable populations, the CBSA had previously made adjustments to the proposed fee structure by granting exemptions for medical escorts (only unescorted fee applies) and fully exempting minors from removal fees.

Rationale

The removal costs are based on removal expenditures incurred by the CBSA in fiscal year 2018–19 and adjusted with CPI for the period between 2020 and 2024, using CPI rates of April of each respective year, rounded down to the nearest dollar.

This approach was adopted as the calculations could not be based on more recent costs due to the impact of the COVID-19 pandemic on the removals program. During that time, the Agency limited its operations to removing foreign nationals with serious inadmissibility allegations, and the cost of those removals was impacted by pandemic-related travel restrictions, including testing and quarantine requirements and more expensive ticket prices that are not reflective of an average cost of removal. The 2018–2019 expenditures reflect more accurately removal-related expenses, such as an increase in salary costs for CBSA officers following the ratification of the collective agreement, as well as increased operational expenses related to inflation, which would not be captured if the costs were based on a historical average. The adjustment with 2020 to 2024 CPI ensures the fees are reflective of removal costs when the regulations come into force.

The costs for unescorted removal are comprised of activities related to removal preparation, which are principally: conducting a pre-removal interview with the person being removed; obtaining travel documents; making removal arrangements; case management; liaison work with airlines and other stakeholders; file closure; and CBSA ticket purchases and coordination of the removals program.

In addition to the costs described for unescorted removals, the escorted removal costs (A below) include expenses incurred for escort officers, associated overtime, and incremental transportation costs. The calculation of the removal costs is based on averages derived from actual CBSA removal expenditures, which include all removals.

Average removal unit cost

2018–19 Expenditures

(A)

2018–19 removals (persons)

(B)

Average 2018–19 removal cost
[rounded]

(A/B)

Average costs adjusted with 2020 to 2024 [rounded]

(A/B)*CPI
Unescorted removal $28,443,602 8,763 $3,250 $3,840
Escorted removal $9,840,489 903 $10,900 $12,880

Implementation, compliance and enforcement, and service standards

Implementation

The regulations come into force on April 1, 2025, or on the date they are registered, whichever is later, and do not apply retroactively, with the exception of minors. In other words, unescorted and escorted fees will apply only to foreign nationals who were issued a removal order after the coming into force. Persons who were minors at the time a removal order was issued against them will be fully exempt from the requirement to pay removal costs, even if they were removed prior to the new regulations coming into force. Further, these fees would be adjusted annually based on CPI in accordance with the SFA. This annual adjustment will begin taking place the year after the regulatory amendments are in force and on an annual basis according to the requirements of the SFA. Foreign nationals, removed prior to the coming into force of the regulations, will be required to repay the removal fee that was in place at the time of their removal.

In order to support the implementation of the regulations, changes have been made to the Global Case Management System (GCMS), an IT system used to process immigration applications, which clearly identifies outstanding removal costs. The system changes will prevent IRCC from approving immigration documents submitted abroad if outstanding removal fees exist. Changes also include creating a flag to identify foreign nationals who make an application to re-enter Canada at a POE. The flag will cause a mandatory referral to a secondary examination (required for POE activities not finalized at primary examination) for the purpose of collecting the removal costs before entry can be authorized. The CBSA has developed operational guidance and training material for officers relating to the new regulation and the associated IT changes.

Upon coming into force, the Agency will implement operational changes to better leverage the recovery of removal costs framework to ensure individuals are informed throughout the enforcement process about their potential liability for removal costs and the benefits of cooperating in their own removal. This will include changes to removal orders informing clients about the obligation existing under section 243 of the IRPR to repay removal fees. The CBSA and IRCC will publish communication products on their websites advising the public of the changes.

The CBSA will monitor the impact of the regulatory amendment on voluntary removal rates and achieved cost-recovery results. The Agency will also undertake an assessment to determine the impact of the changes on different groups in the context of gender-based analysis plus, including analysis related to the issuance of TRP and H&C considerations.

Compliance and enforcement

For cases handled at a POE, if the individual does not comply, and absent a TRP, as an example, to overcome the inadmissibility associated with the fee requirement, the foreign national would be denied entry to Canada. Depending on the individual circumstances, an officer may offer the individual the option to voluntarily withdraw their request to enter Canada or issue a removal order, depending on the inadmissibility. For cases handled abroad, approval of an application would not be possible until the removal costs are recouped, or an exemption is approved on a discretionary basis in a particular case.

Contact

Anders Sorensen
Immigration and Asylum Policy Innovation Division
Strategic Policy Branch
Canada Border Services Agency
Telephone: 613‑697‑9346
Email: anders.sorensen@cbsa-asfc.gc.ca