COVID-19 and Canadian Immigration

In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. These include:

Prohibiting Symptomatic Individuals from Entering Canada
Restricting who can Travel to Canada from the United States of America
Restricting who can Travel to Canada Internationally
Masks During Travel and Self-Isolation Upon Arrival into Canada
Suspending the Processing of Certain Temporary Residence Applications
Providing Flexibility for Students
Introducing new Rules for Employers of Foreign Workers
Introducing a new Ground of Inadmissibility for Failure to Self-Isolate
Not Returning Incomplete Permanent Residence Applications
Suspending the Collection of Biometrics
Suspending Immigration and Refugee Board Hearings
Suspending Federal Court Timelines

Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo. Note also that validity of these orders may be extended or cancelled at any time.

PROHIBITING SYMPTOMATIC INDIVIDUALS FROM ENTERING CANADA

On April 17, 2020 Transport Canada enacted Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 6. It provides that any persons exhibiting COVID-19 symptoms will not be allowed to board an aircraft to fly into Canada, regardless of their status in Canada. This includes Canadian citizens.

Air operators are required to do a health check for all air travellers before they board the flight based on guidance from the Public Health Agency of Canada. This would include the operator asking health questions and looking for visible signs of a cough, fever, and difficulty breathing prior to boarding.

In the event the traveller presents COVID-19 symptoms, the air carrier is required to refuse to board the passenger for travel for a period of 14 days or until a medical certificate is presented that confirms the traveller’s symptoms are not related to COVID-19.

All Canadian citizens who are unable to travel to Canada will be able to apply for an emergency loan of up to $5,000 through the COVID-19 Emergency Loan Request Form. Only permanent residents who are travelling with a spouses, parents, or children who are Canadian citizens, or who are facing a threat to life or other grievous harm, can apply for this loan.

2. Restricting who can Travel to Canada from the United States of America

On March 26, 2020, the Governor General in Council enacted an Order in Council P.C. 2020-0185 pursuant to the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States). It was originally valid until April 21, 2020, but has been extended to May 21.

Under the Order in Council asymptomatic Canadian citizens and permanent residents can travel by air to Canada from the United States of America. Canadian citizens and permanent residents can cross the Canada – US land border irrespective of COVID-19 symptoms.

Asymptomatic foreign nationals can fly from the United States to Canada, or cross the Canada – US land border, if they are not seeking to enter Canada for an optional or discretionary purpose, such as tourism, recreation or entertainment. The Canada Border Services Agency has interpreted this requirement as requiring that travel be “essential.” The definition of “essential” is evolving on an almost daily basis, with individual border officers having significant discretion as to what it encompasses. As of April 22, 2020, the Immigration, Refugees and Citizenship Canada (“IRCC”) website states that travel for the following purposes would not be considered optional or discretionary:

delivering economic services, maintaining the supply chain, supporting critical infrastructure, providing immediate medical care, or ensuring safety and security
transiting through Canada for essential purposes
engaging in cross-border employment or shopping for essential goods such as medication or basic needs, particularly in border and Indigenous communities
non-discretionary family reunification
entering Canada to work, study or land as a permanent resident, with appropriate documentation

The Canada Border Services Agency has its own memorandum which provides specific examples of what is and is not considered an essential purpose.

CBSA Directives - 2020-HQ-03-26 and 2020-HQ-AC-03-26-B

As well, effective June 9, 2020, individuals who are travelling to Canada to reunite with the immediate family members of Canadian citizens or permanent residents do not have to prove that they are travelling to Canada for a non-discretionary purpose.

Prior to April 20, 2020 there was also a requirement that individuals only have been in Canada or the United States for 14 days prior to travelling to Canada. This is no longer the case.

Foreign nationals who require temporary resident visas or electronic travel authorizations must still obtain these documents prior to travelling.

Finally, s. 5(1) of the Order in Council prohibits foreign nationals from entering Canada from the United States for the purpose of making refugee claims. American citizens, minors and those encompassed by the Safe Third Country Agreement are exempted from this.

3. Restricting who can Travel to Canada Internationally

On March 26, 2020, the Governor General in Council enacted an Order in Council P.C. 2020-0184 pursuant to the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from any Country other than the United States). It is in effect until June 30, 2020. It greatly restricts who can travel to Canada.

Canadian citizen or permanent resident who are not exhibiting COVID-19 symptoms are able to board any aircraft into Canada.

The list of foreign nationals who can board an aircraft to Canada is restricted to certain categories of individuals. In addition to the specific individuals who can travel to Canada outlined below, section 3 of the Order in Council further provides that any foreign nationals cannot enter Canada if they are seeking to enter Canada for an optional or discretionary purpose, such as tourism, recreation or entertainment. The Canada Border Services Agency has interpreted this requirement as requiring that travel be “essential.” The definition of “essential” is evolving on an almost daily basis, with individual officers having significant discretion as to what it encompasses. As of April 22, 2020, the Immigration, Refugees and Citizenship Canada (“IRCC”) website states that travel for the following purposes would not be considered optional or discretionary:

delivering economic services, maintaining the supply chain, supporting critical infrastructure, providing immediate medical care, or ensuring safety and security
transiting through Canada for essential purposes
engaging in cross-border employment or shopping for essential goods such as medication or basic needs, particularly in border and Indigenous communities
non-discretionary family reunification
entering Canada to work, study or land as a permanent resident, with appropriate documentation

As well, anyone showing symptoms of COVID-19 will be prohibiting from boarding an aircraft destined to Canada.

The Canada Border Services Agency has its own memorandum which provides specific examples of what is and is not considered an essential purpose.

CBSA Directives - 2020-HQ-03-26 and 2020-HQ-AC-03-26-B

Immediate family members of Canadian citizens or permanent residents can travel to Canada. Immediate family members includes parents, spouses/common-law partners and dependent children. Dependent children are defined as children under the age of 22 who do not have a spouse or common-law partner, as well children over 22 who have a physical or mental condition that renders them financially dependent on their parents. Such individuals need to have documentation on hand when boarding aircraft to demonstrate that they are the immediate family member of a Canadian citizen or permanent resident.

The immediate family members of foreign nationals already in Canada can travel to Canada if they receive advance permission by a consular officer of the Government of Canada to enter Canada for the purpose of reuniting immediate family members. There are two days to receive such an authorization. The first is to contact the nearest Government of Canada office abroad. The second is to e-mail Immigration, Refugees and Citizenship Canada (“IRCC”) at IRCC.COVID-TravelExemptions-Exemptionsdevoyage-COVID.IRCC@cic.gc.ca. The response time is around 48 hours. In addition to proving their relationship to an immediate family member in Canada, such individuals must show that they are coming for an essential purpose. This includes living with their immediate family member.

Study permit holders as well as people whose study permit applications were approved on or prior to March 18, 2020, but who have not yet travelled to Canada, can also travel to Canada.

Work permit holders, as well as individuals whose work permit applications were approved but who have not yet received their physical work permit, can travel to Canada. Unlike with study permit holders, there is no date before which the letter of approval must have been issued.

Foreign nationals travelling to Canada as visitors will generally not be allowed to board aircraft to travel to Canada. Some exceptions include providers of emergency services, students in a health field primarily for the purpose of acquiring training and foreign nationals who will become members of a transportation crew.

Individuals who were approved for permanent residence on or before March 18, 2020 will be allowed to board an aircraft destined to Canada.

Foreign nationals who require temporary resident visas or electronic travel authorizations must still obtain these documents prior to travelling.

4. Masks During Travel and Self-Isolation Upon Arrival

When travelling by air into Canada travellers are now required to wear non-medical masks or face coverings that covers their mouth and nose. They must do this at Canadian airport screening checkpoints, when they cannot physically distance from others and when directed to do so by a public health order or public health official. Aviation passengers on all rights arriving at Canadian airports will be required to demonstrate that they have the necessary non-medical mask for face covering during the boarding process otherwise they will not be allowed to continue on their journey.

On March 24, 2020 the Governor in Council proclaimed Order in Council 2020-0175 – Minimizing the Risk of Exposure to COVID-19 in Canada Order (Mandatory Isolation). It provides that after arriving in Canada asymptomatic persons must self-isolate without delay for 14 days. People who develop COVID-19 symptoms during their self-isolation period may be required to extend their self-isolation.

Individuals entering must present a plan to the Canada Border Services Agency for how they will self-isolate for 14 days when they get to Canada and how they will obtain medical care if they become sick. While in self-isolation, they will be unable to leave where they are staying for any purpose. If they do not have a plan for self-isolation, including how they will buy groceries and access other essential services, they will not be allowed to leave the airport. As well, individuals who meet any of the conditions below must board a government vehicle and be transported to a government quarantine facility for 14-days:

Inability to self-isolate in a suitable location;
Inability to self-isolate without coming into contact with vulnerable persons, including someone who has an underlying medical condition, has a compromised immune system or is 65 years of age or older; or
Inability to access the necessities of life if you must self-isolate.

Individuals who have COVID-19 symptoms must disclose this upon arrival. If they meet one of the following conditions, they must board a government vehicle and be transported to a government quarantine facility for 14-days:

They cannot get to your place of residence in a private vehicle (using a plane, bus, train, taxi, public transit, or ride-sharing is not accepted);
They cannot self-isolate in a suitable location;
They cannot self-isolate without coming into contact with vulnerable persons, including someone who has an underlying medical condition, has a compromised immune system or is 65 years of age or older; or
They cannot have access to the necessities of life if they must self-isolate.

As well, travellers entering British Columbia must submit a self-isolation plan online or via a paper form before, or when, they enter the province. The self-isolation plan must detail where they will be isolating, how they will be travelling to their isolation location, how they will procure necessary supports (e.g. food, medications, cleaning supplies, child and pet care), and whether they will have social or family support. Individuals who cannot provide a satisfactory plan will be sent to a federal quarantine facility until they are able to provide an acceptable plan.

5. Suspending the Processing of Some Temporary Residence Applications

Since April 10, 2020 IRCC has suspended the processing of non-essential visitor visa applications. The suspension also applies to some electronic travel authorization applications.

On April 25, 2020, the Government of Canada published Ministerials Instructions which specified that all new temporary resident visa applications must be submitted online, and that IRCC will not process any temporary resident visas received after April 9, 2020, unless they pertain to foreign nationals who are not prohibited from entering Canada under the travel bans outlined above. The prohibition will last until April 30, 2020, unless extended.

IRCC continues to process of visa applications for those who qualify for an exemption to the travel restrictions, as outlined above. Applicants can only submit applications online. Applicants can continue to submit electronic travel authorization (eTA) applications online; however, the manual processing of eTA applications that drop out for officer review will be paused. Therefore, applications that drop out for manual intervention will only be processed if the applicant meets the exemption criteria for the current travel restrictions and is travelling for a non-discretionary purpose.

6. Providing Flexibility for Students

IRCC continues to process study permit applications for students in anticipation of the fall study term. IRCC has amended the rules for Post-Graduate Work Permit Program eligibility so that in-class courses that were moved to an online-only format will not preclude eligibility to the program. As well, international students who are unable to travel to Canada at this time due to travel restrictions may begin their classes while outside Canada and may complete up to 50% of their program while outside of Canada if they cannot travel to Canada sooner.

IRCC is also letting international students to work more than a maximum of 20 hours per week while classes are in session, provided they are working in an essential service or function, such as health care, critical infrastructure, or the supply of food or other critical goods.

The Government of Canada has not announced that it will automatically extend the status of individuals in Canada during COVID-19. As such, individuals in Canada need to apply to either extend their temporary resident status, or, if their status has already expired, to apply for restoration of status or a temporary resident permit, as applicable.

7. Introducing New Rules for the Employers of Foreign Workers

IRCC continues to process work permit applications. People with work permit approval letters can travel to Canada.

Most temporary foreign workers must self-isolate for 14 days upon arrival. Foreign workers who have been deemed by the Chief Public Health Officer as providing an essential service are exempt form this. This includes:

people making necessary medical deliveries of cells, blood and blood products, tissues, organs or other similar lifesaving human body parts, as required for patient care;
workers in the trade and transportation sector who are important for the movement of goods and people;
those who cross the border regularly for work, including in the healthcare or critical infrastructure sectors; or
those providing or receiving essential services related to the COVID-19 outbreak.

While many provinces have designated additional services as being essential, these determinations do not constitute exemptions from the requirement that foreign workers self-isolate.

On May 12, 2020 IRCC announced a public policy to allow certain work permit extension applicants to begin working for their new employers prior to the approval of their work permits. To be eligible, applicants must:

be in Canada with valid temporary resident status (including implied status);
have held a valid work permit or was authorized to work without a work permit under paragraphs 186(b) to (x) of the Immigration and Refugee Protection Regulations (IRPR) when their application for a new work permit or work permit renewal in Canada was submitted;
have submitted a new work permit application or a work permit renewal application in Canada for an employer-specific work permit, for which a decision has not yet been made;
intend to work for a new employer and/or occupation as specified by the job offer included in their work permit application;
have applied for the public policy exemption using the electronic means identified by the department for that purpose; and
have requested that the exemption be applicable until a decision is made on their work permit application.

Effective april 20, 2020, the Immigration and Refugee Protection Regulations were amended to introduce new requirements on employers to facilitate their employee’s ability to comply with orders unde the Quarantine Act and the Emergencies Act. These conditions apply to foreign workers authorized to work under both the Temporary Foreign Worker Program and the International Mobility Program. Employers cannot authorize foreign workers who are not exempt from the need to self-isolate to work during the self-isolation period, even if requested by the worker. Employers are still responsible for paying their temporary foreign workers during the period of self isolation. Furthermore, employers cannot do anything that prevents a foreign worker’s ability to comply with provincial and territorial laws that regulate public health in response to COVID-19.

Employers of seasonal agricultural workers will be required to provide adequate accommodations to workers and provide workers under quarantine or isolation with cleaning products for the purposes of cleaning and disinfecting the accommodations regularly. In addition, employers must provide their workers with accommodations that enable them to fully isolate themselves from others if they have or develop any signs or symptoms of COVID-19. Finally, if a worker is subject to quarantine requirements, these employers must provide the worker with separate accommodations from persons who are not required to quarantine and permit the worker to remain at least two metres away from other people.

The regulatory amendments give ESDC enhanced authority to conduct inspections, including at any businesses in which there is a COVID-19 outbreak. The inspection process is also being shortened.

To help offset costs to employers, the Government of Canada has announced that it will provide $50 million (approximately $1,500 per worker) to help farmers, fish harvesters, and all food production and processing employers implement the measures necessary to comply with the requirements that all temporary foreign workers must isolate or quarantine upon entry to Canada.

The Department of Employment and Social Development Canada (“ESDC”) has also introduced new measures to the Temporary Foreign Worker Program. These include:

waiving the requirement that employers submit minor administrative changes to Labour Market Impact Assessments (“LMIA”) to ESDC;
waiving recruitment requirements for LMIAs in key occupations related to the agriculture and agri-food sectors until October 31, 2020;
prioritizing the processing of LMIAs in key occupations related to the agriculture and agri-food sectors;
increasing the maximum duration of low-wage LMIAs from 1 to 2 years;
allowing employers in the Agricultural Stream or the Seasonal Agricultural Worker Program to submit a previously valid Housing Inspection Report. Employers who cannot obtain a Housing Information Report can still obtain a positive LMIA if photos of the accommodation are provided by the employer and the employer agrees to submit an updated Housing Inspection Report within the duration of the work permit issued by that LMIA;
expediting name changes for LMIAs where the prospective foreign worker has been replaced due to COVID-19.

8. Introducing a New Ground of Inadmissibility for Failure to Self-Isolate

Effective april 20, 2020, the Immigration and Refugee Protection Regulations were amended to introduce a new ground of inadmissibility. All temporary residents and foreign nationals temporarily authorized to enter Canada must comply with any applicable order or regulation under the Quarantine Act or the Emergencies Act. The most significant is self-isolating when required.

The consequence of failing to comply with this condition will be an Exclusion Order, which will result in a one year bar from re-entering Canada. If a foreign national has been convicted for having contravened an order or regulation made under the Quarantine Act or the Emergencies Act, the facts on which the conviction was based are considered conclusively established for the purposes of an inadmissibility determination, and the foreign national will be removed. The Canada Border Services Agency can make the decision directly. The matter does not need to be referred to the Immigration and Refugee Board.

9. Not Returning Incomplete Permanent Residence Applications

IRCC continues to accept new permanent residence applications. It is implementing flexibility where applicants are unable to provide certain documents, such as police certificates, photos, etc. because of COVID-19.

Applicants who are submitting applications that are missing supporting documents must include an explanation stating that they were affected by service disruptions caused by COVID-19. If the application is still incomplete after 60 days officers will request the missing documents with an additional 90 day deadline.

Applications found to be incomplete with no explanation provided, or for reasons unrelated to service disruptions caused by COVID-19 may be rejected for incompleteness.

As well, in order to ensure that medical examination expiries do not unduly delay permanent residence application processing, the Migration Health Branch will be continuously identifying applications where applicants are residing abroad and their medical results will expire within eight weeks. Identified applications will be proactively reassessed for an additional six months. In situations where new medical exams are required, IRCC will not be requesting them until applicants indicate that they are ready to travel.

10. Suspending the Collection of Biometrics

The biggest issue in the processing of most temporary and permanent residency applications right now is obtaining biometrics, which is a requirement for most streams.

Inside Canada, all Service Canada locations are currently closed to non-essential services. All biometrics appoints in Canada have been cancelled until further notice. Walk-in biometrics collection is not available.

As well, all United States Application Support Centers are currently closed, and internationally most Visa Application Centers are as well.

As a result, IRCC is providing automatic 90 day extensions to give biometrics.

11. Suspending Immigration and Refugee Board Hearings

The Immigration and Refugee Board (the “IRB”) has announced special measures, which apply to all four of its Divisions (the Immigration Division, the Immigration Appeal Division, the Refugee Protection Division and the Refugee Appeal Division).

The IRB is suspending, until further notice, all in-person hearings and mediations, except detention reviews and some admissibility hearings involving detained persons. The Immigration Division is currently holding detention review hearings by teleconference only.

The IRB will provide at least 30 days’ notice (“The Resumption Notice”) before proceeding with a previously scheduled in-person hearing or scheduling a new in-person hearing, except detention reviews and some admissibility hearings involving detained persons, subject to limited exceptions.

When hearings resume, the IRB will be flexible with respect to the application of its rules where the parties have difficulty complying with them due to the COVID-19 situation.

Where a Division has ordered that a document be provided to it, for example submissions or further evidence, and the time limit for providing that document expired on or after March 16, 2020, that time limit is extended until 30 days after the IRB re-opens. The Refugee Protection Division, the Refugee Appeal Division and the Immigration Appeal Division have all extended filing time limits with specific Practice Notices.

12. Suspending Federal Court Timelines

On March 17, 2020 the Federal Court of Canada issued a Practice Direction Order, which was superseded by an order On April 4, 2020.

The Federal Court of Canada has implemented a Suspension Period which will run from March 16, 2020 through to May 29, 2020.

During the Suspension Period, the running of all timelines in immigration and citizenship proceedings is suspended.

The intent is that a party will pick up from where things stood before the Suspension Period, as if the intervening period never existed. So, for example, if that party had three days prior to March 16th to do something, the party will have those same three days at the end of the Suspension Period.

All hearings that had previously been scheduled to take place during the Suspension Period are adjourned sine die and all General Sittings are cancelled. There is an exception or “urgent” and “exceptional” case-by-case scenarios, which will include applications for a stay of release from detention or for a stay of removal from Canada.

It remains possible to initiate new Applications for Leave to Commence Judicial Review. Immigration tribunals continue to produce the internal reasons for refusal, albeit with delays. Where the delays are significant then, depending on consent from the Department of Justice, it is possible to use Global Case Management System notes obtained through an Access to Information Act or Privacy Act request in lieu of the Rule 9 reasons. The Department of Justice continues to argue, and consent to, judicial review applications.