On January 28, 2014, Chris Alexander, the Minister of Citizenship and Immigration Canada, issued the following statement (emphasis added):
Recent actions by members of Ukraine’s ruling elite in the face of popular and growing protests have been utterly deplorable, and compel us to take targeted and meaningful action.
“Given the violent repression of legitimate protest and the intimidation of opposition voices, we will be restricting entry to Canada – effective immediately – for key government figures as a direct result of their actions in recent days.
“Although Canada welcomes the recent developments in Ukraine, more needs to be done. The Ukrainian government must address the fundamental demands of the people, including accountability and a full embrace of democratic principles.
“We believe it will take more than words to establish trust with the people, and Canada will continue to stand with the Ukrainian people, who courageously continue to speak out in support of democracy.
“Canada will continue to monitor developments in Ukraine, and, with our international partners, consider further options if necessary.”
This is the first time that the Government of Canada has used its new power resulting from Bill C-43 – The Faster Removal of Foreign Criminals Act to deny individuals the ability to obtain temporary resident status in Canada for up to three years on the basis of public policy considerations.
Section 22.1 Declarations
Section 22.1 of the Immigration and Refugee Protection Act states:
22.1 (1) The Minister may, on the Minister’s own initiative, declare that a foreign national, other than a foreign national referred to in section 19 [ed: this pertains to people registered under the Indian Act], may not become a temporary resident if the Minister is of the opinion that it is justified by public policy considerations.
(2) A declaration has effect for the period specified by the Minister, which is not to exceed 36 months.
(3) The Minister may, at any time, revoke a declaration or shorten its effective period.
Report to Parliament
(4) The report required under section 94 must include the number of declarations made under subsection (1) and set out the public policy considerations that led to the making of the declarations.
In other words, the Minister of Citizenship and Immigration Canada may deny temporary residency to someone under s. 22.1 of the Immigration and Refugee Protection Act solely based on public policy (an “A22.1 Declaration”). The Minister may not delegate this power to anyone else.
On December 4, 2013, regulations pertaining to the above came into force specifying that:
- before an officer issues a temporary resident visa to a foreign national, the officer must establish that the foreign national is not the subject of a declaration made by the Minister under the new authority (section 179);
- before an officer restores a foreign national’s temporary resident status, the officer must establish that the foreign national is not the subject of a declaration made by the Minister under the new authority (section 182);
- prohibit an individual subject to an A22.1 Declaration is unable to go on implied status [subsections 183(5) and (5.1)];
- a Minister’s delegate can issue a removal order, without referring the matter to the Immigration Division, where the inadmissibility is for failure to comply with the obligation to not seek to enter or remain in Canada as a temporary resident while the subject of a declaration made by the Minister, and specifying that the removal order is an exclusion order [paragraph 228(1)(c)];
- that notice of the declaration is considered to have been given to the foreign national if the notice is sent or provided by certain means. Specifically, that notice is considered to have been given when notice of the declaration is sent to the last known address of the foreign national by letter or email, is provided directly to the foreign national, including at a port of entry, or, if it is not possible to inform the foreign national by one of the means listed above, is sent or provided by other reasonable means (section 182.1);
- that a foreign national who is the subject of a declaration made by the Minister may, within 60 days of notice being given, make written submissions to the Minister about why the Minister should revoke the declaration or shorten the period of validity of the declaration (section 182.2); and
- that a person who owns or operates a vehicle or a transportation facility must not carry to Canada a person who is subject to a declaration made by the Minister under the new authority, unless the foreign national has been issued a temporary resident permit.
In its notice amending the Immigration and Refugee Protection Regulations, the Government of Canada issued the following rationale for A22.1 Declarations:
Foreign nationals can be admitted to Canada if they have applied for temporary resident status, meet the requirements of that class and are not inadmissible. The provisions governing inadmissibility are found in sections 34 to 42 of the IRPA (which list specific grounds of inadmissibility such as health, security and criminality). While IRPA provides for authority for the Minister to review cases and permit entry in justifiable circumstances to applicants who are inadmissible, without the new authority for refusal, there was no equivalent authority to deny entry to individuals who are not inadmissible, but to whom the Minister may wish to refuse status based on the public interest.
The new authority more closely aligns Canada’s authorities with those found in the legislation of Canada’s key international partners, such as the United States (U.S.), the United Kingdom (U.K.), and Australia. For example:
- In the U.K., the Home Secretary has the power to personally order an individual excluded from the U.K. in cases where their presence would not be conducive to the public good. For example, this can be done on the basis of national security, foreign policy, public order, or serious criminality. The Secretary does not delegate this power to other officials.
- In Australia, the Minister for Immigration, Multicultural Affairs and Citizenship has the authority to refuse or cancel a visa on national interest grounds. In addition, Australia’s immigration law allows for visa refusals and cancellations by the Minister or delegate based on foreign policy interests and the likelihood that an individual will promote or participate in violence if allowed to enter or remain in Australia.
- In the United States, the Secretary of State may direct a consular officer to refuse a visa if necessary for U.S. foreign policy or security interests. The Secretary of Homeland Security can delegate the authority to immigration officers to revoke a visa. Additionally, the President may restrict international travel to the United States and suspend the entry of certain individuals (both immigrants and non-immigrants) whose presence would be considered detrimental to the U.S.
The new authority for refusal and associated regulatory amendments that implement the provision allow the Minister of Citizenship and Immigration to more effectively promote and defend Canada’s public policy interests. The amendments ensure that foreign nationals engaged in behaviours which may give rise to public policy concerns, such as those set out in the publicly available list of guidelines, can be denied temporary resident status. The authority addresses cases where a foreign national may not otherwise be considered to be inadmissible under the IRPA provisions; however, they are nonetheless promoting or perpetuating activities that are contrary to Canadian public policy.
My thoughts on A22.1 Declarations remain the same as when I had this Tweet exchange with Jason Kenney, the former Minister of Citizenship and Immigration Canada.
I’m not sure why Minister Kenney ultimately chose to not enact narrowly circumscribed legislation.