Vol. 152, No. 3 — February 7, 2018

Registration

SOR/2018-5 January 24, 2018

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2018-37 January 23, 2018

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see 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 (Miscellaneous Program), 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, pursuant to subsection 5(1) and section 17 of the Immigration and Refugee Protection Act (see footnote c), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program).

Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program)

Amendment

1 Subsection 42(2) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

Exception — report

(2) If a report is being prepared or has been prepared under subsection 44(1) of the Act in respect of a foreign national who indicates that they want to withdraw their application to enter Canada, the officer shall not allow the foreign national to withdraw their application or leave Canada unless the Minister decides either not to make a removal order or not to refer the report to the Immigration Division for an admissibility hearing.

Coming into Force

2 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.)

Issues

Following its review of the Immigration and Refugee Protection Regulations (IRPR), the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) recommended to the Canada Border Services Agency (CBSA) that the wording of subsection 42(2) of the IRPR be revised for clarity and regulatory certainty. This provision relates to when a person may withdraw an application to enter Canada. While no changes to existing policy or practices are required, a technical amendment has been made to improve the wording of this subsection and address the issue raised by the SJCSR.

Background

Every person seeking to enter Canada must appear before a border services officer for an examination to determine whether they have a right to enter Canada, or may become authorized to enter and remain in Canada. The examination process at a port of entry may include a primary and a secondary examination by an officer.

An officer is authorized to proceed with an examination of a person where that person is seeking to enter Canada. Foreign nationals do not have a right to enter Canada. They are required to satisfy an officer that they will leave Canada by the end of the period of time authorized for their stay, will comply with the conditions of the Immigration and Refugee Protection Act (IRPA) and IRPR, and are not inadmissible. During the course of this examination, foreign nationals may elect to withdraw their applications to enter Canada. The circumstances under which foreign nationals may withdraw their applications to enter Canada are described under section 42 of the IRPR. Prior to this amendment, subsections 42(1) and (2) were drafted as follows:

Withdrawing application

42 (1) Subject to subsection (2), an officer who examines a foreign national who is seeking to enter Canada and who has indicated that they want to withdraw their application to enter Canada shall allow the foreign national to withdraw their application and leave Canada.

Exception — report

(2) If a report is being prepared or has been prepared under subsection 44(1) of the Act in respect of a foreign national who indicates that they want to withdraw their application to enter Canada, the officer shall not allow the foreign national to withdraw their application or leave Canada unless the Minister does not make a removal order or refer the report to the Immigration Division for an admissibility hearing.

Allowing a person to withdraw their application to enter Canada is a procedure that may be used where an officer believes a foreign national is inadmissible to Canada. This approach can provide an alternative to enforcement (e.g. the use of a removal order) whereby the person may be permitted to voluntarily depart Canada in circumstances where an officer does not seek the issuance of a removal order.

Under subsection 42(1) of the IRPR, the officer who examines a foreign national who is seeking to enter Canada and who has indicated that they want to withdraw their application to enter Canada shall allow the foreign national to withdraw their application, unless subsection 42(2) of the IRPR applies. Subsection 42(1) makes it mandatory for the officer to allow a foreign national to withdraw their application seeking entry to Canada and allow them to leave Canada, subject to subsection (2).

Prior to this amendment, subsection 42(2) of the IRPR provided that a foreign national shall not be allowed to withdraw their application to enter Canada when an inadmissibility report [a report made under subsection 44(1) of the IRPA] is being prepared or has been prepared in respect of that individual, unless the Minister does not make a removal order or refer the report to the Immigration Division (ID) of the Immigration and Refugee Board (IRB) for an admissibility hearing.

A report on inadmissibility is the enforcement tool through which officers may seek the issuance of a removal order against a permanent resident or a foreign national alleged to be inadmissible to Canada. Specifically, subsection 44(1) of the IRPA holds that an officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts. This report is transmitted to the Minister or his or her delegate (in practice at ports of entry, the Minister’s delegate is typically a border services officer), and if the Minister or Minister’s delegate is of the opinion that the report is well-founded, he or she may refer the report to the ID for an admissibility hearing, or he or she may issue the removal order in the circumstances prescribed by the IRPR. Depending on the report of inadmissibility in question, the finding of inadmissibility may be determined by the Minister, Minister’s delegate or the ID.

In 2008, the SJCSR expressed concern that, as previously formulated, subsection 42(2) could be interpreted so that a person would never be allowed to withdraw their application to enter Canada if the Minister did not issue a removal order or refer an inadmissibility report to the ID. The reliance on the absence of an action by the Minister was particularly problematic. The SJCSR noted that the provision should instead be conditional upon the Minister deciding not to take either of the above-noted specified actions.

Objectives

The objective of this technical amendment is to provide greater certainty for border service officers and the travelling public on existing policy, practices, and procedures concerning the withdrawal of an application to enter Canada.

Description

Subsection 42(2) of the IRPR has been amended to explicitly state that a foreign national, who is the subject of an inadmissibility report, shall only be allowed to withdraw an application to enter Canada if the Minister has decided not to issue a removal order or not to refer the report to the ID of the IRB for an admissibility hearing.

“One-for-One” Rule

This amendment is administrative in nature and does not result in any new administrative burden for businesses. Therefore, the “One-for-One” Rule does not apply.

Small business lens

This amendment is administrative in nature and there are no related compliance or administrative costs for small business. Therefore, the small business lens does not apply.

Consultation

Since this amendment is administrative in nature and has no impact on policy, operations or regulatory enforcement, consultation with external stakeholders was not undertaken.

Rationale

The amendment is intended to fix an ambiguity in the wording of subsection 42(2) of the IRPR that was raised by the SJCSR; it improves the clarity and coherence of the regulatory text. The amendment does not impact policy, operations or regulatory enforcement, and no costs will be incurred as a result of the changes.

Implementation, enforcement and service standards

The amendment is administrative in nature and does not impose new restrictions or regulatory burden on individuals or industry. Therefore, there will be no changes to the manner in which the IRPR are implemented or enforced. This technical amendment does not place a timeframe on the Minister in making the above-noted decision. This amendment addresses the SJCSR’s recommendation; however, it does not introduce any new officer authorities nor does it result in any changes in existing traveller processing practices.

Contact

Richard St Marseille
Manager
Immigration Enforcement Policy Unit
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8
Telephone: 613-954-3923