Canada Gazette, Part I, Volume 152, Number 51: Regulations Amending the Immigration and Refugee Protection Regulations

December 22, 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 existing admissibility determination and issuance of removal orders process for foreign nationals who are subject to Canadian sanctions is overly cumbersome, costly, and lengthy relative to the straightforward nature of these grounds of inadmissibility. Currently, the Immigration and Refugee Protection Regulations (IRPR) state that all foreign nationals alleged to be inadmissible for being listed under a Canadian sanctions list, specifically the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law) [JVCFOA], must be referred to an Immigration Division (ID) admissibility hearing in order to determine admissibility and be issued a removal order. Referring sanctions inadmissibility cases to the ID unnecessarily extends the length of time before a removal order can be issued, when a simpler process would be more efficient.

Background

On October 17, 2017, private Member's Bill S-226, the JVCFOA, received royal assent. Bill S-226 created a new legal framework that allows for the unilateral imposition of sanctions against foreign nationals and groups who have committed gross violations of internationally recognized human rights, as well as significant acts of corruption. The JVCFOA allows Canada to list foreign nationals responsible for such actions. Prior to Bill S-226, situations in which Canada would issue sanctions were limited to decisions of international organizations in which Canada is a member (such as the United Nations), or crises threatening international peace and security. With the coming into force of Bill S-226, SEMA was amended by adding two new circumstances (human rights abuses and significant acts of corruption) for which the Governor in Council can impose sanctions. For example, on June 25, 2018, the Special Economic Measures (Burma) Regulations footnote 1 were amended to add seven additional individuals, all of whom are senior officials in Myanmar's military who occupied a position of authority during the military operations against Rohingya in Rakhine State, which led to the current humanitarian and security crisis. Each applicable SEMA sanction, imposed through amendments to the SEMA regulations, specifies which prohibitions apply to a particular individual.

With respect to the Immigration and Refugee Protection Act (IRPA), Bill S-226 introduced two new inadmissibility provisions under section 35 (Human and international rights violations) of the Act: paragraphs 35(1)(d) and 35(1)(e). The first amendment to the IRPA renders inadmissible to Canada foreign nationals who are the subject of a sanction unilaterally imposed by Canada through SEMA on grounds that gross and systematic violations of human rights or significant corruption has been committed by a foreign public official or association of such a foreign official. The second amendment to the IRPA renders inadmissible to Canada foreign nationals who are the subject of a sanction unilaterally imposed by Canada under the JVCFOA. The circumstances for being sanctioned under the JVCFOA include gross violations of internationally recognized human rights and corruption.

The evidence required in the finding of inadmissibility under these two provisions requires a simple verification of whether the individual appears on a sanctions list. Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC) officers, both overseas and inland, can consult a secured database used solely for immigration purposes that contains alerts on files of all individuals sanctioned by Canada. The public and foreign nationals applying to travel to Canada can also consult the public website of Global Affairs Canada (GAC), specifically the Consolidated Canadian Autonomous Sanctions List, footnote 2 where they can find a repository of names of foreign nationals sanctioned by Canada under SEMA and the JVCFOA.

Currently, in the overseas context, if a foreign national who is listed under SEMA or the JVCFOA applies for a temporary resident visa (TRV), the visa officer may refuse the issuance of a TRV on the basis that the individual is inadmissible to Canada, preventing the foreign national from entering Canada. Similarly, if a foreign national who is on a Canadian sanctions list applies for an electronic travel authorization (eTA) and the application cannot be automatically approved by the system, a manual review will be conducted and may result in the refusal of the eTA.

At ports of entry or inland offices, if a CBSA officer believes a foreign national is inadmissible to Canada for being subject to Canadian sanctions, the CBSA officer may prepare an inadmissibility report setting out the relevant facts of the inadmissibility. The officer will then refer the report to the Minister's delegate (MD) [a CBSA officer, supervisor, or high-ranking official acting on behalf of the Minister] who must then review the facts of the inadmissibility. In sanctions inadmissibility cases, if the MD is of the opinion that the allegations outlined in the report are well founded, in order for a removal order to be issued, the case must be referred to the ID for an admissibility hearing, as prescribed in the IRPR. If the ID is satisfied that the foreign national is inadmissible, the ID must issue the removal order.

Generally, the MD has the authority to issue removal orders for more straightforward cases, such as criminal inadmissibility of foreign nationals due to in-Canada convictions, as confirmation of the conviction is easy to verify. The ID issues removal orders for more complex cases, such as those related to national security, human or international rights violations, and organized crime. The delineation of responsibilities between the ID and the MD is prescribed under the IRPR. Currently, the IRPR stipulates that the ID must issue the removal order for individuals inadmissible for being the subject of Canadian sanctions under SEMA and the JVCFOA.

Objectives

The proposed regulatory amendments would streamline the inadmissibility decision-making process for foreign nationals inadmissible for being subjects of unilateral sanctions imposed by Canada through SEMA and the JVCFOA by transferring the authority to issue a removal order from the ID to the MD. This approach is more in line with the existing division of responsibilities between the MD and the ID as prescribed in the IRPR.

Description

The proposed Regulations would transfer the authority to issue a removal order from the ID to the MD for the new sanctions inadmissibility grounds that came into force in October 2017 through Bill S-226. Specifically, the proposed amendments would authorize the MD to issue deportation orders against foreign nationals inadmissible for being the subject of Canadian sanctions. The ID would still have the authority to issue removal orders in cases where the report contains additional inadmissibility grounds for which the MD does not have jurisdiction to issue a removal order or where the inadmissibility report involves an unaccompanied minor (under the age of 18) or someone who is unable to comprehend the proceedings. This would streamline the inadmissibility decision-making process and increase the efficiency of reaching a final determination, as removal orders would be issued much sooner for these cases.

"One-for-One" Rule

The "One-for-One" Rule does not apply, as the regulatory amendments apply to individuals, not businesses.

Small business lens

The small business lens does not apply, as the regulatory amendments apply to individuals, not businesses.

Consultation

On June 8, 2018, the CBSA launched online public consultations on these proposed Regulations and informed key stakeholders of this opportunity. The following stakeholder groups were identified for this public consultation:

The public consultation period closed on July 7, 2018. No comments were received.

Rationale

The proposed regulatory amendments are designed to streamline the admissibility decision-making and issuance of removal orders process for foreign nationals found inadmissible for being named on a Canadian sanctions list. This would be achieved by transferring the authority to issue removal orders from the ID to the MD. In some cases, it may take the ID months to issue a removal order, while the MD can issue the removal order immediately upon reviewing the inadmissibility report. This streamlined process would require very little weighing of evidence, given that the evidence is easily accessible via GAC's Consolidated Canadian Autonomous Sanctions List or the corresponding secure database. This approach is also consistent with the existing delineation of responsibilities between the ID and the MD whereby the former has responsibility over the most complex inadmissibility provisions and the latter has authority for the more straightforward provisions.

The ID would still have the authority to issue removal orders in cases where the inadmissibility report contains additional inadmissibility grounds for which the MD does not have jurisdiction or where the inadmissibility report involves an unaccompanied minor or someone who is unable to comprehend the proceedings. These exemptions are consistent with other inadmissibility provisions for which the MD has jurisdiction.

Streamlining this process would result in cost savings for the Government of Canada, as it avoids the cost associated with admissibility hearings and other downstream processes, including potential detentions. For example, the cost of each hearing to the CBSA is $1,424 for an in-person hearing. footnote 3 Eliminating the requirement for the CBSA to present these cases to the ID would result in an annual estimated savings to CBSA of approximately $5,696 (four cases multiplied by $1,424 for each hearing). The cost to the Immigration and Refugee Board of Canada (IRB) would range from $400 to $2,544 depending on the case. If the ID no longer needs to assess these cases, this would result in an annual estimated cost savings to the IRB of $1,600 to $10,175 (for four cases).

Budget 2018 provided the CBSA with $2.65 million over five years, with $375,000 in ongoing support for Canada's sanctions regime. This funding serves to enhance the CBSA's capacity to support Canada's immigration-related sanctions regime, including the development of regulatory amendments to better align the inadmissibility provisions brought into force by Bill S-226 with the overall decision-making framework. The cost of implementing these regulatory changes is, however, expected to be minimal (i.e. approximately $19,000 to update operational manuals and prepare an operational bulletin informing officers of the changes). There would be no additional costs to the CBSA in subsequent years, resulting in an annual savings of approximately $5,696 (four cases multiplied by $1,424 for each hearing no longer required) should the projected rate of four cases per annum materialize.

The sanctions inadmissibility regime supports various objectives of the IRPA, including the protection of public health and safety and the maintenance of the security of Canadian society, as well as the promotion of international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks. By transferring the removal order authority for cases of sanctions inadmissibility from the MD to the ID, a removal order can be issued faster, which results in a more expeditious removal. This contributes to greater public security for Canada. Given that this amendment would result in a change in internal process, no gender-based analysis plus (GBA+) issues have been identified for this proposal.

Implementation, enforcement and service standards

The amendments to the Regulations are expected to come into force on the day on which they are registered. To support their coming into force, the CBSA would update manuals and provide operational bulletins to advise officers of the changes to the Regulations. Any sanctions inadmissibility cases already before the ID upon the coming into force of these amendments would remain with the ID until they are concluded. The amendments would only affect sanctions inadmissibility reports referred to the MD after the amendments come into force. The CBSA would also continue to work with its partners, such as GAC, to ensure that information on sanctioned foreign nationals in the secure immigration enforcement database is accurate and up to date to support interdiction overseas and at the ports of entry. The CBSA would also work with the IRB to ensure a smooth transition from Immigration Division jurisdiction to Minister's delegate jurisdiction for these cases.

These proposed Regulations would not impact available recourse mechanisms. Recourse is available to foreign nationals subject to removal orders due to a finding of sanctions inadmissibility. For example, the foreign national may file an application for leave and judicial review of decision with the Federal Court. Alternatively, the foreign national may seek remedy from GAC by submitting an application for delisting to the Minister of Foreign Affairs, which would require the foreign national to provide a detailed description of the relevant circumstances and reasons supporting the application.

Contact

Richard St Marseille
Acting Director
Policy Division
Canada Border Services Agency
100 Metcalfe Street, 10th Floor
Ottawa, Ontario
K1A 0L8
Email: IEPU-UPELI@cbsa-asfc.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1) and section 53 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 45 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, Canada Border Services Agency, 100 Metcalfe Street, 10th Floor, Ottawa, Ontario K1A 0L8 (email: IEPU-UPELI@cbsa-asfc.gc.ca).

Ottawa, December 13, 2018

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Subsection 228(1) of the Immigration and Refugee Protection Regulations footnote 4 is amended by striking out "and" at the end of paragraph (d), by adding "and" to the end of paragraph (e) and by adding the following after paragraph (e):

2 Paragraph 229(1)(b) of the Regulations is replaced by the following:

Transitional Provision

3 Subsection 228(1) and paragraph 229(1)(b) of the Immigration and Refugee Protection Regulations, as they read immediately before the day on which these Regulations come into force, continue to apply in respect of a foreign national for whom, before the day on which these Regulations come into force, a report was referred to the Immigration Division for an admissibility hearing under subsection 44(2) of the Act.

Coming into Force

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