Canada Gazette, Part I, Volume 156, Number 15: Regulations Amending the Immigration and Refugee Protection Regulations
April 9, 2022
Immigration and Refugee Protection Act
Canada Border Services Agency
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
The current process of cancelling immigration documents after a foreign national has been found inadmissible and subsequently issued a removal order is inconsistent and inefficient. In addition, the current approach whereby inadmissibility determination does not automatically and directly affect the validity of immigration documents has unintended consequences that can lead to program integrity concerns, such as the continued use of documents by inadmissible persons and the possibility of documents inadvertently not being manually cancelled by officers. The proposed amendments will address these issues with respect to immigration documents, which include electronic travel authorizations (eTAs), temporary resident visas (TRVs), temporary resident permits (TRPs), work permits and study permits.
Through Budget 2019, the Government of Canada committed to investing $1.18 billion over five years and $55 million per year ongoing to enhance the integrity of Canada’s borders and asylum system. These investments support the Border Enforcement Strategy to increase the asylum system’s capacity to provide timely protection to refugees while ensuring that failed asylum claimants are removed faster. The proposed amendments are a part of the Government’s broader Border Enforcement Strategy and align with its overall commitment to a well-managed asylum system that is “fair, fast and final.”
National Strategy to Combat Human Trafficking
On September 4, 2019, the Government of Canada announced an investment of $57.22 million over five years, starting in 2019–2020, and $10.28 million annually thereafter, in new federal funding to combat human trafficking under a National Strategy to Combat Human Trafficking (National Strategy). As part of the “protection” pillar of the National Strategy, the Canada Border Services Agency (CBSA) has committed to reviewing the immigration enforcement legislative and regulatory framework to ensure that sufficient protection is in place for victims.
Inadmissibility and removal orders
The Immigration and Refugee Protection Act (IRPA) includes a number of grounds for inadmissibility, which can result in the issuance of a removal order. Under the IRPA, grounds for inadmissibility include security, human or international rights violations, criminality, organized criminality, health grounds, financial reasons, misrepresentation, having inadmissible family members, non-compliance with the IRPA, and cessation of refugee protection. Once a removal order becomes enforceable, foreign nationals are required to leave Canada. A foreign national under removal order, in general, can either leave voluntarily or be removed from Canada by the CBSA.
Removal orders can be issued once a person has been found to be inadmissible under the IRPA. Procedurally, the first step in seeking the issuance of a removal order is the preparation of a report on inadmissibility by an officer of either the CBSA or of Immigration, Refugees and Citizenship Canada (IRCC). This report is then reviewed by a Minister’s delegate (MD) to determine whether or not the allegation of inadmissibility outlined in the report is well founded. The MD review is a form of peer review, which is conducted by another CBSA or IRCC officer or a supervisor or manager. If the MD determines that the report is well founded, the MD may issue a removal order or refer the inadmissibility report to the Immigration Division (ID) of the Immigration and Refugee Board for an admissibility hearing to be held.
The Immigration and Refugee Protection Regulations (IRPR) define the circumstances in which the MD has authority to determine inadmissibility and issue a removal order and the circumstances where this responsibility resides with the ID if a person is determined to be inadmissible at an admissibility hearing. The proposed amendments do not change the framework governing inadmissibility determination and removal order issuance.
Immigration document cancellation
The IRPA and the IRPR provide various immigration document cancellation authorities and requirements. The existing framework, however, was established incrementally over the years as new initiatives were implemented. Until now, the various provisions related to the cancellation of immigration documents have not been reviewed holistically, particularly those associated with in-Canada inadmissibility determination and removal order issuance.
Authorities under the IRPA and the IRPR are inconsistent with respect to how immigration documents are cancelled following a removal order issuance. For example,
- For eTAs, the IRPR (paragraph 12.06(d) and section 12.07) provide discretionary cancellation authorities that allow an officer to cancel the eTA when a removal order is issued against the eTA holder. This has existed since 2015 when eTAs were first introduced and subsequently maintained when the IRPR’s eTA provisions were updated in 2017.
- For TRPs, the IRPA (subsection 24(1)) provides discretionary cancellation authorities at any time. This has existed since the IRPA came into force in 2002.
- For work permits and study permits, the IRPR (section 209 and paragraph 222(1)(b) respectively) provide for automatic cancellation when a removal order issued against the permit holder becomes enforceable (i.e. when a removal order comes into force and is not stayed). This has existed since the IRPR came into force in 2002.
- For TRVs, there are no explicit cancellation authorities in the IRPA or the IRPR; however, there is implicit authority to cancel these documents once they have been issued.
In some instances, the cancellation of immigration documents may occur at any time, or when a removal order is issued, whereas in other cases, there are no explicit cancellation authorities. There are also cases in which the cancellation happens automatically (i.e. by operation of law) when a removal order becomes enforceable. However, currently, these automatic cancellations still require manual data entry by officers to ensure that the documents that are automatically cancelled by law are also recorded in the same system of record in which both removal orders and immigration documents are processed (Global Case Management System or GCMS). As a result, the IRPR provisions governing the cancellation of immigration documents are considered inconsistent.
Furthermore, it is important to note that the current patchwork approach to discretionary cancellation authorities requires officers to document specific rationales supporting each cancellation decision. This is particularly inefficient and unnecessary in cases where removal orders are being issued against inadmissible persons, as the overarching rationale for cancelling immigration documents in this scenario is generally based on the inadmissibility of the person concerned and the enforcement decision to pursue the removal order itself.
The proposed amendments would require that immigration documents be automatically cancelled whenever a removal order is issued against an inadmissible foreign national. The objective of this approach is to streamline internal processes, generate cost efficiencies, and improve consistency of application with respect to the cancellation of immigration documents when a removal order has been issued.
The IRPR will be amended to require that immigration documents (i.e. eTAs, TRVs, TRPs, work permits, and study permits) be automatically cancelled as a direct consequence of a removal order being issued. No additional decisions or intervention would be required by officers to effect the cancellation. Rather, the GCMS information technology system (the system of record for immigration that is used by both the CBSA and IRCC) will be updated to implement the proposed amendments. When a removal order is issued in the GCMS, the system will concurrently and automatically cancel the immigration documents (which would also have been issued in the same system). Given the current patchwork approach in the authorities provided by the IRPR in relation to cancelling immigration documents, some existing authorities will be retained, and others will be added, as described below.
The current discretionary cancellation authorities for cancelling eTAs and TRPs would remain unchanged. However, an automatic cancellation provision will be added for when a removal order is issued against eTA and TRP holders. An automatic cancellation authority will also be created for TRVs. With respect to work and study permits, a new provision will be added so that cancellation is automatic when a removal order is issued. There will be no change to the IRPR provisions that allow some foreign nationals subject to removal orders to apply for non-status work or study permits.
The existing IRPR provisions related to the automatic cancellation of work permits and study permits when a removal order becomes enforceable will be retained. Retaining these cancellation authorities is necessary to account for foreign nationals who are issued a work or study permit after they have been issued a removal order. Work and study permits issued in these instances do not confer temporary residence status and may be authorized so the holders can support themselves, pending another proceeding under the IRPA, such as determination on asylum claims.
Under the proposed amendments, individuals who are found to be inadmissible would have their immigration documents cancelled in the system of record (GCMS) automatically. To ensure that adequate protections are in place for certain vulnerable individuals who hold TRPs (e.g. victims of human trafficking or family violence), specific program guidance would require that the CBSA consult with IRCC on a case-by-case basis as to whether a new TRP should be issued to cover the new inadmissibility.
Overall, the proposed amendments would also result in better alignment between the IRPR provisions related to immigration document cancellation and existing provisions related to the loss of temporary resident status under the IRPA. Under the Act, temporary resident status is lost automatically when there is a determination of inadmissibility by an officer or the ID. Under the proposed amendments, when a foreign national loses temporary resident status as a result of a removal order being issued (i.e. a determination by an officer [the MD] or the ID), their immigration documents will also be automatically cancelled.
As is the case with all decisions under the IRPA, inadmissible persons who are issued removal orders may seek judicial review of the decision. This will not change under the proposed amendments. The proposed amendments do not affect any foreign national’s status in Canada, nor any foreign national’s access to the asylum determination system. They also do not affect any foreign national’s ability to apply for permits or immigration documents in accordance with existing Canadian laws.
Finally, minor technical amendments would also be made. For instance, the term “cancellation” would be applied throughout the relevant IRPR provisions rather than the currently utilized term of “invalidation.” This approach is meant to improve clarity as both words are interchangeable with respect to the policy intent of the cancellation provisions. Additional technical amendments will be made to align the validity period of immigration documents with the new automatic cancellation provisions.
A proposal for the automatic cancellation of immigration documents was included in the 2019–2021 CBSA Forward Regulatory Plan. The CBSA also held a 30-day online public consultation process through the CBSA’s website and also on the Consulting with Canadians website. This consultation ended in July 2019. The following stakeholders were notified of the opportunity to comment:
- British Columbia Civil Liberties Association
- Canadian Association of Refugee Lawyers
- Canadian Association of Professional Immigration Consultants
- Canadian Bar Association
- Canadian Civil Liberties Association
- Canadian Council for Refugees
- Federation of Law Societies of Canada
- Quebec Immigration Lawyers Association
No public or stakeholder input was received.
Modern treaty obligations and Indigenous engagement and consultation
No impacts on Indigenous peoples are anticipated as a result of the proposed amendments, which will only have an impact on foreign nationals determined to be inadmissible to Canada and who are issued removal orders.
As noted above, there are existing authorities for the cancellation of immigration documents already in the IRPR. Since different approaches are prescribed (or not included) in the IRPR depending on the type of immigration document, alternative instruments, such as operational policy changes alone, would not be sufficient to address the issue of inconsistent and inefficient cancellation authorities.
Benefits and costs
The proposed amendments are expected to result in $3.82 million in net benefits over a 10-year period following implementation, through automating the cancellation of immigration documents when the holder is issued a removal order. This is in addition to the benefit of improved consistency of application of document cancellation following removal order issuance.
The proposed amendments would streamline the cancellation of immigration documents in cases where a person has been determined to be inadmissible and issued a removal order. They would provide for cost avoidance for both the CBSA and IRCC by eliminating unnecessary manual processes undertaken by officers involved in the removal order issuance and immigration document cancellation processes.
In 2018, over 30 000 removal orders were issued against the holders of immigration documents. The vast majority (91%) of the removal orders were issued against refugee claimants. Using an assumption baseline of 30 minutes to discretionarily cancel an immigration document, automatic cancellation following a removal order would result in a reduction of over 15 700 person-hours of work.
The implementation costs for the Government of Canada associated with the proposed amendments include information technology changes, updates to internal CBSA and IRCC policies and processes, and operational costs to issue certain work and study permits. To achieve downstream cost avoidance, an upfront information technology investment is required so that the GCMS will automatically cancel immigration documents when removal orders are issued in the system. With respect to policy personnel, there is a time-limited cost for employees to implement the proposed amendments.
Given that the proposed amendments would automatically cancel work permits and study permits when a removal order is issued, in some cases there would be a requirement to issue new work permits or study permits to certain foreign nationals who are eligible to apply for non-status permits. This particularly refers to refugee claimants who are eligible to hold these types of work or study permits while they await the outcome of their claim. However, these types of permits may have different terms and conditions than those issued to persons who enter as temporary residents, and they do not provide claimants with any immigration status in Canada. In 2018, there were fewer than 2 400 work permit and study permit holders who were issued removal orders, and they were all refugee claimants.
It is assumed that there is no quantifiable cost impact on those persons who would be eligible to apply for a non-status permit after the issuance of a removal order and cancellation of any permit they may have held prior to that time. This is because the IRPR currently provide several application fee exemptions, including for refugee claimants.
- Base year for costing: 2020
- Present value base year: 2021 (10-year period: 2021–22 to 2030–31)
- Discount rate: 7% (as per the Canadian Cost-Benefit Analysis Guide: Regulatory Proposals, January 2019)
|Impacted stakeholder||Description of cost||2021||2022–2030||2031|| Total
|Government||Costs assumed by the CBSA and IRCC to implement the proposed amendments||$665||$200||$2||$867||$123|
|All stakeholders||Total costs||$665||$200||$2||$867||$123|
|Impacted stakeholder||Description of benefit||Base year||Other relevant years||Final year|| Total
|Government||Cost avoidance by the CBSA and IRCC||$624||$3,728||$340||$4,692||$668|
|All stakeholders||Total benefits||$624||$3,728||$340||$4,692||$668|
|Impacts table 3 note a||Base year||Other relevant years||Final year|| Total
|Net impact (Benefit)||−$40||$3,528||$338||$3,824||$545|
Table 3 note(s)
Small business lens
There will be no impact on small business. The proposed amendments only impact foreign nationals who have been determined to be inadmissible to Canada and issued a removal order.
The one-for-one rule does not apply, as the proposed amendments would not result in an incremental change in administrative burden on business.
Regulatory cooperation and alignment
There is no regulatory cooperation or alignment (with other jurisdictions) component associated with the proposed amendments.
Strategic environmental assessment
In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Gender-based analysis plus
In 2018, internal data analysis found that, among the removal orders issued to immigration document holders, 44% were issued to women and 56% to men. The proposal would not impact the distribution of who is determined to be inadmissible to Canada.
However, women, including racialized women, and lesbian, gay, bisexual, queer, trans and intersex (LGBQTI) people are most vulnerable to gender-based violence. A potential gender-based analysis plus (GBA+) related impact associated with the proposal concerns victims of gender-based violence who may have been previously issued a TRP to overcome an inadmissibility and who have been subsequently found to be in violation of the IRPA for a new reason. Specific program guidance will be put into place to address certain specific classes of TRP holders, such as those related to human trafficking and family violence, by requiring advance consultation between the CBSA and IRCC Case Managementfootnote 1 prior to a decision to issue a removal order that, under the proposed amendments, would cancel the associated immigration document. The requirement for advance consultation would provide an opportunity to consider on a case-by-case basis whether a new TRP should be issued to cover the new inadmissibility (which emerged after the issuance of the initial TRP). If it is determined that a new TRP would be issued to cover the new inadmissibility, then the person concerned would be able to temporarily remain in Canada subject to the terms of the new TRP rather than being removed from Canada.
In addition, the Minister of Public Safety and Emergency Preparedness would increase the level of delegation to issue removal orders for these case types (i.e. from officer to manager/supervisor levels) to ensure this protocol is followed. These measures would ensure that the proposed amendments are implemented in a balanced way that accounts for specific considerations relating to victims and survivors of human trafficking and gender-based violence in a way that does not inadvertently retraumatize victims or survivors. This approach is expected to help mitigate the risks identified through the GBA+ analysis.
Implementation, compliance and enforcement, and service standards
The proposed amendments would come into force upon registration and would not apply retrospectively. This will correspond with the anticipated implementation of the above-noted GCMS changes that will provide an automated information technology solution aligning with the coming into force of the proposed amendments.
Once the proposed amendments take effect, immigration documents would then be automatically cancelled in GCMS when a removal order is issued in the system. Rather than having separate discretionary decisions related to immigration enforcement (i.e. issuance of removal orders) and immigration document cancellation, a single unified process will be implemented so that immigration documents are automatically cancelled as a direct consequence of a removal order being issued. In the case of administrative error (e.g. should a removal order be issued incorrectly in GCMS), the system changes will provide the CBSA with the ability to reverse the automatic cancellation of immigration documents, as needed.
The CBSA and IRCC will issue updated field guidance in the form of operational bulletins and program manual updates to officers who are responsible for preparing reports on inadmissibility and to those who are MDs to inform them of the updated automatic cancellation provisions. Operational policy will instruct MDs to inform all immigration document holders who are the subject of a report on inadmissibility that their documents would be automatically cancelled if a removal order is issued against them. Operational guidance and the Instrument of Delegation and Designation (the tool that authorizes the Minister to specify which officials carry out responsibilities in acts or regulations) will also be updated to reflect the changes that only supervisors and managers can issue or seek removal orders against TRP holders and that IRCC Case Management must be consulted before issuing a removal order against a vulnerable TRP holder.
The existing provisions that authorize the CBSA and IRCC to discretionarily cancel immigration documents will remain in the IRPR. This will be kept to continue to allow the CBSA and IRCC to cancel immigration documents where warranted, even in situations where a removal order was not issued. Maintaining this authority will assist the CBSA with the transition to automatic cancellation of immigration documents in GCMS, especially in instances where foreign nationals were issued removal orders before the coming into force of the proposed amendments.
After the proposed amendments take effect, operational policy would require officers at ports of entry and within Canada to use the removal order issuance and inadmissibility determination processes under section 44 of the IRPA to automatically trigger immigration document cancellation, rather than using any residual discretionary document cancellation authority on its own. This approach will also minimize the potential risk of persons without lawful status remaining in Canada without coming to the attention of the CBSA in the future, given that removal order issuance due to their inadmissibility would result in automatic immigration document cancellation.
Compliance and enforcement
No new compliance and enforcement measures are required to support implementation of the proposed amendments.
Asylum and Irregular Migration Policy Unit
Strategic Policy Branch
Canada Border Services Agency
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council, pursuant to subsection 5(1) and paragraph 53(e)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 Anders Sorensen, Acting Manager, Asylum and Irregular Migration Policy Unit, Immigration Enforcement and Inadmissibility Policy Division, Strategic Policy Branch, Canada Border Services Agency, 100 Metcalfe Street, 10th floor, Ottawa, Ontario K1A 0L8 (tel: 613‑697‑9346; e-mail: email@example.com).
Ottawa, March 30, 2022
Assistant Clerk of the Privy Council
Regulations Amending the Immigration and Refugee Protection Regulations
1 Paragraph 63(a) of the Immigration and Refugee Protection Regulations footnote 2 is replaced by the following:
- (a) the permit is cancelled under subsection 24(1) of the Act or under section 243.1;
2 Section 209 of the Regulations is replaced by the following:
209 A work permit becomes invalid when it expires or when it is cancelled under section 243.1 or 243.2, as applicable.
3 Paragraph 222(1)(b) of the Regulations is replaced by the following:
- (b) the day on which the permit is cancelled under section 243.1 or 243.2, as applicable, or
4 The Regulations are amended by adding the following after Division 4 of Part 13:
Cancellation of Immigration Documents
Making of a removal order
243.1 The following documents, held by a foreign national, are cancelled when a removal order is made against that foreign national :
- (a) a temporary resident visa;
- (b) an electronic travel authorization;
- (c) a temporary resident permit;
- (d) a work permit; and
- (e) a study permit.
Enforceable removal order
243.2 The following documents, held by a foreign national, are cancelled when a removal order made against that foreign national becomes enforceable:
- (a) a work permit; and
- (b) a study permit.
Coming into Force
5 These Regulations come into force on the day on which they are registered.