Last updated on March 2nd, 2019
Foreign nationals who are found to be inadmissible to Canada on the basis of security (including espionage, subversion, engaging in terrorism, or being a member of a group that engages in terrorism), certain human and international rights violations, or organised crime can still visit or immigrate to Canada despite being inadmissible for such serious reasons if they satisfy the Minister of Public Safety and Emergency Preparedness (the “Minister“) that their entry to Canada is not contrary to Canada’s national interest. Such applications are referred to as “Ministerial Relief applications.”
In assessing a Ministerial Relief application, Canadian immigration law somewhat confusingly provides that the Minister “may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.”
Ministerial Relief applications, previously done under ss. 34(2), 35(2), and 37(2)(a) of Canada’s Immigration and Refugee Protection Act, and now s. 42.1, have long been problematic. As the Government of Canada noted when it introduced a standardised process on March 10, 2017:
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.
» Read more about: Ministerial Relief Exemption Requests »
Read more ›Last updated on December 22nd, 2018
Section 44 of the Immigration and Refugee Protection Act states:
Preparation of report
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
Referral or removal order
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
Conditions
(3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.
Inadmissibility reports look like the following:
The Canada Border Services Agency typically issues statutory declarations explaining the circumstances which lead to the A44 report, which look like this.
These two documents typically form the reason for the A44 report, and should be obtained by those removed in order to determine next steps, including applying for Authorization to Return to Canada or judicial review.
» Read more about: A44 Reports »
Read more ›Last updated on January 21st, 2020
Section 35 of the Immigration and Refugee Protection Act (the “IRPA“) provides that:
Human or international rights violations
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act;
(b) being a prescribed senior official in the service of a government that, in the opinion of the Minister, engages or has engaged in terrorism, systematic or gross human rights violations, or genocide, a war crime or a crime against humanity within the meaning of subsections 6(3) to (5) of the Crimes Against Humanity and War Crimes Act; or
(c) being a person, other than a permanent resident, whose entry into or stay in Canada is restricted pursuant to a decision, resolution or measure of an international organization of states or association of states, of which Canada is a member, that imposes sanctions on a country against which Canada has imposed or has agreed to impose sanctions in concert with that organization or association.
Immigration, Refugees and Citizenship Canada (“IRCC“) has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below. More recent jurisprudence can be found throughout my blog, but the IRCC document is a very useful summary.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).
» Read more about: Inadmissibility for Violating Human Rights »
Read more ›Last updated on May 25th, 2019
Section 7 of the Canadian Charter of Rights and Freedoms (the “Charter“) provides that:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
There have been several Supreme Court of Canada (the “Supreme Court“) and Federal Court of Appeal decisions involving s. 7 of the Charter and Canadian immigration law.
» Read more about: Section 7 of the Charter and Canadian Immigration Law »
Read more ›This is a companion post to my post on excessive demand here. It is more geared to lawyers and other readers of jurisprudence.
» Read more about: Excessive Demand Jurisprudence »
Read more ›Last updated on September 13th, 2018
On December 3, 2015, Don Davies, the member of Parliament for Vancouver Kingsway, introduced Bill C-214, An Act to Amend the Immigration and Refugee Protection Act (Appeals) (Bill C-214). If passed, Bill C-214 would provide a right of appeal to the Immigration Appeal Division (IAD) for prospective immigrants whose applications for permanent residency are refused because Immigration, Refugees and Citizenship Canada (IRCC) determines that they will likely represent an excessive demand on Canada’s health and social services systems.
Because Bill C-214 is a private member’s bill, it is unlikely to become law. Indeed, Davies has introduced similar bills in previous Parliamentary sessions, to no effect. However, what he is proposing is certainly worthy of discussion and debate. I hope that if he reads this post that he will consider my comments, if he ever reintroduces or amends his proposed legislation. As well, at the end of this article I will discuss another immigration issue that Davies has proposed that I hope he reintroduces soon.
Inadmissibility for Excessive Demand
Canada’s Immigration and Refugee Protection Act provides that foreign nationals are inadmissible to Canada on health grounds if their health conditions might reasonably be expected to cause an excessive demand on Canada’s health or social services.
Health services are any medical services for which the majority of funds are contributed by governments, including the services of family physicians, medical specialists, chiropractors and hospital care.
Social services include home care, residential services, social and vocational rehabilitation services that are intended to assist a person function physically, emotionally, socially, psychologically, or vocationally, and for which the majority of funding is contributed by governments. It includes special needs education for children.
» Read more about: Providing a Right of Appeal to Medically Inadmissible Immigrants »
Read more ›On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program. The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program will allow Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada.
As of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada will be required to obtain an eTA before they travel to Canada by air. A list of countries and territories whose citizens will need an eTA to travel to Canada can be found here. As such, it will no longer be the case that residents of these countries can simply purchase tickets and board planes to travel to Canada. Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s new Interactive Advance Passenger Information system.
Americans are exempted from the requirement to obtain an eTA.
The eTA is an online application on the Citizenship and Immigration Canada (“CIC“) website. Applicants will need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, and travel history. CIC anticipates that it will automatically process most eTA applications within minutes. When an eTA application cannot be automatically approved, it will be referred to a CIC officer for a manual review. Officers can request additional documents, and, where required, further the application to a Canadian visa office abroad for further processing, including a possible interview.
The eTA will be valid for five years or until the applicant’s passport expires, whichever occurs sooner.
» Read more about: Electronic Travel Authorization »
Read more ›Section 34 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons. It states:
Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;
(b) engaging in or instigating the subversion by force of any government;
(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).
(2) [Repealed, 2013, c. 16, s. 13]
A Citizenship and Immigration Canada has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below. More recent jurisprudence can be found throughout my blog, but the CIC document is a very useful summary.
Please note that what I have reproduced below should not be viewed as legal advice. I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”). The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.
» Read more about: A34 – Inadmissibility for Security Reasons »
Read more ›One of the more frustrating aspects for prospective immigrants is Citizenship and Immigration Canada’s (“CIC”) general requirement that they have their non-accompanying dependants (spouses and children) undergo medical and criminal examination. The task can be taunting for those who do not have full custody of their non-accompanying children. However, CIC’s requirement is understandable in light of Canadian immigration legislation..
» Read more about: Non-Accompanying Dependants and Medical Exams »
Read more ›Extradition and deportation are two different things. Extradition is the official process whereby one country transfers a suspected or convicted criminal to another country, generally for prosecution. Deportation, on the other hand, is the removal of an individual from a country generally done for the purpose of achieving an immigration objective. In Roncarelli v. Duplessis, [1959] S.C.R. 121, the Supreme Court of Canada (the “SCC”) recognized that it was an abuse of process for a government department to exercise a statutory power for a reason that is unrelated to the purpose for which that power was granted. In the immigration context, it is accordingly an abuse of process for immigration authorities to initiate removal proceedings against an individual to extradite someone.
In United States v. Rogan, 2014 BCSC 116 (“Rogan”), Justice Fish summarized the principles of what is known as “disguised extradition” as follows: (Citations and paragraph numbers removed)
Deportation and extradition have fundamentally different underlying objectives. Deportation is a discretionary decision made by Canadian immigration authorities aimed at protecting the public good. Extradition, which is initiated by foreign authorities, is aimed at delivering a person sought for prosecution to that foreign authority.
A person subject to extradition proceedings has a panoply of constitutionally-enshrined protections not available to a person subject to an IRPA admissibility hearing. For example, a person ordered extradited is immune from prosecution in the requesting state for offences that have not been identified in the surrender order. By contrast, there are no restrictions on what a deported person can be prosecuted for once removed from Canada.
The essence of a “disguised extradition” claim is that removal proceedings were not instituted to pursue a valid immigration objective, but to procure, on behalf of a foreign state,
» Read more about: Disguised Extradition »
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