Vol. 138, No. 22 — November 3, 2004

Registration
SOR/2004-217 12 October, 2004

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2004-1157 12 October, 2004

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations to be laid before each House of Parliament, substantially in the form set out in the annexed Regulations;

And whereas, in respect of section 159.3 of the Immigration and Refugee Protection Regulations, as enacted by the annexed Regulations, the factors set out in subsection 102(2) of that Act have been considered;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 102 of the Immigration and Refugee Protection Act (see footnote c), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Introduction

The global growth of migration, and in particular the contemporary phenomenon of mixed flows of economic migrants, refugees, and asylum seekers has resulted in significant pressures on asylum systems in developed countries including Canada and the United States. Some migrants attempt to make use of asylum systems to secure entry to a developed country and its attendant economic opportunities. Asylum seekers may pass up opportunities for protection closer to home in order to claim refugee protection in a developed country, again often for economic reasons.

In response, the Government of Canada has articulated the concept in the Immigration and Refugee Protection Act (IRPA or Act) that where a refugee claimant could have sought protection in another safe country, it is reasonable and appropriate to require the refugee claimant to return and make use of that opportunity. By so doing, the Government seeks to share the responsibility for providing protection to those in need, improve the efficiency of the refugee determination system and restore public confidence in that system. The Regulations flow from core principles established in the IRPA.

Canada's commitment to its international obligations toward refugees reflects our humanitarian tradition and core values of compassion and fairness. The safe third country concept was first introduced into our immigration legislation in 1988. An Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (The Safe Third Country Agreement) was signed on December 5, 2002. This Safe Third Country Agreement and the Regulations implementing it reflect a widespread and growing international consensus that no refugee receiving country can, on its own, solve the refugee problems of the world. International efforts, both bilateral and multilateral, are needed to share the responsibilities of protecting those in need. By working collectively, states increase the effectiveness of their efforts in finding solutions for those entitled to protection. Regulations implementing the Safe Third Country Agreement are a necessary step towards international cooperation in the orderly handling of refugee claims.

The IRPA allows the designation of a country for the purpose of sharing responsibility of refugee protection. It also establishes factors to be considered when designating a country, namely: (a) whether the country is a party to the Convention Relating to the Status of Refugees (Refugee Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); (b) its policies and practices with respect to these two conventions; (c) its human rights record; and (d) whether it is a party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection such as the Safe Third Country Agreement. These Regulations thus flow from the Safe Third Country Agreement and the Government's consideration of the other factors.

Prior to the signing of the Agreement and since these Regulations were pre-published in 2002, the Government has continued to monitor developments in the United States related to the aforementioned factors. Pursuant to subsection 102(3) of the Act, a process for ongoing review will be in place in order for the Minister of Citizenship and Immigration to monitor compliance with these factors.

Description

Paragraph 101(1)(e) of the IRPA specifies that persons claiming refugee protection who come to Canada directly or indirectly from a designated country are not eligible to be referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB) for a determination of their claim. Section 102 of the Act provides authority to designate countries for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims based on criteria including compliance with the Refugee Convention and the CAT. It also provides an authority to prescribe the circumstances and criteria for the application of ineligibility provisions.

The Regulations Amending the Immigration and Refugee Protection Regulations (the Regulations) designate the United States as a country that complies with Article 33 of the Refugee Convention and Article 3 of the CAT. Once the new regulations are implemented, persons coming from the United States who are seeking entry at a land port of entry to make a refugee claim in Canada will not have access to the refugee determination process in Canada. The new regulatory provisions also establish some exceptions. These Regulations will come into force following an exchange of diplomatic notes between Canada and the United States.

Purpose of these provisions

The purpose of the provisions is to render paragraph 101(1)(e) of the Act effective by prescribing the United States as a designated country. Once the Regulations come into force, persons who arrive at a Canadian land border port of entry from the United States who claim refugee protection will be ineligible to have their claim determined by the IRB, unless they fall within an exception. Exceptions to the ineligibility provisions are consistent with the principles established in IRPA, which favour family reunification and protection of the best interests of the child. The Regulations also support the long-standing practice not to return persons to a country where they may face the death penalty.

What the regulations do

These Regulations:

— designate the United States as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;

— define "Agreement", "claimant", "designated country", "family member", "legal guardian", and "United States";

— specify that these provisions are only applicable at land border ports of entry except for persons who have been ordered deported from the United States and are transiting through Canada via an airport;

— provide that either Canada or the United States may completely or partially suspend the Safe Third Country Agreement upon posting a notice of suspension;

— provide exceptions for certain categories of persons in prescribed circumstances so that they may access the Canadian refugee determination process even though they had an opportunity to seek protection in the United States. These include certain family members, minor children, persons facing the death penalty, persons who have a legal temporary status in Canada, persons affected by a stay of removal (to a particular county or following a decision related to humanitarian and compassionate grounds), and persons refused entry into the United States without their claim being adjudicated.

Alternatives

There is no alternative to regulations as paragraph 101(1)(e) of the Act provides that the country shall be designated by regulations.

Benefits and Costs

Benefits

By designating the United States as a country that complies with Article 33 of the Refugee Convention and Article 3 of the CAT, persons seeking protection in Canada can be returned to the United States for assessment of their claims.

Although it is expected that the workload at land border ports of entry will be significantly reduced by these measures, there will be added complexity in the decision-making of port of entry officers to determine whether an exception applies. An increase in refugee claims at inland offices and airports may result as persons seek to bypass the provisions of the Act and Regulations. Citizenship and Immigration Canada (CIC) is developing operational contingency strategies to prepare for these impacts and will re-allocate resources as required.

Costs

Implementation costs, including those resulting from increased complexity of decision-making at ports of entry, will be met through the re-allocation of CIC resources.

Consultation

Consultations have been held in Canada with non-governmental organizations (NGOs) including Amnesty International and the Canadian Council for Refugees. Both Canada and the United States participated in a joint consultation with the United Nations High Commissioner for Refugees (UNHCR). NGOs are opposed to the Safe Third Country Agreement on principle, arguing that refugees should have the right to choose where they seek protection. They also feel that the United States does not meet its international refugee protection obligations. The UNHCR supports the objectives of the Safe Third Country Agreement and considers that both countries meet their international obligations.

Pre-publication

These amendments were pre-published in the Canada Gazette, Part I, on October 26, 2002. Following pre-publication, comments were received from several organizations including the UNHCR, the Immigration and Refugee Board, the Canadian Bar Association and human rights and refugee advocacy groups. The Standing Committee on Citizenship and Immigration also held public hearings and completed a report, in December 2002, on the initial draft regulations including recommendations for change.

Many of the comments made previously by these organizations were reiterated during the initial pre-publication. In their view, the intentions of asylum seekers should be taken into consideration wherever possible. However, the UNHCR supports the concept of responsibility-sharing agreements between states where appropriate safeguards are in place such as the provision for family reunification. They recognize that such agreements can enhance the international protection of refugees by ensuring the orderly handling of protection claims.

The main concerns raised during the pre-publication centred on whether or not the United States is a safe country for refugees. Comments made specific reference to American detention practices, expedited removal procedures and mandatory bars to asylum. The social impact of illegal border crossing was frequently mentioned. Other concerns focussed on the scope of the exceptions and sought to broaden those contained in the draft regulations.

Based on comments and consultation, the following changes are proposed to the pre-published regulations:

— Modification to subsection 159.4(2) to clarify that persons in transit by plane through Canada pursuant to a removal order made by the United States will not have access to the Canadian refugee determination process.

— Family reunification provisions have been expanded to include three new groups:

These changes better reflect Canada's commitment to family reunification. In the case of student and work permit holders, the exception will not apply if the permit has expired or if a removal order made against the permit holder becomes enforceable.

— The regulatory provisions have been amended to clarify that the exception which allows persons with family members already in Canada to make a claim for refugee status does not apply in cases where the family member in Canada has had their refugee claim withdrawn, abandoned or refused. The rationale is that a person who does not have a pending valid claim for protection or any other status already provided for in the exceptions is not likely to be allowed to remain in Canada.

— The exception for unaccompanied minors has been revised to clarify that a minor accompanied by an adult who is not a parent or legal guardian will have access to the refugee determination process in Canada. The revision is consistent with the IRPA and Canada's international obligations concerning the best interests of the child.

— New exceptions have also been added to include:

— Clarification has been added to section 159.7 to ensure consistency with paragraph 10(3) of the Safe Third Country Agreement with regards to suspension, partial suspension and termination of the Agreement.

Compliance and Enforcement

Unless they fall within an exception prescribed in the Regulations, persons arriving from the United States seeking protection in Canada will be found ineligible to have their refugee claim referred to the RPD and, as such, will be required to make their claim in the United States.

Because persons claiming refugee protection at ports of entry are also making an application to enter Canada, officers will be required to make a decision on admissibility to Canada as well as a decision on eligibility to make a claim for refugee protection. As in all cases, persons failing to satisfy an officer that they are not inadmissible and that they will leave Canada at the end of an authorized period may be reported for inadmissibility and a removal order will be made. The provisions for withdrawals of an application to enter Canada will also apply to these persons, as they apply to all other persons who seek to enter Canada.

Persons determined ineligible to have their claims determined before the Immigration and Refugee Board by reason of paragraph 101(1)(e) of the Act will be ineligible to make an application for a Pre-Removal Risk Assessment pursuant to paragraph 112(2)(b) of the Act.

Gender-based Analysis

In response to some of the public comments received regarding the treatment of gender-based asylum claims in the United States, Canada commissioned research to provide further input. Using data available on gender-related asylum cases from the Web site of the Center for Gender and Refugee Studies of Hastings College of Law, the study provides an analysis of United States jurisprudence regarding gender related persecution issues such as rape, female genital mutilation, domestic violence, forced marriage, honour killings, forced prostitution and repressive social norms. The research concludes that the body of case law is broadly supportive of gender-based claims. Further material can be found on the CIC Web site.

Canada and the United States have similar approaches and both countries meet international standards on the treatment of gender issues. At the same time, the Canadian government acknowledges the on-going debate and recognizes that it will be in a better position to assess the impact of the Safe Third Agreement on different groups after its implementation, once the data has been gathered and analyzed. The one-year review of the Agreement will provide an opportunity to review gender issues, in addition to other aspects of the Agreement, in partnership with the UNHCR and other relevant NGOs.

Contact

Dick Graham
Director
Asylum Division
Refugee Branch
Citizenship and Immigration Canada
Jean Edmonds Tower South
17th Floor
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: (613) 941-8331
FAX: (613) 941-6413

Footnote a

S.C. 2004, c. 15, s. 70

Footnote b

S.C. 2001, c. 27

Footnote c

S.C. 2001, c. 27

Footnote 1

SOR/2002-227

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