Canada Gazette, Part I, Volume 152, Number 20: Regulations Amending the Immigration and Refugee Protection Regulations

May 19, 2018

Statutory authority
Immigration and Refugee Protection Act

Sponsoring department
Department of Public Safety and Emergency Preparedness

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The ability of the Canada Border Services Agency (CBSA or the Agency) to track the movement of travellers to and from Canada is evolving with the introduction of new tools and technologies — such as Interactive Advance Passenger Information (IAPI) and the Entry/Exit initiative — that give the Agency a more reliable way of knowing when travellers are seeking to travel to Canada or have left the country. However, current regulatory authorities in the Immigration and Refugee Protection Regulations (IRPR) related to the enforcement of removal orders have not kept pace with these initiatives and, therefore, are no longer adequate to support the CBSA's responsibilities in terms of managing its removals inventory. Updating existing regulatory authorities for the management of removal orders would better support the Agency's immigration enforcement responsibilities while streamlining its administrative processes. These proposed amendments would improve the ability of the CBSA to report on the inadmissible persons in Canada (those subject to a removal order), while helping to ensure that the Agency's investigative resources are focused on subjects of removal who are still in Canada.

Background

The CBSA is responsible for enforcing the Immigration and Refugee Protection Act (IRPA), which includes the removal of inadmissible persons who, once subject to an enforceable removal order (an order that has come into force and is not stayed), must leave Canada immediately. A removal order against a foreign national is "enforced" when a foreign national appears before an officer at a port of entry (POE) to confirm their departure from Canada; obtains a certificate of departure from the CBSA; departs from Canada; and is authorized to enter their country of destination. If the foreign national fails to meet these requirements before departing Canada, their removal order remains unenforced, which impedes the CBSA's ability to accurately track the number of inadmissible persons in Canada. Even when sufficient information exists to indicate to the CBSA that the person is no longer in Canada, the case remains open because there is no explicit regulatory authority that allows for the removal order to be administratively enforced (i.e. closed in the CBSA's case management system and removed from the inventory) when the individual fails to notify the CBSA of their departure. Improved sources of information, such as a traveller's entry and exit records, are increasingly available to the CBSA, and could be used to improve the management of the removal order inventory if the Agency had the necessary regulatory authorities in place.

For example, in 2011, as part of the Beyond the Border Action Plan for perimeter security and economic competitiveness, Canada and the United States committed to developing a coordinated entry and exit system to facilitate the exchange of information on all travellers crossing the shared land border at automated POEs, such that a record of entry into one country constitutes a record of departure from the other. Currently, both countries exchange information on non-citizens of Canada and the United States, but upon full implementation of the initiative, this exchange of information would be expanded to include all travellers (including Canadian and U.S. citizens).^footnote1 In addition, the CBSA would collect biographic exit information on all travellers leaving Canada in the air mode. This means that upon full implementation of the Entry/Exit initiative, Canada would know when and where someone enters the country and when and where they leave. This will help the CBSA better track the movement of inadmissible persons, specifically, when they have left the country without confirming their departure.

In total, the CBSA estimates that there are approximately 10 000 foreign nationals subject to a removal order who are no longer in Canada. The majority of these cases arise when the person leaves the country without advising authorities of their departure, often simply because they do not realize the importance of doing so. While these unenforced removal orders interfere with the CBSA's ability to accurately track its removals inventory, they also create an additional unnecessary administrative burden for the Government of Canada should the person wish to return to Canada at a later date. This is because neither a visa, nor an Electronic Travel Authorization (eTA), nor an authorization to return to Canada (ARC) can be issued to a foreign national who is subject to an unenforced removal order.

To travel to Canada, many foreign nationals require an immigration document or authorization (a visa or an eTA). Visas are required by most foreign nationals wishing to visit, study, work or immigrate to Canada. Visa applications are lengthy and are processed by either the immigration office that serves the country in which the applicant is located and has been lawfully admitted or that services the applicant's country of nationality or habitual residence. This ensures that the application is processed at the immigration office with the appropriate expertise and that is, accordingly, best informed to assess a person's admissibility to Canada. Visa-exempt foreign nationals, in contrast, can complete a simplified online application for an eTA, which takes only a few minutes to complete. Most people receive their eTA approval within minutes. Despite their differences, these two documents are similar in that neither may be issued to a foreign national who is inadmissible to Canada or who is subject to an unenforced removal order.

In addition to a visa or an eTA, some foreign nationals who have previously been removed from Canada may also require a written ARC to return to Canada to overcome the bar to admission that is created by some removal orders. When making a decision on whether to authorize an ARC, an officer assesses the reason that the removal order was issued, the length of time since the order was issued, the person's current situation and the reason they want to enter Canada. As is the case with visas and eTAs, before an application for an ARC can be considered, the removal order must first be enforced.

Foreign nationals who have previously been removed from Canada may seek to re-enter at a later time under legitimate circumstances, for example to work, to study or to visit a family member. However, if they failed to confirm their departure at a POE, their application cannot be accepted due to their unenforced removal order. To account for these circumstances, the IRPR provide limited authority to officers abroad (including immigration officers and visa officers) to administratively enforce the removal order in support of the visa, eTA, and/or ARC application. Specifically, the IRPR allow an officer abroad to administratively enforce an unenforced removal if the person is making an application to return to Canada and can satisfy the officer that they are the subject of the unenforced removal order; are lawfully in the country in which they are applying from; and are not inadmissible on security grounds, for having violated human or international rights, or for being involved in serious or organized criminality. If the foreign national fails to satisfy any of these requirements, their removal order remains unenforced, and their application is refused. However, not only does this provision result in removal orders remaining unenforced despite sufficient evidence that the person is no longer in Canada, it also creates an unnecessary administrative process for officers abroad to verify these requirements and detracts from them focusing on the visa, eTA and ARC applications themselves.

Canada's immigration system is transitioning towards the use of online applications; therefore, the place from where a foreign national applies to come to Canada is becoming less relevant. For example, since visa applications are now received online, it is internal system rules that determine which immigration office reviews and makes a decision on applications and it is no longer the responsibility of the officer who processes the application. For this reason, it is not necessary for an officer abroad to confirm that the person has been lawfully admitted to the country from which they made their application, since their physical location is no longer pertinent to the decision-making process. Accordingly, requiring this confirmation from officers abroad before they can enforce an unenforced removal order is unnecessary, since this information is of no benefit to the person's application to return to Canada. Furthermore, it is unnecessary for an officer abroad to establish a foreign national's admissibility to Canada at the time they are administratively enforcing the applicant's removal order. Eliminating this requirement would not impede the CBSA's ability to restrict any inadmissible foreign national from entering Canada, since a person's admissibility to Canada is identified during the ARC and/or visa determination process or shared electronically with the introduction of the eTA and the IAPI system, which prevents inadmissible foreign nationals who have been subject to a removal order on serious inadmissibility grounds from travelling to Canada.

Objectives

The objective of the proposed amendments is to improve the CBSA inventory management by allowing removal orders to be more easily enforced and to reduce the administrative burden placed on officers abroad when they receive an application for a visa, an eTA or an ARC from a foreign national who is subject to an unenforced removal order.

Description

When a removal order is enforced by an officer in Canada

The IRPR provide limited authority for a removal order to be administratively enforced if a foreign national subject to removal departed from Canada without confirming their departure at a POE. The proposed amendments would introduce explicit regulatory authority allowing CBSA officers in Canada to administratively enforce an unenforced removal when they confirm that the person is no longer in Canada.

When a removal order is enforced by an officer outside Canada

When a foreign national, against whom a removal order has not been enforced, makes an application to return to Canada, they must, in order for their removal order to be enforced, establish that they have been lawfully admitted to the country in which they are physically present at the time when they make their application to return to Canada and are not inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. The proposed amendments would repeal these requirements in order to streamline the process for an officer abroad (including liaison officers, immigration officers and diplomatic visa officers) to administratively enforce an unenforced removal order. With the repeal of these regulatory requirements, the IRPR would now allow officers abroad to administratively enforce an unenforced removal order when the subject of the order has departed Canada, or when the subject is applying for a visa, an eTA or an ARC and establishes that they are the person named in the unenforced removal order.

"One-for-One" Rule

The "One-for-One" Rule does not apply, as these amendments apply to individuals, not businesses.

Small business lens

The small business lens does not apply, as these amendments apply to individuals, not businesses.

Consultation

Non-government stakeholders were given the opportunity to participate in the regulatory development process through an online consultation on the CBSA website. On Monday, July 17, 2017, the stakeholders identified below were notified by email of the 30-day consultation period. In addition, a notice was also posted on the "Consulting with Canadians" website. No comments were received in response to this consultation.

• Action Réfugiés Montréal
• Amnesty International
• Barreau du Québec
• British Columbia Civil Liberties Association
• Canadian Association of Professional Immigration Consultants
• Canadian Association of Refugee Lawyers
• Canadian Bar Association (National Immigration Law Section)
• Canadian Civil Liberties Association
• Canadian Council for Refugees
• Canadian Police Association
• Centre for Immigration Policy Reform
• Cross-Cultural Roundtable on Security
• David Asper Centre for Constitutional Rights
• Federation of Law Societies of Canada
• Human Rights Research and Education Centre, University of Ottawa
• Human Rights Watch Canada
• International Human Rights Program, University of Toronto
• Office of the United Nations High Commissioner for Refugees
• Ontario Council of Agencies Serving Immigrants
• Quebec Immigration Lawyers Association
• Rainbow Refugee Committee
• Table de concertation des organismes au service des personnes réfugiées et immigrantes

Rationale

When a foreign national departs Canada without confirming their departure at a POE, their removal order remains unenforced and can only be administratively enforced in limited circumstances by an officer abroad if the subject of the order is making an application to return to Canada. The IRPR do not provide for situations where the CBSA has credible information that the subject of a removal order has left Canada, but did so without confirming their departure at a POE and is not making an application to return to Canada or cannot satisfy the requirements to have their removal order administratively enforced abroad. For this reason, many removal orders remain unenforced despite credible information that the person is no longer in Canada; this inadvertently impacts the CBSA's ability to manage its removals inventory.

The proposed amendments would give designated CBSA officers in Canada the authority to administratively enforce a removal order when they confirm that the subject of the order is no longer in Canada. This would allow the case to be closed and removed from the CBSA's active removals inventory. This would support better removals inventory management by enabling the CBSA to address its backlog of unenforced removal orders and any new cases going forward, as information is received that a foreign national who is subject to a removal order is no longer in Canada. Expanded authority to remove these cases from the removals inventory would allow the CBSA to better focus on the removal of those who remain in Canada unlawfully.

Furthermore, amendments would be made to streamline the process for a removal order to be administratively enforced by an officer abroad when the subject of the removal order makes an application to return to Canada. Specifically, an officer would no longer need to be satisfied that the applicant had been lawfully admitted to the place from which they made their application to return to Canada or not inadmissible on serious grounds, in order for their removal order to be administratively enforced. This would eliminate the unnecessary administrative burden that these requirements place on officers abroad given that a person's place of application is not relevant and decisions on a person's admissibility to Canada are made later on in the decision-making process, when their application to come to Canada is assessed, and should not be relevant to whether or not their removal order is enforced. This would allow these officers to focus their time and resources on making decisions regarding applications to return to Canada.

The proposed amendments are not expected to result in incremental costs for the CBSA.

Implementation, enforcement and service standards

When a removal order is enforced by an officer in Canada

Upon the coming into force of the proposed amendments, an officer in Canada would be able to close a case, in the inventory of unenforced removal orders, when they confirm that the foreign national who is subject to the order is no longer in Canada. Evidence of a person's departure from Canada would be received in a number of ways, including exchanges of information with law enforcement agencies, verifications undertaken by Canadian personnel at missions abroad and the enhancements to the CBSA's information-gathering capabilities expected through the full implementation of the Entry/Exit Initiative. To support the implementation of these amendments, the CBSA would establish operational guidance outlining what is considered sufficient and credible evidence for a designated officer to utilize this new provision to enforce a removal order.

The backlog, which is estimated to be approximately 10 000 cases, would be managed as the opportunity arises and within existing operational resources. Cases will be prioritized based on the CBSA's removal priorities, with foreign nationals found inadmissible on safety or security grounds taking priority,^footnote2 followed by new system-failed refugee claimants^footnote3 and finally, all remaining cases.^footnote4 Given the significant number of cases, and in order to ensure that this work can be completed within existing CBSA resource levels, addressing the backlog will take time. All new cases, however, will be addressed as they are identified. This work is not expected to result in any new costs to the Agency since similar work is already being completed by officers who use evidence that a person is no longer in Canada to manage the CBSA's immigration warrant inventory (i.e. when a foreign national subject to a warrant is confirmed to be outside of Canada, the warrant against them is cancelled).

When a removal order is enforced by an officer outside Canada

The proposed repeal of paragraphs 240(2)(b) and (c) of the IRPR would simplify the process for officers abroad to enforce a removal order when they receive an application for a visa, an eTA or an ARC from a foreign national against whom a removal order has not been enforced. Upon receiving an application from a foreign national who is subject to an unenforced removal order, an officer would no longer have to be satisfied that the person had made their application from a country in which they had been lawfully admitted, nor would they have to be satisfied that the person was not inadmissible on safety or security grounds. Instead, they would enforce the removal order on confirmation that the applicant is in fact the person described in the removal order.

Contact

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and section 53^footnotea of the Immigration and Refugee Protection Act^footnoteb, proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Richard St Marseille, Manager, Immigration Enforcement Policy Unit, Programs Branch, Canada Border Services Agency, 100 Metcalfe Street, 10th Floor, Ottawa, Ontario K1A 0L8 (email: IEPU-UPELI@cbsa-asfc.gc.ca).

Ottawa, May 10, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendment

1 Subsection 240(2) of the Immigration and Refugee Protection Regulations^footnote5 is replaced by the following:

When removal order is enforced by officer outside Canada
(2) If a foreign national against whom a removal order has not been enforced has departed from Canada and applies outside Canada for a visa, an electronic travel authorization or an authorization to return to Canada, an officer shall enforce the order if, following an examination, the foreign national establishes that they are the person described in the order.

When removal order is enforced by officer in Canada
(3) A removal order against a foreign national is enforced by an officer in Canada when the officer confirms that the foreign national has departed from Canada.

Application of subsections (2) and (3)
(4) For greater certainty, subsections (2) and (3) apply in respect of any removal order made before the day on which those subsections come into force.

Coming into Force

2 These Regulations come into force on the day on which they are registered.