ARCHIVED — Vol. 147, No. 40 — October 5, 2013

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Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: Canada intends to implement a new approach to sharing immigration information with the United States as part of the Perimeter Security and Economic Competitiveness Action Plan (the Action Plan), pursuant to the Agreement Between the Government of Canada and the Government of the United States of America for the Sharing of Visa and Immigration Information (the Agreement) and the Annex Regarding the Sharing of Information on Asylum and Refugee Status Claims to the Statement of Mutual Understanding on Information Sharing (the Asylum Annex). Immigration information sharing pursuant to the Agreement and the Asylum Annex must balance the privacy interests of nationals of a third country and refugee status claimants whose information will be shared, with the need to maintain the integrity of Canada’s immigration program and the safety and security of Canada. The Agreement and the Asylum Annex create obligations and/or provisions and establish privacy safeguards at the international level. The enactment of a specific domestic authority for immigration information sharing with the United States pursuant to the Agreement and the Asylum Annex would strengthen specific privacy safeguards contained in the Agreement and the Asylum Annex that do not currently exist in Canadian legislation, and ground both instruments in Canada’s domestic law.

Description: The proposed Regulations would support the Government of Canada’s ability to collect immigration information from and disclose immigration information to the United States pursuant to the Agreement, signed on December 13, 2012, and the Asylum Annex, signed on August 22, 2003.

The proposed Regulations would

  • create a specific domestic authority for immigration information sharing pursuant to the Agreement and the Asylum Annex;
  • establish the scope and purpose of immigration information sharing pursuant to the Agreement and the Asylum Annex;
  • ensure transparency in the process for immigration information sharing pursuant to the Agreement and the Asylum Annex; and
  • establish appropriate privacy safeguards consistent with domestic legislation.

Cost-benefit statement: The proposed Regulations are expected to result in an increase in the number of identified and prevented ineligible refugee claimants, a decrease in the volume of crime and a decrease in detention and removal costs of nationals of a third country by denying them entry to Canada. The analysis indicates that the proposed Regulations would result in a net benefit of $42.4M over the 10-year horizon (2013–2022). All figures are expressed in constant 2013 dollars using a discount rate of 7%. The anticipated net benefit is largely due to implementation costs being offset by the Government of Canada’s ability to identify and prevent mala fide nationals of a third country and refugee status claimants from entering Canada in the first instance.

“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 businesses.

Domestic and international coordination and cooperation: Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA) will continue to work closely with partners in the United States and other federal departments such as the Royal Canadian Mounted Police (RCMP), the Immigration and Refugee Board, Shared Services Canada, and the Office of the Privacy Commissioner of Canada (OPC) to implement the proposed Regulations.

Background

Access to information relevant to applicants’ admissibility to enter or remain in Canada and effective identity management tools that support immigration and border officers in assessing the risks posed by applicants to Canada’s immigration programs are essential to combating immigration fraud and protecting Canada’s security interests. Canada therefore currently shares foreign nationals’ biographic and biometric immigration information with the United States under the 2003 Statement of Mutual Understanding on Information Sharing (SMU) and the Annex to the SMU Regarding the Sharing of Information under the Five Country Conference High Value Data Sharing Protocol (“the Protocol”). Under the terms of the SMU, information may be shared to assist in the administration and enforcement of immigration and citizenship laws in Canada and the United States.

To date, immigration information sharing activities under the authority of the SMU have occurred on a case-by-case basis, which has limited the number of cases shared due to the manual, labour intensive processes involved. However, case-by-case immigration information sharing has been effective in that it has uncovered instances of foreign nationals using false identities, inadmissible criminals attempting to enter Canada, fraudulent refugee claims, and individuals providing information on their immigration application that was not credible. In 2012, the Government of Canada was able to confirm that 46% of the inland asylum claimants whose information was shared pursuant to the Protocol had also been encountered biometrically by the United States. More importantly, the information shared pursuant to the Protocol revealed that 15.5% of all inland asylum claimants whose information was shared pursuant to the Protocol previously had an adverse encounter with the United States (i.e. including reasons of criminality or a previous violation of immigration law) or attempted to alter their identity when applying to either country.

To further extend the benefits of sharing immigration information, Canada and the United States are seeking to increase the scope of immigration information sharing to include greater volumes of applicants. As part of the Perimeter Security and Economic Competitiveness Action Plan, Canada and the United States have committed to sharing relevant information to improve immigration and border determinations, establish and verify the identity of foreign nationals, and conduct screening before applicants reach the Canada–United States perimeter. Specifically, Canada and the United States have committed to implementing biographic-based immigration information sharing in 2013, pursuant to the terms of the Agreement. Biometric-based immigration information sharing will be implemented in 2014, pursuant to the terms of both the Agreement (for all nationals of a third country who are required to submit biometrics as part of an application) and Article 6(a) of the Asylum Annex (for refugee status claimants making a claim for refugee protection, with the exception of a citizen of either country or habitual residents of either country with no nationality who make a refugee protection claim in the other country).

Issue

The manual labour-intensive process involved in current case-by-case immigration information sharing has limited the number of cases for which information is shared. Canada and the United States are seeking to enhance the benefits achieved through information sharing by increasing their capability to share immigration information. Immigration information sharing pursuant to the Agreement and the Asylum Annex will ensure that information relevant to the administration and enforcement of immigration law and refugee status determinations is available to immigration decision-makers on more applicants, and enable Canada to more effectively keep criminals and fraudsters from being admitted to Canada and gaining access to Canadian social programs.

Effective implementation must balance the privacy interests of nationals of a third country whose information is shared with the need to maintain the integrity of the immigration program and the safety and security of Canada. As a result, the Government of Canada must ensure that these new, planned immigration information-sharing activities are transparent and that strict privacy safeguards are in place.

The enactment of a specific authority for immigration information sharing with the United States pursuant to the Agreement and the Asylum Annex would also strengthen specific privacy safeguards contained in the Agreement and the Asylum Annex and create a specific authority to ground the Agreement and the Asylum Annex in Canada’s domestic law.

Objectives

The objective of the proposed Regulations is to support the Government of Canada’s ability to collect immigration information from and disclose immigration information to the United States pursuant to the Agreement and the Asylum Annex, while balancing the privacy interests of individuals whose information is shared with the need to maintain the integrity of Canada’s immigration program and the safety and security of Canada. This objective would be achieved by

  • creating a specific authority for immigration information sharing pursuant to the Agreement and the Asylum Annex in Canada’s domestic law;
  • establishing the scope and purpose of immigration information sharing pursuant to the Agreement and the Asylum Annex, including specifying the uses of shared information and that information sharing pursuant to the Agreement and the Asylum Annex will only take place between Canada and the United States;
  • ensuring transparency and limiting the disclosure of information by clearly outlining which types of data may be shared on whom and under what circumstances; and
  • ensuring that additional privacy safeguards specific to the Agreement and the Asylum Annex are enacted to complement existing domestic legislation.

Description

Create a specific authority for immigration information sharing pursuant to the Agreement and the Asylum Annex

The obligations and/or provisions contained in the Agreement and the Asylum Annex, as well as the privacy safeguards they establish, create a framework to govern the sharing of immigration information at the international level. The enactment of the proposed Regulations would create a specific authority to ground the Agreement and the Asylum Annex in Canada’s domestic law. The creation of this specific authority will enhance the transparency of the process used to share immigration information pursuant to the Agreement and the Asylum Annex, apply appropriate limits to the information that may be shared, and strengthen privacy safeguards by enacting specific provisions that complement existing legislation.

Establish the scope and purpose of immigration information sharing pursuant to the Agreement and the Asylum Annex

The proposed Regulations would provide specificity to the broader legislative framework (see footnote 1) that allows the Government of Canada to share immigration information with the United States in support of ministerial responsibilities under the Immigration and Refugee Protection Act (the “IRPA”), including for the collection, use and disclosure of information in the conduct of international affairs and in maintaining an immigration program that supports a safe and secure Canada.

The proposed Regulations would specify that the parties to the Agreement are the Government of Canada and the Government of the United States, and that the participants to the Asylum Annex are the Department of Citizenship and Immigration, the Canada Border Services Agency and the Department of Homeland Security of the Government of the United States. With respect to the participants for the Asylum Annex, while CIC is the lead department for the In-Canada Asylum Program, the CBSA plays a key support role in the enforcement components of the program.

Division 1

The proposed Regulations for the Agreement would specify that their purpose is to implement the Agreement whose objective is to assist in the administration and enforcement of the parties’ respective immigration law. Under the proposed Regulations, immigration information may be disclosed to the United States only in the following circumstances:

  • To support an examination following an application made by a national of a third country for a permanent or temporary resident visa, a work or study permit, to obtain protected person status, or an immigration benefit under federal immigration legislation;
  • To support an examination or determination of whether a national of a third country is authorized to travel to, enter or remain in Canada or the United States; and
  • Ensuring the accuracy and reliability of biographic data or other immigration-related data (e.g. to provide notice to the United States that information provided in response to a Canadian query indicates that a national of a third country provided inconsistent identity information when submitting an application).
Division 2

The proposed Regulations for the Asylum Annex would specify that the purpose of the proposed Regulations is to assist in the administration and enforcement of the participants’ respective immigration law and to implement the Asylum Annex, the objectives of which are to

  • preserve and protect the participants’ respective countries’ refugee status determination systems;
  • enhance the participants’ abilities to assist those who qualify for protection from persecution or from torture;
  • support efforts to share responsibility between the participants in providing protection to qualified refugee status claimants;
  • identify and prevent abuse of the participants’ refugee status determination systems and citizenship and immigration laws; and
  • identify those who are excluded from protection or denied protection according to the Refugee Convention, as implemented in the participants’ respective domestic legislation or whose refugee status may be subject to termination, cancellation or revocation.
Ensuring a transparent approach to immigration information sharing pursuant to the Agreement and the Asylum Annex

The proposed Regulations would ensure that limits on the disclosure of information are explicit by outlining the information that may be shared, the individuals whose information may be shared, and the circumstances where a national of a third country or a refugee status claimant’s information may be shared.

Division 1

In order to limit the amount of information that is exchanged pursuant to the Agreement to only that which is necessary, relevant and proportionate to fulfil its purpose, the proposed Regulations would limit information disclosed, either as part of an initial query to obtain information or as the result of a match, to specific categories of immigration information. These categories are

  • (a) biographic data, such as name, gender, date of birth, country of birth, alias, citizenship and travel document number, to be used for the purposes of identity verification;
  • (b) biometric data, consisting of fingerprints and/or photographs, to be used for the purposes of identity verification; and
  • (c) where a biographic or biometric match is established, immigration-related data relevant to the administration and enforcement of the parties’/participants’ respective immigration law, such as
    • • a national of a third country’s immigration status;
    • • a previous determination that a national of a third country failed to meet the requirements of the IRPA;
    • • a previous admissibility decision or determination; and
    • • data relevant to the admissibility of a national of a third country.

The proposed Regulations would also articulate that pursuant to the Agreement, in response to a U.S. query, the Government of Canada may only disclose information on the following individuals:

  • (a) Nationals of a third country who were previously determined to be inadmissible (see footnote 2) under the IRPA;
  • (b) Nationals of a third country, who did not meet the requirements under the IRPA; (see footnote 3) and
  • (c) Nationals of a third country, where a match is established based on a fingerprint.

Since information may only be disclosed in respect of nationals of a third country pursuant to the Agreement, the proposed Regulations would exclude the disclosure of information in respect of Canadian and U.S. citizens and permanent residents.

Disclosure of information under the proposed Regulations for the Agreement would be query-based, meaning that information would be disclosed only in making a request to the United States or in response to a request from the United States in respect of a national of a third country. Only the limited categories of information pertaining to the individuals described in the Regulations may be shared for the administration and enforcement of each country’s immigration law.

Division 2

In order to limit the amount of information that is disclosed pursuant to the Asylum Annex to only that which is necessary, relevant and proportionate to fulfil its purpose, the proposed Regulations would limit information disclosed to specific categories of immigration information. These categories are

  • (a) information relating to the identity of a refugee status claimant;
  • (b) information relating to the processing of a refugee status claimant’s claim;
  • (c) information relevant to a decision to deny a refugee status claimant access to, or to exclude such a claimant from, the protection of the refugee determination system or to terminate, cancel or revoke an individual’s existing refugee status in Canada; and
  • (d) information regarding the substance or history of a previous claim made by a refugee status claimant that will assist in determining a subsequent claim.

Pursuant to the terms of the Asylum Annex, information may not be shared on Canadian and U.S. citizens and foreign nationals who, having no country of nationality, are former habitual residents of either country if they make a refugee protection claim in the other country.

The proposed Regulations for the Asylum Annex incorporate the mechanisms set out in Article 6 of the Asylum Annex for the disclosure of information. Similar to the Agreement, immigration information would be disclosed only upon request from one country when a refugee status claim is made in the other country and would be limited to the categories of information described in the proposed Regulations for the Asylum Annex.

Establishing appropriate privacy safeguards consistent with domestic legislation

The proposed Regulations would ensure that explicit privacy safeguards rooted in Canadian domestic law would appropriately guide the implementation of the Agreement and the Asylum Annex. These bilateral instruments, which operate at the international level, combined with existing domestic legislation including the IRPA, the Department of Citizenship and Immigration Act, the Privacy Act, the Access to Information Act, and the proposed Regulations, would complement each other and provide a robust, thorough and transparent immigration information sharing scheme. Nationals of a third country and refugee status claimants could look to the immigration information sharing scheme established through the proposed Regulations to understand how their personal information may be collected, used, disclosed, retained and disposed of pursuant to the Agreement and the Asylum Annex.

In addition, the proposed Regulations would specify that in the event that the Government of Canada is made aware (see footnote 4) that information it previously shared is inaccurate, it would notify the United States and provide correcting information. Similarly, the proposed Regulations would specify that if the Government of Canada receives correcting information from the United States, it would notify the United States when it has made a correction and destroy or correct any inaccurate information derived from it. Consistent with subsection 6(2) of the Privacy Act, if shared information that is inaccurate is used for an administrative purpose, it would not be destroyed and a note would be placed in the third country national or refugee status claimant’s file indicating that it is inaccurate. The Agreement contains bilateral obligations with regard to the accuracy and correction of shared information that would similarly apply to information disclosed or collected by the United States.

Regulatory and non-regulatory options considered

Implementation of the proposed Regulations would enhance the safety and security of Canada and the integrity of the immigration program; in particular, by preventing inadmissible criminals from entering Canada, reducing immigration fraud, mitigating security threats, and maintaining the integrity of Canada’s immigration system. The proposed Regulations would ensure that with respect to the disclosure of information, privacy safeguards are enshrined in Canadian law for nationals of a third country and refugee status claimants whose information may be shared between the governments of Canada and the United States pursuant to the Agreement and the Asylum Annex. By incorporating the terms of the Agreement and the Asylum Annex into the Government of Canada’s domestic legal framework, nationals of a third country and refugee status claimants would be assured that their information is protected under Canada’s domestic law.

In the absence of the proposed Regulations, immigration information sharing pursuant to the Agreement and the Asylum Annex would be conducted in accordance with a combination of existing legislation including the IRPA, the Department of Citizenship and Immigration Act, the Privacy Act, and the Access to Information Act. The proposed Regulations would build on existing privacy safeguards found in Canadian legislation in order to ensure that immigration information sharing is fully transparent. By establishing the scope and purpose of the information sharing and by clearly limiting what information can be shared, when and about whom, the proposed Regulations would ensure that the privacy safeguards enshrined in international law via the Agreement are equally grounded in Canadian domestic law.

Benefits and costs

The proposed Regulations would result in an overall net benefit to Canadians. All costs and benefits were assessed in terms of incremental changes to the baseline scenario resulting from the proposed Regulations.

The period of analysis for assessing the benefits and costs of the proposed Regulations begins in 2013 and ends in 2022. All costs and benefits are projected over this 10-year period and are expressed in constant 2013 dollars using a discount rate of 7%.

The analysis employs a baseline scenario which assumes no regulatory changes to Canada’s immigration program. It assumes that current rates of in-Canada criminality and refugee claims with adverse information grow at a rate consistent with the number of new applicants based on historical trends over the past 10 years.

Under the baseline (status quo) scenario, immigration screening primarily takes the form of checking the biographic information (names, dates of birth, etc.) of nationals of a third country against the Canadian databases currently available to immigration officers. Additionally, biometrics are required from all refugee status claimants, persons detained for immigration violations and persons under removal order. The baseline scenario also assumes that biometrics are collected from nationals of a third country from the 30 countries and territories required to provide biometrics as part of the Temporary Resident Biometric Project (TRBP), intended to be fully implemented by the end of 2013, and that biometrics are collected from all nationals of a third country who are overseas refugee resettlement applicants, intended to begin by the time biometric information sharing pursuant to the Agreement and the Asylum Annex begins in 2014. For these groups, fingerprints are checked against the Royal Canadian Mounted Police (RCMP) Real Time Identification (RTID) system to determine if individuals have previously been fingerprinted as a refugee, for an immigration enforcement case, or for a criminal proceeding in Canada. At the discretion of border and immigration officers, information is currently shared with the United States on a case-by-case basis, and approximately 3 000 biometric-based queries are sent to the United States annually under the High Value Data Sharing Protocol (the Protocol).

The baseline scenario is compared to the framework introduced by the proposed Regulations in which all of the 2.2 million nationals of a third country who apply to Canada for a permanent or temporary resident visa, or a work or study permit, or to obtain protected person status, or an immigration benefit are to be screened against U.S. immigration records. Under this scenario, a biographic information-sharing system with the United States would be introduced in fall 2013, and a biometric information-sharing system would follow in 2014.

The main costs associated with immigration information sharing pursuant to the Agreement and the Asylum Annex would be those incurred for the implementation and ongoing use of the IT and operational infrastructure. Transition costs would be incurred during the first three years of implementation, with ongoing costs continuing throughout the 10-year period. The analysis finds the present value of total costs to be $164 million in 2013 dollars.

Based on the cost-benefit analysis, the primary benefit expected from the proposed information-sharing system would be an increase in the number of identified and prevented ineligible refugee claimants, and a decrease in the volume of crime as a greater number of known criminals who would have otherwise gained access to Canada would be denied entry. (see footnote 5) These two categories of benefits are monetized in the analysis. They are found to be of comparable magnitude, with a combined value of $163 million. Further savings would result from prevented detention and removal costs for these two categories of prevented entries. Savings from detention and removal costs of known criminals is expected to be $30 million, and detentions and removals savings for prevented refugee claims is expected to be $13 million.

Considering the complete range of monetized costs and benefits over the 10-year period following the introduction of the proposed Regulations, the findings indicate that the monetized benefits would exceed the monetized costs, resulting in a net present value of $42 million in 2013 dollars. This equates to a monetized net cost of $4.2 million per year expressed as an annualized average, with a ratio of the benefits to costs of 1.26.

In addition to the monetized benefits, the analysis identifies quantitative benefits in terms of an increased volume of immigration-relevant information forwarded to the Immigration and Refugee Board (IRB). The information obtained from the United States would assist the IRB with decision-making by providing a stronger evidence base on which board members could rely to make decisions on refugee status claimants. The analysis anticipates that in approximately 18 900 cases per year, information received from the United States (both match and no match data) could provide corroborative information supporting asylum claims made by refugee status claimants. In the remaining 3 500 cases per year, adverse information of high relevance to the asylum claim determination (discrepancies in biographic data, information pertaining to previous asylum claims, enforcement actions, refusals and removals in the United States, etc.) would be provided to IRB decision-makers. Though the benefit of deterred criminality is monetized in the analysis, the anticipated decrease in the volume of crimes is included as a supplemental quantitative measure of prevented criminality. The number of crimes committed in Canada is anticipated to be 2 388 lower over the period from 2013 to 2022 under the proposed Regulations.

Further qualitative benefits identified in the analysis will accrue to Canadian residents, governments in Canada, nationals of a third country and refugee status claimants. Qualitative benefits include improved international relationships, improved confidence in Canada’s immigration program, and downstream immigration program enforcement benefits through a more targeted allocation of resources for immigration warrants, detentions and removals.

Cost-benefit statement

Costs, benefits and distribution

Base Year 2013

Year Five 2017

Final Year 2022

Total

Annual Average

A. Quantified impacts in $ (Millions of present value Canadian dollars, 2013)

Benefits

Stakeholders

 

 

 

 

 

Savings from prevented crime by identifying and preventing known criminals from gaining access to Canada

Canadians, police community, court and penal systems

0.2

10.0

7.8

81.8

8.2

Savings from identified and prevented refugee claims

Government of Canada, provincial and territorial governments

0.1

10.2

8.2

81.5

8.2

Avoidance of detention and removal costs (criminals)

Government of Canada

0.1

3.6

2.9

29.7

3.0

Avoidance of detention and removal costs (refugees)

Government of Canada

0.0

1.6

1.3

13.3

1.3

Total benefits

 

0.4

25.3

20.2

206.3

20.6

Costs

Stakeholders

         

Transition costs

CIC, CBSA, RCMP, IRB, Shared Services Canada (SSC)

8.7

0.0

0.0

39.9

4.0

On-going costs

CIC, CBSA, RCMP, IRB, SSC

16.5

12.6

9.0

124.0

12.4

Total costs

 

25.2

12.6

9.0

163.9

16.4

Net benefits

42.4

4.2

B. Quantified impacts in non-$

Positive impacts

Cases where match information forwarded to IRB

0

24,230

27,414

208,977

20,898

Corroborative

0

20,414

23,096

176,061

17,606

Derogatory

0

3,816

4,318

32,916

3,292

Positive impacts

Crimes prevented

4

269

304

2,388

239

C. Qualitative impacts

Benefit

Stakeholders

Description of benefit

Enhanced safety and security

Canadians

Fewer criminals and security threats gain access to Canada

Enhanced immigration program integrity

Government of Canada, Canadians

Fewer mala fide applicants entering Canada, enhanced and more confident decision-making and identity management

Enhanced confidence in immigration program

Government of Canada, Canadians

Improved confidence that Canada’s immigration program is able to stop mala fide applicants and facilitate legitimate travellers/migrants

Facilitation of movement

Foreign nationals

Canadian immigration officials better able to focus on threats and facilitate legitimate applicants

Improved international relationships

Government of Canada

Improved international relationships, particularly with United States, and Five Country Conference (FCC) partners

Improved transparency

Foreign nationals

Information sharing parameters clearly defined in the proposed Regulations, i.e. when and how information is shared and on whom

Downstream enforcement program benefits

Government of Canada

More targeted allocation of resources for immigration warrants, detentions and removals

“One-for-One” Rule

The “One-for-One” Rule with respect to creating new regulations does not apply to this proposal as it amends the Immigration and Refugee Protection Regulations and does not create new regulations. The “One-for-One” Rule with respect to administrative burden 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 costs would be imposed on small businesses.

Consultation

In developing the Action Plan, the Government of Canada put in place a consultation process to solicit input from a broad cross-section of Canadian stakeholders. Public consultations were held on the Action Plan between March and June 2011. The Government of Canada consulted the provinces and territories, municipalities, businesses, business groups, non-governmental organizations, labour unions and individual Canadians. Stakeholder reactions were published by the Government of Canada in a 2011 consultation report entitled What Canadians Told Us: A Report on Consultations on Perimeter Security and Economic Competitiveness Between Canada and the United States. The consultation report included an outline of views on the new approach to sharing immigration information set out in the Action Plan.

Individual Canadians stressed that any information sharing should be governed by Canadian privacy laws and that practices and procedures should respect the due process of law and civil liberties in Canada. Canadians also wanted assurances that the types and uses of information sharing be reasonable and proportional to operational requirements. Canadians generally approved the use of biometric data to expedite border processing.

Reactions from other stakeholders focused on the benefits that immigration information sharing provides to Canadians through the facilitation of travel for business and tourism, and enhanced security protection for Canadians.

For example, stakeholders such as the Centre for Immigration Policy Reform (see footnote 6) have spoken out consistently on the need for enhanced detection of identity fraud to ensure that nationals of a third country are bona fide applicants. One of the key objectives of immigration information sharing is to use shared information to verify the identity of immigration applicants and ensure that if they have previously applied to enter the other country, the identity information they provided in their application is consistent between both countries.

The Tourism Industry Association of Canada (TIAC) also noted the benefits that immigration information sharing pursuant to the Agreement could bring with regard to facilitating legitimate travel. In a letter to the editor responding to an article on the Agreement published in the Globe and Mail (January 4, 2013), David Goldstein, President and Chief Executive Officer of the TIAC noted that given that travel between Canada and the United States helps to promote trade, economic growth and job creation, cooperating on immigration information-sharing initiatives is a reasonable approach to facilitating vital leisure and business travel by legitimate visitors to Canada.

Other reactions to the Action Plan have come most notably from Canada’s Office of the Privacy Commissioner (OPC). While the OPC has acknowledged the importance of the Action Plan in facilitating trade and improving border security, representatives have been very clear that any new measures must be implemented with due respect for fundamental freedoms and privacy rights. More specifically, the OPC has referenced the findings from the Commissions of Inquiry by Justices O’Connor (2006), Iacobucci (2008) and Major (2010) in reinforcing the importance of establishing appropriate constraints, controls and caveats on information sharing.

Citizenship and Immigration Canada has actively engaged with the OPC in developing the system that would implement immigration information sharing pursuant to the proposed Regulations. CIC and the CBSA consulted with the OPC in December 2010, December 2011, April 2012, November 2012 and May 2013 on the Agreement. A privacy impact assessment on the Agreement and its draft implementing arrangement for biographic-based immigration information sharing were submitted to the OPC in February 2013. Amendments to the privacy impact assessments covering biographic-based immigration information sharing pursuant to the Agreement and the Asylum Annex will be submitted for biometric-based immigration information sharing before the proposed Regulations for biometric immigration information sharing enter into force in 2014. Furthermore, CIC and the CBSA intend to continue to engage with the OPC throughout implementation to benefit from its advice in order to ensure any privacy risks are identified and appropriately mitigated prior to implementation.

The OPC has provided a number of recommendations that will guide implementation, including recommendations that appropriate safeguards against improper use and retention of information as well as provisions for correcting false information be included in the governing agreements. The Agreement confirms that such remedies exist under the laws of both parties and the recommendations would be supported by the proposed Regulations and their implementation. Immigration information sharing pursuant to the Agreement and the Asylum Annex is also fully consistent with the Privacy Act and the Canada–United States Joint Statement of Privacy Principles (the “Privacy Principles”), completed in 2012.

Regulatory cooperation

Addressing Canadians’ concerns related to privacy and the protection of information, the Canadian and U.S. governments released the Privacy Principles to signal their joint commitment to protecting privacy. The Privacy Principles are based on commonly understood privacy protections and fair information practices and are consistent with the laws of each country. The Privacy Principles also underscore the importance of immigration information sharing to the security of both nations without sacrificing the fundamental rights and civil liberties that both countries value.

Immigration information sharing under the proposed Regulations would support Canada–United States cooperation as identified in the Action Plan, and is fully consistent with the Privacy Principles.

Rationale

Currently, application forms for a permanent or temporary resident visa or work or study permit inform applicants of the possibility that their immigration information may be shared with foreign governments. All departmental application forms require applicants’ signed consent for the indirect collection of information from foreign authorities for admissibility and eligibility determination purposes. Similarly, all application forms provide notice of the potential for disclosure of applicant information to foreign authorities in accordance with subsection 8(2) of the Privacy Act and also provide notice of the rights and protections afforded to applicants by the Privacy Act and the Access to Information Act. The proposed Regulations would further enhance the transparency of immigration information sharing by creating an explicit authority in domestic law for immigration information sharing pursuant to the Agreement and the Asylum Annex.

The proposed Regulations would ensure that explicit privacy safeguards rooted in domestic law would

  • establish the scope and purpose of immigration information sharing pursuant to the Agreement and the Asylum Annex to ensure that the privacy interest of the individuals whose information may be shared is balanced against the activity’s objective: the administration and enforcement of immigration law;
  • specify the uses of shared information and that immigration information sharing pursuant to the Agreement and the Asylum Annex will only take place between Canada and the United States;
  • limit the disclosure of information by clearly and transparently outlining which types of data may be shared, on whom and under what circumstances pursuant to the Agreement and the Asylum Annex; and
  • ensure that additional privacy safeguards specific to the Agreement and the Asylum Annex are enacted to complement existing domestic legislation.

The proposed Regulations would also facilitate Canada’s ability to realize the full benefits of immigration information sharing by

  • enabling immigration decision-makers to receive information on a greater volume of applicants, and to increase immigration decision-makers’ ability to identify and stop criminals and security threats known to the United States from gaining access to Canada and threatening the safety and security of Canadians;
  • providing a specific authority that supports immigration officers’ ability to receive information on a greater volume of applicants to help establish and verify their identity, in order to ensure effective identity management in Canada’s immigration program, and facilitate admissibility decisions;
  • creating an authority that would support immigration decision-makers’ ability to receive information relevant to preventing and avoiding ineligible refugee claims on a greater volume of applicants; and
  • transparently conveying the measures being taken to prevent abuses of the immigration system in order to deter mala fide applicants, including criminals, security threats and individuals who seek to circumvent Canada’s immigration program, from gaining access to Canada.

Implementation, enforcement and service standards

The Government of Canada and its U.S. counterparts intend to fully implement biographic-based immigration information sharing pursuant to the Agreement in fall 2013 and biometric-based immigration information sharing pursuant to the Agreement and the Asylum Annex in fall 2014.

The portion of the proposed Regulations that deals with biographic-based immigration information pursuant to the Agreement is intended to come into force in fall 2013 with the portion of the proposed Regulations that deals with biometric immigration information sharing pursuant to the Agreement and immigration information sharing pursuant to Article 6(a) of the Asylum Annex coming into force on October 1, 2014.

Implementation will entail the creation of an IT system and operational infrastructure capable of sending and receiving electronic queries on all applications made by nationals of a third country and refugee status claimants to Canada. This system will allow for the sharing of limited information to support the processing of applications for a permanent or temporary resident visa, a work or study permit, or an immigration benefit, or to obtain protected person status, or to support an investigation into whether a national of a third country or refugee status claimant is authorized to travel to, enter or remain in either country.

Regardless of whether or not a match is established, subject to the countries’ domestic laws, the country performing the search of its records will delete the biographic or biometric information sent by the other country as part of the query.

Privacy and data security safeguards will be built into the IT systems that will facilitate immigration information sharing pursuant to the Agreement and the Asylum Annex, such as matching accuracy algorithms, and IT solutions to facilitate focused sharing (e.g. automated sharing of only the minimum number of data elements required to support the assessment of an application in a particular immigration business line). Training, manuals and operational bulletins will also be developed to ensure that all personnel who will handle shared information use it appropriately and in a manner consistent with domestic legislation and the relevant bilateral agreement.

Neither party/participant would have direct access to the other party/participant’s database, and only those categories of information described in the proposed Regulations may be shared.

Biographic-based sharing

Beginning in fall 2013, Canada and the United States will have a system capable of sending and receiving biographic-based queries on nationals of a third country. This sharing will be governed under the terms of the Agreement and its implementing arrangement for the sharing of biographic immigration information, and underpinned in domestic law by the proposed Regulations.

A query for information will be composed of basic biographic data elements, consistent with the categories of information described in the proposed Regulations (e.g. name, alias, date of birth, country of birth, gender, citizenship and travel document number), extracted from a third country national’s immigration file. The country that receives the query will use the limited data elements provided in the query to search its records for an identity match. Regardless of whether or not a match is established, subject to the countries’ domestic law, the country performing the search of its records will not store the information sent by the other country as part of the query.

In response to a biographic-based query, information will only be returned on nationals of a third country who have adverse information on file that may be relevant to administering or enforcing the other country’s immigration law, and only on those matches that meet a predetermined threshold that ensures a high degree of confidence in the accuracy of the match.

If a biographic match is established, a response will be returned consisting of both biographic and derogatory data elements relevant to administering or enforcing the respective parties’ immigration law (e.g. immigration status, a previous determination that the national of a third country failed to meet the requirements of a party’s immigration laws, a previous admissibility decision or determination and data relevant to the admissibility of a national of a third country). Any data collected will be retained in accordance with the country’s respective domestic laws governing the retention and disposal of personal information.

As described in the proposed Regulations, this process will ensure that only information that is necessary, relevant and proportionate to administering or enforcing the parties’ immigration law is shared.

An officer from the country that initiated the query may use the query response to verify the identity of the applicant and may use the available derogatory information to assess the third country national’s admissibility, eligibility, or determine if they are authorized to travel to, enter or remain in the country.

Biometric-based sharing

Beginning in fall 2014, Canada and the United States will have an enhanced system capable of sending and receiving biometric-based queries (i.e. matches will be established using fingerprints) on nationals of a third country and refugee status claimants. This sharing will be underpinned in domestic law by the proposed Regulations, and governed under the terms of the Agreement, its implementing arrangement for the sharing of biometric immigration information, and the Asylum Annex.

Biometric-based sharing uses fingerprints as the basis for confirming applicants’ identities as described in the proposed Regulations. Under biometric-based sharing, a digital code representing an applicant’s fingerprints will be shared with the other country to be used for identity matching purposes (no biographic information will be shared as part of this initial transaction).

If a fingerprint match is established, biographic information as well as limited information relevant to administering or enforcing either country’s immigration law may be shared. Shared information will be managed in accordance with the country’s respective domestic laws governing the retention and disposal of personal information.

If a biometric match is established for an inland asylum claimant who had previously made an asylum claim in the other country, information would be shared pursuant to the Asylum Annex rather than the Agreement. The Asylum Annex differs from the Agreement as, in addition to the limited data elements shared pursuant to the Agreement, it also allows for the sharing of data elements specific to assessing an inland asylum claim such as information relating to the processing of a refugee status claim, information relevant to a decision to deny a refugee status claimant access to, or to exclude such a claimant from the refugee protection status determination system, or to terminate, cancel or revoke an individual’s existing refugee status and information regarding the substance or history of refugee status claim that will assist in affording refugee protection.

Additionally, similar to the Agreement, the Asylum Annex allows either country to disclose an applicant’s status in the other country. While the Agreement does not permit information to be shared on permanent residents, the Asylum Annex allows this information to be shared for queries pertaining to a refugee status claimant, who is not claiming against the United States, since this information is required in the processing of a refugee claim in the country where the claim is made.

As described in the proposed Regulations, this process will ensure that only information that is relevant, necessary and proportionate to administering or enforcing the parties’ immigration law is shared.

Performance measurement and evaluation

A full performance measurement strategy has been developed to monitor the ongoing performance of immigration information sharing with the United States pursuant to the Agreement and the Asylum Annex, and is available upon request.

Expected outcomes relating specifically to the implementation of the proposed Regulations align with the outcomes that will be measured and evaluated as part of the overall performance measurement for immigration information sharing pursuant to the Agreement and the Asylum Annex.

Six expected outcomes have been identified.

Immediate outcomes
  • 1. The enhanced ability to establish and verify the identity of individuals seeking to enter and/or remain in Canada;
  • 2. The enhanced ability to detect individuals who may pose a risk and/or a threat to Canada;
  • 3. The enhanced ability to detect individuals seeking to enter and/or remain in Canada for mala fide purposes;
Intermediate outcomes
  • 4. The facilitated movement of admissible individuals into Canada;
  • 5. Inadmissible individuals are not allowed entry into, or allowed to remain in Canada; and
Ultimate outcome
  • 6. Strengthened safety and security, and enhanced program integrity of Canada’s immigration programs.

Ongoing data collection, including operational reports, will support the ongoing monitoring of the performance of the proposed Regulations. These ongoing reports will also provide key performance information required to conduct the evaluation of the initiative, which is currently scheduled to occur in the 2016–2017 fiscal year. The evaluation to be conducted in 2016–2017 would focus particularly on the immediate outcomes.

Contact

Chris Gregory
Director
Identity Management and Information Sharing
Admissibility Branch
Citizenship and Immigration Canada
300 Slater Street
Ottawa, Ontario
K1A 1L1
Email: ISREG-REGER@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and section 150.1 (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 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 Chris Gregory, Director, Identity Management and Information Sharing, Admissibility Branch, Department of Citizenship and Immigration, 300 Slater Street, Ottawa, Ontario K1A 1L1 (tel.: 613-957-3347; fax: 613-952-9187; email: ISREG-REGER@cic.gc.ca).

Ottawa, September 27, 2013

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. The Immigration and Refugee Protection Regulations (see footnote 7) are amended by adding the following after Part 19:

PART 19.1

INFORMATION SHARING BETWEEN COUNTRIES
DIVISION 1

AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA FOR THE SHARING OF VISA AND IMMIGRATION INFORMATION

Interpretation

315.11 The definitions in this section apply in this Division.

“Agreement”
« Accord  »

“Agreement” means the Agreement Between the Government of Canada and the Government of the United States of America for the Sharing of Visa and Immigration Information, signed on December 13, 2012.

“national of a third country”
« ressortissant d’un pays tiers  »

“national of a third country” means a foreign national other than a national, citizen or permanent resident of the United States.

“parties”
« parties »

“parties” means the parties to the Agreement, namely the Government of Canada and the Government of the United States.

“query”
« requête »

“query” means a request that triggers an electronic search process requiring minimal human intervention.

Purpose

315.12 The purpose of this Division is to implement the Agreement, the objectives of which, as elaborated more specifically through its provisions, are to specify the terms, relationships, responsibilities and conditions for the parties to share information by means of a query to assist in the administration and enforcement of the parties’ respective immigration laws.

Authority to disclose information

315.13 (1) The Minister may disclose information to the Government of the United States in making a query to that Government, or in response to a query made by that Government, only for the following purposes:

  • (a) to support an examination following an application made by a national of a third country for a permanent or temporary resident visa, a work or study permit, or to obtain protected person status or another immigration benefit under federal immigration legislation;
  • (b) to support an examination or determination as to whether a national of a third country is authorized to travel to, enter or remain in Canada or the Unites States, as the case may be; or
  • (c) to ensure the accuracy and reliability of biographic data or other immigration-related data.

Response to query — limitation

(2) In the case of a response to a query made by the Government of the United States, the Minister may disclose information only in respect of any of the following nationals of a third country:

  • (a) those who were previously determined to be inadmissible under the Act;
  • (b) those who did not meet the requirements under the Act;
  • (c) those in respect of whom a fingerprint match is established.

Necessary, relevant and proportionate information

315.14 Only information that is necessary, relevant and proportionate to achieving the purposes of this Division may be disclosed.

Information categories

315.15 (1) Only information belonging to the following information categories in respect of a national of a third country may be disclosed:

  • (a) biographic data to be used for the purposes of identity verification, such as name, alias, date of birth, country of birth, gender, citizenship and travel document number;
  • (b) biometric data consisting of a photograph, fingerprints or both to be used for the purposes of identity verification; and
  • (c) in the case of a response to a query made by the Government of the United States, other immigration-related data, including the immigration status of the national of a third country, a previous determination that the national of a third country failed to meet the requirements of Canada’s immigration laws, a previous admissibility decision or determination and data relevant to the admissibility of the national of a third country if
    • (i) a match is established in respect of the biographic data referred to in paragraph (a); or
    • (ii) a match is established in respect of the biometric data referred to in paragraph (b).

Refugee claim — limitation on disclosure of data

(2) In the case of a response to a query made by the Government of the United States in respect of a national of a third country making a refugee claim in the United States, only information related to an application for a permanent or temporary resident visa, a work or study permit or another immigration benefit under federal immigration legislation may be disclosed.

Accuracy and reliability

(3) The disclosure must be made in a manner that ensures the accuracy and reliability of the information in question.

Refusal to disclose

(4) If the Minister determines that disclosing information in response to a query would be inconsistent with domestic law or detrimental to national sovereignty, national security, public policy, or other important national interests, the Minister may refuse to provide all or part of the available information or offer to provide all or part of the information subject to any terms and conditions that he or she may specify.

Destruction of information

315.16 Any information collected by the Minister that is determined not to be relevant to a query and that was not used for an administrative purpose, as defined in section 3 of the Privacy Act, must be destroyed as soon as feasible.

Correction of previously disclosed information

315.17 (1) If the Minister is made aware that previously disclosed information is inaccurate, the Minister must notify the Government of the United States and provide correcting information.

Notification of correction and destruction of inaccurate information

(2) If the Minister receives correcting information from the Government of the United States, the Minister must notify that Government once the necessary corrections have been made and, unless the information was used for an administrative purpose, as defined in section 3 of the Privacy Act, any inaccurate information and any information derived from that inaccurate information must be destroyed as soon as feasible.

Note to file

(3) If inaccurate information has been used for an administrative purpose, as defined in section 3 of the Privacy Act, a note must be placed in the file to that effect.

DIVISION 2

ANNEX REGARDING THE SHARING OF INFORMATION ON ASYLUM AND REFUGEE STATUS CLAIMS TO THE STATEMENT OF MUTUAL UNDERSTANDING ON INFORMATION SHARING

Interpretation

315.18 The definitions in this section apply in this Division.

“Asylum Annex”
« Annexe sur l’asile »

“Asylum Annex” means the Annex Regarding the Sharing of Information on Asylum and Refugee Status Claims to the Statement of Mutual Understanding on Information Sharing, signed on behalf of Canada on August 22, 2003, as amended from time to time.

“participants”
« participants »

“participants” means the participants to the Asylum Annex, taking into account their successors, namely the Department of Citizenship and Immigration Canada, the Canada Border Services Agency and the Department of Homeland Security of the United States.

“refugee status claimant”
« demandeur du statut de réfugié »

“refugee status claimant” means a person who has made a claim for refugee protection in Canada or at a port of entry.

Purpose

315.19 The purpose of this Division is to implement the Asylum Annex, the objectives of which, as elaborated more specifically through its provisions, are to

  • (a) preserve and protect the participants’ refugee status determination systems;
  • (b) enhance the participants’ abilities to assist those who qualify for protection from persecution or from torture;
  • (c) support efforts to share responsibility between the participants in providing protection to qualified refugee status claimants;
  • (d) identify and prevent abuse of the participants’ refugee status determination systems and citizenship and immigration laws; and
  • (e) identify those who are excluded from protection or denied protection according to the Refugee Convention, as implemented in the participants’ domestic legislation or whose refugee protection may be subject to termination, cancellation or revocation.

Authority to disclose information

315.2 The Minister may only disclose information to the Department of Homeland Security of the United States in respect of a refugee status claimant other than a refugee status claimant who is alleging persecution in the United States.

Necessary, relevant and proportionate information

315.21 Only information that is necessary, relevant and proportionate to achieving the purposes of this Division may be disclosed.

Method of disclosure

315.22 (1) The disclosure of information must be made in accordance with article 6 of the Asylum Annex.

Accuracy and reliability

(2) The disclosure must be made in a manner that ensures the accuracy and reliability of the information in question.

Data elements to be disclosed

315.23 Only information belonging to the following information categories may be disclosed:

  • (a) information relating to the identity of a refugee status claimant;
  • (b) information relating to the processing of a refugee status claimant’s claim;
  • (c) information relevant to a decision to deny a refugee status claimant access to or to exclude such a claimant from the protection of the refugee status determination system or to cease, vacate or nullify a refugee status claimant’s refugee protection; and
  • (d) information regarding the substance or history of a previous claim made by a refugee status claimant that will assist in determining a subsequent claim.

Destruction of information

315.24 Any information collected by the Minister that is determined not to be relevant to the purposes of this Division and that was not used for an administrative purpose, as defined in section 3 of the Privacy Act, must be destroyed as soon as feasible.

Correction of previously disclosed information

315.25 (1) If the Minister is made aware that previously disclosed information is inaccurate, the Minister must notify the Department of Homeland Security of the United States and provide correcting information.

Notification of correction and destruction of inaccurate information

(2) If the Minister receives correcting information from the Department of Homeland Security of the United States, the Minister must notify that Department once the necessary corrections have been made and, unless the information was used for an administrative purpose, as defined in section 3 of the Privacy Act, any inaccurate information and any information derived from that inaccurate information must be destroyed as soon as feasible.

Note to file

(3) If inaccurate information has been used for an administrative purpose, as defined in section 3 of the Privacy Act, a note must be placed in the file to that effect.

COMING INTO FORCE

2. (1) These Regulations, other than paragraph 315.15(1)(b), subparagraph 315.15(1)(c)(ii) and Division 2 of the Immigration and Refugee Protection Regulations, as enacted by section 1, come into force on the day on which they are registered.

(2) Paragraph 315.15(1)(b), subparagraph 315.15(1)(c)(ii) and Division 2 of those Regulations, as enacted by section 1, come into force on October 1, 2014.

[40-1-o]

  • Footnote 1
    The Department of Citizenship and Immigration Act, the Immigration and Refugee Protection Act, the Privacy Act, the Access to Information Act, and the Canadian Charter of Rights and Freedoms.
  • Footnote 2
    As determined under sections 34–42 of the Immigration and Refugee Protection Act.
  • Footnote 3
    The Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations contain requirements which may determine a third country national’s eligibility for a permanent or temporary resident visa, work or study permit.
  • Footnote 4
    The Privacy Act protects the privacy of individuals with respect to personal information about themselves held by a Government institution and provides individuals with a right to access and request correction to this information. For more information, please visit the following Web site: https://atip-aiprp.apps.gc.ca/atip/.
  • Footnote 5
    Immigration trends and demography change from year to year, and the impact of recent immigration modernization and reform efforts on assumptions/trends are not yet known. The assumptions used to perform the cost-benefit analysis address this uncertainty in more detail. The detailed cost-benefit analysis may be obtained by contacting Citizenship and Immigration Canada.
  • Footnote 6
    The Centre for Immigration Policy Reform is an independent, non-partisan and not-for-profit organization established to promote immigration policies that are in Canada’s best interest. Its official spokespersons are former ambassadors Martin Collacott and James Bissett (www.immigrationreform.ca).
  • Footnote a
    S.C. 2012, c. 17, s. 47
  • Footnote b
    S.C. 2001, c. 27
  • Footnote 7
    SOR/2002-227