SOR/2017-38: Regulations Amending the Immigration and Refugee Protection Regulations — Regulations Amending Immigration and Refugee Protection Act
REGISTRATION OF FEDERAL REGULATION - VIA OIC DATABASE, PRIOR TO PART II OF THE GAZETTE
March 10, 2017
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Foreign nationals who are believed to be or found to be inadmissible under the Immigration and Refugee Protection Act (IRPA) on the basis of security, certain provisions relating to human or international rights violations, or organized crime may be accorded a declaration of relief by the Minister of Publ... (Click for more)
Published on March 16, 2017
SOR/2017-38: Regulations Amending the Immigration and Refugee Protection Regulations — Regulations Amending Immigration and Refugee Protection Act
REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues Foreign nationals who are believed to be or found to be inadmissible under the Immigration and Refugee Protection Act (IRPA) on the basis of security, certain provisions relating to human or international rights violations, or organized crime may be accorded a declaration of relief by the Minister of Public Safety and Emergency Preparedness (the Minister) under subsection 42.1(1) of the IRPA (Ministerial relief) if they satisfy the Minister that doing so would not be contrary to the national interest. Upon being granted relief by the Minister, the matters which had led to a finding of inadmissibility under the above-listed provisions no longer constitute inadmissibility. A person who has been granted relief may then make applications for temporary or permanent resident status without the applications being rejected on the basis of the grounds of inadmissibility for which relief was granted. A number of issues have contributed to inefficiencies in terms of processing requests for Ministerial relief. These include the lack of a formalized application process, the inability to close applications as appropriate in the absence of a declaration by the Minister, and voluminous applicant submissions of varying degrees of relevance to the ministerial decision-making process. Currently, there is no standardized application form and applicants may seek Ministerial relief at any time. For instance, applicants may simply indicate that they wish to be considered for Ministerial relief, providing little or no supporting explanation or documentation. This means that resources are allocated to processing applications from individuals who may not be found inadmissible and thereby not require Ministerial relief (e.g. they have been granted permanent resident status). Until recently, approximately 50% of the inventory of applications comprised cases pending a final decision on inadmissibility. This has contributed to a significant backlog of cases, all of which must be personally decided upon by the Minister. Background Legislative and regulatory framework The IRPA governs Canada’s admissibility determination regime, including provisions for Ministerial relief. The Immigration and Refugee Protection Regulations (IRPR or the Regulations) are made under the authority of the IRPA. Currently, under the IRPR, there are no regulatory requirements with respect to applications for Ministerial relief, and no structure applicable to the form or content of applications. The Faster Removal of Foreign Criminals Act (Bill C-43) came into force in June 2013. Among other things, Bill C-43 amended the IRPA to clarify that Ministerial relief may be considered via an application. Individuals typically request Ministerial relief by providing documentary submissions to Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA). The submissions are sent to the CBSA for processing. The Ministerial relief process is guided by standards of procedural fairness, case law, and internal policies and procedures. The CBSA assesses requests for Ministerial relief and develops a recommendation for the Minister. There have never been restrictions on the type of submissions that may or should accompany a request for Ministerial relief. This has led to lengthy submissions with varying degrees of relevance to the test applied to Ministerial relief applications. All information and all arguments presented by the applicants are considered and incorporated into the review and decision-making process. There is currently no formal criterion establishing when a person may apply for Ministerial relief. Previously, IRCC officers were directed to refer a person for consideration for Ministerial relief and to await the outcome of the Ministerial relief process prior to rejecting their immigration application (e.g. temporary or permanent resident application) or prior to allegations of inadmissibility being referred to the Immigration and Refugee Board of Canada (IRB) for determination. As a result, the current Ministerial relief inventory includes applications from individuals who have yet to receive a final decision on admissibility. The policy to hold immigration applications in abeyance pending the outcome of consideration under Ministerial relief has, however, been rescinded. Accordingly, applications for Ministerial relief are no longer required to be considered prior to rendering a determination on inadmissibility. Instead, the processing of immigration applications continues through to completion regardless of whether a request for Ministerial relief is outstanding. Nevertheless, persons may submit applications for Ministerial relief whenever they wish, which in turn contributes to inventory growth as the inventory of applications includes those who may not be inadmissible. This may include, for instance, cases where a person was subsequently granted permanent resident status, a finding of inadmissibility has yet to be made, or where a finding of inadmissibility has been set aside on judicial review by the Federal Court. Presently, there is no provision allowing for these applications to be closed without them being processed to completion. It should be noted that this regulatory amendment was originally proposed in combination with another, separate, regulatory proposal concerning when an examination of refugee claimants could be considered to have come to an end (end of examination). As the issues relating to Ministerial relief and end of examination require that amendments be made to the same set of Regulations (the IRPR), for efficiency, the CBSA initially elected to combine the initiatives into a single amending instrument. The proposed Ministerial relief and end of examination amendments were prepublished together on June 20, 2015, in the Canada Gazette, Part I as a single regulatory proposal; no comments were received. However, since that time, the Government of Canada announced a number of new refugee policy-related priorities. As a result, the end of examination regulatory proposal has been removed from the proposed amendments; these changes will not be implemented at this time. This approach will provide the Government of Canada with an opportunity to thoroughly consider proposed changes to the end of examination Regulations, in light of the Government’s new, and broader, policy direction. The two initiatives, while originally presented together, are unrelated; as a result, there is no substantive impediment to moving forward with only the implementation of the Ministerial relief amendments. Objectives The new regulatory requirements will bring greater clarity, consistency and efficiency to the Ministerial relief application process. These Regulations are intended to govern the overall application process only, and are not intended to affect decision-making factors. The amendments to the IRPR will create new regulatory provisions specifically related to processing applications for Ministerial relief that will establish when a foreign national may submit an application; prescribe the use of a specific application form; provide for the return of an application, unprocessed, when certain content requirements are not met; provide for applications to be closed when an applicant does not respond to a notice requiring them to confirm their intention to proceed with their application within the specified time frame, or when other remedies have been obtained or are sought; require applicants to provide the Minister with updated contact information while applications for Ministerial relief are in process; and address transitional cases affected by the new Regulations by clarifying which aspects of the regulatory amendments will apply to requests for Ministerial relief received prior to the coming into force of these regulatory amendments. Description The IRPR have been amended to include the following new regulatory requirements: (1) Establish when a foreign national may submit an application The Regulations now provide that a foreign national may apply for Ministerial relief only after inadmissibility (on the relevant IRPA grounds) has been determined, and all rights of judicial review have been exhausted or expired. Inadmissibility is established when the person has been refused an immigration application (i.e. temporary or permanent resident application), or when a removal order has been made against them. (2) Prescribe the use of a specific application form and set out the information that is required to be included in the application The Regulations now provide that an application for Ministerial relief must be made using the form provided by the CBSA. The application must include all information and documents required by the Regulations, as well as any other evidence required by the IRPA. In particular, the Regulations set out the following requirements: the application must be signed by the applicant; the application must contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, the applicant’s place of birth, gender, marital status and the names of any former spouses or common-law partners; the application must contain the applicant’s telephone number and electronic mail address, if any, their former countries of citizenship or former countries of nationality, their education, work history and international travel history; the application must include the grounds of the IRPA on which the applicant was found to be inadmissible and the related circumstances; if the applicant is represented or has been advised in connection with the application, the application must include the name, postal address, telephone number, fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant; and the application must include a declaration that the information provided is complete and accurate. (3) Provide for the return of an application, unprocessed The Regulations now provide that the application and all supporting documents will be returned to the applicant, unprocessed, if the application does not meet the prescribed requirements. (4) Provide for the closing of applications The Regulations now provide for the closing of applications under certain conditions. First, an application may be closed if the person has, since submitting their application for Ministerial relief, been granted permanent resident status. Second, the CBSA may send a notice to the applicant and, if the applicant does not reply to the notice within 60 days, the application will be closed. Third, an application may be closed if the person withdraws their application in writing. Finally, an application may be closed if the person has, since submitting their application for Ministerial relief, submitted an application for leave and judicial review of the inadmissibility decision for which the applicant sought Ministerial relief. (5) Updated address and contact information The Regulations make it clear that the onus is on the applicant to continually ensure that the Minister has valid contact information. (6) Transitional provisions Transitional provisions have been enacted to clarify how the Regulations will apply to applications that were made prior to the coming into force of the amendments to the Regulations. The requirement to apply using the form provided by the CBSA and the requirement that applicants already have a finding of inadmissibility against them before being considered for Ministerial relief will not apply to applications received prior to the coming into force of the amendments to the Regulations. However, the provisions relating to the closing of applications, with the exception of those being closed due to the filing of an application for leave and judicial review of the inadmissibility decision for which the applicant sought Ministerial relief, and the requirement to provide the Minister with up-to-date contact information, will apply to all cases. The transitional provisions also specify that an outstanding Ministerial relief application received prior to the coming into force of the amendments to the Regulations is closed following a final decision that the applicant is not inadmissible on the ground for which the applicant sought Ministerial relief. “One-for-One” Rule The “One-for-One” Rule does not apply, as the amendments to the Regulations apply only to individuals, not businesses. Small business lens The small business lens does not apply, as the amendments to the Regulations apply only to individuals, not businesses. Consultation On July 11, 2014, the following stakeholders were notified that consideration was being given to these regulatory amendments: Canadian Bar Association Canadian Association of Refugee Lawyers Canadian Council for Refugees Centre for Immigration Policy Reform United Nations High Commissioner for Refugees Association québécoise des avocats et avocates en droit de l’immigration British Columbia Civil Liberties Association Canadian Police Association Amnesty International Canada Table de concertation des organismes au service des personnes réfugiées et immigrantes Canadian Association of Professional Immigration Consultants Preliminary stakeholder consultation on the proposed amendments to the Regulations took place in July and August 2014. Eleven stakeholders were consulted. Three stakeholders responded with comments, and one stakeholder responded that their comments would be sent during the prepublication stage. There was no response from the remaining identified stakeholders. Among the stakeholders who responded, reaction was mixed, depending on the specific proposed requirement. For instance, most stakeholders agreed that there are opportunities to improve the Ministerial relief application process. There was also general agreement that published guidelines to support the amendments to the Regulations and a new standardized application form would be beneficial. There were a range of views, however, on the content of the application form and the degree to which it should contain mandatory versus recommended information requirements. Some stakeholders were critical of the proposal to allow applications for Ministerial relief only if a foreign national has had a finding of inadmissibility. For instance, comparisons were made to temporary resident permits, which do not have such a requirement for a finding of inadmissibility. Moreover, it was suggested that Ministerial relief applications made in Canada should be accompanied by a regulatory stay of removal. However, the amendments to the Regulations are integral to application inventory management and the efficiency of the processing of Ministerial relief applications. In addition, the Regulations do not affect a foreign national’s ability to apply for a temporary resident permit. Moreover, in the event that a person with an outstanding application for Ministerial relief has initiated litigation at the Federal Court with respect to a decision rendered under the IRPA, the person may seek a stay of removal pending the outcome of a Ministerial relief application made in Canada. Finally, a number of comments related to decision-making by the Minister were provided. However, this issue is beyond the scope of the regulatory amendments. Accordingly, no changes were made in these areas. Changes were, however, made in other areas in response to the feedback provided. For instance, some stakeholders recommended extending the period within which an applicant must respond to a notice prior to the closing of an application from 30 days to 90 days. In response, the time frame to respond to such a notice was extended from 30 days to 60 days. The amendments to the Regulations are designed to provide the applicant with sufficient opportunity to respond prior to an application being closed. On June 20, 2015, the proposed amendments to the Regulations were prepublished in the Canada Gazette, Part I. No comments were received from external stakeholders in response to the prepublication. Minor changes were, however, made to two provisions, as well as to the transitional provisions of the prepublished Regulations. The provision concerning the return of applications was amended to clarify that if the requirements are not met, the application is not accepted for processing. The provision concerning changes in information was amended to include changes to their fax number, and to specify that notification of changes to the information of the representative is only required if the applicant is represented. With respect to the transitional provisions, minor changes were made to better align the application of these new requirements with the underlying policy intent for the amendments to the Regulations, which is to avoid using CBSA resources on cases that no longer require Ministerial relief. Therefore, amendments to the proposed Regulations related to Ministerial relief were done to avoid the possible closure of certain outstanding applications that had been submitted prior to the coming into force of the amendments, namely those where the applicant had filed for leave and for judicial review of the relevant inadmissibility determination since making their Ministerial relief application. While the provision related to the closing of files due to the filing of an application for leave and for judicial review remains in the Regulations, it no longer applies to cases submitted before the coming into force of the amendments. However, to allow for the closure of files submitted before the coming into force of the amendments to the Regulations in cases where the applicant has since been found to not be inadmissible on the ground for which Ministerial relief was sought, a transitional provision has been added that establishes the authority to close applications in those circumstances. Rationale The amendments to the Regulations are intended to result in a more efficient, consistent, and transparent Ministerial relief application process. As envisioned, this new process is expected to support streamlined decision-making, while reducing the resource burden created by inventory backlogs. From the applicant’s perspective, greater efficiency in the application process will mean faster decisions, which will reduce uncertainty about their prospects of obtaining status in Canada. Greater transparency, moreover, will support the ongoing maintenance of a fair and effective application process. The amendments will introduce structure into the Ministerial relief application process, ensuring that any applications for Ministerial relief will be based on finalized inadmissibility determinations on security grounds, certain provisions relating to human or international rights violations, or organized crime. This will ensure that the Minister’s decision on whether or not to grant relief, and the expenditure of significant resources necessary to conduct the related assessment, is with respect to a final decision relating to the applicant’s inadmissibility. This requirement will ensure that resources are focused on inadmissible clientele and not used to process applications where inadmissibility decisions are later set aside on judicial review or where there is not yet a determination on an allegation of inadmissibility. It will also contribute to effective decision-making as it will ensure that the Minister’s decision is with respect to a finding of inadmissibility that has withstood any applicable judicial review. If applicants seek judicial review of the inadmissibility decision, then the judicial review process must be completed before the application will be accepted. The authority to close applications will ensure that CBSA resources are used more efficiently to focus on active applications. A better use of available resources is expected to have a positive impact on backlog reduction given the length of time that some cases have been in the inventory with no client contact. Efforts will be made to contact applicants in the inventory twice (a request for information, followed by the notice pursuant to the Regulations, each of which provide a 60-day response period). The initial request for information is administrative and is not a regulatory requirement. Responses indicating the applicant’s further interest in obtaining relief will always result in the case continuing to be processed. Furthermore, individuals whose applications are not considered further under this provision could still choose to reapply at a later date, albeit subject to the rules in force at that time. Qualitative costs and benefits Canadians are not subject to the admissibility provisions in the IRPA. By not being inadmissible, they also cannot benefit from Ministerial relief. The regulatory amendments will therefore not result in any direct costs to Canadians. The CBSA will incur minor costs associated with the publication of an operational bulletin describing the changes arising from the amendments to the Regulations, as well as CBSA training. As the regulatory changes only address the application process (as opposed to the analysis and recommendation-issuing processes), the necessary training is expected to be simple and straightforward. Costs directly related to the enforcement of the Regulations will similarly be minimal. The CBSA will see new costs related to determining whether or not applications for Ministerial relief comply with the Regulations. The applications that do not comply will be returned to the applicants, who will be able to reapply once the issue has been addressed. Returning applications that do not meet the criteria established in the Regulations will mean that the subsequent costs associated with unnecessarily preparing a recommendation for the Minister will be avoided. Direct costs to the Government of Canada associated with implementing the regulatory amendments will be approximately $189 per application. This includes costs associated with triaging applications and verifying their compliance, in line with the Regulations. Projections for the intake of applications for Ministerial relief are set at approximately 20 per year. Accordingly, the annual implementation cost is projected to be approximately $3,780. As the Ministerial relief application process is open only to inadmissible foreign nationals, there will be no costs to businesses. The implementation cost, however, is expected to be more than offset by associated savings. The average cost of processing a recommendation on a Ministerial relief application is within the range of $27,608 to $29,224 per year per case. One application returned for non-compliance with the regulatory amendments or otherwise closed could therefore result in savings of approximately $25,444 per year (i.e. $29,224 − $3,780). Assuming the applicant does not immediately reapply with a valid application that meets the prescribed requirements, one returned application could more than offset the annual direct costs associated with implementing the new regulatory amendments. Implementation, enforcement and service standards To support implementation of these Regulations, implementation guidelines will be developed and published when the amendments to the Regulations come into force. The Regulations come into force the day upon which they are registered. In addition, a specific Ministerial relief application form will be published and available online. Generally, the form and content specifications will align with those that already apply to other applications under the Regulations in accordance with section 10 of the IRPR. In addition to mandatory fields that the applicant will be required to complete in order for the application to be processed, the form will include non-mandatory questions targeted at obtaining information that will assist the CBSA in assessing certain national security and public safety considerations related to the national interest. The application form will also be accompanied by guidelines that will indicate the type of information that is recommended be included for the application to be processed. While each case will be assessed on its own merits, and applicants will not be restricted in terms of the amount or content of their accompanying submissions, the nature of the information requested will be the same for all applicants, which will provide for greater consistency, efficiency and transparency. This standardized approach will help the applicant and the CBSA ensure that efforts are focused on submissions that present the Minister with the information necessary for informed decision-making. If an application is returned, the applicant will be informed that the application has not been accepted for processing because of a specific type of non-compliance (e.g. incomplete application form or inadmissibility has not yet been established). The applicant will then have sufficient information to take corrective measures (e.g. submit a new application that includes the missing information or wait for an inadmissibility decision before submitting an application). Applications that have been returned unprocessed will not be considered part of the active inventory. Any future submissions, if accompanied by a properly completed Ministerial relief application form, will be considered “new applications” and, in accordance with procedures at the time, constitute a new file that will be placed in the queue for processing. Contact Richard St Marseille Manager Immigration Enforcement Policy Unit Canada Border Services Agency 100 Metcalfe Street, 10th Floor Ottawa, Ontario K1A 0L8 Telephone: 613-954-3923 Footnote a S.C. 2001, c. 27 Footnote 1 SOR/2002-227
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