ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

Warning This Web page has been archived on the Web.

Archived Content

Information identified as archived is provided for reference, research or recordkeeping purposes. It is not subject to the Government of Canada Web Standards and has not been altered or updated since it was archived. Please contact us to request a format other than those available.

Vol. 144, No. 13 — June 23, 2010

Registration

SOR/2010-121 June 3, 2010

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2010-708 June 3, 2010

Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 89 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND
REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. (1) Paragraph 296(2)(b) of the English version of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

(b) a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of that visiting force under paragraph 4(c) of that Act, and their family members;

(2) Paragraph 296(2)(e) of the Regulations is replaced by the following:

(e) a person who is seeking to enter Canada

(i) for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States, as a participant,

(ii) for the purpose of attending a meeting as a representative of the Organization of American States or the Caribbean Development Bank, or

(iii) for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States, at the invitation of the Government of Canada;

2. (1) Paragraph 298(2)(a) of the Regulations is replaced by the following:

(a) a person referred to in subsection 295(2) or any of paragraphs 296(2)(c) and (d), 299(2)(a), (b), (d) to (f) and (h) to (k) and 300(2)(f) to (i);

(a.1) a properly accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any intergovernmental organization of which Canada is a member, the members of the suite of such a person and the family members of such a person;

(a.2) a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of that visiting force under paragraph 4(c) of that Act, and their family members;

(a.3) a person whose work in Canada would create or maintain reciprocal employment for Canadian citizens or permanent residents of Canada in other countries and who is a family member of a person referred to in subparagraph 299(2)(g)(iii);

(2) Paragraph 298(2)(d) of the Regulations is replaced by the following:

(d) a person who is seeking to enter Canada

(i) for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States, as a participant,

(ii) for the purpose of attending a meeting as a representative of the Organization of American States or the Caribbean Development Bank, or

(iii) for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States, at the invitation of the Government of Canada; and

3. The portion of paragraph 299(2)(g) of the French version of the Regulations before subparagraph (i) is replaced by the following

g) la personne dont le travail au Canada créerait ou conserverait l’emploi réciproque de citoyens canadiens ou de résidents permanents du Canada dans d’autres pays et qui est membre de la famille de l’une ou l’autre des personnes suivantes :

COMING INTO FORCE

4. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Every person who enters Canada as a temporary resident (visitor, worker or student) must meet general requirements for temporary entry as governed by Canada’s Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (the Regulations). In some cases, a person applying as a temporary resident will need a temporary resident visa (TRV) to enter and remain in Canada.

The IRPA sets out certain categories of persons who are inadmissible to Canada on the following grounds: security, human or international rights violations, criminality, misrepresentation, non-compliance with the Act, and financial and health reasons. Family members of persons who are inadmissible are also generally considered inadmissible. Where there are reasonable grounds to believe that a foreign national is inadmissible under one or more of these grounds, they cannot be issued a temporary resident visa and are generally denied entry to Canada.

In cases where a foreign national is found to be inadmissible, a visa officer or a Canada Border Services Agency (CBSA) officer may issue a Temporary Resident Permit (TRP), permitting the person to enter or stay in Canada when, in the officer’s opinion, it is justified in the circumstances to do so. In deciding whether or not to issue a TRP, an officer will weigh the inadmissible person’s need to enter or remain in Canada against such considerations as the health and security risks to the Canadian population. Unless exempted by regulation, foreign nationals are required to pay a $200 fee for the processing of a TRP application.

Diplomats, state officials, visiting forces, family members of these individuals, members of certain international organizations as well as certain other foreign nationals are in some circumstances accorded special privileges in Canada by virtue of Canadian law.

These special privileges can be a reflection of Canada’s compliance with international conventions. For instance, the Convention on the Privileges and Immunities of the United Nations (1946) [the Convention] specifies that representatives of UN member states are exempt from “immigration restrictions and alien registration.” In the Canadian immigration process, these foreign nationals are provided with facilitated processes to ensure their priority entry into Canada. They are also exempted from the standard requirement under the Regulations to pay a fee for the processing of a TRV application.

Other examples of foreign nationals who are accorded special privileges to facilitate their entry into Canada are accredited diplomats, consular officers and other foreign representatives who are exempt from the requirement to pay a fee for the processing of a TRV application.

Foreign nationals who are not eligible for accreditation but who are in situations similar to those of accredited diplomats and officials are also exempt from the TRV application processing fee. These individuals include those seeking to enter Canada to attend meetings hosted by Canada or certain international organizations, as participants or representatives.

The former Regulations also provided special privileges to certain foreign nationals accredited by the Department of Foreign Affairs and International Trade (DFAIT) such as diplomats, visiting forces and family members of these individuals, in the form of exemptions from the processing fee for a TRP application. As well, the Regulations provided a TRP application processing fee exemption for individuals seeking to enter Canada to attend certain types of meetings as a participant or a representative, where these individuals are individuals covered by an Order made under subsection 5(1) of the Foreign Missions and International Organizations Act (FMIOA). However, as previously drafted, the Regulations appeared to limit the TRP fee exemption to only certain individuals within the above groups.

Finally, the Regulations did not exempt from the TRP processing fee foreign nationals who had been invited by the Government of Canada to attend certain meetings.

Individuals in the above groups who fell outside the previous TRP application fee exemptions were obliged to, if found inadmissible, apply for a TRP and pay the associated processing fee. This requirement for fee payment was not aligned with certain policy considerations that can underlie an officer’s decision to issue a TRP in these diplomatically sensitive cases. Moreover, charging a fee in these circumstances is considered by foreign governments to be contrary to international conventions and the principle of reciprocity, as other countries have not been known to impose similar fees on Canadian officials. Furthermore, under the IRPA, if individuals are considered inadmissible, their accompanying family members are also considered inadmissible and may have to apply for a TRP if they wish to enter and remain in Canada. This led to additional criticism from foreign governments.

On March 5, 2009, Citizenship and Immigration Canada (CIC) put in place a facilitated administrative process to assist officers in determining whether or not to issue TRPs to certain high-profile inadmissible foreign nationals and to expedite their arrival at the port of entry when their visit has been determined to be in Canada’s national interest. Such individuals may include diplomats, state officials, members of visiting forces and other persons invited by the Government to attend meetings. In these cases, however, CIC still contacted clients to request payment of the TRP application processing fee. Requesting the fee undermined the purpose of the facilitative process because it required explaining to the applicant or their representative that the applicant’s inadmissibility necessitated applying for a TRP, which created diplomatic irritants. Secondly, requesting fee payment placed additional strain on an already time-sensitive process.

If this issue had not been addressed, Canada would have continued to be the subject of criticism from foreign governments on this point. As noted, this could have lead to a deterioration of good relations between Canada and countries with which we hold diplomatic relations.

As described in the section below, the amendment clarifies that DFAIT-accredited diplomats and state officials, members of their suite or their family members, and visiting forces and their family members, are exempt from the requirement to pay a TRP application processing fee.

The amendment removes the limitation on the TRP processing fee exemption, which required that an individual attending certain meetings in Canada as a participant or representative or be the subject of an order under subsection 5(1) of the FMIOA.

The amendment also creates a new exemption from the TRP application processing fee requirement for foreign nationals invited by the Government of Canada to attend a meeting hosted by the Government of Canada, the United Nations or the Organization of American States. This TRP fee exemption is accompanied by a matching TRV fee exemption to preserve policy and legal consistency.

These amendments reinforce Canada’s commitment to preserving good diplomatic relations with other countries in a manner consistent with domestic law and international convention.

Description and rationale

Citizenship and Immigration Canada has introduced in the Regulations provisions that clarify that the following persons are exempt from the requirement to pay a fee for the processing of a TRP application:

  • diplomats who are accredited by DFAIT
  • consular officers who are accredited by DFAIT
  • representatives or officials of countries other than Canada, the United Nations or any of its agencies or of any intergovernmental organization of which Canada is a member who are accredited by DFAIT
  • members of the suite and family members of the above classes of persons in accordance with the accreditation requirements of DFAIT
  • a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including designated civilians, and their family members
  • persons seeking to enter Canada for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American states as a participant, or as a representative of the Organization of American States or the Caribbean Development Bank

CIC is also expanding the scope of the TRP processing fee exemption in respect of individuals attending certain meetings in Canada as a participant or representative by removing the requirement that they be the subject of an order under subsection 5(1) of the FMIOA.

Furthermore, CIC provides a new exemption from the requirement to pay a processing fee for a TRP or TRV application for the following persons:

  • Persons seeking to enter Canada under invitation of the Government of Canada for the purpose of attending a meeting hosted by the Government of Canada, an organization of the United Nations or the Organization of American States

The above exemptions eliminate the majority of diplomatic irritants that were being experienced in the processing of TRP applications, which could hinder Canada’s ability to negotiate advantageous trade and security agreements with foreign countries and attract foreign investment.

Technical changes have also been made to the provisions concerning members of visiting forces to ensure grammatical accuracy.

Since the commencement of the facilitated issuance process, approximately 72 TRP applications per year from persons of interest are processed that would have received a fee waiver. At $200 per permit, the foregone revenue associated with the TRP fee exemption is estimated to be $14,400 per annum. It is estimated that 758 more individuals will be eligible for the TRV fee exemption per year, with associated foregone revenue of $56,850. The total estimated foregone revenue is $71,250 per annum. There will likely also be a minor offset to this foregone revenue, as a result of a reduction in the operational burden at CIC.

Consultation

CIC consulted with DFAIT and CBSA to ensure that the correct client base was identified for a processing fee exemption based on national interest and on diplomatic considerations. Furthermore, numerous internal departmental meetings were held to ensure that the new fee exemptions would address the majority of diplomatic irritants, and that the scope of the exemption was consistent with those purposes of entry deemed to be of an official nature.

Implementation, enforcement and service standards

Guidelines in policy manuals have been updated to inform immigration officers of the new regulations. Such measures, including training of current staff, would be funded out of resources already allocated. As this is an amendment to an existing fee exemption regulation, established enforcement measures, financial codes and service standards will continue to apply.

Contact

Colin Boyd
Director
Cabinet, Parliamentary and Regulatory Affairs
Citizenship and Immigration Canada
365 Laurier Avenue WestOttawa, Ontario
K1A 1L1
Telephone: 613-957-5981
Fax: 613-954-5896
Email: Colin.Boyd@cic.gc.ca

Footnote a
S.C. 2001, c. 27

Footnote 1
SOR/2002-227