ETA Regulations Announced

On August 1, 2015, Canada will adopt an Electronic Travel Authorization (“eTA“) program that is similar to the Electronic System for Travel Authorization (“ESTA“) that the United States currently has, and the Electronic Travel Authority that Australia has.  In order to minimize impacts on the travelling public and Canadian travel and tourism industries, eTA-required travellers will be exempted from this new entry requirement until March 15, 2016.

The eTA will impact nearly all travellers to Canada who do not have to apply for Temporary Resident Visas (“TRV“) to visit Canada.  According to the Gazette, TRV-exempt foreign nationals, excluding U.S. citizens, represent approximately 74% of foreign nationals who arrive by air in Canada. Citizenship and Immigration Canada (“CIC“) does not currently screen these individuals for admissibility until they arrive at a Canadian port of entry (“POE“). Rather, TRV-exempt nationals are examined by the Canada Border Services Agency (“CBSA“) only upon arrival at a POE .  As noted in the The Canadian Immigrant excerpt above, the eTA will change this. 

However, on June 21, 2014, the Government of Canada (“GoC“) in the Canada Gazette (the “Gazette“) published proposed amendments to the Immigration and Refugee Protection Regulations (“IRPR“) pertaining to the eTA. On April 22, 2015, the final version of the IRPR amendments were published

The proposed amendments to IRPR:

  • create the regulatory requirement for the eTA;
  • establish the eTA application procedures;
  • specify when an eTA expires and when it can be cancelled;
  • set the fee that is payable for the processing of an eTA application; and
  • create exemptions from the requirement to obtain an eTA.

The Regulatory Requirement for the eTA

IRPR r. 7 currently states that:

Temporary resident

7. (1) A foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.

Exception

(2) Subsection (1) does not apply to a foreign national who

(a) is exempted under Division 5 of Part 9 from the requirement to have a temporary resident visa;

(b) holds a temporary resident permit issued under subsection 24(1) of the Act; or

(c) is authorized under the Act or these Regulations to re-enter Canada to remain in Canada.

The GoC’s amendments to IRPR will create a new IRPR r. 7.1 which will state:

Electronic travel authorization

7.1 (1) A foreign national referred to in paragraph 7(2)(a) who is exempt from the requirement to obtain a temporary resident visa and who, on or after March 15, 2016, is seeking to enter Canada by air to remain on a temporary basis is, nevertheless, required to obtain an electronic travel authorization before entering Canada, unless they are exempted by subsection (3) from the requirement to obtain one.

Holder of a temporary resident visa

(2) Subsection (1) does not apply to a foreign national who holds a temporary resident visa.

It is important to note that the eTA will only apply to individuals arriving by air.  This is presumably because foreign nationals who arrive in Canada by land or sea will have already been approved by the United States under ESTA.

eTA Application Procedures

Foreign nationals who are required to apply for a eTA will do so through the CIC web site.  Individuals who are unable to apply online may apply in writing. 

eTA applicants will be required to enter biographic, passport, and background information similar to the personal information that is currently collected by the CBSA at POEs.  Specifically, a new IRPR r. 12.01(4) will provide that an eTA application must contain the following information:

(a) the applicant’s name;

(b) the applicant’s date and place of birth;

(c) the applicant’s gender;

(d) the applicant’s address;

(e) the applicant’s nationality;

(f) the number of the applicant’s passport or other travel document, together with its date of issue and its expiry date and the country or the authority that issued it;

(g) if the applicant is an applicant referred to in any of paragraphs 10(2)(c.1) to (c.4), the information required under that paragraph [this refers to authorized representatives];

(h) if the applicant is making the application by means of the electronic system referred to in subsection (1), the applicant’s email address; and

(i) a declaration that the information provided in the application is complete and accurate.

Presumably as a requirement of stakeholder feedback, the proposed requirement that eTA applicants provide their marital status has been removed.

In reviewing the above application requirements, unless the GoC is about to enter into numerous criminal record database sharing agreements with European nations, Japan, Australia, etc., it is not clear to me how this information will prevent people with criminal records from boarding aircraft bound for Canada.

CIC is estimating that most eTA applications will be approved electronically in minutes.  All refusals will be reviewed by a a human officer.  Highly complex cases will require assessment by senior decision-makers, and may be referred to overseas missions.  Once a case is referred overseas, applicants may be required to submit additional information and/or attend an interview with an officer.  Some cases may also be referred to the CBSA, the Canadian Security Intelligence Services, and the Royal Canadian Mountain Police.  CIC is committing to a 72 hour service standard for complex applications, although this promise has not been codified in IRPR.

eTA Expiry and Cancellation

A new IRPR r. 12.05 and 12.06 will provide that:

12.05 An electronic travel authorization is valid for a period of five years from the day on which it is issued to the applicant or until the earliest of the following days, if they occur before the end of that five-year period:

(a) the day on which the applicant’s passport or other travel document expires,

(b) the day on which the electronic travel authorization is cancelled, or

(c) the day on which a new electronic travel authorization is issued to the applicant.

Cancellation

12.03 An officer may cancel an electronic travel authorization that was issued to a foreign national if

(a) the officer determines that the foreign national is inadmissible; or

(b) the foreign national is the subject of a declaration made under subsection 22.1(1) of the Act.

Cancellation will occur where a foreign national provides false information in the eTA application, where evidence indicates that a foreign national is inadmissible to Canada, or where permitting the foreign national to travel to Canada would pose a security risk. 

The eTA Fee

The eTA will cost applicants a $7 processing fee.  Individuals will have to submit payment electronically with their application. 

As well, a TRV-exempt foreign national’s application for a work permit or a study permit will constitute an application for an eTA.  As the GoC has recently indicated an intention to end POE work permit applications, this may constitute a larger application segment than one would currently think.  

Finally, individuals who are studying or working in Canada and who travel outside Canada when the eTA comes into effect will be required to obtain a eTA prior to reentering Canada.

Exemptions

The following TRV-exempt foreign nationals are exempt from the eTA requirement:

  • U.S. nationals;
  • Queen Elizabeth II and members of the Royal Family;
  • accredited diplomats;
  • those seeking to enter and remain in Canada as a member of a flight crew or to become a member of such a crew;
  • those seeking to transit through Canada after working, or to work, as a member of a flight crew if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
  • civil aviation inspectors of a national aeronautical authority seeking to enter Canada in order to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights;
  • an accredited represented or advisor to an aviation accident or incident;
  • a citizen of France who is a resident of St. Pierre an Miquelon;
  • visiting forces travelling to Canada to carry out official duties as a member of the armed forces of a country designated under the Visiting Forces Act, unless they have been designated as a civilian component of those armed forces;
  • foreign nationals with status in Canada seeking re-entry to Canada, within their period of authorized stay, following a visit solely to the United States or Saint-Pierre and Miquelon
  • refuelling; and
  • foreign nationals who hold a TRV or permit.

It remains unclear how effective the eTA will be at achieving the GoC’s objective of preventing most inadmissible visa-exempt foreign nationals from arriving at Canadian airports.  In the Gazette, the GoC notes that in 2012-13 some 7,055 visa-exempt foreign nationals (0.24% of visa-exempt travellers) were found inadmissible for various reasons at air ports of entry when they arrived in Canada.  The Gazette did not mention how many of these individuals were American, and the cynic in me wonders if it is because the bulk majority of those found inadmissible were American.

As well, it is my experience that current information sharing between Canada and most of the world except for the United States is such that CIC would not know whether someone has a criminal record.  However, I anticipate that this will soon change as part of a global trend towards increased surveillance, information sharing, and monitoring of civilians by governments.

The Cost and Benefits of the eTA

According to the Gazette:

The total estimated costs for the analysis period (2015–2024) are $167.4 million in present value (PV) dollars. The total benefits resulting from the proposed amendments are estimated to be $167.74 million (PV). The net impact of these Regulations is neutral, thus resulting in no net cost on stakeholders.

In reaching the above figures, the GoC is assuming that it will collect an average of $23.1 million per year in eTA application fees.  As well, the GoC anticipates saving $1.8-million per year in costs associated with processing and removing inadmissible people to Canada.  According to the Gazette, the CBSA has estimated that the cost per inadmissible person ranges from an average of $398.00 – $798.00 depending on how long the individual is in detention. The eTA system will meanwhile cost $23.3-million to establish, and $19.5-million per annum to administer.

Other qualitative costs and benefits listed by the GoC in the Gazette include:

Benefits

Implementation of the eTA program would achieve Canada’s commitment to the Canada–U.S. shared vision for perimeter security and economic competitiveness, thereby accelerating the free flow of people and goods while maintaining the strength of the Canada–U.S. partnership.

It is expected that the eTA requirement would deter some inadmissible foreign nationals from applying because of the requirement to provide information prior to arrival.

The eTA provides CIC with the ability to gather data and track patterns of visa-exempt foreign nationals. Such tracking is currently not possible because no pre-screening is conducted on visa-exempt foreign nationals.

The eTA program introduces a new tool which could in future permit a more nuanced and individualized risk assessment of foreign nationals than possible through current visa requirements. Having the eTA program in place could be a consideration in future strategic discussions around the visa policy framework and changes in visa requirements.

Costs

The tourism industry may choose to incur marketing costs to advise of eTA requirements to those foreign nationals interested in travelling to Canada.

While out of scope for CBA purposes, it is acknowledged that visitors to Canada from visa-exempt countries (exceptions not included) would be required to pay a fee and spend time obtaining an eTA prior to travel to Canada. For the vast majority, the process would take minutes and the fee should not be prohibitive.

It is acknowledged that there may be some short-term impacts on tourism associated with the transition to eTA; however, these impacts are not anticipated to lead to any permanent implications for tourism demand to Canada as potential declines in tourism will be offset by the light-touch nature of the eTA program, including the five-year validity and low $7 fee. Potential declines will be further mitigated through a future more nuanced and individualized risk assessment of foreign nationals than possible through current visa requirements.

Travellers entering Canada at land and sea ports will not require an eTA. It is not anticipated that land and sea ports will experience a surge in demand because communication products will advise that all ports will continue to have a thorough inspection regime. It is not anticipated that travellers will switch their mode of transport to avoid the $7 fee. However, it is acknowledged that there may be an adjustment period as travellers are made aware that inspections will continue to be conducted at all ports of entry irrespective of the eTA requirement.

One cost that the GoC does not appear to have considered in the Gazette is the increased resources that CIC will need to process Temporary Resident Permits (“TRPs“) for inadmissible visa-exempt foreign nationals.  As well, presumably the new eTA regime will put an end to the practice of visa-exempt permanent residents with expired permanent resident cards (“PR Cards“) boarding planes and arriving in Canada without the CBSA discovering that they are permanent residents. While this will increase compliance with Canada’s residency requirement, it will also lead to increased Permanent Resident Travel Documents and Immigration Appeal Division appeals.

The Interactive Advance Passenger Information System

As noted in the Gazette, the CBSA is still developing its Interactive Advance Passenger Information (“IAPI”) system which will create the capacity to provide air carriers with a “board/no board” message on all travellers.  The eTA will be an electronic document issued to the traveller. No printed paper documents would be issued and a copy of the eTA would not be provided to air carriers. Therefore, the airlines will have to rely on the IAPI to enforce the eTA regime.  

Conclusion

The eTA represents an unfortunate continued trend since 9/11 towards increased borders and reduced mobility.  However, it will bring Canada into harmony with many other developed countries, including the United States.

It is imperative that the GoC increases CIC’s resources in order to prevent significant delays.  The current norm is that applications submitted at POEs take minutes to process, while applications submitted to CIC take anywhere from daysto months.  The current processing time for CIC to process a TRP application exceeds one year at many visa posts, while CBSA is generally able to issue one in under an hour.  Given that the eTA will likely result in an increase in TRP applications submitted to visa posts abroad, more resources are definitely needed.  


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