Canada Gazette, Part I, Volume 152, Number 40: Regulations Amending the Immigration and Refugee Protection Regulations

October 6, 2018

Statutory authority
Immigration and Refugee Protection Act

Sponsoring agency
Canada Border Services Agency

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

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

Background

The Canada Border Services Agency (CBSA) is responsible for the administration and enforcement of the IRPA. To support the IRPA, footnote 1 and with the aim of protecting Canadians, CBSA officers may detain a permanent resident or foreign national. The Immigration and Refugee Protection Regulations (IRPR) set out factors to consider when determining whether to detain an individual. In addition, CBSA officers are guided by jurisprudence, internal policies, directives and guidelines.

In 2016, Canada’s National Immigration Detention Framework footnote 2 (the Framework) committed to creating a better, fairer immigration detention system based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention are considered and determined to be unsuitable or unavailable.

To achieve its goal of ensuring that detention is a measure of last resort, the Government of Canada identified a number of objectives based on broad consultations with Canadians footnote 3 that took place from August to December 2016. With respect to individuals under 18 years of age, footnote 4 a key objective is to reduce the housing and detention of minors and the separation of families to the greatest extent possible. This objective was conveyed in a Ministerial Direction footnote 5 to the CBSA in November 2017.

As part of the Framework, in addition to investing in infrastructure and service improvements, the CBSA developed the National Directive for the Detention or Housing of Minors footnote 6 (National Directive) to provide operational guidance to its officers as to how minors, as a vulnerable group, are to be accommodated in the immigration detention system.

During the Framework stakeholder roundtable discussions that took place in the latter half of 2016, the Canadian public was given the opportunity to provide feedback on four general statements concerning minors in immigration detention. The resulting report footnote 7 noted that there was strong agreement on three of the four statements concerning minors:

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

Detaining a child or housing a child in a detention facility

The National Directive specifies that minors are not to be detained except in exceptional circumstances. A child in an immigration detention facility is either formally detained based on a legislative ground (for example, if an officer determines that the person is unlikely to appear footnote 8 for an immigration proceeding), or may be housed in the facility at the request of an individual who is formally detained (for example a parent). Most often, this takes place either on arrival in Canada while the CBSA investigates issues related to their identity, or when the CBSA has reason to believe that they, or their parents, will not appear once they have been ordered removed from Canada. In all circumstances, officers are required to consider the best interests of the child and alternatives to detention.

The CBSA detains or houses in a detention facility, on average, fewer than 200 persons under the age of 18 each year, footnote 9 a number that has fallen over each of the last three years. In fiscal year 2016–2017, 162 minors were detained or housed with parents or guardians in an immigration holding centre (IHC), a 19.4% decrease over the previous fiscal year and a 30.2% decrease since 2014–2015.

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

Roles of decision makers in detentions

CBSA officers and members of the Immigration Division (ID) of the Immigration and Refugee Board (IRB), an independent administrative tribunal, have clearly defined roles and responsibilities: footnote 10

Best interests of the child

“Best interests of the child” (BIOC) is an internationally recognized principle to ensure children receive the full and effective benefit of all their rights recognized in Canadian law and the United Nations Convention of the Rights of a Child, to which Canada is a signatory. footnote 12 It is also a rule of procedure that includes an assessment of the possible impact (positive or negative) of a decision on the child or children concerned.

All decision makers have been required to consider the best interests of any child who is formally detained under the IRPA since the legislation was first implemented in 2002, footnote 13 while neither the IRPA nor the IRPR specifically account for non-detained children and their best interests. For this, jurisprudence has been relied upon.

CBSA officers and ID members have the discretion to consider any factor they believe is relevant in any particular case. While the IRPR provide special considerations footnote 14 in relation to the detention of minors, such as the type of detention facility, the conditions of detention, whether children will be segregated from adults who are not their parent and the availability of services in the detention facility, specific factors in relation to the child’s best interests are not found in the IRPR.

Federal Court decision and order

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

This decision was challenged before the Federal Court. The Government agreed that the best interests of the non-detained child can be considered and, as a result, on the consent of both parties, the Court issued an order footnote 15 outlining that the best interests of the non-detained child may be considered under two sections of the IRPR. Since the Court issued its order, both CBSA officers and ID members have been required to consider the best interests of the non-detained child directly affected by the decision in certain situations. This order, however, is not easily accessible to the public.

Objectives

The proposed amendments seek to increase clarity, consistency, and transparency by

Description

The proposed amendments to the IRPR are as follows:

  1. Section 248 would be amended by adding a new paragraph, specifying the best interests of a child directly affected by an immigration detention or release decision of another person, at the end of the existing list of factors:
    • (f) the best interests of a directly affected child who is under 18 years of age.
  2. One new section is proposed to be added after section 248.
    The first subsection of the proposed new section would provide the following non-exhaustive list of factors that CBSA officers and ID members must consider when determining a child’s best interests with respect to detention and release, regardless of whether the child is detained or housed:
    • the child’s physical, emotional and psychological well-being;
    • the child’s healthcare and educational needs;
    • the importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability;
    • the care, protection and safety needs of the child; and
    • the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity.
    The list would not be considered exhaustive; other factors could also be considered.
    The second subsection of the proposed new section would stipulate that the level of dependence of the child on the person for whom there are grounds to detain would also be added as a consideration.

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

“One-for-One” Rule

The “One-for-One” Rule does not apply to this proposal, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

From July 28 to August 27, 2017, the CBSA posted the proposed IRPR amendments on the Consulting with Canadians website. footnote 16 In addition, on July 28, 2017, the following key external stakeholders were notified of the public consultation:

Six stakeholders responded with comments on the proposed amendments. Among those who responded, the feedback was generally supportive of the overall direction of the proposed amendments, with each stakeholder offering additional recommendations. The recommendations provided can be grouped into three broad categories: recommendations for legislative amendments; recommendations for regulatory amendments related to issues other than the best interests of the child (e.g. amendments related to mental health issues or long-term detention); and regulatory amendments specific to this proposal (i.e. factors considered when determining a child’s best interest when their parent or guardian is detained).

The first two categories of recommendations received from stakeholders are outside of the scope of this proposal. The comments received in relation to the proposed amendments are as follows:

Factors for determining a child’s best interests

One stakeholder recommended that decision makers also consider the addition of “the child’s health care needs.” This recommendation was adopted and incorporated into the proposed amendments.

Best interests of the non-detained child

Recommendations from multiple stakeholders included making the best interests of the non-detained child a primary consideration; specifying that all “best interest” considerations should be made around two guiding principles — first, the non-detention of children and second, family unity (i.e. that families should remain together and not be separated); defining the phrase “directly affected” to include children housed in a facility with their parent(s) and children separated from their parent(s); and applying the best interests of the non-detained child any time the child is directly affected by a decision to detain any permanent resident or foreign national under the IRPA.

Primary consideration

Recommendations related to primacy were not adopted in the proposed amendments. Making the best interests of the non-detained child a primary consideration in the IRPR would lead to an inconsistency between the IRPA and the IRPR. For the detention of a child, the IRPA requires decision makers to consider a child’s best interests, but the legislation does not specify that the child’s best interests are to be a primary consideration. To avoid an inconsistency, the language in the IRPR for the non-detained child would align with the language of the IRPA for the detention of a child. The best interests of the detained child and non-detained child will be considered and assessed against all mandatory factors in the IRPA and the IRPR.

Principles of non-detention and family unity

The proposed amendments to section 248 of the IRPR described above are specific to children who are not detained. A principle of non-detention is not necessary for children who are not detained. For detained children, the IRPA currently provides that children shall only be detained as a measure of last resort. The IRPR restate this principle. Although the detention of a child should occur only under exceptional circumstances, the law does allow for this possibility. The principle of the non-detention of children, or not detaining children, in the current IRPR would be inconsistent with the measure of last resort principle articulated in both the IRPA and the IRPR. The objective, however, as reflected in the National Directive, is to continue to work towards ending the detention of children, except in extremely limited circumstances. Family unity will not be singled out in the IRPR as a specific principle. However, the stability of the family environment and the importance of maintaining relationships is a factor that must be considered when determining the best interests of a child when a decision has been made to detain the child’s parent(s) or guardian. This factor will be prescribed in a newly created section of the IRPR, as noted above.

Defining “directly affected”

The proposed amendments are intended to apply to every child directly affected by a detention decision; therefore, it is not necessary to further specify that the factors to be considered in the best interests of the child would apply to children housed in a facility with their parent(s) and children separated from their parent(s). Using the phrase “any child directly affected” and then defining this as two specific circumstances may unintentionally narrow the provision and may lead to an interpretation that excludes certain children in detention-related decisions. For these reasons, this recommendation was not incorporated into the proposed amendments.

It is also important to note that a “best interests” determination is only required where the non-detained child is directly affected by the detention decision. In any situation where an individual argues that the best interests of a non-detained child must be considered, decision makers would first have to determine whether the child in question is directly affected by the detention decision. If the child is directly affected, only then would the decision maker be required to consider the child’s best interests, including a consideration of the factors relevant for making a best interests determination.

Expanding application beyond parent(s) or legal guardian(s)

Stakeholders recommended that consideration of the best interests of the non-detained child in any decision related to the detention of the child’s parent(s) or legal guardian(s) be expanded to include other relationships. In recognition that children may be directly affected by decisions to detain other individuals in their lives who offer a primary caregiver role, but are not the child’s parent or legal guardian, and in support of the principles of family unity and avoiding family separation, this recommendation was adopted in the proposed amendments.

Rationale

The proposed amendments would codify into the IRPR the existing Federal Court direction footnote 17 that best interests considerations apply to every child directly affected by an immigration detention decision. In accordance with that jurisprudence, this direction has already been implemented in practice. Moreover, incorporating previous direction of the Federal Court into the proposed amendments would serve to make the law more transparent and accessible to the public.

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

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

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

Implementation, enforcement and service standards

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

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

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

Contact

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

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and section 61 footnote a of the Immigration and Refugee Protection Act 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 Richard St Marseille, Acting Director, Policy Division, Enforcement and Intelligence Programs Directorate, Programs Branch, Canada Border Services Agency, 100 Metcalfe Street, 10th Floor, Ottawa, Ontario K1A 0L8 (tel: 613-954-3923, email: Richard.StMarseille@cbsa-asfc.gc.ca).

Ottawa, September 27, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Section 248 of the Immigration and Refugee Protection Regulations footnote 18 is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):

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

Best interests of the child

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

Degree of dependence

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

Coming into Force

3 These Regulations come into force on the day on which they are registered.