Last Updated on October 21, 2010 by Steven Meurrens
On October 21, the Canadian government introduced legislation that will change the way Canada prosecutes human smugglers, penalize refugees who arrive in Canada through the use of a smuggler, and in general attempt to prevent human smuggling. The measure is largely a response to the (general) public outcry following the arrival of the MV Sun Sea. The legislation is called the Preventing Human Smugglers from Abusing Canada’s Immigration System Act (the “Amendments”).
The proposed changes are as follows:
Designated Foreign Nationals
The Amendments introduce a new section 20.1 of the Immigration and Refugee Protection Act (“IRPA”). This section will allow the Minister to designate the arrival of a group of persons as an “irregular arrival” if the Minister is:
- of the opinion that examinations relating to identity and admissibility of persons involved in the arrival, and other investigations, cannot be conducted in a timely manner, or;
- has reasonable grounds to suspect that the arrival involves organized human smuggling activity for profit, or in support of a criminal organization, or terrorist group.
Anyone who arrives as part of an irregular arrival will become a “designated foreign national”. An obvious exception is that Canadians and permanent residents will not be designated. Another exception will be those who on arrival hold a visa or other documents required in the regulations and can satisfy an officer that they are not inadmissible.
There is no magic number in the Amendments which determines whether a group of refugees are part of an irregular arrival. It would wrong to assume that it will only used in scenarios where hundreds of people arrive in Canada via a boat.
Detaining Designated Foreign Nationals
The Amendments create a new s. 55(3.1) of the Act which will provide that:
(3.1) If a designation is made under subsection20.1 (I), an officer must
(a) detain, on their entry into Canada, a foreign national who, as a result of the designation, is a designated foreign national; or
(b) arrest and detain without a warrant a foreign national who, after their entry into Canada, becomes a designated foreign national as a result of the designation, or issue a warrant for their arrest and detention.
All designated foreign nationals must be detained upon arrival. The Amendments provide that the detention must continue until either:
- a final determination is made to allow their claim for refugee protection or application for protection;
- they are released as a result of the Immigration Division ordering their release under section 58;
- the Minister orders their release; or
- one year has passed.
Delaying the Ability of Designated Foreign Nationals to Become Permanent Residents
Currently, an individual who obtains refugee status becomes a permanent resident with the same rights at other permanent residents.
If the Amendments become law, this will no longer be the case for refugees who arrive as part of an irregular arrival. Designated foreign nationals will have to wait at least five years before they can become permanent residents. I say “at least” because a designated foreign national can only apply for permanent residence after five years. It is not automatically granted. Furthermore, if the designated foreign national makes a refugee claim or an application for protection, then they must wait until five years after the final determination of their claim has passed.
As well, conditions will be imposed on designated foreign nationals during those five years. An immigration officer may refuse to consider an application for permanent residence made after the five years if the designated foreign national fails to comply with any conditions imposed on them under the new subsection 58(4), 58.1, or 98.1 of IRPA. These new sections read:
58(4) If the Immigration Division orders the release of a designated foreign national, it shall also impose any condition that is prescribed.
58.1 The Minister may, on request of a designated foreign national, order their release from detention if, in the Minister’s opinion, exceptional circumstances exist that warrant the release. The Minister may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that he or she considers necessary.
98.1 (1) A designated foreign national on whom refugee protection is conferred under paragraph 95(1)(b) or (c) must report to an officer in accordance with the regulations.
(2) A designated foreign national who is required to report to an officer must answer truthfully all questions put to him or her and must provide any information and documents that the officer requests.
It is extremely important to note that the Amendments do not specify what the conditions are. The Amendments only provide that the designated foreign nationals will have to comply with them. The conditions themselves will be contained in the Regulations. This means that the government will be able to introduce, change, and remove conditions without having to go to Parliament.
Another effect of the delay in the conferral of permanent residence to designated foreign nationals is that they will be unable to sponsor family members to come to Canada. Designated foreign nations will have to wait five years before they can bring their spouses and children to Canada.
Finally, the Amendments create a new s. 24(5) of the Immigration and Refugee Protection Act which will prevent designated foreign nationals from applying for a temporary resident permit during the five years (and then one extra year), and a new s. 25(1.01-1.03) which will prevent them from making applications for permanent residence on humanitarian & compassionate grounds during the five same years (and then an extra year).
Restricting the Ability of Designated Foreign Nationals to Travel
Under the Amendments, a new section 31.1 of IRPA will provide:
31.1 For the purposes of Article 28 of the Refugee Convention, a designated foreign national whose claim for refugee protection or application for protection is accepted is lawfully staying in Canada only if they become a permanent resident or are issued a temporary resident permit under section 24.
Article 28 of the 1951 UN Refugee Convention states:
Article 28. – Travel documents
1. The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require, and the provisions of the Schedule to this Convention shall apply with respect to such documents. The Contracting States may issue such a travel document to any other refugee in their territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refugees in their territory who are unable to obtain a travel document from the country of their lawful residence.
2. Travel documents issued to refugees under previous international agreements by Parties thereto shall be recognized and treated by the Contracting States in the same way as if they had been issued pursuant to this article.
In other words, designated foreign nationals will no longer be issued travel documents. In the press release, the government says that designated foreign nationals will no longer be permitted to return to their country of origin for vacation. However, as I read the Amendments, the law actually seems to be providing that they will not be issued any travel document, which seems to imply that they will be unable to leave Canada at all. (Does anyone disagree with my interpretation?)
The Amendments provide that designated foreign nationals will not be allowed to appeal negative decisions of the Refugee Protection Division. Although they can still apply for judicial review, they will not be granted an automatic stay of removal.
As well, no appeals can be made of Refugee Protection Division decisions on vacating decisions or whether refugee protection has ceased.
Imposed mandatory minimum prison sentences on convicted smugglers.
The Amendments create a new 117(3.1) and 117(3.2) which will provide for mandatory minimum sentences for those convicted of human smuggling.
In order to understand what the mandatory minimums are it is important to understand the concept of “aggravating factors”. The Amendments provide that the two aggravating factors which will determine the mandatory minimum are:
- Whether the offence was committed for profit or for the benefit of, at the direction of, or in association with, a criminal organization; and
- Whether the person, in committing the offence endangered the life or safety, or cause bodily harm or death to, any of the persons smuggled.
The mandatory prison sentences would be, where less than 50 persons are smuggled:
- 3 years imprisonment if one of the above aggravating factors was present.
- 5 years imprisonment if two of the above aggravating factors were present.
The mandatory prison sentences would be, where 50 or more persons are smuggled:
- 5 years imprisonment if one of the above aggravating factors was present.
- 10 years imprisonment if two of the above aggravating factors were present.
The Act also imposes a series of fines on the owner of the vessels.
In a change that will extend beyond designated foreign nationals, s. 55(3)(b) of the Immigration and Refugee Protection Act will be amended to allow for the detention of individuals of whom there are reasonable grounds to believe are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality, or organized criminality.
Furthermore, section 58(1) of IRPA has been amended such that an individual shall not be released from detention if the Immigration Division believes that:
(a) they are a danger to the public;
(b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2);
(c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality;
(d) the Minister is of the opinion that the identity of the foreign national who is not a designated foreign national has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or
(e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national has not been established.
The changes are underlined.
This is huge, and all permanent residents should take note.
Ensure that health benefits are not more generous than those given to the Canadian public.
Currently, asylum seekers, resettled refugees, failed asylum seekers awaiting removal, detained individuals, and victims of trafficking are provided with temporary health coverage through the Interim Federal Health (IFH) program. This program provides both basic and supplementary health care coverage, including some forms of dental care such as certain fillings and vision products such as eyeglasses.
Concurrent with the introduction of the Amendments, the government has announced that the IFH program would be limited for designated foreign nationals. Designated foreign nationals will only receive basic coverage, including medically necessary care, and Immigration Medical Exams. It would exclude supplementary coverage such as medications, dental, vision products, and assistive devices such as wheelchairs or canes and walkers.
Exceptions will be made for vulnerable individuals.
The transition provisions of the Amendments are also interesting. They state:
33. (1) A designation may be made under subsection 20.1(1) of the Act, as enacted by section 4, in respect of an arrival in Canada — after March 31, 2009 but before the day on which this section comes into force — of a group of persons.
(2) For greater certainty and subject to subsection (3), if a designation that is authorized under subsection (1) is made, then the definition “designated foreign national” in subsection 2(1) of the Act, as enacted by section 2, and any provisions of the Act, as enacted by this Act, that provide for the effects of the designation apply.
(3) If a designation that is authorized under subsection (1) is made, then paragraph 55(3.1)(b) of the Act, as enacted by subsection 9(2), does not apply in respect of a person who, as a result of that designation, becomes a designated foreign national and who, on the day on which this section comes into force, is not in detention under Division 6 of Part 1 of the Act.
34. Paragraph 58(1)(c) of the Act, as enacted by subsection 12(1), applies in respect of a person who, on the day on which this section comes into force, is in detention under Division 6 of Part 1 of the Act.
Looks like this was designed to capture those on the MV Sun Sea.
I’m going to hold off on thoughts for now as I am certain that there is no way that the Amendments will pass as currently written. Much like Bill C-11, I expect that some aspects will pass, but that other provisions will be substantially watered down.
The point of this post though, is to raise awareness. If you have concerns or thoughts, contact your MP.
Unlike the conditions that may soon be imposed on designated foreign nationals, your MP will have a say on this bill in Parliament.