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Guide to Applying for a Declaration of Relief Under Subsection 42.1(1) of the Immigration and Refugee Protection Act

Table of Contents

What is an Application for a Declaration of Relief ("Ministerial relief")?

Pursuant to subsection 42.1(1) of the Immigration and Refugee Protection Act (IRPA) and related regulations, a foreign national can apply for a declaration of relief – commonly referred to as "Ministerial relief" (MR) – if they have been found to be inadmissible to Canada under section 34 (security), paragraphs 35(1)(b) or (c) (human or international rights violations), and/or subsection 37(1) (organized criminality) of IRPA, resulting in a removal order being issued against them by the Immigration and Refugee Board and/or an application for temporary or permanent residence being refused by Immigration, Refugees and Citizenship Canada (IRCC) in Canada or overseas.

The Ministerial Relief Unit (MRU) of the Canada Border Services Agency (CBSA) receives and processes MR applications, including drafting recommendations to the Minister of Public Safety and Emergency Preparedness ("the Minister") on whether relief should be granted or denied. MR decisions, however, rest solely with the Minister and cannot be delegated to government officials. MR is a discretionary authority, intended to be exceptional, and it is not meant to review or re-determine an inadmissibility finding.

Foreign nationals who are inadmissible to Canada under IRPA paragraph 35(1)(a) for commission of, or complicity in, genocide, war crimes or crimes against humanity are precluded from applying for MR.

How is a Ministerial relief application made?

An application for MR must be made using the Application for a Declaration of Relief form (BSF766), available free of charge on the CBSA's external website. The information submitted in the application form and any attached documents must be provided in either English or French. Applicants are requested to indicate, on their application form, their preferred official language of correspondence; this is also the language in which the CBSA will draft its recommendation to the Minister.

Relief applications may not be submitted until all rights of judicial review against the immigration refusal or removal order have expired or been exhausted. Applications which do not meet these and other eligibility criteria, as described in section 24.1 of the Immigration and Refugee Protection Regulations (IRPR), or which do not provide the mandatory information laid out in subsection 24.2(1) of the IRPR, will be refused and returned unprocessed to the applicant.

MR applications, and any submissions or subsequent correspondence related to an MR application, should be provided to the CBSA MRU at the following address:

Ministerial Relief Unit
Canada Border Services Agency
100 Metcalfe Street, 10th floor
Ottawa, ON  K1A 0L8

or by email at:
Ministerial_Relief.Exemptions_Ministerielles@cbsa-asfc.gc.ca

For foreign nationals who are outside of Canada, and who do not have a representative acting on their behalf in Canada, visa offices will, in most cases, continue to act as the liaison between the applicant and the CBSA MRU. While these individuals may submit MR applications and submissions either to the responsible visa office or to the CBSA MRU directly, visa offices will retain primary responsibility for disclosing draft recommendations to applicants and communicating the decisions made by the Minister.

Note that there may be instances where the CBSA MRU may contact an applicant directly. As per section 24.5 of the IRPR, the onus is on the applicant to notify the CBSA MRU without delay of any change in their address. Failure to respond to correspondence may result in an application being closed.

Does an applicant need a representative?

Note:

There is no requirement to retain an immigration representative for the purpose of an MR application; it is the applicant's choice.

No one can guarantee that the Minister will make a declaration of relief in any applicant's case.

If an applicant chooses to retain a representative, a copy of a signed Use of a Representative form (IMM5476) available for free on the IRCC website must be provided to the MRU to authorize the selected representative to make submissions and receive information on behalf of the applicant. 

An applicant may only have one representative at a time. The CBSA MRU must be immediately notified of any change in the applicant's representation, including cancellation, or a change of address, by submitting a new, completed and signed Use of a Representative form. The CBSA is unable to communicate personal details to an individual who has not been authorized to act on behalf of the applicant. Any submissions or correspondence provided by an unauthorized individual in relation to an applicant will not be accepted or considered without a completed and duly signed Use of a Representative form. 

IRPA makes it an offence for any person who is not authorized under the Act to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with a proceeding or application under that Act. Consideration includes money or any other form of compensation or reward.

What happens after a Ministerial relief application is submitted?

Once received by the CBSA MRU and determined to be eligible and complete, the MR application will be placed in the inventory of cases and processed based on its year of receipt. The MRU will review the application and any written submissions and make a recommendation to the Minister as to whether relief should be granted or denied. The CBSA's recommendation will be disclosed to the applicant prior to it being forwarded to the Minister for decision. This step will provide the applicant with the opportunity to review the recommendation, respond to any concerns raised by the CBSA, and to present additional submissions, should they wish to do so.

The Minister may, upon review of the MR application and the CBSA's recommendation, declare that the matters referred to in the above-noted inadmissibility provisions of IRPA do not constitute inadmissibility if the applicant satisfies the Minister that, in their case, relief is not contrary to the national interest. MR is not an alternative form of humanitarian review. Section 42.1(3) of IRPA stipulates that, in determining whether to make a declaration of relief, the Minister may only take into account national security and public safety considerations, but his or her analysis is not limited to considering the danger that the applicant presents to the public or to the security of Canada. The burden of proof to demonstrate that relief is warranted rests with the applicant, and not with the Minister to demonstrate otherwise.

What type of information should an applicant include in their submissions?

The purpose of the MR application form (Application for a Declaration of Relief BSF766) is to present a specific set of information pertaining to the circumstances of the applicant's case, which may assist the Minister in the decision to grant or deny relief from an inadmissibility finding. The applicant may, however, submit any additional information they wish, with the goal of satisfying the Minister that relief, in their case, is not against the national interest.

Although the applicant is not restricted in terms of what type of information they may submit for consideration, this non-exhaustive list of examples may serve as a guide for the types of submissions that may be provided for Ministerial consideration. This list should not be interpreted as mandatory or prescriptive. Each application is assessed on its own merits and on the specific facts of the case.

1. Inadmissibility under IRPA paragraphs 34(1)(a), 34(1)(b), 34(1)(b.1), 34(1)(c), 34(1)(e), 37(1)(a), and/or 37(1)(b)

If the applicant's inadmissibility is related to engagement in and/or instigation of a particular act or acts, whether terrorism, violence that would or might endanger the lives or safety of persons in Canada, subversion, espionage, or organized criminality (including transnational crime), the applicant may wish to address the following factors, where applicable to their case:

2. Inadmissibility under IRPA paragraph 34(1)(d)

If the applicant's inadmissibility is related to being a danger to the security of Canada, the applicant may wish to address the following factors, where applicable to their case:

3. Inadmissibility under IRPA paragraphs 34(1)(f) and/or 37(1)(a)

If the applicant's inadmissibility is related to membership in a particular organization or group, the applicant may wish to address the following factors, where applicable to their case:

4. Inadmissibility under IRPA paragraph 35(1)(b)

If the applicant's inadmissibility is related to being a senior official of a regime designated by the Government of Canada for having engaged in genocide, war crimes or crimes against humanity, the applicant may wish to address the following factors, where applicable to their case:

5. Inadmissibility under IRPA paragraph 35(1)(c)

If the applicant's inadmissibility is related to their being a person whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states (also known as a sanction), the applicant may wish to:

6. All inadmissibilities

All applicants may wish to address the following general considerations, where applicable:

How long does it take for a Ministerial relief decision to be rendered by the Minister?

As a non-delegable decision that must be made personally by the Minister, MR frequently requires an in-depth review of a voluminous amount of information and submissions, entails a comprehensive assessment of many factors, and involves input from relevant partners, as well as a review by senior officials. Given the complexity of the process, an exact timeline as to when an applicant may expect a decision to be rendered by the Minister cannot be predicted.

What happens with the applicant's status following a Ministerial relief decision?

A declaration of relief does not automatically confer status under IRPA.

If the Minister denies relief to an applicant, the applicant will not be relieved from their inadmissibility under the provision(s) of IRPA against which they sought a Ministerial declaration.

If the Minister is satisfied, following his or her assessment of the applicant's case, that it is not contrary to the national interest to overcome the applicant's inadmissibility, the Minister may make a declaration of relief. This will eliminate the inadmissibility as a barrier to obtaining an immigration visa or regularizing the applicant's status in Canada through IRCC, should they so wish, provided that no additional inadmissibilities against the applicant exist or are subsequently determined.

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