On December 5, 2012, the Minister of Public Safety and Emergency Preparedness (the “Minister“) made his first designation of irregular arrival under Bill C-31, the Protecting Canada’s Immigration System Act.
The Washington Post is reporting that the 85 people were designated, including 35 children. Thirty of the irregular arrivals have already been arrested thus far. The refugee claimants appear to be Romanian, and arrived in Canada between February and October.
Consequences of Being Designated a Designated Foreign National
The Minister of Public Safety and Emergency Preparedness may designate an arrival in Canada as an irregular arrival if, having regard to the public interest, the Minister is of the opinion that:
- examinations of the persons in the group, including establishing identity or determining if someone is medically, criminally, or otherwise inadmissible to Canada, cannot be conducted in a timely manner; or
- if the Minister has reasonable grounds to suspect that the group arrived in Canada as a result of assistance from profiting smugglers, or smugglers connected to a criminal or terrorist group.
As is evident from the above, what could constitute an irregular arrival is very vague and broad. In submissions to Parliament the Canadian Bar Association described the possible implication of the vagueness as being:
Many refugee claimants come to Canada using false documents obtained from agents or smugglers. They could not otherwise make their way on commercial carriers. This reality is recognized both by [the Geneva Convention and Canadian immigration law]. Any group of two or more claimants arriving with false documents is vulnerable to being designated, as their documents were sold “for profit”… [In the proposed law the] Minister need not be satisfied on a balance of probabilities that the claimants were aided “for profit.” The threshold is “reasonable grounds to suspect”, and most “groups” of refugee claimants arriving to Canada with false documents will be eligible for designation. It does not matter whether the claimants arrive at a proper port of entry and initiate their claim in the proper manner, on first arrival and without misrepresentation.
The result of an individual being designated as having arrived as an irregular arrival is that the person becomes a Designated Foreign National.
Detention
A Designated Foreign National faces automatic detention in Canada. The Immigration and Refugee Protection Act provides that if a designation has been made, then an officer must detain the Designated Foreign National when they enter Canada if the person is 16 years or older on the date of the irregular arrival or arrest and detain without warrant a Designated Foreign National who, after his/her entry into Canada, becomes a Designated Foreign National as a result of the designation, and who was 16 years or older as of the date of the irregular arrival. Officers do not have discretion on the matter. Detention is automatic.
The Government of Canada will continue to detain a Designated Foreign National until either the Immigration and Refugee Board (the “IRB“) makes a final positive decision on the Designated Foreign National’s refugee claim, until a protected person claim is approved, or until the Immigration and Refugee Board orders the release of the Designated Foreign National.
The IRB will review a person’s detention within 14 days after the person is taken into detention and then every six months thereafter. The IRB cannot release a person from detention if it is satisfied that the Minister is taking necessary steps to inquire into a reasonable suspicion that the Designated Foreign National is inadmissible on grounds of security, violating human or international rights, serious criminality, or organized criminality, or if the IRB is satisfied that the Minister is of the opinion that the identity of Designated Foreign National has not been established.
The Government of Canada may, on its own initiative, release the Designated Foreign National. Practically speaking, it appears that Designated Foreign Nationals will be detained until either their protected person application or refugee claim is successful, the Government of Canada wants to release them.
While one might have assumed that the cost of mandatory detention of Designated Foreign Nationals would lead to the irregular arrival designation being applied only in the most egregious cases, this may depend on how successful private prison firms are in lobbying the government to run immigration detention centres for asylum claimants.
The Penalty Period
If a Designated Foreign National’s achieves refugee status or protected person status, the Designated Foreign National can be re-assessed within five years to determine whether the person still needs protection or whether the person can be returned to his/her country of origin. During this five year period the Designated Foreign National may not apply for permanent residence in Canada as a protected person.
During this five year period the Designated Foreign National will also not be provided with a refugee travel document (which will prevent the Designated Foreign National from travelling anywhere) and the Designated Foreign National will not be able to apply to immigrate to Canada through other means. As a result, Designated Foreign Nationals will not be eligible to sponsor family members into Canada or become Canadian citizens.
The individual will be required to report regularly to officials during this period.
The period of waiting for most Designated Foreign Nationals will actually be longer than five years because the clock will start running on either the date that a final determination in respect of a refugee claim or protected person claim is made. As well, officers may extend this “penalty period” to six years in certain circumstances.
A Designated Foreign National may not apply for either a Temporary Resident Permit or submit an H&C Application during this period. The result would be that a Designated Foreign National who is determined to no longer need protection will not have any legal means to stay in Canada.
Legal challenges of most of the above are expected. As the Canadian Bar Association noted in submissions on the matter:
This temporary protection scheme is contrary to Canada’s historic position of facilitating rapid integration of successful inland claimants by allowing them to apply for permanent resident status on being recognized as refugees or protected persons. It is also in violation of the obligation under Article 34 of the Refugee Convention (“Naturalization”):
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
The Canadian government’s recognition of this international obligation is reflected in Citizenship and Immigration Canada’s Overseas Processing Manual (OP24), which states that, “The granting of permanent resident status to protected persons helps fulfill Canada’s international legal obligations” and that applying for permanent residence for oneself and family members is the “next natural step” after being determined a Convention refugee.
Denying family reunification by denial of access to permanent resident status is inconsistent with Article 23 of the International Covenant on Civil and Political Rights, that the “family is the natural and fundamental group unit of society and is entitled to protection by society and the State”. Canada’s reports to the United Nations on compliance with the Covenant state that the IRPA and IRPR provisions allowing concurrent processing of family members of Convention refugees is intended to effect compliance with Article 23.
Failed Claims
If a Designated Foreign National is unsuccessful in claiming either refugee status or protected person status, the Designated Foreign National will not have access to the Refugee Appeal Division. Instead, the Designated Foreign National would be removed from Canada, and would be barred from applying to immigrate to Canada through other means for a five-year period.
While Designated Foreign Nationals can apply to Federal Court for a judicial review, they will not benefit from an automatic stay of removal from Canada while this application is being considered.
Practically speaking, the result will be that the Federal Court will be hit with stay of removal requests. As the irreperable harm factor is quite low for refugee and protected person determination judicial reviews, it is likely most will succeed.