Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2020-55
Canada Gazette, Part II, Volume 154, Number 8
Registration
SOR/2020-55 March 20, 2020
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2020-160 March 20, 2020
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, substantially 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 sections 26 footnote c, 53 footnote d and 150 of the Immigration and Refugee Protection Act footnote b, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Regulations Amending the Immigration and Refugee Protection Regulations
Amendments
1 Paragraph (a) of the definition port of entry in section 2 of the Immigration and Refugee Protection Regulations footnote 1 is repealed.
2 Section 26 of the Regulations is amended by striking out “and” at the end of paragraph (c) and by adding the following after paragraph (d):
- (e) the operational capacity of the Canada Border Services Agency; and
- (f) any order or regulation made by the Governor in Council under the Emergencies Act or the Quarantine Act that prohibits the entry of certain persons into Canada.
3 The Regulations are amended by adding the following after section 26:
Services at port of entry
26.1 The Minister may, on the basis of the factors set out in section 26, specify whether the services provided at a port of entry include the following:
- (a) the collection of biometric information under section 12.3;
- (b) the reception of a permanent resident visa that a foreign national presents, under section 71.1, in order to become a permanent resident;
- (c) the reception of an application for an extension of an authorization to remain in Canada as a temporary resident under section 181;
- (d) the reception of an application for the restoration of temporary resident status under section 182;
- (e) the reception of an application for a work permit under subsection 198(1);
- (f) the reception of an application for the renewal of a work permit under section 201;
- (g) the reception of an application for a study permit under section 214; and
- (h) the reception of an application for the renewal of a study permit under section 217.
4 Section 41 of the Regulations is amended by striking out “or” at the end of paragraph (b), by adding “or” at the end of paragraph (c) and by adding the following after paragraph (c):
- (d) the foreign national is prohibited from entering Canada by an order or regulation made by the Governor in Council under the Emergencies Act or the Quarantine Act.
5 (1) Section 228 of the Regulations is amended by adding the following after subsection (1):
Direct back
(1.1) For the purposes of subsection 44(2) of the Act, and subject to subsection (4), if a foreign national is the subject of a report and the following circumstances apply, the report shall not be referred to the Immigration Division and the removal order made shall be an exclusion order:
- (a) an officer directed the foreign national to return temporarily to the United States under section 41; and
- (b) the foreign national is inadmissible under paragraph 41(a) of the Act for failing to establish that they will leave Canada by the end of the period authorized for their stay.
(2) The portion of subsection 228(4) of the Regulations before paragraph (a) is replaced by the following:
Reports in respect of certain foreign nationals
(4) For the purposes of subsections (1) and (1.1), a report in respect of a foreign national does not include a report in respect of a foreign national who
6 Section 258.1 of the Regulations is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
- (c) any foreign national who is prohibited from entering Canada by an order or regulation made by the Governor in Council under the Emergencies Act or the Quarantine Act.
7 Schedule 1 to the Regulations is repealed.
Coming into Force
8 These Regulations come into force at 00:00:01 a.m. Eastern daylight time on March 21, 2020.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issues
The Canada Border Services Agency (CBSA) does not have authority to deny entry to persons who are prohibited from entering Canada pursuant to an order or regulation made by the Governor in Council under either the Emergencies Act or the Quarantine Act. Urgent amendments to the Immigration and Refugee Protection Regulations (IRPR) are necessary to implement any decision to restrict entry to Canada under these statutes and to ensure that the Minister of Public Safety and Emergency Preparedness and the CBSA have the necessary authorities to ensure the ongoing integrity of our borders in the economic interests of Canada and the health and safety of Canadians.
Background
On March 18, 2020, the Governments of Canada and the United States announced that both countries would be suspending non-essential travel along the Canada-U.S. border in response to the spread of the coronavirus disease (COVID-19).
To achieve this policy objective, the Governor in Council may prohibit the entry to Canada by certain persons in all modes (i.e. air, land, rail and marine). Orders or regulations prohibiting the entry of persons to Canada may be made by the Governor in Council either pursuant to the Emergencies Act, or the Quarantine Act. In either case, these statutes do not provide the CBSA with authority to deny entry to Canada by persons who may be prohibited from entering the country; rather, those statutes provide only for criminal enforcement with respect to these cases whereby a contravention on the prohibition to enter could result in a fine or term of imprisonment or both. These enforcement actions are insufficient to achieve the Government of Canada’s policy intention with respect to targeted prohibitions on entry by certain persons who may pose a health and safety risk to Canada.
Objective
The objective of these amendments is to help support the Government of Canada’s response to the COVID-19 pandemic.
Description
Despite any prohibition on entry that may be included in an order or regulation made by the Governor in Council in either the Quarantine Act or the Emergencies Act, the CBSA does not have the ability to deny entry to Canada of a prohibited person on that basis.
Amendments to the IRPR are needed to provide the CBSA with authorities that are necessary to operationalize the prohibitions. For example, authorizing the CBSA to temporarily direct a prohibited foreign national seeking entry from the United States back to that country, and issue a removal order in the event of non-compliance with the direction. The amendments would also require that prohibited foreign nationals not be carried to Canada by commercial transportation companies.
To the extent that these amendments will prevent prohibited persons from boarding commercial transportation destined to Canada, they align with the well-established strategy of “pushing the border out” by reducing the likelihood that prohibited persons will physically arrive at Canadian borders. Furthermore, the amendments establish a mandatory direct back to the United States for prohibited foreign nationals, which will provide a balanced and compassionate approach to the current public health situation. This is because it does not immediately require the issuance of a removal order against a prohibited person. Nevertheless, should there be some individuals who chose not to comply with the direction to return to the United States, the amendments would also authorize the CBSA to be able to issue a removal order at a port of entry, so that the CBSA may immediately remove the prohibited individual if necessary, in accordance with existing practices and procedures.
Moreover, additional regulatory amendments are necessary to ensure that border integrity can be maintained in evolving circumstances. The amendments provide the Minister of Public Safety and Emergency Preparedness with the authority to designate all ports of entry, and to specify which types of services may be provided at ports of entry. These amendments are necessary to ensure the border can continue to be effectively managed while taking the operational capacity of the CBSA and the impact of any order issued under the Emergencies Act or the Quarantine Act into account.
Regulatory development
Consultation
No consultations with the public or stakeholders, nor prepublication, have taken place with respect to the regulatory amendments given the need for an urgent Government of Canada response to COVID-19. However, the amendments were tabled in both houses of Parliament as required by the Immigration and Refugee Protection Act.
Modern treaty obligations and Indigenous engagement and consultation
There are no known impacts to modern treaty obligations. No consultations were undertaken, including with Indigenous communities, due to the urgent nature of the issue these amendments help to address. The scope of any prohibitions on entry would be defined through an order or regulation made under the Quarantine Act or Emergencies Act, as the case may be.
Instrument choice
Non-regulatory options are insufficient to create the authorities necessary to implement prohibitions on entry under either the Emergencies Act or the Quarantine Act and to provide the necessary flexibilities with respect to the designation of ports of entry. Urgent regulatory amendments to the IRPR are required to achieve the Government of Canada’s policy objective with respect to implementing any prohibitions on entry.
Regulatory analysis
Benefits and costs
At this time, no incremental costs to the CBSA are expected as a result of these regulatory amendments. Governor in Council orders under the Quarantine Act or Emergencies Act prohibiting entry to Canada are exceptional measures, which will disrupt the regular flow of travel. This may cause unforeseen pressures at certain ports of entry which may strain the CBSA’s operational capacity while concurrently reducing resource requirements in other locations. Accordingly, the amendments provide the Minister of Public Safety and Emergency Preparedness with the authority to designate ports of entry and the services that may be provided there, in order to be able to reallocate resources between ports of entry, if and as needed, in order to effectively respond to the prohibitions within existing resources.
Small business lens
The small business lens does not apply to these regulatory amendments, as they would not result in costs for small businesses.
One-for-one rule
The one-for-one rule does not apply to these regulatory amendments, as there is no change in administrative costs to business.
Regulatory cooperation and alignment
The amendments do not have a regulatory cooperation component. Any coordination with the United States on the prohibitions to be applied in the current context would be made in establishing any order or regulation made under the Quarantine Act or Emergencies Act, as the case may be.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that the amendments would not have a positive or negative environmental impact; therefore, a strategic environmental assessment is not required.
Gender-based analysis plus
No gender-based analysis plus (GBA+) impacts have been identified for this proposal.
Implementation and compliance and enforcement
Implementation
The regulatory amendments will come into force on the day on which they are registered. The CBSA will update operational policies to provide guidance for officers on how to implement the regulatory amendments. With respect to the designation of ports of entry, the Minister of Public Safety and Emergency Preparedness has signed a designation instrument to maintain all existing ports of entry and services as they existed prior to the coming into force of these regulatory amendments. The designation of ports of entry and their services may change in the future to meet operational requirements.
Compliance and enforcement
The regulatory amendments support a temporary prohibition made by an order or regulation pursuant to either the Emergencies Act or the Quarantine Act. Unless a person is non-compliant with a direction to return to the United States made under the Regulations, those prohibited entry may return to the border to seek entry after the travel prohibitions have been lifted. Should a person be non-compliant with the direction to return to the United States, they may be found inadmissible to Canada and issued a removal order at the port of entry in accordance with existing processes. The amendments do not impact any of the currently available recourse mechanisms with respect to immigration enforcement.
Contact
Richard St Marseille
Director
Strategic Policy Branch
Canada Border Services Agency
Email: IEPU-UPELI@cbsa-asfc.gc.ca