FEDERAL REG

SOR/2016-136: Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program)

REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE

Registered
June 13, 2016


REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues A. Respond to some of the concerns of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) After reviewing the Immigration and Refugee Protection Regulations (the Regulations), the SJCSR submitted its comments noting various technical errors and inconsistencies that the Canada Border Servi... (Click for more)


Published on June 13, 2016

Bill Summary

SOR/2016-136: Regulations Amending the Immigration and Refugee Protection Regulations (Miscellaneous Program)

REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues A. Respond to some of the concerns of the Standing Joint Committee for the Scrutiny of Regulations (SJCSR) After reviewing the Immigration and Refugee Protection Regulations (the Regulations), the SJCSR submitted its comments noting various technical errors and inconsistencies that the Canada Border Services Agency (CBSA) needed to address. These issues included inconsistencies between the English and French versions of the Regulations, inconsistencies in terminology and the need to clarify certain provisions. B. Correct a legislative reference A provision of the Regulations [subsection 226(3)] currently refers to a paragraph of the Immigration and Refugee Protection Act (IRPA) [paragraph 81(b)] that no longer exists since amendments to the IRPA were adopted in 2008. The reference in the Regulations was not updated to refer to the renumbered provision of the IRPA (section 80) relating to the effect of a certificate that is determined to be reasonable. C. Correct a regulatory reference A provision of the Regulations [paragraph 198(2)(b)] currently refers to a subsection of the Regulations [subsection 30(4)] that no longer exists because of amendments that were made to the Regulations in 2012. The reference in the Regulations was not updated to refer to the renumbered provision that requires certain foreign nationals to hold a medical certificate. Background A. Respond to the SJCSR The SJCSR is a parliamentary committee whose mandate involves reviewing and scrutinizing federal statutory instruments. The SJCSR conveyed its concerns to the CBSA following its review of the Regulations. These amendments address the issues identified by the SJCSR which have been determined by the CBSA to be simplest to resolve. B. Correct a legislative reference The IRPA provides for persons named in security certificates that are determined to be reasonable, to be conclusive proof that the person is inadmissible and that a removal order is in force, without the need to hold, or continue with, an examination or admissibility hearing. In 2008, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act amended the IRPA by repealing this provision in paragraph 81(b) and reintroducing it in section 80. However, subsection 226(3) of the Regulations was not updated and it continues to reference the repealed paragraph 81(b) of the IRPA. The Regulations require that persons who are removed from Canada because they are named in a security certificate must receive written authorization at any time they wish to return to Canada. C. Correct a regulatory reference The Regulations permit certain foreign nationals to apply for work permits upon entry, although in some circumstances the foreign national must have undergone a medical examination and must hold a medical certificate before applying for the work permit. In 2012, regulatory amendments associated with the Balanced Refugee Reform Act came into force, which repealed the medical certificate requirement provision in subsection 30(4) and reintroduced it into subsection 30(3) of the Regulations. However, paragraph 198(2)(b) of the Regulations was not updated and it continues to reference the repealed subsection 30(4). The Regulations require certain foreign nationals to hold a medical certificate before applying for a work permit upon entry. Objectives The objective of the amendments to the Regulations is to correct issues identified by the SJCSR and thereby improve the overall clarity and consistency of the Regulations. The amendments also update an obsolete legislative reference to align with the 2008 IRPA amendments and update an obsolete regulatory reference to align with the 2012 amendments to the Regulations. Description A. Respond to the SJCSR The Regulations are being amended in order to correct technical inconsistencies, identified by the SJCSR and by the CBSA. The regulatory amendments fall into two broad categories: harmonizing the English and French versions of the Regulations; and correcting instances where more precise or appropriate language could be used to express the policy intent of the Regulations, in the English and French versions. More specifically, the following amendments are being made to the Regulations: (i) Section 2: In-transit Passenger The current definition of “in-transit passenger” in section 2 of the Regulations refers to a person arriving “from any country” while the French version identifies the person arriving from “un autre pays” (from another country). In order to correct this discrepancy, the term “any” is replaced with “another” in the English version of this provision. This wording harmonizes the English and French versions of the provision and more accurately defines an in-transit passenger by clarifying that the passenger is arriving from a country other than Canada. (ii) Section 16: Senior Official for the Purposes of Section 35(1)(b) of the IRPA The French version of section 16 of the Regulations does not use the same wording as paragraph 35(1)(b) of the IRPA to which it relates. The English and French versions of the Regulations are amended to harmonize both versions while also eliminating unnecessary duplication of text that appears in paragraph 35(1)(b) of the Act. (iii) Paragraph 37(a): End of Examination The French version of paragraph 37(a) is inconsistent with the English version as it contains the term “effectivement” (actually), while the English version does not. The term “effectivement” is unnecessary and is removed from the French version. As well, the French version of the provision is further amended to specify that the person is authorized to leave the port of entry “at which the examination takes place” (où le contrôle est effectué). This amendment will clarify the French version of the provision and will fully harmonize the French and English versions of this paragraph. (iv) Paragraphs 227(2)(a) and (b): Report against the Foreign National’s Family Members Paragraphs 227(2)(a) and (b) of the English version are amended to consistently refer to the plural of “family member,” as is the case in the French version. Since subsection 227(1) and the first part of subsection 227(2) both refer to “family members,” the paragraphs 227(2)(a) and (b) that follow should also use the plural form for reasons of consistency. This change will harmonize the English and French versions of the provision. (v) Paragraphs 229(4)(a) and 229(4)(b): Applicable Removal Order Made by the Immigration Division Paragraphs 229(4)(a) and (b) of the Regulations are amended to remove an inaccuracy. Both paragraphs currently refer to removal orders that the Minister “would have made.” However, it is not possible to know with certainty whether the Minister “would have made” the orders because he is not required by the Regulations or by the IRPA to do so. Therefore, these paragraphs are amended to instead provide that the Immigration Division shall make the removal order “that would have been applicable.” (vi) Paragraph 230(1)(b): Considerations for Imposing a Stay on Removal Orders The French version of paragraph 230(1)(b) is inconsistent with the English version because it refers to a substantial and momentary disruption (“la perturbation importante et momentanée”) rather than to a “substantial temporary disruption” (perturbation importante et temporaire). In order to harmonize the French and English versions of the provision, the French version is modified by replacing the term “momentanée” with “temporaire.” This term more accurately describes the situation that the Regulations are intended for, namely a disruption that persists for a limited amount of time, but which may last longer than a brief period. (vii) Subparagraph 231(1)(c)(ii): Stay of Removal for Judicial Review The French version of subparagraph 231(1)(c)(ii) erroneously refers to “le rejet de la demande” (the refusal of the application) by the Federal Court of Appeal rather than le rejet de l’appel (the refusal of the appeal). The term “appel” (appeal) is the appropriate term to describe the judicial process referred to in this context. This is further supported by the English version of the subparagraph, which refers to “the appeal.” Therefore, the phrase “de la demande” is replaced with “de l’appel” in the French version of the subsection. (viii) Paragraphs 234(a) and (b): Application of paragraph 50(a) of the IRPA The English versions of paragraphs 234(a) and (b) are currently inconsistent with the French versions. While the French version of paragraph 234(a) stipulates that the charges that are to be stayed or withdrawn under the agreement referred to in this section must be “contre l’étranger” (against the foreign national), the English version contains no such requirement. Similarly, the French version of paragraph 234(b) states that the summons or subpoena must be “à l’égard de l’étranger” (with respect to the foreign national), while the English version does not. Therefore, the phrase “against the foreign national” is added to the English version of paragraph 234(a), and the phrase “with respect to the foreign national” is added to the English version of paragraph 234(b). These changes will clarify the provision by removing any ambiguity relating to the criminal charges, summons and subpoena that will engage this section of the Regulations and also fully harmonize the French and English versions of the provisions by ensuring that all elements are present in both versions. (ix) Section 237 and Subsection 240(1): Modality of Enforcement and When Removal Order is Enforced The current French versions of section 237 and subsection 240(1) of the Regulations are inconsistent with the English versions, as the French versions contain no reference to the Minister. The French versions of section 237 and subsection 240(1) are therefore amended to indicate that the removal order may be enforced by the Minister. This amendment clarifies the provisions by indicating that it is the Minister who enforces the removal order in instances where the individual does not voluntarily comply. The French version of section 237 is also amended to specify that the methods of enforcement of a removal order listed pertain to a foreign national (“étranger”), as is the case in the English version of the provision. This amendment removes any ambiguity with regard to whom the provision applies. These changes also serve to harmonize the French and English versions of these sections. (x) Paragraphs 246(f) and (g): Danger to the Public The French versions of paragraphs 246(f) and (g) are amended to specify that the charges must be pending by referring to “l’existence d’accusations criminelles en instance,” in order to clarify that charges that have been dropped or that have otherwise been dealt with do not need to be considered, and to harmonize the English and French versions of the provision. The wording in the French version of paragraph 246(g) (“de l’une des infractions”) is also amended to be consistent with the wording used in the French version of paragraph 246(f) (“quant à l’une des infractions”). Both versions are correct; however, the same wording should be used in both provisions to ensure consistency. (xi) Paragraph 247(1)(d): Identity Not Established In order to harmonize the English and French versions of the provision and to avoid any ambiguity, the English version of paragraph 247(1)(d) is amended to specify that the information with respect to identity be provided “during the processing of an application by” the Department. This wording is more accurate than the current “at the time of an application to the Department,” since the applicant may provide supplemental information following the initial filing of an application. As well, the English version of the provision is further amended to specify that the information is provided “by a foreign national.” This amendment will clarify the English version of the provision and will fully harmonize the French and English versions of this paragraph. B. Correct a legislative reference Subsection 226(3) of the Regulations is being amended to replace the repealed legislative reference of paragraph 81(b) with the updated section 80 of the IRPA. C. Correct a regulatory reference Paragraph 198(2)(b) of the Regulations is being amended to replace the repealed regulatory reference of subsection 30(4) with the updated subsection 30(3) of the Regulations. “One-for-One” Rule The “One-for-One” Rule does not apply to these proposals, as the amendments are technical in nature and there are no changes in administrative costs to business. Small business lens The small business lens does not apply to these proposals, as the amendments are technical in nature and there are no costs on small business resulting from the amendments. Consultation Government stakeholders have been consulted and are supportive of these technical amendments to the Regulations. Since all of the amendments are technical in nature and have no impact on policy, operations or regulatory enforcement, consultation with external stakeholders was not required. These miscellaneous amendment regulations are being used to expeditiously correct errors and omissions in the Regulations. Rationale A. Respond to the SJCSR The amendments are intended to address the concerns of the SJCSR and ensure the Regulations’ precision and clarity as required by Canadian regulatory drafting standards. By resolving inconsistencies and other technical issues, the amendments will result in clearer, more consistent Regulations. The amendments will not have an impact on policy, operations or regulatory enforcement, and no costs will be incurred as a result of the changes. B. Correct a legislative reference A regulatory amendment is required to update the legislative reference to ensure that persons removed following a security certificate would require written authorization to return to Canada at any time after removal. Parliament did not intend for the 2008 IRPA amendments to change the requirement to receive written authorization to return to Canada. This regulatory amendment reaffirms the intent of the Regulations and the IRPA. C. Correct a regulatory reference A regulatory amendment is required to update the regulatory reference to ensure that foreign nationals that are permitted to apply for a work permit upon entry hold a medical certificate, if required to do so. The 2012 amendments to the Regulations were not intended to remove the requirement to hold a medical certificate of foreign nationals applying for a work permit upon entry. This amendment reaffirms the intent of the Regulations. Implementation, enforcement and service standards The amendments are administrative in nature and do not impose new restrictions or regulatory burdens on individuals or industry. Therefore, no changes to the manner in which the Regulations are implemented or enforced are anticipated. Contact Jeff Robertson Acting Manager Immigration Enforcement Policy Unit Canada Border Services Agency 100 Metcalfe Street, 10th Floor Ottawa, Ontario K1A 0L8 Telephone: 613-946-3996 Footnote a S.C. 2008, c. 3, s. 2 Footnote b S.C. 2001, c. 27 Footnote c S.C. 2013, c. 16, s. 11 Footnote d S.C. 2014, c. 39, ss. 309(2) and (3) Footnote e S.C. 2013, c. 16, s. 21 Footnote f S.C. 2012, c. 17, s. 28 Footnote g S.C. 2001, c. 27 Footnote 1 SOR/2002-227

This Bill does not amend any statutes.

Sign up for alerts on this Bill

Receive emails tracking this Bill's progress.

See all your alerts in a dashboard.

Set an alert with one click and you're done!