A main purpose of the Canada Border Services Agency (the “CBSA“) is to determine whether people are inadmissible to Canada and, if they are, next steps.
Section 15(1) of Canada’s Immigration and Refugee Protection Act (the “IRPA“), read in conjunction with r. 28(b) of Canada’s Immigration and Refugee Protection Regulations (the “IRPA”) authorizes Border Services Officers (“BSOs“) to examine people who are entering Canada to determine their admissibility. As well, IRPA s. 18(1) provides that every person seeking to enter Canada must appear for an examination at CBSA to determine whether that person has a right to enter Canada or is or may become authorized to enter and remain in Canada.
This post is a summary of the training manual from the CBSA’s Officer Induction Training Program. A full copy can be found at the bottom of the post.
Regulation 37 of the IRPR define when a CBSA examination at a port of entry (a “POE“) ends. It states that an examination ends once one of the following occurs:
- A final determination is made that the person has a right to enter Canada, or is authorized to enter Canada, and leaves the port of entry. It is important to note that an examination is not over simply because a passport is stamped. Rather, the decision to admit an individual may be revisited as long as the person has not left the controlled area of the port of entry.
- A person in transit departs Canada.
- The person is allowed to leave Canada and an officer verifies their departure from Canada. In this situation, a BSO may determine that someone is inadmissible. Rather than formally removing them (and banning them) the BSO may instead allow them to withdraw their application to enter Canada.
- If a removal order had been prepared against a person, but a Minister’s Delegate (commonly referred to as a supervisor, although this is not always the case) determined that the BSO’s preparation of a removal report was not founded.
- A Minister’s Delegate issues a person a removal order.
- The CBSA refers an inadmissible person to a hearing at the Immigration and Refugee Board’s Immigration Division for an admissibility hearing to determine whether the person is inadmissible to Canada.
Primary Inspection Line and Secondary
When a person goes through a port of entry the first person that they will encounter is a BSO working at the Primary Inspection Line (the “PIL“). A BSO working at PIL has two options when determining they admissibility of an individual. They can either authorize entry to Canada or refer the person to secondary for additional examination.
Most people who enter Canada will only encounter a BSO at PIL. The encounter is typically brief.
At secondary, the encounter is typically longer. Bags can be searched. Background checks can be done. Officers can go through phones.
BSOs also have many more options if they suspect that someone is inadmissible to Canada.
The following chart summarizes the various options available.
Entry to Complete Further Examination
In some situations, an adjournment of the BSO’s examination may be necessary. Examples include where an interpreter is needed or where someone may need to provide additional documents not in their possession. Section 23 of the IRPA states that a officer may authorize a person to enter Canada for the purpose of further examination or an admissibility hearing. Regulation 43(2) of the IRPR states that a foreign national who is authorized to enter Canada under IRPA s. 23 does not, by reason only of that authorization, become a temporary resident or a permanent resident. As such, these individuals are in a bit of a gray zone when it comes to their status in Canada, as they are legally still under examination at the port of entry.
Regulation 43(1) of the IRPR states that people whose examinations are furthered must:
- report in person at the time and place specified for the completion of the examination or the admissibility hearing;
- not work in Canada;
- not attend any educational institution;
- report to an officer at a POE if the person decides to withdraw their application to enter Canada.
A person who fails to report as required will be found to have not complied with the IRPA. If the person does not appear at a time and place has specified, a warrant for arrest may be issued, and the person can be removed from Canada.
The form that CBSA will give a person who is allowed entry for further examination is the BSF536.
Withdraw of Application
Also known as an “allowed to leave” a person who is determined to be inadmissible to Canada may nonetheless “voluntarily” leave Canada. The CBSA can only do this if a BSO has not yet prepared an admissibility report, or, if the BSO has, a Minister’s Delegate decides not to make a removal order or report the person so the Immigration Division.
The allowed to leave form is the IMM1282B.
Direct to Leave
Regulation 40(1) of the IRPR states that an officer who is unable to examine a person who is seeking to enter Canada at a port of entry shall, in writing, direct the person to leave Canada. This action is most typically used at ports of entry, and often occurs in situations where an individual is intoxicated and cannot be properly examined.
The Direction to Leave Canada form is the BSF503.
Regulation 41 of the IRPR states that an officer who examines a foreign national who is seeking to enter Canada from the United States shall direct them to return temporarily to the United States if
- no officer is able to complete an examination;
- there is no Minister’s Delegate available to review a report; or
- the person has been referred to an admissibility hearing and there is no member of the Immigration Division readily available.
The Direction to Return form is the BSF505.
Deposit or Guarantee Upon Entry
Although it is rarely used, regulation 45 of the IRPR provides that an officer can require, in respect of a person or group of persons seeking to enter Canada, the payment of a deposit or the posting of a guarantee, or both, to CBSA for compliance with any conditions imposed.
The amount of the deposit or guarantee is fixed by an officer on the basis of
- the financial resources of the person or group;
- the obligations that result from the conditions imposed;
- the costs that would likely be incurred to locate and arrest the person or group, to detain them, to hold an admissibility hearing and to remove them from Canada; and
- (in the case of a guarantee, the costs that would likely be incurred to enforce it.
Detention on Entry
Section 55(3) of the IRPA states that a permanent resident or a foreign national may, on entry into Canada, be detained if an officer:
- considers it necessary to do so in order for the examination to be completed; or
- has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality.
This most often occurs at airports and accompanies an allowed to leave.
The Order for Detention form is the BSF304. It is often accompanied by the Notice of Rights Conferred under the Vienna Convention.
Arrest and Detention Without a Warrant
Section 55(2) of the IRPA states that an officer may, without a warrant, arrest and detain a foreign national, other than a protected person:
- who the officer has reasonable grounds to believe is inadmissible and is a danger to the public;
- who the officer has reasonable grounds to believe is 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; or
- if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.
Temporary Resident Permit
In some cases, a BSO may grant someone who is inadmissible to Canada admission. Section 24(1) of the IRPA states that a foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit (a “TRP“), which may be cancelled at any time.
Officers will typically consider whether someone’s need to enter Canada is compelling, if so what the validity period of the TRP is, a risk assessment and other factors. Examples of TRPs may be issued include where someone is travelling to Canada for the first time, and is unaware of their inadmissibility, is coming for business reasons that would benefit Canadians, urgent family situations like funerals and weddings, where travellers are admissible but truthful and co-operative or minor inadmissibilities.
Regulation 63(d) states that the longest that a TRP can be issued for is three years.
All BSOs can issue TRPs to people who are inadmissible for criminality, non-compliance or to people who are inadmissible to Canada because of their family members’ inadmissibilites.
Only superintendents can issue TRPs to those who are inadmissible for serious criminality, medical inadmissibility, financial reasons or misrepresentation.
The CBSA does not have the authority to cancel previously issued TRPs.
An inadmissibility report, also known as an A44 report, is a document which formerly states that a person is inadmissible to Canada. A44 reports are completed in order to inform a person of the allegation made against them, bring the allegation before a decision-maker, record a decision and record the disposition of the report.
When an officer prepares an inadmissibility report, that report must be referred to a Minister’s Delegate for review. When reviewing the report, the Minister’s Delegate can utilize any of the options above, as well as issue a removal order or refer the person to an admissibility hearing.
Regulation 228 of the IRPR stipulates the circumstances in which a Minister’s Delegate can issue a removal order directly rather than referring the matter to the Immigration Division. Some of the more common situations om which a CBSA officer a a POE would issue a removal order include where:
- a foreign national is inadmissible on grounds of serious or general criminality for convictions inside of Canada, in which case a deportation order can be issued, and the person banned from Canada for life;
- a foreign national has failed to appear for further examination, in which case an Exclusion Order can be issued, and the foreign national banned from Canada for one year;
- a foreign national who has been deported fails to obtain authorization to return to Canada but appears at a port of entry, in which case a deportation order can be issued, and the person banned from Canada for life;
- a foreign national fails to establish that they hold the visa or other document (a permit) required,
in which case an Exclusion Order can be issued, and the foreign national banned from Canada for one year; or
- a permanent resident has failed to comply with their residency obligation, in which case a Departure Order can be issued, and the permanent resident has thirty days to appeal or leave Canada.