On June 23, 2010, Citizenship and Immigration Canada released Operational Bulletin 214 (the “Bulletin“). The Bulletin creates guidelines for immigration officers regarding foreign nationals entering Canada as members of a crew on a vessel, specifically cruise ships.
Regulation 186(s) of the Immigration and Refugee Protection Regulations (the “Regulations“) states that a member of a crew is permitted to work in Canada without a work permit under certain conditions. The Regulations state:
R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that
(i) is foreign-owned and not registered in Canada, and
(ii) is engaged primarily in international transportation
There was previously uncertainty regarding what was meant by “engaged primarily in international transportation”. The new guidelines are meant to settle this issue.
If a ship meets the definition of “coasting trade” as defined in Canada’s Coasting Trade Act then its employees will need a work permit.
“the carriage of goods or passengers by ship… from one place in Canada… to any other place in Canada.. either directly or by way of a place outside Canada”
Foreign National Crew Will Need a Work Permit When
A work permit may be required if a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port. For example, if a cruise ship embarks all passengers in Montreal, disembarks some in Charlottetown, and continues to New York where the remaining passengers disembark, then foreign crew members will require a work permit.
Foreign crew members may also require a work permit if the ship embarks passengers at one Canadian port, and then ends the cruise and disembarks passengers at another Canadian port. For example, if passengers embark in Victoria, make a stop in Anchorage, Alaska, and end their cruise in Vancouver, then the foreign national crew may require a work permit.
Foreign National Crew May Be Exempt When
Foreign crew may be exempt from the requirement to obtain a work permit when a cruise ship embarks and disembarks at the same destination within Canada, even if it makes stops in foreign jurisdictions. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, and then returns to Halifax then a work permit may not be required.
Foreign workers may also be exempted if a cruise ship starts at a Canadian port of call, and ends its itinerary at a foreign port of call, so long as passengers do not disembark elsewhere in Canada. For example, if a cruise ship embarks in Vancouver, and disembarks in Portland, then foreign crew will likely be exempt.
This is Still not the Only Test
It is important to note that the new definition is merely a guide. It is expected that officers will generally follow them. However, officers will be permitted to take into consideration the unique circumstances of each case as well as other requirements under the Immigration and Refugee Protection Act and its Regulations.