Canada Gazette, Part I, Volume 158, Number 16: Regulations Amending the Immigration and Refugee Protection Regulations

April 20, 2024

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

Under the Immigration and Refugee Protection Act (IRPA), foreign nationals inadmissible on some of the more serious grounds, including security, organized criminality, or some human or international rights violations, may apply for an exemption from their inadmissibility. This process is commonly referred to as “Ministerial relief” (MR). A regulatory framework respecting applications for MR was put in place in 2017 through amendments to the Immigration and Refugee Protection Regulations (IRPR). A post-implementation review of this regulatory framework has been conducted and has identified areas within the MR framework that require amendments to improve the integrity of the program and ensure the most efficient use of resources. These areas include

Background

The IRPA governs Canada’s admissibility determination regime, and specifies criteria under which foreign nationals or permanent residents may not be allowed to enter or remain in Canada (also referred to as inadmissibility provisions). This includes inadmissibility on more serious grounds such as security, organized criminality, or human or international rights violations. While foreign nationals inadmissible on these grounds are subject to additional restrictions under the IRPA (e.g. loss of certain appeal rights) compared to those inadmissible for other reasons, in most instances they are also able to submit an application for MR which, if granted by the Minister of Public Safety (the Minister), results in an exemption from their inadmissibility.

Section 42.1 of the IRPA functions as an authority allowing for a permanent exemption from inadmissibility on these serious grounds. These decisions must be made personally by the Minister. A decision to grant MR may be made either on application by a foreign national or on the Minister’s own initiative. When deciding whether to grant MR, the Minister may only take into account national security and public safety considerations, but is not limited to considering the danger that a foreign national presents to the public or to the security of Canada.

When applying for MR, an inadmissible foreign national must complete an application form. This application form, as well as documentary submissions and evidence, will typically be sent to the CBSA for processing. Applicants may submit applications from within Canada or abroad. Unlike other applications, such as those for temporary or permanent residence, an application for MR does not have any fees associated with it. Eligibility to apply is based upon the inadmissibility determination process. Upon receipt of an application for MR, the application is triaged to ensure that eligibility criteria are met, after which it is accepted for processing and placed in an inventory of cases. Cases are generally processed chronologically by year of receipt.

The MR process is guided by legislation, regulations, standards of procedural fairness, case law, and internal policies and procedures. CBSA officials assess a request for MR and develop a recommendation for the Minister, which is then provided to the Minister for decision. All information and submissions presented by applicants are considered and incorporated into the review and decision-making process.

The regulatory framework governing the MR application process came into force in March 2017 via amendments to the IRPR. These amendments established a framework that prescribed the use of a formal application form, clarified when a foreign national could apply (first requiring a formal finding of inadmissibility from either the Immigration and Refugee Board [IRB] or Immigration, Refugees and Citizenship Canada [IRCC]), and identified circumstances under which a pending application could be closed. The intent of these amendments was to install a more rigorous, structured approach, which would, in turn, foster a more efficient, consistent, and transparent application process supporting faster, more informed decision-making, and allowing for better management of the inventory of cases.

While the existing regulations have been successful in bringing more efficiency to the process, several areas that would benefit from further regulatory development have been identified to address remaining gaps, and to better align the regulatory framework with broader priorities related to compliance with Canada’s immigration laws such as the requirement to comply with an enforceable removal order and prescribed conditions.

Objective

The Regulations Amending the Immigration and Refugee Protection Regulations (the proposed amendments or the proposed Regulations) would ensure that the regulatory framework for MR supports broader Government of Canada priorities with respect to immigration enforcement through improving program integrity and efficiency by closing existing gaps, and should reduce risks to public safety or national security posed by foreign nationals inadmissible on serious grounds. More specifically, this proposal aims to

Description

The proposed amendments would modify procedures pertaining to applications for MR, including minor administrative amendments, to incorporate existing regulatory requirements for such applications under one provision, and technical amendments to correct grammatical mistakes and improve clarity. The proposed amendments would only impact foreign nationals who are inadmissible on grounds of security, human or international rights violations, or organized criminality and are eligible to submit applications for MR. They include the following:

1. A requirement that an application and supporting documentation be sent to a specified address

This amendment would specify that an application and any supporting documentation must be submitted to a specified address for such purposes. The specified address is included in the MR application form and CBSA website.

2. Refusal of subsequent applications after a negative MR decision until compliance with an enforceable removal order

An individual subject to an enforceable removal order, whose MR application has been previously denied, would only be able to submit a subsequent MR application after they have complied with the removal order and left Canada.

This proposal has been designed to recognize Canada’s refugee protection responsibilities. The proposed regulatory amendment would not apply to those individuals who are Convention refugees or persons in need of protection as per a decision rendered by the Refugee Protection Division of the IRB. The amendments would also not apply to those individuals inadmissible on grounds of security, violating human or international rights or organized criminality who are subject to a stay of removal because they were found to be in need of protection following a pre-removal risk assessment (PRRA).footnote 1 Further, the amendment would not restrict access to any procedural safeguards in place associated with removal, such as access to a PRRA, seeking judicial review, etc. Additionally, the amendment would not apply in situations where impediments to removal are not caused by the applicant (an example could include a country refusing to issue a travel document for reasons beyond an applicant’s control).

Under this proposal, an inadmissible foreign national subject to an enforceable removal order would continue to be entitled to apply for and receive a first MR decision while in Canada, and could apply again once they have complied with their removal order.

3. Closure of applications with link to violation of prescribed conditions

The existing regulations prescribe conditions to ensure that individuals subject to inadmissibility on security grounds receive adequate monitoring, and thus prevent potential threats to public safety, manage costs to locate them for IRPA enforcement purposes and reduce difficulty in enforcing removals.footnote 2 Among the conditions is a requirement to report to the CBSA at least once per month or any other reporting schedule specified by the CBSA. The proposed amendment would allow a pending MR application to be closed when an applicant who is inadmissible on security grounds violates a condition to report to the CBSA. This proposal would complement the above underlying intent of the prescribed conditions by helping to foster compliance with the condition to report. This amendment would not apply where an individual advises and reports to the CBSA in person, by telephone or via voice reporting, within 90 calendar days of missing their original reporting date. An application would not be closed where the failure to report was determined to be beyond the control of the applicant (e.g. hospitalization, detention under other federal or provincial statutes). The Regulations Amending the Immigration and Refugee Protection Regulations (the proposed Regulations) would not preclude an individual from reapplying for MR at a future date, subject to meeting other regulatory criteria governing applications.

MR applications by individuals who are inadmissible based on security grounds and therefore subject to a condition to report comprise the majority of the MR inventory, and are expected to continue to grow relative to current volumes.

4. Closure of existing an application where additional inadmissibility grounds on the basis of security, human rights violations, or organized criminality are established

In cases where an additional finding of inadmissibility on grounds of security, human or international rights violations, or organized criminality is made, and for which MR is available, the proposed amendment would allow for the individual’s MR application to be closed. In such cases, the original MR application would be closed, and the concerned foreign national would be required to submit a new application on the basis of all inadmissibilities. This proposed amendment would apply, for example, in cases where an individual became involved in activities of concern after arriving in Canada, or where new information that was omitted by the applicant or not available at the time of the first inadmissibility finding became available. The amendment would not apply until a judicial review of the new inadmissibility decision had been completed, if applicable.

5. Closure of applications where an additional inadmissibility finding for which no relief can be granted

As MR cannot be applied for on the basis of an inadmissibility on grounds of complicity in war crimes or crimes against humanity, this amendment would allow for the applicant’s MR application to be closed where an additional finding of inadmissibility on grounds of being complicit in war crimes or crimes against humanity is made (paragraph 35(1)(a) of the IRPA).

6. A requirement of the dated signature of an applicant as part of a response to a notice confirming intention to proceed

This proposed regulatory amendment would require a personal, dated signature of an applicant in response to a notice sent from the CBSA requesting confirmation of intention to continue to proceed with an MR application, in order for the response to constitute a confirmation of their intention to proceed. The signature could be ink-based or electronic.

This proposed amendment would ensure that the MR applicant, rather than just their authorized representative, would be required to provide a dated signature as part of a response confirming their intention to proceed with their application. Currently, the CBSA considers a response only signed by a representative as sufficient, which can lead to delays and processing challenges if a representative does not know the whereabouts of their client, as the applicant would not be available to respond and participate to recommendations prepared by the CBSA prior its transmission to the Minister of Public Safety and Emergency Preparedness for decision. This proposal does not amend the existing timeline of 60 calendar days to respond to a notice.

7. Administrative and technical amendments to include how MR applications are to be submitted and information that must be included in the application under one provision

Currently, the form requirement and information to be included in an MR application are listed in sections 10 and 24.2 of the IRPR. This proposal would make minor administrative amendments to combine all of these elements under one provision. There are no new information requirements being proposed. Other technical amendments are being proposed to correct grammatical mistakes and improve clarity.

A transitional provision would not be required for every amendment, as regulatory changes would apply on a prospective basis. Transitional provisions would address certain scenarios, as follows:

Prior to the 2017 amendments to the IRPR, an application for MR could be submitted before a formal finding of inadmissibility had been rendered. Due to this, there may be cases currently in the inventory where a finding of inadmissibility has yet to be made. As any inadmissibility finding made in such cases would be the first, it would not be considered to be a “subsequent” finding, and the regulatory amendment would not apply, except where the inadmissibility finding is for reasons of complicity in war crimes, crimes against humanity or other acts described under paragraph 35(1)(a) of the IRPA.

Regulatory development

Consultation

Consultations were conducted with the same target population as were consulted on the 2017 amendments to the IRPR. A public consultation via the CBSA and Consulting with Canadians websites was launched from May 25 to July 6, 2021. The following stakeholders were notified, and two organizations provided responses:

Comments which resulted in changes to the proposal

The Canadian Council for Refugees (CCR) and Canadian Association of Refugee Lawyers (CARL) provided comments during the public consultation phase. Following a review of these comments, two changes were made to the proposed amendments. First, the “grace period” for an applicant to contact the CBSA after failing to meet a condition to report, without having their MR application closed, was extended from 60 to 90 days. This was due to stakeholder organizations indicating that factors such as living an itinerant lifestyle may cause reporting dates to be missed, and that the amendment appeared punitive in nature. In addition, the proposal was amended so that an application would not be closed where a failure to report was determined to be beyond the control of the applicant (e.g. hospitalization).

Second, stakeholders commented that a bar on the ability to submit an MR application may violate Canadian Charter of Rights and Freedoms rights, as they say the process functions as a “safety valve” to remedy sometimes overly broad findings of inadmissibility. However, the amendments would not bar the ability to submit an MR application outright, and there is only one potential amendment that would require a certain condition to be met, specifically complying with a removal order, before being permitted to reapply. The other amendments are not accompanied by a bar on reapplying. In response to comments that prohibiting subsequent applications may be unfair to those where removal is not possible, the proposal has been modified to allow a subsequent application for MR to be submitted so long as the inability to enforce the removal order is not attributable to the applicant, and the prior MR decision is not the subject of an ongoing judicial review.

Comments considered with no changes to the proposal

The CCR commented that they believed the proposed amendments would disproportionately affect racialized communities and requested that the CBSA commission an expert to determine the impact of the proposed amendments from the perspective of systemic racism. This recommendation has not been incorporated. A gender-based analysis plus has been conducted, and the amendments have been designed in a manner that seeks to limit any unfair impacts on vulnerable populations. Furthermore, the ability to apply for MR is based on the inadmissibility scheme of the IRPA. Inadmissibility decisions are fact-based and made either by the IRB or IRCC in the case of serious inadmissibilities.

The CARL and the CCR both asserted that the potential proposed Regulations allowing for the closure of a pending MR application where a new, separate inadmissibility finding is made should not proceed. Specifically, they argued that a new inadmissibility finding does not mean the MR application is without merit, and in their view the approach would be punitive. They requested that the new inadmissibility be addressed as part of the existing application. While this potential amendment would result in the closure of a pending application where a subsequent, new determination of inadmissibility is made, it would not result in access to the MR process being rendered unavailable. Instead, the applicant could file a new application on the basis of all grounds of inadmissibility. This measure would help to promote compliance with laws by potentially refraining involvement in activities that could result in a new inadmissibility finding, ensure the CBSA has time to gather all information required concerning any new inadmissibility for the purposes of an MR assessment and avoid processing MR applications that would have no practical implication if the applicant does not wish to pursue an MR application concerning the subsequent inadmissibility finding.

Lastly, comments were made regarding more technical amendments concerning the address where applications and documentation must be submitted, as well as the requirement for a personal signature on a response to a notice of intention to proceed. The CARL saw the requirement to send applications and documents to a specified address as potentially frustrating the application process. Changes will not be made as a result of these comments. Firstly, the IRPR already contain provisions allowing for IRCC to return applications that fall under its Minister’s responsibility if sent to a wrong address (e.g. spousal sponsorship applications). Secondly, this amendment would help to improve the integrity of the application process by removing potential avenues of fraud or misrepresentation by removing the possibility of an applicant claiming they had previously submitted an application in order to gain advanced standing in the queue of pending applications.

Comments considered out of scope

The CCR and the CARL also provided several additional comments that were considered, but have not resulted in changes to the proposed amendments. Several comments suggested amending other IRPA or IRPR provisions, such as narrowing the existing inadmissibility provisions or repealing the prescribed conditions regulations.

Modern treaty obligations and Indigenous engagement and consultation

The proposed Regulations do not have an impact on modern treaty obligations and do not engage obligations for Indigenous engagement and consultation as they only impact foreign nationals who are inadmissible on grounds of security, human rights violations, or organized criminality and ability to apply for MR is open to all foreign nationals whose application for MR meet eligibility criteria under the existing regulations. They are not expected to adversely impact Indigenous peoples. Under the IRPA, every person registered under the Indian Act can enter and remain in Canada by right. They must be allowed entry into Canada once an officer is satisfied of their status. They are not considered foreign nationals for the purposes of the IRPA inadmissibility provisions.

Instrument choice

Section 43 of the IRPA provides the Governor in Council with the authority to make regulations regarding any matter relating to the application of Division 4 (Inadmissibility) of the IRPA. Proceeding via regulatory amendment would be appropriate, given that amendments are intended to address observed gaps in the existing regulatory scheme. Non-regulatory options would not be sufficient as updating operational policy alone would not provide the required authorities to implement the requirements in this proposal.

Regulatory analysis

Benefits and costs

Benefits

Costing associated with the development of the 2017 amendments to the IRPR placed the end-to-end cost of processing an MR application as falling within a range between $27,608 and $29,224. Adjusted for inflation, this range would be between approximately $33,214 and $35,158 as of 2023.footnote 3 Under these regulatory amendments, this cost may decrease.

While this regulatory proposal would allow an inadmissible foreign national to reapply for MR after having an application closed (and once meeting eligibility criteria), where an application is closed and the individual does not reapply, costs associated with processing an application would be avoided. Furthermore, where an application is closed, but a foreign national reapplies at a later date, associated processing costs would be deferred to a future year.

Costs

There will be minor costs associated with updating existing public-facing guidance to reflect the new regulatory changes.

Small business lens

Analysis under the small business lens concluded that the proposed Regulations 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

Approximately 28% of individuals with a pending MR application are refugees under the 1951 Convention Relating to the Status of Refugees. Thus, there are linkages to Canada’s obligations under the 1951 Convention Relating to the Status of Refugees. As Canada has ratified the Convention, Canada has certain obligations relating to refugee claimants such as abiding by the principle of non-refoulement, meaning that absent exceptional circumstances refugees should not be returned to the country that they claimed refugee protection against. This proposal respects Canada’s obligations under the Convention.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan was conducted. The proposed Regulations are expected to have a neutral (no effect) impact to the environment as they would impact a very limited number of foreign nationals who are inadmissible for serious inadmissibility grounds and concern an administrative application process. There would be no effect on health and socio-economic conditions, on physical and cultural heritage, on the current use of lands and resources for traditional purposes by Aboriginal persons, or on any structure, site or thing that is of historical, archeological, paleontological, or architectural significance and will not cause any change to the environment inside or outside of Canada.

Gender-based analysis plus

The ability to apply for MR is open to all foreign nationals who meet eligibility criteria under the existing Regulations. Firstly, a foreign national must be found inadmissible on an eligible ground. This inadmissibility finding must come by way of a removal order issued by the IRB, or refusal of an application for temporary or permanent residence. In order to apply, the inadmissibility finding must not be subject to an application for leave and judicial review with the courts. All applicants must use the prescribed application form, and must provide all information required by the Regulations. Generally, such information is consistent with that required in other immigration forms, where background screening is required for adjudication of an application.

As of July 2023, approximately 28% of the pending MR applications are from individuals who are Convention refugees. The remaining 72% are foreign nationals who may reside in or outside Canada. The top eight nationalities of applicants with pending applications are as follows:

The proposed Regulations are not anticipated to disproportionately impact any group of persons based on factors such as gender, sex, age, language, education, geography, culture, ethnicity, income, ability, sexual orientation or gender identity.

Regulating the address to which a completed application and supporting documentation must be provided is consistent with other existing regulations under the IRPA, which specify where applications must be submitted. Similarly, the regulatory proposal limiting the ability to submit a subsequent application for those subject to an enforceable removal order would not disproportionately impact any particular group of persons, and a subsequent application in this context may still be submitted after removal has been enforced. This regulatory amendment would not apply to any initial MR application submitted. Furthermore, Convention refugees, protected persons, and individuals in certain other limited scenarios where a removal could not be enforced for reasons not attributable to the individual, would not be subject to these proposed provisions.

Additionally, the proposed regulatory amendment allowing for closure of an application due to contravention of prescribed conditions to report to the CBSA would not disproportionately impact any particular group of persons. The prescribed conditions apply by regulation to any individual found or reported inadmissible, or subject to a security certificate, on the basis of security grounds. The proposal also creates a “grace period” following a lapse in reporting, which provides applicants an opportunity to rectify the situation without their pending application being closed.

Implementation, compliance and enforcement, and service standards

Implementation

These proposed Regulations would come into force on the day they are published in Canada Gazette, Part II. To support implementation, existing public-facing guidance, such as that found on the CBSA website, which contains the MR application form and related application instructions, would be updated to reflect the amendments. The form and guidance are readily available on the CBSA website.

Compliance and enforcement

Minimal changes would be required to ensure compliance with the proposed amendments, as a robust compliance framework currently exists for these applications. For example, as is the case today, if an MR application is not accepted for processing or is closed as a result of the proposed amendments, the applicant would be informed.

The proposed amendments do not add any new enforcement considerations, as there are no changes to the grounds of inadmissibility or to other immigration enforcement processes (e.g. immigration detention, removal).

Contact

Carolyn Keeler
Director
Immigration Facilitation and Enforcement Policy Division
Strategic Policy Branch
Canada Border Services Agency
Email: IEPU-UPELI@cbsa-asfc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations under subsection 5(1) and section 43 of the Immigration and Refugee Protection Act footnote a.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. They are strongly encouraged to use the online commenting feature that is available on the Canada Gazette website but if they use email, the representations should cite the Canada Gazette, Part I, and the date of publication of this notice, and be sent to Carolyn Keeler, Director, Immigration Facilitation and Enforcement Policy Division, Canada Border Services Agency (email: IEPU-UPELI@cbsa-asfc.gc.ca).

Ottawa, April 11, 2024

Wendy Nixon
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 The portion of subsection 10(1) of the Immigration and Refugee Protection Regulations footnote 4 before paragraph (b) is replaced by the following:

Form and content of application

10 (1) With the exception of an application for a declaration of relief under subsection 42.1(1) of the Act and subject to paragraphs 28(b) to (d) and 139(1)(b) of these Regulations, an application under these Regulations must

2 (1) Subsection 24.1(1) of the French version of the Regulations is replaced by the following:

Demande

24.1 (1) L’étranger peut présenter la demande de déclaration de dispense visée au paragraphe 42.1(1) de la Loi lorsqu’une décision faisant état du refus de sa demande de statut de résident permanent ou temporaire a été rendue, ou qu’une mesure de renvoi a été prise, sur le fondement du constat d’une interdiction de territoire au titre de l’article 34, de l’alinéa 35(1)b) ou du paragraphe 37(1) de la Loi.

(2) The portion of subsection 24.1(2) of the French version of the Regulations before paragraph (a) is replaced by the following:

Contrôle judiciaire

(2) Toutefois, l’étranger qui a présenté une demande d’autorisation de contrôle judiciaire au titre du paragraphe 72(1) de la Loi à l’égard d’une décision ou d’une mesure de renvoi visée au paragraphe (1) ne peut présenter la demande visée à ce paragraphe qu’après le premier en date des événements suivants :

3 Sections 24.2 and 24.3 of the Regulations are replaced by the following:

Subsequent application

24.11 (1) If a foreign national has received a decision in respect of an application for a declaration of relief and is the subject of an enforceable deportation order made on the basis of a determination of inadmissibility under section 34, paragraph 35(1)(b) or subsection 37(1) of the Act, the foreign national may make a subsequent application for a declaration of relief only if

Exception

(2) A foreign national who cannot be removed because of their status as a Convention refugee or a person in need of protection, or because of a stay under paragraph 114(1)(b) of the Act, does not have to meet the condition set out in paragraph (1)(a).

Form and content of application

24.2 (1) An application for a declaration of relief must

Applicant outside Canada

(2) If the applicant is outside Canada, the application and supporting documents may be submitted to the email address specified on the website of the Canada Border Services Agency for that purpose or to the postal address specified on the website of the Department for that purpose.

Applicant in Canada

(3) If the applicant is in Canada, the application and any supporting documents must be submitted to the email or postal address specified on the website of the Canada Border Services Agency for that purpose.

Non-application of sections 11 and 12

(4) Sections 11 and 12 do not apply to the application.

Return of application

24.3 If the requirements of sections 24.1 and 24.2 are not met, the application for a declaration of relief is not processed and the application and all documents submitted in support of it are returned to the applicant.

4 (1) The portion of section 24.4 of the Regulations before paragraph (b) is replaced by the following:

Closing of file

24.4 The processing of the application for a declaration of relief is discontinued and the applicant’s file is closed if

(2) Section 24.4 of the Regulations is amended by striking out “or” at the end of paragraph (c) and by adding the following after paragraph (d):

Transitional Provisions

5 Section 24.11 of the Immigration and Refugee Protection Regulations, as enacted by section 3, applies only to subsequent applications made under subsection 42.1(1) of the Immigration and Refugee Protection Act on or after the day on which these Regulations come into force.

6 (1) Paragraph 24.4(e) of the Immigration and Refugee Protection Regulations, as enacted by subsection 4(2), applies only if the failure to comply with an obligation to report to the Canada Border Services Agency referred to in that paragraph occurs on or after the day on which these Regulations come into force, even if the condition was imposed on the applicant before that day.

(2) Paragraph 24.4(f) of the Immigration and Refugee Protection Regulations, as enacted by subsection 4(2), only applies if the applicant has received a decision or has become subject to a removal order referred to in that paragraph on or after the day on which these Regulations come into force.

Coming into Force

7 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

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