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The Canada Border Services Agency (CBSA) is responsible for enforcing the Immigration and Refugee Protection Act (IRPA). Immigration enforcement, identifying persons who are inadmissible to Canada, and removal of inadmissible persons from Canada are integral parts of the CBSA’s public safety and security mandate and the CBSA’s role in maintaining the integrity of Canada’s immigration programs pursuant to the Immigration and Refugee Protection Act.
The Immigration and Refugee Protection Regulations (IRPR) outline inadmissibility grounds for which removal orders are to be issued by the Immigration Division of the Immigration and Refugee Protection Board (IRB) and those for which removal orders are to be issued by the Minister’s Delegate. The Minister of Public Safety and Emergency Preparedness has delegated certain officials within the CBSA and Immigration, Refugees and Citizenship Canada, including but not limited to border services officers, as Minister’s Delegates.
A review of the IRPR was recently completed. This review was required pursuant to the government’s response to a recent senate committee report. The Senate Standing Committee on National Security and Defence issued a report entitled “Vigilance, Accountability and Security at Canada’s Border”. The government’s response committed the CBSA to explore options make the inadmissibility determination process more efficient. The response also committed the Agency to undertake a review of officer authorities to render inadmissibility decisions and issue removal orders without the need for an admissibility hearing before the Immigration Division of the Immigration and Refugee Board in certain circumstances.
Currently, when an officer alleges that a foreign national is inadmissible under the Immigration and Refugee Protection Act (IRPA), that person’s file is transferred to the Minister’s Delegate for review to determine whether or not the allegation of inadmissibility is well founded. The IRPR identify the circumstances in which the Minister’s Delegate can make the inadmissibility determination and issue a removal order. The regulations also identify circumstances in which the Minister’s Delegate instead must transfer the file the Immigration Division of the Immigration and Refugee Board for a determination on inadmissibility and issuance of a removal order.
Generally speaking, the Immigration Division has the mandate to determine admissibility and to issue removal orders for more complex cases. These cases would involve, for instance, allegations related to national security, human or international rights violations, and organized crime (outlined in subsection 229(1) of the IRPR).
On the other hand, the Minister’s Delegate has the mandate to determine admissibility and to issue removal orders for relatively more straightforward cases which do not require the same level of extensive analysis or weighing of evidence, such as criminal inadmissibility of foreign nationals resulting from an in-Canada conviction (outlined in subsection 228(1) of the IRPR).
The CBSA is considering regulatory amendments that would transfer the authority to render inadmissibility decisions and issue removal orders to the Minister’s Delegate in the following circumstances:
- Misrepresentation of visa-exempt status pursuant to paragraph 40(1)(a) of the IRPA to obtain an electronic travel authorization (eTA);
- Non-compliance with the requirement to undergo a medical examination pursuant to paragraph 16(2)(b) of the IRPA;
- Non-compliance with the requirement to appear for examination at a designated port of entry pursuant to subsection 18(1) of the IRPA;
- This would only apply to foreign nationals who enter Canada at a port of entry but who do not appear for examination. It would not apply to foreign nationals who enter Canada at a place other than a port of entry.
Benefits of the regulatory proposal
This regulatory proposal seeks to ensure that relatively more straightforward inadmissibility cases are resolved more swiftly. The proposal would not affect particularly vulnerable populations who currently have access to the Immigration Division. If the situation involves an unaccompanied minor or someone who is unable to comprehend the proceedings, the Immigration Division will retain the jurisdiction to determine admissibility and issue removal orders, as is the case today. If implemented, the Minister’s Delegate review function would continue to ensure sufficient procedural fairness for inadmissible persons as is the case today with respect to those inadmissibility grounds which currently fall under the Minister’s Delegate authority.
As committed to in the above-noted government response, the CBSA conducted a fulsome review of the IRPR. Accordingly, the CBSA is also considering additional regulatory amendments to further streamline the inadmissibility decision-making process for additional inadmissibility grounds. Public consultations on these amendments will occur separately later this year.
The CBSA invites all interested stakeholders to provide input on the proposed changes as outlined above. The proposed regulatory amendments are slated to be published in Part 1 of the Canada Gazette later this fiscal year, and would come into force in 2021.
How to participate
- Review the notice
- Contact us to provide your comments by (30 Days from the date published online)
Please submit your questions or comments by email:
Immigration Enforcement Policy Unit
Immigration Enforcement, Customs, and External Review Policy Directorate
Canada Border Services Agency
100 Metcalfe St
Ottawa ON K1A 0L8
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