Canada Gazette, Part I, Volume 157, Number 48: Regulations Amending the Immigration and Refugee Protection Regulations

December 2, 2023

Statutory authority
Immigration and Refugee Protection Act

Sponsoring agency
Canada Border Services Agency

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 set the recoverable removal cost amounts based on the destination of removal, which does not reflect actual costs associated with removals. This proposal seeks to amend and modernize 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 proposal to update the fees associated with the recovery of removal costs 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 proposal. 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 this proposal is to update the existing 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. Considering the cost of removal varies substantially according to destination, the proposal would consolidate the current fee 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 and to make a distinction on the amount to be recovered from unescorted compared to escorted removals. The existing fee structure would be replaced with an unescorted removal cost of $3,739 and an escorted removal cost of $12,541. If the foreign national has also been detained for removal, then an additional cost of $1,495 would be added to the prescribed unescorted or escorted fees.

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

In addition, the detention fee would not apply to minors that were detained for removal and would only apply to those adults whose detention was continued or initiated at the first detention review by the Immigration Division (ID) of the Immigration and Refugee Board. If the person is eligible for PRRA, the fee would be further restricted to situations where the ID upholds or orders detention after the PRRA application is rejected, or after the person indicates a wish not to apply for PRRA. As a result, detention would only be assessed one time in relation to a specific removal, even though a foreign national could be detained multiple times before removal takes place.

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 CBSA also notified sixteen stakeholders with possible interest in the regulatory consultation. Four stakeholders responded to the notice: the British Columbia Civil Liberties Association (BCCLA), Canadian Bar Association (National Immigration Law Section), Canadian Association of Refugee Lawyers, and the Refugee Law Office.

The stakeholders expressed the following concerns about the proposed regulatory amendment:

The CBSA acknowledges that this regulatory proposal would amount to a significant cost recovery increase. In large part, this cost increase is driven by the fact that the framework has not been updated in nearly thirty years. In order to mitigate against such a sizable cost increase in the future, the proposed regulations will include an annual adjustment for inflation moving forward. Further, in response to stakeholder concerns, the CBSA has modified the proposal to amend section 243 of the IRPR so that land escorts and medical escorts, would only be charged the unescorted fee, rather than the escorted fee. Further, the CBSA considered the best interest of the child and modified the proposal so that foreign nationals removed as minors would only pay the unescorted fee, even if removed under escort, and be exempted from the requirement to pay detention fees. Detention of minors is a measure of last resort and only occurs in exceptional circumstances under the IRPA. The CBSA considered comments relating to the impact of the proposed fees on the individual’s ability to return to Canada but decided not to make further amendments. The proposed fees, including detention specifically where necessary for the removal, are based on actual CBSA removal expenditures and include several activities necessary to carry out removals. For more details on the activities considered, see the “Rationale” section below.

It is also important to note that any individuals, including vulnerable persons, minors, or other persons, who lack the ability to pay and have compelling reasons to return to Canada may apply for and may be issued a Temporary Resident Permit, or apply and be considered for permanent residency based on humanitarian and compassionate considerations, to be able to return to Canada. Given there are existing mechanisms in the legislative framework to accommodate the unique circumstances of particularly compelling cases where appropriate, it has been assessed that further exemptions to the recovery of removal cost framework are unnecessary.

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 initiative 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 proposed 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 proposed unescorted fee would generally align 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 allow for the inclusion of costs related to escort and detention, 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 to align 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, 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 et Miquelon and 33 (9.5%) were removed to the United States or St. Pierre et Miquelon. At the same time, the total removals at the expense of the Government of Canada were comprised of 15.8% escorted removals and 84.2% unescorted removals. In 40.6% of those cases, the foreign nationals were also estimated to be detained for removal.

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

All costs are then presented over 10 years in present value and using a discount rate of 7%.

As the CBSA and IRCC currently collect approximately $497,100 annually on average in removal costs, the proposed amendments are expected to result in an increase of $11.2 million in revenues for Government over a 10-year period following implementation. Additionally, the proposed amendments would encourage foreign nationals to voluntarily comply with Canada’s immigration laws, especially if they wanted to return to Canada. It is important to note that foreign nationals who voluntarily comply with an enforceable removal order and depart Canada at their own expense are not required to repay any removal costs.

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.

The CBSA has also incurred costs of $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. Ongoing IT maintenance costs are expected to be minimal and have not been costed. However, those are considered sunk costs and are excluded from the cost-benefit statement.

Cost-benefit statement
Monetized costs
Impacted stakeholder Description of cost Base year Other
relevant years		 Final year Total
(present value)		 Annualized value
Government (CBSA) Communication $20,000 $0 $0 $20,000 $2,848
All stakeholders Total costs $20,000 $0 $0 $20,000 $2,848
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 $1,499,382 $8,953,257 $815,564 $11,268,203 $1,604,339
All stakeholders Total benefits $1,499,382 $8,953,257 $815,564 $11,268,203 $1,604,339
Summary of monetized costs and benefits
Impacts Base year Other
relevant years		 Final year Total
(present value)		 Annualized value
Total costs $20,000 $0 $0 $20,000 $2,848
Total benefits $1,499,382 $8,953,257 $815,564 $11,268,203 $1,604,339
NET IMPACT $1,479,382 $8,953,257 $815,564 $11,248,203 $1,601,491

Small business lens

Analysis under the small business lens concluded that the proposed 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 business.

Regulatory cooperation and alignment

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

Strategic environmental assessment

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 (GBA+)

This proposal 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 document 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. Most were adults, with minors under the age of 18 accounting for 5% of cases. However, an increase in fees may disproportionately affect the ability of low-income groups to pay.

During the 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) and would impede family reunification. In response, the CBSA has made adjustments to the proposed fee structure by granting exemptions from some fees for minors (escort and detention) and for medical escorts (escort fees). As noted above, individuals with particularly compelling circumstances may also apply for and may be granted a temporary resident permit (TRP), which could facilitate their entry to Canada, where warranted.

The current provisions for foreign nationals who seek to return to Canada, but are unable to repay the outstanding removal fees, remain in place under the proposed amendments — the discretionary issuance of TRPs and exemptions for humanitarian and compassionate (H&C) considerations, if case circumstances warrant. A TRP can be issued in accordance with subsection 24(1) of the IRPA to allow a person who is inadmissible or who does not meet a requirement under IRPA to enter or remain in Canada. Officers have a broad discretion to issue a TRP based on a balanced assessment of the particular circumstances for the non-compliance with IRPA for not paying the removal costs with the objectives of the Act, including the objective that families are reunited in Canada. Further, pursuant to subsection 25.1(1) of the IRPA, the Minister of Immigration, Refugees and Citizenship may grant a foreign national or permanent resident an exemption from any applicable criteria or obligation of the Act if justified by H&C considerations, including consideration related to the best interest of the child.

Rationale

The proposed 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 2023, 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 2018–19 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 2023 CPI will ensure the costs will remain up-to-date until the new regulation is expected to come into force. For the same reason, the fees may be updated by applying other CPI changes before final publication and entry into force.

The costs for unescorted removal ($3,739) 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. The fees are not based on the destination of removal as implementing a geographically based framework would be overly complex and not supported by the cost structure: staff-related costs (direct and indirect salary costs, Employee Benefit Plan) account for 80% of the average unescorted removal cost while operation and maintenance costs, including ticket purchases, represent the remaining 20%. In addition, the escorted removal costs ($12,541) include expenses incurred for escort officers, associated overtime and incremental transportation costs. The calculation of the proposed removal costs is based on averages derived from actual CBSA removal expenditures, which include all removals (namely, CBSA-liability, transporter liability and foreign national liability).

The proposal also provides an additional detention cost in the amount of $1,495 to be added to either the unescorted or escorted removal costs, as required. This fixed amount is based on a daily cost of $436 (based on 2018–19 fiscal year costs) for an average of three days in detention for removal. Rather than using the average length of detention, the amount of $1,495 was established using the average median length of detention over 2015–16 and 2016–17 fiscal years. More recent periods were not included, as the CBSA registered a significant increase in short-term detentions (i.e. 24 hours or less) beginning in 2017–18, mainly attributable to the increased detentions at CBSA ports of entry (POEs) following changes in visa requirements in 2016. Further, the median length of detention was optimal because relying on the average length of detention would inflate the detention rate by approximately 5% as it would account for the small number of long-term detentions extending beyond 99 days.

Implementation, compliance and enforcement, and service standards

Implementation

The proposed amendments are planned to come into force on April 8, 2024, and would not apply retroactively. In other words, the fees under the proposed framework would apply only to foreign nationals who were removed after the new regulations come into force. Further, these fees would be adjusted annually based on CPI in accordance with the SFA. This annual adjustment would 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 proposed regulations, would be required to repay the removal fee that was in place at the time of their removal.

In order to support implementation of the proposed amendments, changes would be made to the Global Case Management System (GCMS), an IT system used to process immigration applications, which would clearly identify outstanding removal costs. The system changes would prevent IRCC from approving immigration documents submitted abroad if outstanding removal fees exist. Changes would also include creating a flag to identify foreign nationals who make an application to re-enter Canada at a POE. The flag would 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 would develop operational guidance and training material for officers relating to the new regulation and the associated IT changes.

A standard text would also be added to removal orders informing clients about the obligation existing under section 243 of the IRPR to repay removal fees. The CBSA and IRCC would also prepare communication products to be published on their websites advising the public of the changes.

The CBSA would monitor the impact of the proposed regulatory amendment on voluntary removal rates and achieved cost-recovery results. The Agency would also undertake to assess the impact of the changes on different groups in the context of gender-based analysis plus, including based on 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 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 due to the unpaid fees. 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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to sections 5footnote a and 53footnote b of the Immigration and Refugee Protection Act footnote c, 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 Anders Sorensen, Manager, Asylum Policy Unit, Immigration and Asylum Policy Innovation Division, Strategic Policy Branch, Canada Border Services Agency, 100 Metcalfe Street, 10th floor, Ottawa, Ontario K1A 0L8 (tel. 613‑697‑9346; email: Anders.Sorensen@cbsa-asfc.gc.ca).

Ottawa, November 27, 2023

Wendy Nixon
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

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 cost of

Exception

(2) A foreign national who is removed under escort and is under 18 years of age at the time of removal or is removed under medical escort is subject to the removal cost set out in paragraph (1)(a).

Detention costs

(3) In addition to the costs set out in subsection (1), a foreign national who is detained shall pay a detention cost of $1,495 if

Transitional Provision

2 Section 243 of the Immigration and Refugee Protection Regulations, as it read on the day before the day on which these Regulations come into force, continues to apply with respect to a foreign national who was removed before the day on which these Regulations come into force.

Coming into Force

3 These Regulations come into force on April 8, 2024, but if they are registered after that day, they come into force on the day on which they are registered.

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