Vol. 148, No. 25 — June 21, 2014
Regulations Amending the Immigration and Refugee Protection Regulations
Immigration and Refugee Protection Act
Sponsoring department and agency
Department of Citizenship and Immigration and Canada Border Services Agency
(This statement is not part of the Regulations.)
Issues: The Government of Canada currently has limited capacity to identify and screen foreign nationals who do not require a temporary resident visa to travel to Canada. This results in a small but significant program integrity gap. While all foreign nationals intending to come to Canada on a permanent basis require a permanent resident visa, foreign nationals from visa-exempt countries who are coming to Canada on a temporary basis are not examined until they arrive at an air port of entry, where assessing admissibility is challenging due to time pressures and limited access to information that could support a determination. In 2012–2013, some 7 055 visa-exempt foreign nationals were found inadmissible for various reasons at air ports of entry when they arrived in Canada. Had there been a mechanism in place to verify the status of these foreign nationals, it would have been known that they likely would have presented admissibility concerns prior to their arrival at a Canadian air port of entry. At present, the Government of Canada does not possess the necessary authority to screen these individuals before they travel to Canada. This causes significant expense, delay and inconvenience for the inadmissible foreign national, other travellers, airlines and the Canadian government.
Description: The proposed amendments would require foreign nationals who are currently exempt from a temporary resident visa requirement to hold an electronic Travel Authorization (eTA) when seeking to enter Canada by air mode. This regulatory proposal would amend the Immigration and Refugee Protection Regulations to add greater precision to the general legislative framework by specifying the foreign nationals who would be required to obtain an eTA, the procedure to be followed, the exemptions for certain foreign nationals, when an eTA can be cancelled by an officer, and the fee for the processing of the application.
Cost-benefit statement: The total estimated costs for the analysis period (2015–2024) are $173.6 million in present value (PV) dollars. The total benefits resulting from the proposed amendments are estimated to be $174.7 million (PV). This results in a total net benefit of $1.1 million dollars (PV), which translates to an annualized average of $162,000 of net benefits per year.
“One-for-One” Rule and small business lens: The “One-for-One” Rule does not apply to this proposal as there is no change in administrative costs to business. The small business lens does not apply since no costs would be imposed on small business.
Domestic and international coordination and cooperation: Citizenship and Immigration Canada and the Canada Border Services Agency would continue to work closely with partners in the United States and with other federal departments such as the Department of National Defence, Public Safety, Transport Canada, Foreign Affairs, Trade and Development Canada, Industry Canada and Shared Services Canada to implement the proposed amendments. The proposed amendments also support perimeter security initiatives with the United States under the Canada–United States declaration entitled Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness.
Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA) are responsible for managing the entry of foreign nationals into Canada by ensuring that applicants meet the necessary admissibility criteria, including having the proper documentation and meeting financial and security requirements. While CIC officers determine the admissibility of all visa-required foreign nationals seeking to travel to Canada, the CBSA determines the admissibility of all foreign nationals at the port of entry, including verifying documents, investigating immigration violations and generally denying entry to persons who are inadmissible, for example those who constitute a threat to the health of Canadians or to the safety or security of Canada.
Under the Immigration and Refugee Protection Act (the Act), foreign nationals who are seeking to come to Canada on a temporary basis, must, before entering Canada, apply to an officer for a temporary resident visa (visa) (see footnote 1) or for any other document required by the Immigration and Refugee Protection Regulations (the Regulations). (see footnote 2) At present, this visa is Canada’s only mechanism for screening foreign nationals who intend to come to Canada on a temporary basis, in advance of travel, in order to manage migration-related risks.
The current visa framework effectively divides foreign nationals who intend to come to Canada on a temporary basis into two groups, based on the risks associated with their country of nationality:
- visa-required foreign nationals who must undergo systematic overseas screening for admissibility before being authorized to travel to Canada; and
- visa-exempt foreign nationals who are screened for admissibility only upon arrival at the Canadian border.
The guiding rationale for this approach is that one’s nationality provides an appropriate indicator for more rigorous pre-arrival screening practices for temporary residents. Under the Regulations, foreign nationals coming to Canada on a temporary basis may be exempt from the requirement to hold a visa on the basis of their nationality (subsection 190(1)), the document(s) they hold (subsections 190(2) and 190(2.1)), or the purpose of their entry (subsection 190(3)).
The number of visa-exempt foreign nationals travelling to Canada on a temporary basis per year is significantly larger than the number of visa-required travellers. For example, visa-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada.
While the visa-exempt framework encourages travel with participating countries, aspects of this exemption may be exploited by individuals seeking to circumvent the Act, the Customs Act or the Criminal Code. Currently, visa-exempt foreign nationals are not subject to the same screening as those foreign nationals who must first obtain a visa from a Canadian embassy or consulate before travelling to Canada. Applicants requiring a visa may be required to attend an interview or to submit additional documents so that whether they meet Canada’s admissibility requirements (criminality, security, medical, proof of funds, intent/purpose of travel) may be determined. During the visa application process, visa officers have significantly more time to interview applicants, and examine the authenticity of their passports, and may also speak the applicant’s native language. An applicant who is denied a visa cannot lawfully board a plane or vessel destined for Canada.
In contrast, visa-exempt foreign nationals are not systematically screened for admissibility until they arrive at a Canadian port of entry. Only upon arrival are they subject to an examination during which CBSA Border Services Officers observe the applicant, examine his or her passport, check his or her name against automated databases and watch lists (which contain information regarding the admissibility of foreign nationals, including known terrorists, criminals and immigration law violators). The CBSA Border Services Officer uses the information ascertained during the admissibility examination to assess the foreign national’s eligibility for admission to Canada.
In 2012–2013, approximately 7 000 (see footnote 3) visa-exempt foreign nationals arrived in Canada and were deemed inadmissible for entry at air ports of entry. Such occurrences cause significant expense, delay and inconvenience for foreign nationals, other travellers, the airlines and the Canadian government. Reasons for refusal can include membership in terrorist organizations; espionage; participation in war crimes or crimes against humanity; international human rights violations; membership in organized crime groups; criminality; or issues endangering public health, such as tuberculosis.
On February 4, 2011, the Prime Minister of Canada and the President of the United States issued a declaration entitled Beyond the Border: A Shared Vision for Perimeter Security and Economic Competitiveness (the Action Plan). The Action Plan commits Canada and the United States to working together to enhance security and accelerate the free flow of people and goods at and beyond the Canada–U.S. border. As part of the agreed-upon Action Plan, the Government of Canada announced plans to introduce an electronic travel authorization (eTA) which would mirror the Electronic System for Travel Authorization (ESTA) program. ESTA was introduced in the United States to screen foreign nationals that qualify under the U.S. Visa Waiver Program prior to travelling to the United States.
As a related Action Plan initiative, the CBSA is developing the Interactive Advance Passenger Information (IAPI) system which would create the capacity to provide air carriers (see footnote 4) with a “board/no board” message on all travellers, including eTA-required foreign nationals, flying to Canada prior to departure. The regulatory authorities for the IAPI initiative would be developed under a separate regulatory proposal.
The guiding principle behind the current temporary resident visa framework is that one’s nationality provides a sufficient indicator of risk to trigger more rigorous pre-arrival screening practices. This principle results in a small (see footnote 5) but significant program integrity gap as high-risk individuals from visa-exempt countries can travel to Canada on a temporary basis without prior screening. These foreign nationals are not examined until they arrive at an air port of entry, where assessing admissibility is more challenging due to time pressures and limited access to information that could support the determination of admissibility for entry into Canada.
In 2012–2013, some 7 055 visa-exempt foreign nationals were found inadmissible at Canadian air ports of entry. Had there been a mechanism in place to verify the status of these foreign nationals in advance, it would have been known that they likely would have presented admissibility concerns prior to their arrival at a Canadian air port of entry. For example, 28 individuals with prior removal orders were detected at the air port of entry attempting to return to Canada without proper authorization to do so, thus undermining Canada’s efforts to deny them access to Canadian territory. At present, the Government of Canada does not possess the necessary authority to examine visa-exempt foreign nationals for admissibility before they travel to Canada.
The overall objective of these proposed amendments would be to strengthen the integrity of Canada’s immigration program by addressing issues of inadmissibility at the earliest opportunity and, in particular, to identify inadmissible individuals who seek to enter Canada on a temporary basis and deter them from travelling to Canada in the first place. This would be achieved by establishing a new eTA entry requirement for foreign nationals travelling by air who are currently exempt from the visa requirement.
Finally, the proposed amendments would ensure that Canada fulfills a commitment of the Action Plan and supports the responsibility shared by Canada and the United States concerning those entering the perimeter, while facilitating ongoing efforts to streamline procedures at the Canada–U.S. border, thereby promoting trade and travel.
The proposed amendments would require foreign nationals who are currently exempt from a visa requirement to hold an eTA when seeking to enter Canada by air.
The proposed amendments to the Regulations would add greater specificity to the general legislative framework by
- creating the regulatory requirement to compel a visa-exempt foreign national to apply for an eTA before seeking to enter Canada by air unless they are exempt from doing so;
- establishing the application procedures to be followed;
- specifying when an eTA expires and when it can be cancelled;
- setting the fee that is payable for the processing of an eTA application; and
- creating exemptions from the requirement to obtain an eTA.
eTA requirement, process, fee and validity period
The proposed amendments would require foreign nationals from visa-exempt countries who are not exempt from doing so to apply for an eTA online, through the CIC Web site, by entering biographic, passport and background information similar to the personal information that is currently collected by a CBSA Border Services Officer at a port of entry in Canada. The information required by these proposed amendments would allow Canada to determine the admissibility of foreign nationals before they arrive at the border and whether their travel poses migration or security risks.
To ensure accessibility and provide flexibility to people with physical or mental disabilities who may be unable to access the electronic eTA application, the proposed Regulations would allow these foreign nationals to submit an application by another means that is available, such as in writing.
The proposed amendments would also set an eTA fee payable by applicants, as well as provide for a fee exemption for visa-exempt foreign nationals applying for a work permit or a study permit. Applicants required to obtain an eTA would pay a $7 processing fee, as a means to recover eTA costs, before electronically submitting the securely encrypted application to CIC. In circumstances where another application process is used, the fee would be paid when applicants submit their application.
In order to reduce the duplication of information to be provided by visa-exempt foreign nationals, the proposed Regulations would consider a visa-exempt foreign national’s application for a work permit or a study permit to constitute an application for an eTA.
The proposed amendments would establish that the eTA is valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever is sooner. The proposed amendments would also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible, thus providing an officer with the ability to revisit a visa-exempt foreign national’s eligibility to retain an eTA. This would include instances where a foreign national provided false information in the eTA application, where evidence indicates that a foreign national is inadmissible to Canada or where permitting the foreign national to travel to Canada would pose a security risk. (see footnote 6)
In order to facilitate travel, and to foster trade and commerce as well as to respect Canada’s international commitments, the proposed amendments introduce certain exemptions from the eTA requirement.
Nationality and British Royal Family
- U.S. nationals: In order to support Canada’s perimeter approach to security with the United States, the proposed amendments would exempt U.S. nationals from the eTA requirement.
- Her Majesty in right of Canada and members of the Royal Family: The proposed amendments would also provide an exemption to Queen Elizabeth II and members of the Royal Family.
Purpose of entry
- Accredited diplomats: To harmonize the proposed amendments with Canada’s obligations to facilitate the travel of accredited diplomats under relevant international conventions, such as the Vienna Convention on Diplomatic Relations, the proposed amendments would exempt from the eTA requirement foreign nationals who hold a passport that contains a diplomatic acceptance, a consular acceptance or an official acceptance.
- International Civil Aviation Organization considerations: In order to ensure consistency with Canada’s commitments under the Convention on International Civil Aviation, (see footnote 7) the proposed amendments would provide an exemption from the eTA requirement to the following foreign nationals:
- those seeking to enter and remain as a member of a flight crew or to become a member of such a crew;
- those seeking to transit through Canada after working, or to work, as a member of a flight crew if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
- civil aviation inspectors of a national aeronautical authority seeking to enter Canada in order to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights, if they possess the valid documentation to that effect; and
- an accredited representative or advisor to an aviation accident or incident investigator under the Canadian Transportation Accident Investigation and Safety Board Act, if they possess the valid documentation to that effect.
- Residents of St. Pierre and Miquelon: It is also proposed that persons seeking to enter Canada from St. Pierre and Miquelon, who are citizens of France and residents of St. Pierre and Miquelon, be exempt from the eTA requirement. Providing an exemption for this group is consistent with the Government’s commitments under the Agreement Between the Government of Canada and the Government of the Republic of France Relating to the Development of Regional Cooperation Between the Canadian Atlantic Provinces and the French Territorial Collectivity of St. Pierre and Miquelon to facilitate the movement of people and goods between Canada and St. Pierre and Miquelon.
- Visiting forces: In order to fulfill Canada’s international obligations as a signatory to both the North Atlantic Treaty Organization Status of Forces Agreement and its related Partnership for Peace, the proposed amendments would exempt from the eTA requirement members of visiting forces travelling to Canada to carry out official duties as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, unless they have been designated under the Act as a civilian component of those armed forces.
- Contiguous territory: The proposed amendments would exempt from the eTA requirement foreign nationals with status in Canada seeking re-entry to Canada, within their period of authorized stay, following a visit solely to the United States or St. Pierre and Miquelon.
- Refuelling: It is also proposed that an exemption from the eTA requirement be provided to foreign nationals who are passengers on a flight stopping in Canada for the sole purpose of refuelling, if they are travelling to and from the United States and hold a valid U.S. document or they were lawfully admitted to the United States and their flight originated in that country. Furthermore, in order to accurately reflect the document requirements to enter the United States, an amendment to subparagraph 190(3)(b)(i) of the Regulations is proposed with a view to broaden the document requirement. It is therefore proposed that the requirement that the foreign national be in possession of a visa to enter the United States be changed to the requirement that the foreign national be in possession of the documents required in order to enter the United States.
- Temporary resident visa/permit: The proposed amendments would exempt those foreign nationals who hold a temporary resident visa or permit from the requirement to obtain an eTA.
Program integrity amendments
As risks would be alternatively mitigated through an eTA requirement, these proposed amendments would repeal subsection 190(2.1) of the Regulations and add Lithuania and Poland to paragraph 190(1)(a). All citizens of Lithuania or Poland (see footnote 8) would therefore become visa-exempt and be required to obtain an eTA before travelling to Canada by air.
The proposed amendments would also repeal paragraph 190(3)(e), removing the existing visa exemption for those foreign nationals travelling to Canada to attend an interview at a U.S. consulate located in Canada. They will therefore need to hold an eTA or visa, if required by the Regulations.
In order to ensure compliance with the existing requirements that apply to all applications made under the Act, (see footnote 9) the proposed amendments would require that all eTA applicants provide CIC with the contact information of any individual who has been appointed as their representative, as well as the contact information of any individuals who have advised the applicant for a fee or other consideration in connection with their eTA application.
To ensure consistency, these Regulations propose consequential amendments that would include the requirement for a visa-exempt foreign national who seeks to enter Canada as a live-in caregiver to make an application for an eTA.
Finally, the proposed amendments would stipulate that a foreign national who is subject to an unenforced removal order shall not be issued an eTA.
Regulatory and non-regulatory options considered
The proposed amendments are necessary in order for the Government of Canada to implement an enhanced approach to identifying inadmissible persons prior to their arrival at an air port of entry. Although the Act sets out the framework for requiring a visa-exempt foreign national to apply for an eTA before entering Canada on a temporary basis, regulatory amendments are needed to implement this requirement by prescribing the foreign nationals to whom it would apply. Without these changes, CIC would not be able to screen potential travellers from those countries whose citizens do not require a visa in order to come to Canada on a temporary basis.
By establishing the scope and purpose of the eTA and by clearly identifying those foreign nationals who would be required to obtain an eTA, the proposed amendments would ensure that all known admissibility concerns would be addressed prior to the arrival of the foreign nationals. Thus, by means of these amendments, Canada would be able to identify inadmissible persons and prevent them from travelling to this country.
Finally, Canada and the United States already use information provided by airlines to screen inbound flights for persons at high risk of being engaged in terrorism or serious criminal activity. Consistent with the U.S. approach, these proposed amendments would enable Canada to adopt a strengthened methodology in order to better identify high-risk travellers before they board a flight.
Benefits and costs
This study assesses the costs and benefits of the regulatory changes related to the introduction of an eTA, which would require visa-exempt foreign nationals, with the exception of U.S. nationals, accredited diplomats and others as listed in the proposed Regulations, to apply for an eTA prior to boarding an aircraft to Canada. These proposed Regulations would not introduce the requirement for an eTA when entering Canada via land or sea borders.
The cost-benefit analysis (CBA) starts from a baseline scenario. The baseline is defined as the scenario that would occur in the absence of the eTA being issued to visa-exempt foreign nationals. In the baseline, it is assumed that the IAPI initiative, another Action Plan initiative led by the CBSA, is fully implemented in April 2016 and eTA functionality is not utilized for the entire study period. Thus, the baseline is a hypothetical situation where no eTAs are issued to visa-exempt populations.
In the baseline scenario, the IAPI system would be enforced as of April 2016, and would be available to enhance data-gathering capacity, improve intelligence, close the gap on the lack of information that is provided for general aviation inbound traffic, and, more generally, to enforce the visa program. However, in the baseline, with only the IAPI system and no eTA capacity, foreign nationals from visa-exempt countries would be permitted to board flights to Canada after having undergone limited pre-screening.
The baseline scenario is then compared with the proposed regulatory amendment. The analysis period covers 10 years beginning in April 2015 and ending in 2024. All costs and benefits are projected over this period and expressed in constant 2013 dollars using a discount rate of 7%.
Based on this comparison, the present value of the total estimated benefits is projected to be $174.7 million and the present value of the total costs is estimated to be $173.6 million. Over the 10-year period, the monetized benefits outweigh the monetized costs by $1.1 million in present value terms. This translates to an annualized average of $162,000 in benefits.
The analysis demonstrates that, in nominal terms, full cost recovery would be accomplished. However, because the CBA accounts for economic costs and benefits, the opportunity cost of the investment required to implement the eTA system is taken into account. Therefore, Canadian taxpayers would bear the economic cost of foregone revenue had these funds been placed in an investment earning a modest return. These foregone earnings are offset by the benefit of Government resources saved by not processing inadmissible travellers at air ports of entry, which would result in an estimated average of more than 4 500 prevented arrivals per year at Canadian airports. Overall, the net impact demonstrates that Canadians would not be required to expend funds to implement the eTA system; rather, a user pay methodology would be applied. Canadians would, however, enjoy the benefits of preventing inadmissible foreign nationals from arriving at Canadian air ports of entry. Other benefits would include the deterrence of inadmissible travellers due to the requirement that they provide information prior to departure, increased health, safety and security along with better data tracking, and a strengthened Canada–U.S. partnership.
The costs-benefits accounting statement
The following table provides an overview of the CBA results. The proposed Regulations would come into force in April 2015. The first full year of impacts would be 2017 as the eTA program is anticipated to be fully enforced only in April 2016. All implementation, development and transition costs are therefore assumed to occur from 2015 to 2017. The eTA processing costs would be incurred each year of the study. Impacts on in-Canada students and workers would occur only in 2015 as they apply to students and workers who are already in Canada on permit status. All future permits would automatically be issued with an eTA as part of the study or work application at no additional charge. Fee revenue is accounted for in each year of the analysis; however, the cost savings of prevented arrivals only commence in 2016 when the eTA program would be fully enforced.
|Costs, benefits and distribution||Base Year 2015||Year Five 2019||Final Year 2024||Total||Annualized Average|
|A. Quantified impacts in millions of present value $|
|Fee revenue||Canadians/ Government of Canada||16.7M||16.2M||13.4M||162.3M||23.1M|
|Cost savings of prevented inadmissible arrivals||Canadians/ Government of Canada||0M||1.5M||1.1M||12.4M||1.8M|
|Implementation, development and transition costs||Canadians/ Government of Canada||23.3M||0.0M||0.0M||35.0M||5.0M|
|Ongoing eTA processing costs||Canadians/ Government of Canada||14.1M||13.7M||11.3M||137.0M||19.5M|
|eTA costs for in-Canada students and workers||In-Canada international students and workers||1.6M||0M||0M||1.6M||0.2M|
|Net benefits (NPV)||1.1M|
|B. Qualitative impacts|
|Benefits||Stakeholders||Description of benefits|
|1. Benefit of meeting our international commitments||Canadians/Government of Canada||Implementation of the eTA program would achieve Canada’s commitment to the Canada–U.S. shared vision for perimeter security and economic competitiveness, thereby accelerating the free flow of people and goods while maintaining the strength of the Canada–U.S. partnership.|
|2. Deterrence benefit||Canadians/Government of Canada||It is expected that the eTA requirement would deter some inadmissible foreign nationals from applying because of the requirement to provide information prior to arrival.|
|3. Enhanced data tracking and improved safety and security||Canadians/Government of Canada||The eTA program would provide CIC with the ability to gather data and track patterns of visa-exempt foreign nationals. Such tracking is currently not possible because no pre-screening is conducted on visa-exempt foreign nationals.|
|4. Improved integrity and facilitation of the Temporary Resident Visa program||Canadians/Government of Canada||The eTA program would introduce a new tool which could in future permit a more nuanced and individualized risk assessment of foreign nationals than in possible through current visa requirements. Having the eTA program in place could be a consideration in future strategic discussion around the visa policy framework and changes in visa requirements.|
|Qualitative costs||Stakeholders||Description of costs|
|1. Marketing and outreach costs||Airlines and tourism industry||The tourism industry may choose to incur marketing costs to advise those foreign nationals interested in travelling to Canada of eTA requirements.|
|2. eTA fee costs||Foreign nationals from visa-exempt countries travelling to Canada||While out of scope for CBA purposes, it is acknowledged that visitors to Canada from visa-exempt countries (exceptions not included) would be required to pay a fee and spend time obtaining an eTA prior to travel to Canada. For the vast majority, the process would take minutes and the fee should not be prohibitive.|
|3. Tourism impacts||Canadian airlines, airports and tourism industry in general||It is acknowledged that there may be some short-term impacts on tourism associated with the transition to eTA; however, these impacts are not anticipated to lead to any permanent implications for tourism demand to Canada.|
|4. Impacts on land and sea ports of entry||Border crossings other than airports, specifically Canada–U.S. land and sea borders||Travellers entering Canada at land and sea ports would not require an eTA. It is not anticipated that land and sea ports would experience a surge in demand because communication products would advise that all ports would continue to have a thorough inspection regime. It is not anticipated that travellers would switch their mode of transport to avoid the $7 fee. However, it is acknowledged that there may be an adjustment period as travellers are made aware that inspections would continue to be conducted at all ports of entry irrespective of the eTA requirement.|
Business and consumer impacts
It is acknowledged that there may be some minimal short-term impacts on tourism associated with the transition to the new eTA requirements; however, the analysis assumes that these impacts would not lead to any permanent long-term implications for the Canadian tourism industry.
Furthermore, it is acknowledged that some stakeholders such as airlines may choose to advertise the new eTA requirement (link on their Web sites, text on airline tickets, etc.). It is understood, however, that there is no regulatory obligation on air carriers to advertise. CIC itself would advertise in top markets to advise travellers of the new requirement. It is not anticipated that the eTA program would generate any long-term impacts on Canadian business.
Once implemented, the amendments are expected to result in a cost of $173.6 million, of which $172 million is due to the initial upfront investment costs and the ongoing cost to process each eTA. These costs are completely offset by fee revenue. The resulting net present value (PV) cost is primarily the opportunity cost for Canadian taxpayers who, in effect, are lending the Government of Canada money to invest in the infrastructure required to implement the eTA. The opportunity cost may be thought of as the foregone interest had the initial $36.5 million in implementation, development and transition costs been invested. Overall, there is no net impact for Canadian taxpayers with respect to subsidizing the eTA program, with the exception of the opportunity cost of the initial investment.
There is a small impact on students and workers who reside in Canada under a student permit or a work permit and who choose to leave the country for short periods. They would now be required to apply for an eTA in order to return to Canada to continue their studies or work. These costs have been monetized in the analysis; however, they amount to only $1.6 million (PV) of the $173.6 million (PV) in total costs.
The primary impacts would rest with foreign nationals who would be required to pay a fee and have an approved eTA prior to boarding an aircraft to Canada. It is recognized that initially airlines and airports may be impacted as their customers adjust to the new requirements; however, as was observed by the United States and Australia, the long-term impacts on tourism demand appear to be negligible.
After considering the many monetized, quantitative and qualitative benefits, such as the cost-recovery fee, the improved health, safety and security of Canadians and the improved integrity of the visa program, the analysis demonstrates that the benefits to Canadians and the Government of Canada would outweigh the costs.
Accounting for uncertainty
A sensitivity analysis was conducted to reflect uncertainties surrounding the extent to which the proposed Regulations would prevent inadmissible foreign nationals from arriving at air ports of entry and the costs to the CBSA of processing those inadmissible individuals and removing them.
The two variables that were assumed to have uncertainty in their estimated values were the number of prevented arrivals and the cost savings in not having to process such arrivals at an air port of entry. The CBA study, as reported in the costs-benefits accounting statement above, took a conservative approach in estimating both values, assuming the lower end of prevented arrivals (43 516 over 10 years) and of CBSA cost savings per inadmissible arrival ($398).
In assigning values for risk analysis purposes, it was assumed that over a 10-year period, the number of prevented arrivals would range from 43 516, which does not account for a deterrence impact, to 66 422, which assumes that some individuals may be deterred from applying for an eTA due to the requirement that they provide upfront information. However, in assigning a distribution for risk analysis purposes, an assumption was made that prevented arrivals would be on the conservative range of the distribution. The range of prevented arrivals was estimated based on 2012–2013 data on inadmissible travellers from visa-exempt countries (other than the United States). This data reported that 7 055 visa-exempt travellers were found inadmissible upon arrival in Canada in that year.
Regarding CBSA cost savings, two distinct values were used to account for risk. The lower range was estimated at $398 per inadmissible arrival, to reflect three hours of CBSA staff time at secondary inspection and two days of detention at an immigration holding centre. The upper range was estimated at $796 per inadmissible arrival, to reflect the risk that individuals may require more time at secondary inspection and longer detention at a more expensive provincial facility.
In accounting for the risk that the benefits may have been understated in the analysis due to the conservative assumptions made, the sensitivity analysis reinforces the finding that the benefits outweigh the costs. The margin of total benefits could thus range from $174.7 million to $188.1 million, resulting in a range of net benefits from the program to be anywhere from $1.1 million to $14.6 million over the 10 years, in 90% of the simulations.
The full CBA is available upon request.
The “One-for-One” Rule does not apply to this proposal as there is no change in administrative costs to business.
Small business lens
The small business lens does not apply to this proposal as no additional administrative burden or compliance costs are imposed on small business.
As part of the planning for the introduction of the eTA, which is supported by the proposed amendments, CIC conducted and initiated in-person consultations with key stakeholder groups, including international and domestic airlines and airline organizations (e.g. the Air Consultative Committee, (see footnote 10) the Air Industry Working Group (see footnote 11)), international and domestic immigration officials (see footnote 12) as well as major tourism associations (e.g. the Canadian Tourism Commission) in order to obtain information on best practices or lessons learned on the implementation of similar programs and to obtain their views on the potential impacts the proposed amendments could have on Canada’s tourism industry. CIC will continue to consult with stakeholders throughout the regulatory and implementation process.
CIC also published a Notice of Intent in the Canada Gazette, Part I, on December 7, 2013, to inform the public of its intention to undertake regulatory amendments pertaining to the eTA. The intention was to allow CIC to provide information on the proposed amendments to a broad audience and allow members of the public and key stakeholders to provide their feedback. CIC received 16 responses to the Notice of Intent, largely focused on the eTA application and fee, the effect of the eTA on transiting passengers, possible eTA exemptions and the need for a robust communication strategy.
Impact on tourism
During consultations, individual citizens along with air industry stakeholders expressed concerns regarding the fee and the potential for it to adversely affect tourism. The proposed amendments work to mitigate the potential risk of deterring certain individuals from travelling to Canada. For example, the proposed amendments would provide applicants with a light-touch online submission of applications. Furthermore, the fee would be competitive with similar systems in place elsewhere (e.g. the United States and Australia) as would the duration of the eTA (an eTA would be valid for up to a five-year period or for the period of validity of the passport or travel document, whichever is shorter, unless cancelled for inadmissibility concerns). The fee would be collected only to recover the full costs of the program. In addition, the proposed amendments are not expected to have a negative impact on tourist arrivals from visa waiver countries. The World Travel and Tourism Council conducted a study in May 2012 entitled The Impact of Visa Facilitation on Job Creation in the G20 Economies and noted that despite the perception of a more restrictive policy on foreign nationals after the United States established their ESTA program, (see footnote 13) there were no negative impacts on tourism from visa waiver countries. The study highlighted some factors that mitigate potential adverse effects on tourism, such as the validity period of the required document, clear and current information regarding visa requirements, online submission of applications, and increased visa processing capacity.
Stakeholders from many air industries (see footnote 14) agreed with the importance of a robust advertising and communication strategy to ensure that information on the proposed eTA is properly communicated to affected travellers. Experience with the implementation of other electronic travel documents has proven that there is a need for strong, clear communication with the travelling public. These recommendations have been carefully considered and are being incorporated in a comprehensive engagement plan for communication with affected stakeholders.
Having an easy-to-use, light-touch application was a recommendation made by a number of air industry stakeholders. They stressed the importance of having an electronic document that would be easy to fill out and unobtrusive. It is CIC’s priority to ensure that the eTA requirement will not greatly inconvenience visa-exempt travellers. Airlines also highlighted the benefit of providing a grace period, noting that such a measure would help minimize implementation issues.
Stakeholders provided clear feedback on their preferences for potential exemptions to the eTA requirement. Six submissions from the air industry recommended exempting flight crew members from the requirement to obtain an eTA before entering Canada (or, at a minimum, exempting these persons from any fee). The proposed amendments outline a number of exemptions to the eTA requirement. Among these is the recommendation that flight crews, civil aviation inspectors, and accident investigators all be exempt from the eTA requirement, in keeping with Canada’s commitments under the Convention on International Civil Aviation.
Canadian air industry stakeholders also expressed a variety of views related to potential approaches to transit, including a desire for broader transit exemptions, such as potentially exempting all ESTA holders from the eTA, or exempting all passengers transiting through Canada, regardless of their destination, from the eTA. While CIC has carefully considered these submissions and will be engaging in further discussions with stakeholders to examine how the eTA could be built upon to increase transit through and travel opportunities to Canada for visa-required foreign nationals in the future, these changes are not part of the current regulatory proposal.
Additional consultations would be undertaken by CIC during the prepublication phase with foreign governments, airlines and airports. CIC would also engage partners throughout the regulatory process through established air industry forums in order to ensure continued open communication with stakeholders. Discussions would focus on the new travel requirement as well as on an overview of the proposed amendments and how they would be implemented. As the primary link to the travel industry, these stakeholders are well-positioned to inform CIC of the benefits, potential challenges and overall impacts the proposed amendments may have. Therefore, their input and feedback would be valuable in informing discussions and decisions on the proposed changes, along with discussions on future potential facilitation through the eTA that is not part of the current regulatory proposal.
While supporting the Action Plan, the proposed amendments would complement the U.S. ESTA program by promoting a common approach to border screening, by strengthening mutual security and by addressing potential threats to the North American perimeter as early as possible.
The implementation of the eTA program would allow Canada to meet commitments made as part of the Action Plan to identify inadmissible individuals who seek to enter Canada and to deter them from travelling to Canada in the first place. In conjunction with the existing U.S. ESTA program, the eTA program would strengthen the Canada–U.S. partnership by creating a common approach to screening travellers at the perimeter. It is also important to note that the U.S. ESTA and Canada’s eTA program would not become an integrated or harmonized program — rather, Canada’s eTA program is being built upon operational concepts similar to those of the U.S. ESTA.
Currently, visa-exempt foreign nationals are not examined until they arrive at the border, where assessing admissibility is more challenging due to time pressure and the limited access to information that could support the determination. This creates a small but significant program integrity pressure given the potential gravity of admissibility concerns. Such concerns include war crimes, crimes against humanity, international human rights violations, security or criminality. The eTA requirement would also act as a deterrent to inadmissible travellers, as they would be required to undergo screening prior to travel and it would be unlawful to travel to Canada by air without an eTA. For example, foreign nationals seeking to enter Canada using lost or stolen travel documents may be deterred from applying because the system would electronically check against lost and stolen document databases prior to issuing an eTA electronically.
Scrutiny of the eTA application prior to the foreign national travelling to Canada and the conclusion that the foreign national is not inadmissible and meets the requirements of the Act would increase a CBSA Border Services Officer’s confidence that these individuals have been pre-screened, which may contribute in some cases to faster processing of travellers at the port of entry. However, everyone seeking to enter Canada must appear for examination at the port of entry, at which point a decision on admissibility would be made by the CBSA. Currently, visa-exempt foreign nationals only learn of their inadmissibility upon arrival in Canada. With the eTA requirement in place, the traveller could learn of their inadmissibility prior to travel.
The core elements of the eTA process ensure that a balance between facilitation and security objectives is achieved. Since cases of concern would be processed before the traveller reaches the border, costs to the Government of Canada associated with enforcement or the removal of inadmissible foreign nationals would be reduced. In addition, the costs associated with the development, implementation and operation of the eTA scheme would be fully recovered through processing fees applied to foreign nationals seeking eTAs. Such fees would be deposited into the Consolidated Revenue Fund.
The eTA program would introduce a new tool that could, in future, permit a more nuanced and individualized risk assessment of foreign nationals than is possible at present under current visa requirements. Having the eTA program in place could therefore be a consideration in future strategic discussions with respect to the visa policy framework and changes in visa requirements.
Implementation, enforcement and service standards
CIC anticipates beginning the implementation of these changes in April 2015. There are significant information technology (IT) implications for CIC associated with the development and implementation of the eTA, as well as in initiatives led by the CBSA in which CIC has a vested interest (the Entry/Exit Initiative and the IAPI system). These initiatives entail the development of a set of technical requirements for changes and additions to CIC’s existing IT systems and a financial investment in IT infrastructure to support these requirements.
Other implementation activities include human resources-related functions and the development of operational and administrative policies and procedures. In particular, an in-Canada processing centre would be created to allow officers to review applications that cannot be approved automatically for various reasons, particularly the presence of derogatory information. All negative decisions regarding eTA applications would be made by an officer, following a thorough review.
Highly complex cases — which are expected to be very few in number — would require assessment by a senior decision-maker and could therefore be referred to an overseas mission. Once a case is referred overseas, applicants may be asked to provide documentation to support their application, as well as to attend an interview with an officer to confirm that they are a bona fide traveller. Some of these cases may also require further investigation and may therefore be referred to security partners, including the CBSA, the Canadian Security Intelligence Service and the Royal Canadian Mounted Police.
Finally, a communication strategy would be implemented to inform and engage foreign governments whose nationals will be required to obtain an eTA, as well as to build awareness for other affected travellers. Other communications activities include engaging organizations that have an interest in tourism (e.g. airlines and airports, travel agencies, promoters) for the purposes of consultation, awareness building and engagement with the media and general public.
The eTA would be an electronic document issued to the traveller. No printed paper documents would be issued and a copy of the eTA would not be provided to air carriers. Therefore, air carriers would have no mechanism to confirm whether eTA-required foreign nationals possess an eTA until a separate enforcement mechanism is established.
As a separate Action Plan commitment, the CBSA is developing the IAPI system which would create the capacity to provide a “board/no board” message to air carriers (see footnote 15) This system would enforce the eTA requirement by ensuring that only eTA-required travellers holding an eTA could fly to Canada. The regulatory authorities for the IAPI system would be developed under a separate regulatory proposal. Personal information obtained from applicants through the eTA application would not be shared with airlines.
The eTA would be an electronically stored authorization that would be required of most visa-exempt foreign nationals seeking to travel to Canada by air. To assist clients with the completion of their eTA application, CIC would offer an instruction guide in multiple languages on the eTA help page.
It is anticipated that in all cases, a response would be received (see footnote 16) by the client within minutes after submitting an application. Cases that are referred for further review (see footnote 17) would be subject to a service standard of 72 hours, which would compel CIC to contact the client within that time frame, with an approval, a refusal, or a request for more information, or to inform the client that their application has been sent for further assessment.
In a small number of instances, applications where clear risks have been identified would be referred to security partners for further investigation, or referred overseas for further assessment and final determination following one-on-one contact with the client, whichever is most appropriate. These types of cases would be subject to the current service standard for the temporary resident program.
The eTA would be linked to the passport number indicated by the individual in their application; therefore, the same passport would need to be used when travelling to Canada. If the visa-exempt foreign national obtains a new passport, they would be required to obtain a new eTA before travelling to Canada.
Applications made by other means, which would be available for people with physical or mental disabilities who may be unable to access the electronic eTA application, would be processed as expeditiously as possible.
Document and Visa Policy
Citizenship and Immigration Canada
300 Slater Street, 8th Floor
Notice is given that the Governor in Council, pursuant to subsections 5(1), 11(1.01) (see footnote a) and 14(1) to (3) (see footnote b) and section 89 (see footnote c) of the Immigration and Refugee Protection Act (see footnote d), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Interested persons may make representations concerning the proposed Regulations within 45 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 Tina Matos, Director, Document and Visa Policy, Admissibility Branch, Department of Citizenship and Immigration, 300 Slater Street, 8th Floor, Ottawa, Ontario K1A 1L1 (tel.: 613-954-6243; fax: 613-952-9187; email: firstname.lastname@example.org).
Ottawa, June 12, 2014
Assistant Clerk of the Privy Council
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS
1. The portion of subsection 1(3) of the Immigration and Refugee Protection Regulations (see footnote 18) before paragraph (a) is replaced by the following:
Definition of “family member”
(3) For the purposes of the Act, other than section 12 and paragraph 38(2)(d), and for the purposes of these Regulations, other than paragraph 7.1(3)(a) and sections 159.1 and 159.5, “family member” in respect of a person means
2. The Regulations are amended by adding the following after section 7:
Electronic travel authorization
7.1 (1) A foreign national referred to in paragraph 7(2)(a) who is is exempt from the requirement to obtain a temporary resident visa under subsection 7(1) and is seeking to enter Canada by air to remain on a temporary basis is, nevertheless, required to obtain an electronic travel authorization before entering Canada, unless they are exempted by subsection (3) from the requirement to obtain one.
Holder of a temporary resident visa
(2) Subsection (1) does not apply to a foreign national who holds a temporary resident visa.
(3) The following persons are exempt from the requirement to obtain an electronic travel authorization:
- (a) Her Majesty in right of Canada and any member of the Royal Family;
- (b) a national of the United States;
- (c) a foreign national referred to in paragraph 190(2)(a);
- (d) a foreign national seeking to enter and remain in Canada solely
- (i) as a member of a crew of a means of transportation that may be used for transportation by air or to become a member of such a crew, or
- (ii) to transit through Canada after working, or to work, as a member of a crew of a means of transportation that may be used for transportation by air, if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
- (e) a foreign national referred to in paragraph 190(3)(b);
- (f) a citizen of France who is a resident of St. Pierre and Miquelon who seeks to enter Canada directly from St. Pierre and Miquelon;
- (g) a foreign national referred to in paragraph 190(3)(d);
- (h) a foreign national referred to in paragraph 190(3)(f);
- (i) a foreign national referred to in paragraph 190(3)(g); and
- (j) a foreign national referred to in paragraph 190(3)(h).
3. The Regulations are amended by adding the following after section 12:
Application by electronic system
12.01 (1) Despite section 10 and subject to subsection (2), an application for an electronic travel authorization under subsection 11(1.01) of the Act must be made by means of an electronic system that is made available for that purpose on the Department’s website.
Application by other means
(2) If the applicant is unable to make the application by means of the electronic system because of a physical or mental disability, it may be made by another means, made available for that purpose, that would enable the applicant to make the application, including in writing.
Payment of fee
(3) The fee referred to in subsection 294.1(1) must be paid at the time the application is made and, unless the application is made under subsection (2), the fee must be paid by electronic means.
(4) The application must contain the following information:
- (a) the applicant’s name;
- (b) the applicant’s date and place of birth;
- (c) the applicant’s gender;
- (d) the applicant’s marital status;
- (e) the applicant’s address;
- (f) the applicant’s nationality;
- (g) the number of the applicant’s passport or other travel document, together with its date of issue and its expiry date and the country or the authority that issued it;
- (h) the purpose and duration of the applicant’s temporary visit to Canada;
- (i) if the applicant is an applicant referred to in any of paragraphs 10(2)(c.1) to (c.4), the information required by that paragraph; and
- (j) a declaration that the information provided in the application is complete and accurate.
(5) An application for a work permit or a study permit that is made by a foreign national who is required by subsection 7.1(1) to obtain an electronic travel authorization is also considered to constitute an application for an electronic travel authorization.
Period of validity
12.02 An electronic travel authorization is valid for a period of five years from the day on which it is issued to the applicant or until the earliest of the following days, if they occur before the end of that five-year period:
- (a) the day on which the applicant’s passport or other travel document expires,
- (b) the day on which the electronic travel authorization is cancelled, or
- (c) the day on which a new electronic travel authorization is issued to the applicant.
12.03 An officer may cancel an electronic travel authorization that was issued to a foreign national if the officer determines that the foreign national is inadmissible.
4. The Regulations are amended by adding the following before Division 2 of Part 4:
ISSUANCE OF ELECTRONIC TRAVEL AUTHORIZATION
Electronic travel authorization not to be issued
25.2 An electronic travel authorization shall not be issued to a foreign national who is subject to an unenforced removal order.
5. Section 111 of the Regulations is replaced by the following:
111. A foreign national who seeks to enter Canada as a live-in caregiver must make
- (a) an application for a work permit in accordance with Part 11; and
- (b) an application for
- (i) a temporary resident visa, if such a visa is required by Part 9, or
- (ii) an electronic travel authorization in accordance with section 12.01, if such an authorization is required by section 7.1.
6. (1) Paragraph 190(1)(a) of the Regulations is replaced by the following:
- (a) are a citizen of Andorra, Antigua and Barbuda, Australia, Austria, Bahamas, Barbados, Belgium, Brunei Darussalam, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Federal Republic of Germany, Finland, France, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Papua New Guinea, Poland, Portugal, Republic of Korea, St. Kitts and Nevis, Samoa, San Marino, Singapore, Slovakia, Slovenia, Solomon Islands, Spain, Sweden or Switzerland;
(2) Subsection 190(2.1) of the Regulations is repealed.
(3) Subparagraph 190(3)(b)(i) of the Regulations is replaced by the following:
- (i) they are in possession of the documents required in order to enter the United States and their flight is bound for that country, or
(4) Paragraph 190(3)(e) of the Regulations is repealed.
7. The heading of Division 2 of Part 19 of the Regulations is replaced by the following:
FEES FOR APPLICATIONS FOR AUTHORIZATIONS, VISAS AND PERMITS
Electronic Travel Authorizations
Fee — $7
294.1 (1) A fee of $7 is payable for processing an application for an electronic travel authorization.
(2) A person whose application for a work permit or a study permit is considered under subsection 12.01(5) to constitute an application for an electronic travel authorization is not required to pay the fee referred to in subsection (1).
COMING INTO FORCE
8. These Regulations come into force on the day on which they are registered.
- Footnote 1
Section 11 of the Act.
- Footnote 2
Sections 11 and 12 of the Regulations.
- Footnote 3
In 2012–2013, some 7 055 (0.24%) visa-exempt foreign nationals were found inadmissible to Canada.
- Footnote 4
The Act and the Regulations require transporters to ensure that the persons they bring to Canada possess valid visas, passport and other travel documents required for entry into Canada. Transporters must ensure that the travel documents are genuine and are being used by the rightful holder. Transporters who carry an improperly documented passenger may be required to pay the costs of their removal and may be liable for an administration fee under section 280 of the Regulations.
- Footnote 5
Op. cit., note 3.
- Footnote 6
The foreign national could be eligible for a temporary resident permit.
- Footnote 7
The Chicago Convention.
- Footnote 8
Irrespective of the type of passport issued to them by Lithuania or Poland (i.e. a passport containing a chip which stores biographical and biometric data or a non-electronic passport), citizens of these two countries would be required to obtain an eTA when seeking to enter Canada by air.
- Footnote 9
Section 91 of the Act and subsection 10(2) of the Regulations.
- Footnote 10
The Air Consultative Committee provides CBSA officials and air industry stakeholders with a forum for dialogue on Canada’s airport border operations. In order to obtain stakeholder feedback on the eTA initiative, CIC has been regularly invited to attend these meetings to consult the air industry during the development of this regulatory proposal.
- Footnote 11
The Air Industry Working Group acts as a forum where CIC/CBSA, other government departments and Canadian/international air carriers can discuss the eTA, Interactive Advance Passenger Information and the Entry/Exit Initiative.
- Footnote 12
CIC has consulted immigration officials from the United States and Australia regarding the implementation of their similar programs (ESTA and ETA/eVisitor).
- Footnote 13
Beginning January 12, 2009, the United States required all travellers under the Visa Waiver Program to apply for ESTA approval prior to travel to the United States. The Department of Homeland Security began enforcing compliance with ESTA requirements in March 2010.
- Footnote 14
Representatives from 11 airlines were part of discussions on this topic in various forums, particularly at the Air Industry Working Group. Representatives present included Air Canada, Sunwing, Air France, Air Transat, Delta, KLM, British Airways, Lufthansa, WestJet, United Airlines, Condor (Germany), two industry groups (Airlines for America, International Air Transport Association), and three other government departments (Transport Canada, Public Safety Canada, Industry Canada).
- Footnote 15
The Act and the Regulations require transporters to ensure that the persons they bring to Canada possess valid visas, passports and other travel documents required for entry into Canada. Transporters must ensure that the travel documents are genuine and are being used by the rightful holder. Transporters who carry an improperly documented passenger may be required to pay the costs of their removal and may be liable for an administration fee under section 280 of the Regulations.
- Footnote 16
All applicants would receive one of the following responses within minutes of submitting their eTA application: “Approval” or “eTA pending request referred to in-Canada triage unit.”
- Footnote 17
Within the in-Canada processing centre.
- Footnote a
S.C. 2012, c. 31, s. 308
- Footnote b
S.C. 2013, c. 16, s. 4
- Footnote c
S.C. 2013, c. 40, par. 237(1)(i)
- Footnote d
S.C. 2001, c. 27
- Footnote 18