Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2019-213

Canada Gazette, Part II, Volume 153, Number 13

Registration

SOR/2019-213 June 17, 2019

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2019-787 June 16, 2019

Whereas, pursuant to subsection 5(2) footnote a of the Immigration and Refugee Protection Act footnote b, the Minister of Public Safety and Emergency Preparedness has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, in the annexed form, to be laid before each House of Parliament;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 5(1) and section 61 footnote c of the Immigration and Refugee Protection Act footnote d, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Section 248 of the Immigration and Refugee Protection Regulations footnote 1 is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

2 The Regulations are amended by adding the following after section 248:

Best interests of the child

248.1 (1) For the purpose of paragraph 248(f) and for the application, in respect of children who are under 18 years of age, of the principle affirmed in section 60 of the Act, that a minor child shall be detained only as a measure of last resort, the following factors must be considered when determining the best interests of the child:

Degree of dependence

(2) For the purpose of paragraph 248(f), the level of dependency of the child on the person for whom there are grounds to detain shall also be considered when determining the best interests of the child.

Coming into Force

3 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.)

Issues

The Immigration and Refugee Protection Act (IRPA) includes provisions specifying that the best interests of the minor child must be considered in any decision related to the detention of that child. However, neither the IRPA nor the Immigration and Refugee Protection Regulations (IRPR) reference children who, although not detained, are affected, or will be affected, by decisions to detain their parent or guardian. In addition, the IRPR do not provide direction on the factors that must be considered when making a determination of the best interests of a child in all immigration detention decisions directly affecting a child.

Background

The Canada Border Services Agency (CBSA) is responsible for the administration and enforcement of the IRPA. To support the IRPA, footnote 2 and with the aim of protecting Canadians, CBSA officers may detain a permanent resident or foreign national. The Immigration and Refugee Protection Regulations (IRPR) set out factors to consider when determining whether to detain an individual. In addition, CBSA officers are guided by jurisprudence, internal policies, directives and guidelines.

In 2016, Canada’s National Immigration Detention Framework footnote 3 (the Framework) committed to creating a better, fairer immigration detention system based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention are considered and determined to be unsuitable or unavailable.

To achieve its goal of ensuring that detention is a measure of last resort, the Government of Canada identified a number of objectives based on broad consultations with Canadians footnote 4 that took place from August to December 2016. With respect to individuals under 18 years of age, footnote 5 a key objective is to reduce the housing and detention of minors and the separation of families to the greatest extent possible. This objective was conveyed in a Ministerial Direction footnote 6 to the CBSA in November 2017.

As part of the Framework, in addition to investing in infrastructure and service improvements, the CBSA developed the National Directive for the Detention or Housing of Minors footnote 7 (National Directive) to provide operational guidance to its officers as to how minors, as a vulnerable group, are to be accommodated in the immigration detention system.

During the Framework stakeholder roundtable discussions that took place in the latter half of 2016, the Canadian public was given the opportunity to provide feedback on four general statements concerning minors in immigration detention. The resulting report footnote 8 noted that there was strong agreement on three of the four statements concerning minors:

Fifty-nine percent of respondents disagreed with the statement that detention of a parent should be avoided when they have accompanying minor children (with 36.8% in agreement).

Detaining a child or housing a child in a detention facility

The National Directive specifies that minors are not to be detained except in exceptional circumstances. A child in an immigration detention facility is either formally detained based on a legislative ground (for example if an officer determines that the person is unlikely to appear footnote 9 for an immigration proceeding), or may be housed in the facility at the request of an individual who is formally detained (for example a parent). Most often, this takes place either on arrival in Canada while the CBSA investigates issues related to their identity, or when the CBSA has reason to believe that they, or their parents, will not appear once they have been ordered removed from Canada. In all circumstances, officers are required to consider the best interests of the child and alternatives to detention.

The CBSA detains or houses in a detention facility, on average, fewer than 200 persons under the age of 18 each year, footnote 10 a number that has fallen over each of the last three years. In fiscal year 2016–2017, 162 minors were detained or housed with parents or guardians in an immigration holding centre (IHC), a 19.4% decrease over the previous fiscal year and a 30.2% decrease since 2014–2015.

The vast majority of these children (approximately 93%) were accompanied by their parent or legal guardian, while the remaining 7% were unaccompanied minors. The average length of time in a detention facility, either housed or detained, is approximately 14.5 days. This average fell by 7% in the last year and has dropped by 18.1% since 2014–2015.

Roles of decision makers in detentions

CBSA officers and members of the Immigration Division (ID) of the Immigration and Refugee Board (IRB), an independent administrative tribunal, have clearly defined roles and responsibilities: footnote 11

Best interests of the child

“Best interests of the child” (BIOC) is an internationally recognized principle to ensure children receive the full and effective benefit of all their rights recognized in Canadian law and the United Nations Convention of the Rights of a Child, to which Canada is a signatory. footnote 13 It is also a rule of procedure that includes an assessment of the possible impact (positive or negative) of a decision on the child or children concerned.

All decision makers have been required to consider the best interests of any child who is formally detained under the IRPA since the legislation was first implemented in 2002, footnote 14 while neither the IRPA nor the IRPR specifically account for non-detained children and their best interests. For this, jurisprudence has been relied upon.

CBSA officers and ID members have the discretion to consider any factor they believe is relevant in any particular case. While the IRPR provide special considerations footnote 15 in relation to the detention of minors, such as the type of detention facility, the conditions of detention, whether children will be segregated from adults who are not their parent and the availability of services in the detention facility, specific factors in relation to the child’s best interests are not found in the IRPR.

Federal Court decision and order

The Federal Court has considered the issue of minors and immigration detention. In 2015, an individual was detained at an immigration holding centre and, at her request, her Canadian-born child was staying at the centre with her. During a detention review before the Immigration Division, the individual asked that the Division consider the best interests of her Canadian-born child. The Division concluded that it could not consider the best interests of the non-detained child.

This decision was challenged before the Federal Court. The Government agreed that the best interests of the non-detained child can be considered and, as a result, on the consent of both parties, the Court issued an order footnote 16 outlining that the best interests of the non-detained child may be considered under two sections of the IRPR. Since the Court issued its order, both CBSA officers and ID members have been required to consider the best interests of the non-detained child directly affected by the decision in certain situations. This order, however, is not easily accessible to the public.

Objectives

These amendments serve to increase clarity, consistency, and transparency by

Description

The amendments to the IRPR are as follows:

The list should not be considered exhaustive; other factors could also be considered.

Subsection (2), stipulating that the level of dependence of the child on the person for whom there are grounds to detain, has been added as a consideration.

The scope of these amendments is limited to best interests considerations only as they apply to immigration detention and release decisions.

“One-for-One” Rule

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 there are no costs to small business.

Consultation

From July 28 to August 27, 2017, the CBSA posted the proposed IRPR amendments on the Consulting with Canadians website. footnote 17 In addition, on July 28, 2017, the following key external stakeholders were notified of the public consultation:

The feedback from stakeholders was generally supportive of the overall direction, with additional recommendations, some of which were out of the scope of the proposed regulatory amendments (i.e. legislative amendments; regulatory amendments related to mental health issues or long-term detention) being suggested. footnote 18 The feedback specific to this proposal (i.e. factors considered when determining a child’s best interests when their parent or guardian is detained) was taken into consideration in drafting the regulations. For example, stakeholders indicated that “best interests” considerations in other areas of immigration law aren’t limited to parent-child or legal guardian-child relationships. This was considered in the drafting of the amendments, which now read that the best interests of the non-detained child will be considered “in any decision where that child is directly affected”.

Canada Gazette, Part I

The proposed amendments were prepublished in the Canada Gazette, Part I, on October 6, 2018, for a 30-day public comment period. Two stakeholders provided comments.

With respect to paragraph 248(f), one stakeholder is of the opinion that the language “a directly affected child who is under 18 years of age” is ambiguous and could be interpreted as applying only to children with a detained parent. They recommend using the phrase “minor child”. As described above, in response to feedback obtained in the preliminary consultations, the Government expanded its initial proposal to ensure that the best interests of any child directly affected by an immigration detention decision, and not only those directly linked to a parent or legal guardian, would be considered in all detention and release decisions. The provision has been reviewed to verify that the language meets the objective of ensuring that the best interests of any child directly affected will be considered. Accordingly, no changes were made.

Both stakeholders commented with respect to the factors listed under the new section 248.1 that must be considered when determining a child’s best interests. The first stakeholder recommended the list include how the impact of detention (including psychosocial and emotional consequences) on the adult impacts the child. The second stakeholder recommended the list of factors include the child’s dietary needs and the most appropriate care or treatment to meet the needs of the child. These recommendations were not adopted for the following reasons, respectively: the psychosocial and emotional consequences detention is having on the adult and how this is impacting a child is too specific and complex to be listed as an individual factor; the dietary needs can be included under the child’s physical well-being; and, the most appropriate care or treatment may impose too high a threshold and may not always be available. It should be noted, however, that the proposed list is not exhaustive and information with respect to any of these matters, or any other relevant matter, can be presented to the decision-maker and, if presented, will be considered before a final decision is made.

Additionally, the second stakeholder further recommended that the list of factors be expanded to include a number of rights of the child. These recommendations include: the right to participate in cultural, religious and community activities; the right to participate in recreational, athletic and creative activities that are appropriate for their age and aptitudes and interests, in a community setting; and, the right to the highest attainable standard of physical and mental health and education. The existing legislative authority is not broad enough to adopt the recommendations related to the rights of the child.

A final recommendation sought to create a new section in the IRPR that would require that all children affected by a detention decision be informed of, among other things, the reason for their detention or the detention of their family, the right to legal representation and the nature of the proceedings. Anyone, including a child, who is detained for immigration purposes will be informed of the reason for their detention and their right to counsel in accordance with the Canadian Charter of Rights and Freedoms. The detained child will also have a right to counsel and a designated representative in any proceeding before the Immigration and Refugee Board in accordance with section 167 of the IRPA. For the non-detained child, as described above, the existing legislative authority is not broad enough to adopt recommendations related to the rights of the child.

No changes were made to the amendments as a result of the pre-publication comment period.

Rationale

The amendments codify into the IRPR the existing Federal Court direction footnote 19 that best interest considerations apply to every child directly affected by an immigration detention decision. In accordance with that jurisprudence, this direction has already been implemented in practice. Moreover, incorporating previous direction of the Federal Court into these amendments serves to make the law more transparent and accessible to the public.

In addition, BIOC factors in the regulations are now binding on all relevant decision makers at the CBSA and the ID, which will contribute to greater consistency and transparency. The amendments serve to safeguard consistency across the immigration detention spectrum by ensuring that CBSA officers responsible for arrest and detention, as well as ID members responsible for detention reviews, are all considering the same set of factors when determining a child’s best interests. As the IRB is an independent administrative tribunal, policy instruments such as the CBSA’s administrative guidelines or directives issued by the Minister of Public Safety and Emergency Preparedness would be insufficient to establish these mandatory factors and make them applicable to all relevant organizations.

The regulatory amendments codify existing practices and procedures that have been implemented in conformity with related jurisprudence and also with the National Directive. As a result, these regulatory amendments are not expected to have any impacts on gender and diversity issues requiring mitigation.

There are no expected costs as the amendments do not impact the costs of decision making or the relative incidence of detention or housing of minors. The expected benefits of the amendments are improvements to the clarity, consistency, and transparency of Canada’s immigration detention system.

Implementation, enforcement and service standards

CBSA officers and ID members have been required to consider the best interests of the detained child since the IRPA was implemented in 2002 and the best interests of the non-detained child since the order from the Federal Court in 2016. As is the case today, individuals will continue to be able to provide submissions, arguments and evidence, orally or in writing, to CBSA officers and ID members with respect to the best interests of the child, including factors that must be considered in each decision. Evidence could include anything from oral submission and arguments with respect to the child’s best interests to documents from experts with respect to any particular factor (e.g. a child’s emotional well-being). CBSA officers and ID members will consider all of this information before making detention-related decisions.

CBSA officers and ID members are also able to request information with respect to any of these factors to assist them in making a determination of a child’s best interests. These decision makers then consider all information and evidence that is relevant for a particular case, including information related to a ground of detention (e.g. unlikely to appear or danger to the public) and information about the best interests of a child directly affected by a detention decision. All relevant information will be considered and weighed by decision makers before they come to a final decision on arrest, detention or release. Each decision maker retains complete discretion to decide on detention or release based on all of the circumstances of a case.

To support implementation of these regulations, the CBSA will issue operational guidance that will be published at the time of the coming into force of the regulatory amendments. The CBSA will also make any required amendments to the National Directive and related assessment tools to ensure that operational policy and field guidance is aligned with the regulatory amendments. The ID may also choose to issue related guidance to its decision makers upon the proposed regulatory amendments coming into force. Failure on the part of either the CBSA or the ID to adequately and appropriately consider and weigh the best interests of the child as required under these amendments could lead to an application to the Federal Court for leave and judicial review of a final decision.

Contact

Richard St Marseille
Strategic Policy Branch
Canada Border Services Agency
Telephone: 613‑954‑3923
Email: Richard.StMarseille@cbsa-asfc.gc.ca