Vol. 148, No. 23 — June 7, 2014
Regulations Amending the Immigration and Refugee Protection Regulations
Immigration and Refugee Protection Act
Department of Citizenship and Immigration and Department of Public Safety and Emergency Preparedness
(This statement is not part of the Regulations.)
The federal government has exclusive jurisdiction over Canada’s admissibility policy, which is administered by Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA) at all points of service (i.e. outside Canada, at ports of entry, and inland). The Immigration and Refugee Protection Act (IRPA) provides a high-level framework that aims to reap the economic, social and cultural benefits of immigration, while protecting the health, safety, and security of Canadians. The IRPA’s objectives are achieved, in part, through a set of nine inadmissibility provisions that control the admission of individuals to Canada. The Minister of Citizenship and Immigration (the Minister of CIC) is responsible for six of these provisions (criminality, health, financial reasons, misrepresentation, non-compliance, and inadmissible family members), while the Minister of Public Safety is responsible for three (security, human or international rights violations, and organized criminality).
In 2010, CIC launched a review of the IRPA’s inadmissibility and related provisions in consultation with the CBSA and other federal partners. The purpose of the admissibility review was to ensure that officials continue to have the tools necessary to maintain the integrity of Canada’s immigration system. This review also examined a number of recurrent issues that have surfaced since the implementation of the IRPA in 2002, such as expediting the removal process for individuals who are inadmissible for serious criminality and greater facilitation for low-risk travellers.
The admissibility review resulted in the introduction of the Faster Removal of Foreign Criminals Act (FRFCA), which contained a number of legislative amendments to the IRPA to enhance the safety and security of Canadians, strengthen the integrity of the immigration program, and facilitate entry to further support Canadian interests. A number of the FRFCA amendments came into force when the FRFCA received Royal Assent on June 19, 2013.
However, legislative amendments in the following areas are not yet in force:
- increasing consequences for misrepresentation from a two-year inadmissibility to five years, including a five-year ban on applying for permanent resident status;
- placing additional restrictions on the temporary entry of foreign nationals who have family members inadmissible on the grounds of security, human or international rights violations, or organized criminality; and
- allowing permanent residents to voluntarily renounce their status.
This Regulatory Impact Analysis Statement focuses on proposed amendments to the Immigration and Refugee Protection Regulations (the Regulations) that would support the implementation of the above amendments provided in the FRFCA.
During the admissibility review, CIC and key federal partners identified concerns related to the consequences for immigration fraud, the admissibility of foreign nationals who have inadmissible non-accompanying family members and the lack of a legislative provision to allow individuals with no intent of living in Canada to renounce their permanent resident status.
An examination of the effectiveness of the IRPA’s current misrepresentation provision — that is, the two-year period of inadmissibility that bans a foreign national from entering or remaining in Canada because of directly or indirectly misrepresenting or withholding material facts that cause an error in the administration of the IRPA — determined that it is not sufficient to deter fraudulent applications, particularly for permanent resident applicants, as processing times in this stream can be in excess of two years. In those cases, permanent resident applicants who have been found to have provided false information can simply reapply almost immediately and wait in the processing queue for the two-year inadmissibility period to be completed. In practice, there is little or no consequence for these applicants.
2. Inadmissible family member
Currently, the fact that non-accompanying family members are inadmissible on grounds of security (section 34), human or international rights violations (section 35), or organized criminality (section 37) does not render a temporary resident applicant inadmissible. For example, the common-law partner of an organized crime syndicate leader, or the spouse of a dictator known to have committed crimes against humanity, would be admissible if their application for temporary residence were made separately from that of the organized crime syndicate leader or dictator. Allowing entry to family members of those inadmissible under security, human or international rights violations or organized criminality could potentially pose a threat to the safety and security of Canadians where familial ties could allow for the inadmissible individual to expand networks in Canada, or could be undesirable from both a public and foreign policy perspective (in cases where an individual is living on the avails of their immediate family member’s nefarious activities).
3. Voluntary renunciation
Presently, there is no mechanism in the IRPA to enable permanent residents to renounce their status voluntarily. In some cases, permanent residents know that they failed to meet residency obligations and have no desire to remain in Canada as permanent residents, yet they wish to visit Canada without being reported for non-compliance with respect to their residency requirements.
In other cases, such individuals may be required to provide proof that they have relinquished permanent resident status in order to obtain benefits from their country of origin or a third country, for example, to accept a diplomatic posting, renew civil documents (e.g. national identity cards, health/pension coverage), or enter military service.
The proposed regulatory changes would support implementation of the legislative amendments contained in the FRFCA to strengthen the integrity of the immigration program, enhance the safety and security of Canadians, and facilitate entry to support Canadian interests.
The objectives of the proposed regulatory amendments are
- to strengthen the integrity of the immigration program by
- (a) increasing the regulatory consequences for misrepresentation that pertain to removal orders and the requirement to seek authorization to return to Canada, which would create a stronger deterrent to foreign nationals and permanent residents providing false information in immigration applications related to both temporary and permanent resident status, and
- (b) bringing Canada more in line with the severe penalties imposed by our key international partners, which would make Canada a less attractive option for those who hope to gain immigration status by misrepresenting their circumstances;
- to enhance the safety and security of Canadians by imposing further restrictions on access to Canada by visitors with immediate family members who are inadmissible on grounds of security, human or international rights violations, or organized criminality; and
- to strengthen the integrity and efficiency of the immigration program by allowing permanent residents who no longer wish to maintain their status in Canada to voluntarily give up their status in a simple and straightforward manner.
These objectives would be achieved through the following proposed regulatory amendments:
Increase consequences for misrepresentation
In order to implement the legislative increase in consequences for misrepresentation, as recently amended in the IRPA, the proposed Regulations would ensure that the exclusion order issued for misrepresentation is increased from a two-year exclusion period to a five-year one in both the temporary and permanent resident streams.
An exclusion order is a removal order that can be issued by the Minister of Public Safety’s delegate or an Immigration Division member of the Immigration and Refugee Board to persons who have contravened the IRPA or the Regulations and are the subject of an inadmissibility report. The current effect of the exclusion order for misrepresentation is that the person is barred from returning to Canada within two years after leaving Canada unless the person obtains written authorization from a CIC or CBSA officer.
The proposed Regulations would also be amended to increase the period during which a foreign national is required to obtain written authorization from a CIC or CBSA officer in order to return to Canada following the enforcement of an exclusion order on grounds of misrepresentation from a two-year period to a five-year period.
Add additional restrictions to inadmissible family member provisions
The proposed regulatory amendments would support legislative amendments to the IRPA with respect to the inadmissibility of certain foreign nationals who have a family member (see footnote 1) who is inadmissible on grounds of security, human or international rights violations, or organized criminality. In particular, the Regulations would be amended to broaden the prescribed circumstances in which a foreign national is inadmissible on the grounds of a non-accompanying family member by including foreign nationals that are temporary residents, have made an application for temporary resident status or have made an application to remain in Canada as temporary residents.
An amendment would also be required to specify that persons inadmissible for having a non-accompanying family member who is inadmissible on the aforementioned grounds would be issued a deportation order by the Minister of Public Safety’s delegate. A deportation order is a removal order that can be issued by the Minister’s delegate or an Immigration Division member of the Immigration and Refugee Board to persons who have contravened the IRPA or the Regulations and are the subject of an inadmissibility report. The effect of the deportation order is that the person is barred from returning to Canada at any time without first obtaining an authorization to return from a CIC or CBSA officer.
A number of technical amendments are also needed throughout the Regulations to reflect the revised numbering of certain provisions of the IRPA that are referred to in the Regulations (see footnote 2)
Create a legal framework to allow voluntary renunciation
The proposed regulatory amendments would support the FRFCA amendment by introducing specific criteria by which a permanent resident can apply to renounce their permanent resident status. Criteria would require that an applicant include proof of permanent resident status or citizenship in another country and, if the applicant is under the age of 18 years, that the application form be signed by every person who has custody of the applicant or who is empowered to act on their behalf.
The proposed Regulations would also specify that assessments of a sponsorship application that was submitted by a permanent resident who has also made an application to renounce permanent residence would be held in abeyance pending a final decision on the renunciation application. Should the renunciation application be approved by a CIC or CBSA officer, the sponsorship application would no longer be valid as the person applying to sponsor a member of the family class would now be ineligible to sponsor.
There would be no application fee to renounce permanent resident status.
Regulatory and non-regulatory options considered
The consequences for misrepresentation currently exist in the Regulations. Therefore, in order to support the full implementation of the amendment to change the length of this inadmissibility period, regulatory changes are needed and are the only option.
The IRPA and the FRFCA provided the enabling authority to attend to non-accompanying family members through prescribed circumstances. Currently, section 23 of the Regulations provides that the prescribed circumstances are that the foreign national has made an application for a permanent resident visa or to remain in Canada as a permanent resident. An amendment to the Regulations was necessary in order to expand the prescribed circumstances to include temporary residents and foreign nationals who have made an application for temporary resident status or who have applied to remain in Canada as a temporary resident.
There is currently an administrative (non-regulatory) process regarding persons who wish to relinquish their permanent resident status, but there is inconsistency in the quality of submissions and in the assessment of such requests by CIC and CBSA officers. A regulatory option would be consistent with how CIC handles any request by a non-citizen (foreign national and permanent resident) to change status.
The “One-for-One” Rule does not apply to these proposals as there would be no incremental administrative or compliance costs imposed on business.
Small business lens
The small business lens does not apply to these proposals as there are no costs to small business.
Provisions of the FRFCA were debated during meetings of the Standing Committee on Citizenship and Immigration and of the Standing Senate Committee on Social Affairs, Science and Technology. Committee members also considered stakeholder testimony.
During discussions on the FRFCA’s misrepresentation provisions, committee members raised concerns about the severity of the new misrepresentation penalty (a five-year ban) on those who make minor or unintended mistakes on their applications, such as typos on their year of birth. Departmental officials clarified that before a final decision is rendered on a case, applicants are provided the opportunity to address any concerns regarding their immigration application. CIC has guidelines to help officers evaluate inadmissibility for misrepresentation. In addition, if an individual would like to challenge an inadmissibility decision, they may make an application for leave and judicial review at the Federal Court. In certain cases, depending on the status of the individual, they may also have the right of appeal to the Immigration Appeal Division of the Immigration and Refugee Board.
During consideration of the provisions of the FRFCA regarding inadmissible family members, committee members commented on the need for discretion to allow entry in cases where an applicant is fleeing a spouse who is inadmissible on grounds of security, human or international rights violations, or organized criminality. In such cases, spousal relationships that have broken down in law or in fact are currently exempt from the provision regarding inadmissible family members under subparagraph 23(b)(i) of the Regulations. In addition, mechanisms exist to facilitate temporary entry of inadmissible applicants in justifiable circumstances, including temporary resident permits and humanitarian and compassionate considerations.
There were no concerns raised during these debates regarding the provision to allow individuals to renounce permanent resident status.
Review of all of the proposed regulatory amendments does not reveal any monetized impacts on business, consumers or other levels of government.
Increase consequences for misrepresentation
Amendments to existing regulatory provisions related to misrepresentation would support legislative changes that provide a stronger disincentive for applicants to provide fraudulent information on their immigration applications. The changes would also help ensure that the processing of legitimate applications is not delayed by fraudulent permanent resident applicants who reapply and wait out their period of inadmissibility in the processing queue.
In addition, the increased consequences for misrepresentation would make Canada less vulnerable to immigration fraud by bringing consequences in line with Canada’s like-minded international partners. A stronger deterrent for misrepresentation would benefit Canadians by ensuring travellers and immigrants admitted to Canada meet the criteria established to support Canadian immigration objectives, and would increase public confidence in and support for Canada’s immigration program.
The two-year penalty is shorter than those imposed by Canada’s like-minded international partners, which makes the Canadian immigration system more vulnerable to abuse. Other countries appear to have more severe penalties, for example:
- Australia: three-year ban on visas where false or misleading information is provided;
- United Kingdom: 1-, 5-, or 10-year ban on re-entry (length of ban depends on severity of false representation); and
- United States: lifetime inadmissibility (i.e. ban on entry) for visa fraud or misrepresentation.
Add restrictions to inadmissible family member provisions
Amendments to existing regulations related to inadmissible family members would ensure that foreign nationals with immediate family members who are security threats, have committed human or international rights violations, or are involved in organized criminality could not enter the country.
Program integrity issues have also been identified with the current legislation, as the inadmissibility of non-accompanying family members does not affect temporary resident applicants, whereas the inadmissibility of non-accompanying family members does affect applicants for permanent resident status. Currently, a temporary resident applicant who is inadmissible by virtue of an inadmissible accompanying family member at a port of entry would be considered admissible if they leave and re-enter Canada separately.
Create a legal framework to allow voluntary renunciation
Under the current process, permanent residents renounce their status through an administrative process, which is cumbersome and, in some cases, inadequate. Time and resources are spent on travellers who have no desire to remain in Canada permanently.
- Overseas, if a person does not meet the residency obligation, the person has the option of signing a declaration stating that they consent to a determination of failure to comply with residency obligations as well as a waiver of the right to appeal a decision on residency. If the permanent resident does not meet the residency obligation and does not sign the declaration, the person has 60 days in which to appeal the negative determination.
- For port of entry and inland clients, CBSA and CIC officers must apply an enforcement process in order to terminate the permanent resident status of such individuals. If the permanent resident does not meet the residency obligation under the IRPA, enforcement action would involve the CBSA or CIC officer preparing an inadmissibility report and possibly issuing a removal order. The person can appeal the decision to issue a removal order to the Immigration Appeal Division.
- If the permanent resident meets the residency obligation under the IRPA — whether abroad, at a port of entry or in Canada — there is no legal way to give up that status.
The proposed Regulations would simplify the procedure by which a person can voluntarily renounce their permanent resident status and would improve consistency in officers’ decision making. The IRPA has been amended to introduce a formal renunciation mechanism in the Regulations so that clients who clearly have no intention to remain permanent residents of Canada no longer need to submit to the residency determination under the IRPA.
The proposed Regulations would clearly define for applicants what is required for their application to renounce permanent resident status to be considered, thereby improving the quality of service provided to applicants who submit the necessary information at the outset. Processing times could vary, as such applications can be processed at offices abroad, at ports of entry and in Canada. It is expected that the processing of these applications would be simple and could later allow for an electronic application platform, which would result in relatively quick processing times. There is no processing fee because the current administrative-only process does not charge a fee.
An alternative to regulations on voluntary renunciation would have been continuing to process requests for renunciation using only administrative procedures. Reliance on non-binding guidelines would be less effective than regulations in ensuring consistency and transparency in decision making and could lead to uncertainty about the individual’s legal status in Canada.
Implementation, enforcement and service standards
The proposed Regulations would come into force on the day they are registered, which is anticipated to be in fall 2014.
CIC and the CBSA would update field manuals and inform officers of their roles in enforcing the Regulations. There would also be communications activities for the purpose of explaining these regulatory changes to the Canadian public, stakeholders and Government employees; for example, the CIC Web site would be updated.
For clients who wish to renounce their permanent resident status, a new application kit would be developed that would include a form and an accompanying guide to ensure that potential applicants are fully aware of the application requirements and consequences of renunciation. CIC anticipates that application intake would be low, with the majority of applications coming from applicants who are residing outside of Canada. As this type of application can be processed in Canada, at a port of entry in Canada or at a visa office abroad, the service standard can vary according to the current operational environment.
Migration Control and Horizontal Policy Division
Citizenship and Immigration Canada
365 Laurier Avenue West
Notice is given that the Governor in Council, pursuant to subsections 5(1) and 14(1) and (2) (see footnote a) and sections 26 (see footnote b), 32 (see footnote c), 43 and 53 (see footnote d) of the Immigration and Refugee Protection Act (see footnote e), 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 Maureen Tsai, Director, Migration Control and Horizontal Policy, Department of Citizenship and Immigration, 300 Slater Street, Ottawa, Ontario K1A 1L1 (tel.: 613-960-5788; fax: 613-952-9187; email: C-43-Regs@cic.gc.ca).
Ottawa, May 29, 2014
Assistant Clerk of the Privy Council
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. Paragraph 23(a) of the Immigration and Refugee Protection Regulations (see footnote 3) is replaced by the following:
- (a) the foreign national is a temporary resident or has made an application for temporary resident status, an application for a permanent resident visa or an application to remain in Canada as a temporary or permanent resident; and
2. The Regulations are amended by adding the following after section 72.4:
APPLICATION TO RENOUNCE PERMANENT RESIDENT STATUS
72.5 Despite subsection 10(3), a separate application must be made for each family member that would like to renounce their permanent resident status.
Application — conditions
72.6 An officer may approve a person’s application to renounce their permanent resident status if
- (a) the person has provided evidence of their citizenship, nationality or permanent legal resident status in another country; and
- (b) in the case of an application in respect of a person who is less than 18 years of age, the application is signed by every person who has custody of that person or who is empowered to act on their behalf by virtue of a court order or written agreement or by operation of law, unless otherwise ordered by a court.
Sponsorship application suspended
72.7 If a permanent resident makes an application to renounce their permanent resident status, any sponsorship application made by them is suspended until a decision is made on the application to renounce permanent residence.
3. Subsection 183(3) of the Regulations is amended by striking out “and” at the end of paragraph (a) and by adding the following after that paragraph:
- (a.1) if they have become a temporary resident in accordance with subsection 46(1.1) of the Act, the day on which their application to renounce their permanent resident status is approved; and
4. Subsections 225(2) and (3) of the Regulations are replaced by the following:
(2) For the purposes of subsection 52(1) of the Act, the expiry of a one-year period following the enforcement of an exclusion order, or a five-year period if subsection (3) applies, is a circumstance in which the foreign national is exempt from the requirement to obtain an authorization in order to return to Canada.
(3) A foreign national who is issued an exclusion order as a result of the application of paragraph 40(2)(a) of the Act must obtain a written authorization in order to return to Canada within the five-year period after the exclusion order was enforced.
5. Subsection 228(1) of the Regulations is amended by striking out “and” at the end of paragraph (c) and by replacing paragraph (d) with the following:
- (d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member; and
- (e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order.
6. The Regulations are amended by replacing “paragraph 42(a)” with “paragraph 42(1)(a)” in the following provisions:
- (a) the portion of section 23 before paragraph (a);
- (b) clause 65(b)(i)(B);
- (c) subclause 65(b)(i)(C)(II); and
- (d) section 354.
7. The Regulations are amended by replacing “paragraph 42(b)” with “paragraph 42(1)(b)” in the following provisions:
- (a) clause 65(b)(i)(C);
- (b) subsection 225(4); and
- (c) subsection 226(2).
COMING INTO FORCE
8. These Regulations come into force on the day on which they are registered.
- Footnote 1
The definition of “family member” in the Regulations is limited, subject to some exceptions, to spouses, common-law partners, dependent children, and dependent children of a dependent child (see subsection 1(3) and section 23).
- Footnote 2
R23, R65(b)(i)(B), R65(b)(i)(C), R65(b)(i)(C)(II), R225(4), R226(2), R354.
- Footnote 3
- Footnote a
S.C. 2013, c. 16, s. 4
- Footnote b
S.C. 2013, c. 16, s. 11
- Footnote c
S.C. 2013, c. 16, par. 37(2)(b)
- Footnote d
S.C. 2013, c. 16, s. 21
- Footnote e
S.C. 2001, c. 27