Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2022-113
Canada Gazette, Part II, Volume 156, Number 12
Registration
SOR/2022-113 May 20, 2022
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2022-531 May 19, 2022
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 to be laid before each House of Parliament, substantially in the annexed form;
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 53footnote c 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
Amendment
1 Subsection 231(2) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:
Exception
(2) Subsection (1) does not apply if, when leave is applied for, the subject of the removal order is a designated foreign national.
Coming into Force
2 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
In response to the Government of Canada’s publicly stated intention to repeal legislation relating to the Designated Countries of Origin (DCO) policy, this housekeeping amendment repeals the provisions that would have prevented foreign nationals from DCO from benefiting from an automatic stay of removal pending judicial review of a negative decision issued by the Refugee Appeal Division (RAD) on their asylum claim.
Background
The DCO policy came into force in 2012. The DCO policy was intended to expedite processing of refugee claims in Canada, with a view to ensuring foreign nationals in need of protection would get it faster, while those with unfounded claims would be removed from Canada more quickly. Under the policy, a list of countries that Canada had deemed as having respect for human rights and offering state protection was designated based on the theory that such countries would not produce refugees. Based on that assumption, the DCO policy included provisions that removed certain procedural safeguards to failed refugee claimants from those countries that were otherwise afforded to most other failed asylum claimants from countries not on the DCO list.
For example, claimants from the countries on the DCO list were subject to a 6-month bar on work permits, a bar on appeals at the RAD, limited access to the Interim Federal Health Program and a 36-month bar on the Pre-Removal Risk Assessment.footnote 2 Another such safeguard available to most failed refugee claimants, but denied to foreign nationals from DCO, was an automatic regulatory stay of removalfootnote 3 under subsection 231(1) of the Immigration and Refugee Protection Regulations (IRPR).
Generally, failed refugee claimants are inadmissible to Canada, and have a removal order issued against them. Foreign nationals whose refugee claims are eligiblefootnote 4 to be referred to the Refugee Protection Division (RPD) for a refugee protection proceeding are issued a conditional removal order pending a decision on the asylum claim by the RPD or the RAD. If the foreign national receives a negative decision from the RPD, their removal order comes into force 15 days after being notified of the decision, unless they have a right of appeal to the RAD. In cases where a failed refugee claimant files an appeal to the RAD, their removal order comes into force 15 days after receiving notification of a negative RAD decision on their appeal. Unless failed refugee claimants have access to a stay of removal, a person subject to a removal order is required to leave Canada immediately.footnote 5
Should they fail to leave Canada, the Canada Border Services Agency (CBSA) is under a legal obligation to enforce the removal order as soon as possible. Refugee claimants may apply for leave and judicial review of decisions made under the Immigration and Refugee Protection Act (IRPA), including a negative decision on an asylum claim by the Immigration and Refugee Board (IRB). As a safeguard, the IRPR prescribe certain automatic stays of removal, including an automatic stay of removal where a person files an application for leave and judicial review of a negative decision by the RAD on their asylum claim.footnote 6 However, under the DCO policy of differential treatment of foreign nationals from DCO, failed claimants from those countries were excluded from being able to appeal a negative decision by the RPD to the RAD, and were excluded from benefiting from an automatic stay of removal.
Between 2015 and 2019, the Federal Court ruled that several provisions of the DCO policy were unconstitutional.footnote 7 On July 23, 2015, the Federal Court found, in the matter of Y.Z.,footnote 8 that denying refugee claimants from DCO access to the RAD was unconstitutional as it contravenes section 15 of the Canadian Charter of Rights and Freedoms (the Charter), specifically, the right to equality under the law and non-discrimination. In other words, DCO claimants were discriminated against on the basis of national origin. As a result of that decision, refugee claimants from DCO were given access to the RAD if they were not prohibited from filing an appeal for another reason.footnote 9 Following this decision, DCO nationals who filed an application for leave and judicial review of a negative RAD decision were not removed from Canada until the application was disposed of by the Federal Court.
Following the 2019 Feher footnote 10 decision, on May 17, 2019, the Government of Canada announced its intention to repeal the DCO policy and its legislative framework. Effective that same day, the Minister of Immigration, Refugees and Citizenship (IRC) removed all countries from the DCO list, which effectively suspended its application until the necessary legislative and regulatory amendments could be made to repeal the DCO policy entirely. The Government’s decision to remove all countries from the DCO list does not reflect of a change in country conditions in any of the countries previously on the list. In addition, the Government had likewise concluded that the DCO policy did not fulfill its objective to discourage misuse of the asylum system and of processing refugee claims from these countries faster. The decision addressed the Charter issues raised in the courts and is supported by stakeholders. It should be noted that neither the removal of all countries from the DCO list, nor this amendment, have any effect on the Canada-United States Safe Third Country Agreement.
Objective
This amendment is a portion of the changes needed to implement the Government of Canada’s publicly stated intent to repeal legislation and regulation relating to the DCO policy in the IRPA and IRPR. The amendment does not impact any individuals nor does it change how CBSA is currently operating. This is because all countries have already been removed from the DCO list by order of the Minister of IRC which, in effect, halted the application of the DCO policy until it can be repealed through legislative and regulatory changes.
Description
Subsection 231(2) of the IRPR specifies that the automatic stay of removal does not apply if the foreign national is a DCO national at the time they filed an application for leave and judicial review. In line with Government of Canada’s intention to repeal DCO provisions from the IRPA and IRPR, this amendment eliminates the regulatory provisions that prevented foreign nationals from a DCO from access to an automatic regulatory stay of removal when they made an application for leave and judicial review of a negative decision on their asylum claim issued by the RAD. The amendment removes the references to the DCO policy found in subsection 231(2) of IRPR.
Regulatory development
On May 17, 2019, the Government of Canada announced, via a news release, its intent to repeal the DCO policy and the Minister of IRC immediately removed all countries from the DCO list. This decision effectively suspended the DCO framework pending formal legislative repeal. As a result, and given that this amendment is housekeeping in nature, no consultations were undertaken. For the same reasons, this amendment was also not subject to a public comment period through the Canada Gazette, Part I, process.
Regulatory analysis
Benefits and costs
The DCO policy did not fulfill its objective of discouraging misuse of the asylum system and of processing refugee claims from these countries faster. Additionally, several Federal Court decisions struck down certain provisions of the DCO framework, ruling that they did not comply with the Charter. This amendment provides legal certainty and ensures that the IRPR are reflective of recent jurisprudence and Government of Canada decisions. No costs are anticipated as a result of the repeal of this DCO provision since all the countries have already been removed from the DCO list. As a result, the amendment has no new operational impact and has no implementation costs.
Small business lens
Analysis under the small business lens determined that the amendment will not impact small businesses in Canada.
One-for-one rule
The one-for-one rule does not apply, as the amendment does not result in an incremental change in administrative burden on business.
Regulatory cooperation and alignment
There is no regulatory cooperation or alignment (with other jurisdictions) component associated with the amendment.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
There are no gender-based analysis plus (GBA+) impacts that have been identified for this amendment.
Implementation, compliance and enforcement, and service standards
Implementation
The amendment to the IRPR comes into force on the day on which it is registered. The amendment does not affect how the CBSA is currently operating. The amendment has effectively already been implemented, as all the countries have been removed from the DCO list since May 17, 2019. This amendment simply repeals the reference to the DCO provision from subsection 231(2) of the IRPR.
Compliance and enforcement
No new compliance and enforcement measures are required to support the implementation of the amendment.
Contact
Julie Bossé
Manager
Immigration Enforcement Policy Integrity Unit
Immigration Enforcement, Customs, and External Review Policy Directorate
Canada Border Services Agency
Email: iepu-upeli@cbsa-asfc.gc.ca