ARCHIVED — Vol. 150, No. 50 — December 10, 2016

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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.)

Issues

The Five Country Conference (FCC) is a long-standing forum for cooperation between the border and immigration agencies of Australia, Canada, New Zealand, the United Kingdom, and the United States. Given the commonalities among these immigration programs, the sharing of immigration information among FCC partners is a particularly beneficial element of this cooperation.

While manual and case-by-case information exchanges with FCC partners have proven to be a valuable tool for immigration decision-makers, the labour-intensive process involved has limited the number of cases for which information exchanges may take place.

In 2013, Canada began automating immigration information exchanges with the United States, supported by regulatory amendments to enable (though not require) these exchanges. To bolster the benefits achieved through manual information sharing, Canada is today seeking to establish a similar automated capability to exchange immigration information with its remaining FCC partners, namely Australia, New Zealand, and the United Kingdom.

Background

Canada has long recognized that sharing immigration information responsibly with close allies enhances its immigration programs. Such sharing provides officers with additional information to assist in assessing the potential risk posed by an applicant to Canada and to the integrity of the immigration system, thereby assisting them in combating immigration fraud, protecting Canada’s security interests, and facilitating the legitimate movement of people.

Since 2009, Canada has manually run a small number of fingerprint-based immigration checks with each FCC partner as part of the High Value Data Sharing Protocol (the Protocol), an immigration information-sharing arrangement that was introduced as a pilot for automated information sharing. Despite the low volume and manual nature of these exchanges, instances have already been uncovered involving fraudulent identities, non-disclosure of criminal histories, illegitimate refugee claims, and misrepresentation.

In 2011, the members of the FCC agreed that it would be valuable to expand and automate the manual, low volume, and case-by-case exchanges taking place between each country. With this consensus, the five countries began exploring a more permanent and automated solution for conducting fingerprint checks between participating agencies in each country in a privacy-sensitive manner.

To further extend the benefits of immigration information exchanges, Canada and its FCC partners are seeking to increase the capacity of immigration information exchanges to include a greater volume of applicants. For Canada, this solution would enable the populations for which information exchanges provide the greatest value (e.g. inland asylum claimants, overseas refugee resettlement applicants, and higher-risk, visa-required temporary resident applicants) to be screened against the larger pool of information available in FCC immigration data holdings.

Persons subject to this enhanced screening and known by immigration authorities in these countries would not be able to withhold information from Canadian officials, thereby improving Canadian immigration and border determinations and establishing and verifying the identity of foreign nationals at the earliest opportunity. Similarly, potential travel may also be facilitated for foreign nationals known to have a history of previous immigration compliance in an FCC country.

Objectives

The objective of the regulatory proposal is to support the Government of Canada’s ability to identify inadmissible individuals at the earliest possible opportunity and, conversely, to facilitate the travel and entry of individuals who can be identified as posing a low risk given their history of compliance in another FCC country.

The regulatory proposal would support this objective by permitting (though not requiring)

  • the disclosure of immigration-related personal information held by Canada to Australia, New Zealand, and the United Kingdom in an automated way, under a specific authority grounded in Canadian domestic law; and
  • better-informed immigration determinations, by providing Canadian decision-makers with relevant immigration information made available by Australia, New Zealand, and the United Kingdom that would otherwise be unknown.

Overall, the proposed regulatory amendments would help balance the need to maintain the integrity of Canada’s immigration program and the safety and security of Canadian residents with the privacy interests of individuals subject to automated immigration information sharing.

Description

The Immigration and Refugee Protection Regulations would be amended to provide the Government of Canada with the authority to disclose limited and prescribed personal information (i.e. fingerprints) to Australia, New Zealand, or the United Kingdom in the form of an automated query for the purpose of assisting in the administration and enforcement of Canada’s immigration and refugee laws. Queries would be initiated on inland asylum claimants, overseas refugee resettlement applicants, and higher-risk, visa-required temporary resident applicants. (see footnote 1)

The Immigration and Refugee Protection Regulations would also be amended to provide the Government of Canada with the authority to disclose limited and prescribed immigration-related information in response to an automated query received from Australia, New Zealand, or the United Kingdom for the purpose of assisting in the administration and enforcement of their respective immigration, refugee, and citizenship laws.

The amendments to the Immigration and Refugee Protection Regulations would consist of several key elements.

Scope and purpose of automated immigration information sharing

The proposed regulatory amendments would specify the query-based nature of the information exchange and the limited purposes for which information could be disclosed.

The proposed regulatory amendments would specify that information would be shared on third-country nationals, including asylum claimants and overseas refugee resettlement applicants. The proposed regulatory amendments would also specify that only in the case of asylum or resettlement queries from Australia, New Zealand, or the United Kingdom could information on permanent residents of Canada be disclosed on an automated basis. The proposed regulatory amendments would also specify that information on Canadian citizens would not be disclosed.

Disclosure of limited information

The proposed regulatory amendments would prescribe that information disclosed to Australia, New Zealand, and the United Kingdom would be limited so as to minimally impair the privacy rights of third-country nationals and permanent residents under section 8 of the Canadian Charter of Rights and Freedoms, which provides for “the right to be secure against unreasonable search or seizure.”

To ensure appropriate privacy safeguards, the proposed regulatory amendments would limit the categories of information shared to biographic identity information, biometric information (to consist of fingerprints and a digital photograph), and immigration-related data stored in the immigration holdings of Immigration, Refugees and Citizenship Canada (IRCC). Only information proportionate, necessary and relevant to the administration and enforcement of each country’s immigration, refugee, and citizenship law would be exchanged.

Transparency in the information-sharing process

The proposed regulatory amendments would specify the terms and conditions for the bilateral exchange of information. To further promote transparency in the information-sharing process, IRCC would also ensure bilateral information sharing arrangements with each FCC partner are made publicly available on its departmental website (http://www.cic.gc.ca/english/ department/laws-policy/agree.asp).

Appropriate privacy safeguards consistent with domestic legislation

The proposed regulatory amendments would specify that Canada would take measures to ensure the accuracy of exchanged information and effective processes for the correction of inaccurate information.

The proposed regulatory amendments would also specify that exchanged information would be retained and disposed in a manner consistent with domestic legislation.

Access to databases or complete records would not be granted. Rather, the country initiating the check would send an anonymized fingerprint-based query that would be run against the receiving country’s biometric immigration records. Whether or not a fingerprint match is established, the country receiving the query would automatically purge the fingerprints used in the query. Therefore, fingerprint information would not be shared with, retained by, or used by the other country, except to determine whether a match exists. Upon confirmation of a match, both positive and negative information about the individual could be exchanged, e.g. past visa approvals or refusals.

“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 on small business.

Consultation

The Office of the Privacy Commissioner of Canada (OPC) has been engaged in developing Canada’s immigration information sharing program with FCC partners. While it has acknowledged the importance of improving border security and immigration determinations, the OPC has been clear that any new measures must be implemented with due respect for fundamental freedoms and privacy rights, ensuring that only the minimal amount of data is disclosed that is necessary, relevant and proportionate to meeting the objective of determining admissibility.

The OPC will be consulted on the proposed regulatory amendments and automated immigration information sharing as contemplated with Australia, New Zealand, and the United Kingdom. A privacy impact assessment for automated immigration information sharing will be submitted before the proposed regulatory amendments would enter into force in 2017. Furthermore, IRCC and the Canada Border Services Agency (CBSA) intend to continue to engage with the OPC throughout implementation to benefit from its advice and in order to ensure any privacy risks are identified and appropriately mitigated.

Rationale

The proposed regulatory amendments would enable high volume information sharing with Australia, New Zealand, and the United Kingdom.

Automated exchanges of information would eliminate the labour-intensive process whereby a Canadian officer manually selects cases one by one for an FCC partner to check. Importantly, automating exchanges of immigration information would enable relevant information to be available quickly, i.e. generated within minutes or hours for most cases, ensuring that important information is on hand to support key steps in the decision-making process.

Automating these bilateral exchanges would increase the Government of Canada’s ability to access immigration information from trusted partners when determining admissibility and in determining an individual’s eligibility for protection under the United Nations Convention and Protocol Relating to the Status of Refugees. Similarly, FCC partners would have the same ability to ask Canada about an applicant to their country to assist in their respective decision-making processes.

Implementation, enforcement and service standards

Implementation would entail the development of both an information technology system and operational infrastructure capable of sending and receiving electronic queries, which is currently underway and planned to be complete in March 2017. This system would enable the sharing of limited immigration information to support the processing of applications for a permanent or temporary resident visa or a work or study permit, to obtain protected person status or another immigration benefit under federal immigration legislation, or to support an investigation into whether a national of a third country is authorized to travel to, enter or remain in Canada.

Privacy and data security safeguards that would enable focused immigration information sharing (e.g. automated sharing of only the minimum amount of data elements required to support the assessment of an application in a particular immigration business line) would be built into the information technology systems. Training, manuals, and operational bulletins would also be developed to ensure that all personnel who would handle shared information use it appropriately and in a manner consistent with domestic legislation and the relevant bilateral arrangement.

Contact

Emmanuelle Deault-Bonin
Deputy Director
Identity Management and Information Sharing
Admissibility Branch
Immigration, Refugees and Citizenship Canada
180 Kent Street
Ottawa, Ontario
K1A 1L1
Telephone: 613-437-5894
Fax: 613-957-9187
Email: CIC.FCCR-RCCN.CIC@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 Emmanuelle Deault-Bonin, Deputy Director, Identity Management and Information Sharing, Admissibility Branch, Immigration, Refugees and Citizenship Canada, 180 Kent Street, 8th Floor, Ottawa, Ontario K1A 1L1 (email: CIC.FCCR-RCCN.CIC@cic.gc.ca).

Ottawa, December 1, 2016

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 2) are amended by adding the following after section 315.35:

DIVISION 3

Information Sharing Between the Government of Canada and the Governments of Australia, New Zealand and the United Kingdom

Interpretation

315.36 The following definitions apply in this Division.

national of a third country means a foreign national other than a national or citizen of the country of the party making or receiving a query. (ressortissant d’un pays tiers)

party means

  • (a) the Minister; or
  • (b) any of the following government departments or their successors that have entered into an arrangement with the Department and the Canada Border Services Agency for the purpose of facilitating information sharing in support of the administration and enforcement of their countries’ respective immigration and citizenship laws:
    • (i) Australia’s Department of Immigration and Border Protection,
    • (ii) New Zealand’s Ministry of Business, Innovation and Employment,
    • (iii) the United Kingdom’s Home Office. (partie)

query means an automated request for information made by one party to another for the purposes of this Division. (requête)

Purpose

315.37 The purpose of this Division is to define the parameters for the sharing of information between parties in support of the administration and enforcement of Canada’s laws in respect of immigration and other parties’ laws in respect of citizenship and immigration.

Making of query

315.38 A query in respect of a person must be made by submitting to another party either the person’s fingerprints accompanied by a unique transaction number or the unique transaction number assigned to a previous query received in respect of the person.

Disclosure of information — query or response

315.39 Disclosure in relation to the making of or a response to a query is limited to information that is necessary, relevant and proportionate to achieving the purposes of this Division and must be made in a manner that ensures the accuracy and reliability of the information.

Making of query — permitted purposes

315.4 (1) The Minister may make a query to another party only for the following purposes:

  • (a) to support an examination or determination following an application or claim made by a national of a third country for a permanent or temporary resident visa, a work or study permit, protection, refugee protection or any other immigration benefit under Canada’s immigration laws; or
  • (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.

Limitation

(2) The Minister must not make a query to another party in respect of a person who has made a claim for refugee protection or an application for protection if the person has alleged persecution in that party’s country.

Disclosure of information — permitted purposes

315.41 (1) The Minister may disclose information in response to a query made by another party only for the following purposes:

  • (a) to support an examination or determination by that party following an application or claim made by a national of a third country for a visa or immigration-related permit, status or benefit;
  • (b) to support an examination or determination by that party as to whether a national of a third country is authorized to travel to, enter or remain in that party’s territory;
  • (c) to support an examination or determination by that party following an application made by a national of a third country for citizenship; or
  • (d) to support an examination or determination by that party following an application or claim made by a permanent resident of Canada for refugee status.

Contents of disclosure

(2) The Minister may disclose to the requesting party the following information in relation to the national of a third country or the permanent resident of Canada:

  • (a) their biographic data, such as last name, first name, date of birth, gender and country of birth;
  • (b) their photograph; and
  • (c) information in relation to the administration and enforcement of Canada’s immigration laws, including the issuing country of the person’s passport, their immigration status, information relevant to — and any previous decision or determination relating to — their admissibility, and any decision or determination relating to a claim for refugee protection or an application for protection.

Refusal to disclose

(3) If the Minister determines that the disclosure of information to another party in response to a query would be inconsistent with domestic law or would be detrimental to national sovereignty, national security, public policy or other important national interests, the Minister must refuse to provide all or part of the available information.

Notification of inaccurate information

315.42 (1) If the Minister becomes aware that information that he or she disclosed in response to a query is inaccurate, the Minister must, as soon as feasible, notify the party to which he or she disclosed the information of the error and provide correcting information.

Correction of inaccurate information

(2) If the Minister receives information from another party correcting information previously disclosed by that party in response to a query, the Minister must, as soon as feasible, make the necessary correction and notify the other party once it has been made.

Retention and disposal of information

315.43 (1) The Minister must retain or dispose of any information obtained in response to a query in accordance with the laws of Canada.

Destruction of fingerprints

(2) The Minister must, immediately after completion of the information search triggered by the receipt of a query, destroy any fingerprint submitted as part of the query, regardless of whether a match is identified.

Coming into Force

2 These Regulations come into force on April 1, 2017.

[50-1-o]

  • Footnote 1
    While the proposed regulatory amendments would permit queries pertaining to all types of permanent resident applications, biometric information is not currently collected from permanent resident applicants other than overseas refugee resettlement applicants. Therefore, no queries could be sent on permanent resident applicants other than overseas refugee resettlement applicants unless and until regulatory amendments are brought forward to enable such collection.
  • Footnote a
    S.C. 2014, c. 39, s. 313
  • Footnote b
    S.C. 2001, c. 27
  • Footnote 2
    SOR/2002-227