CANADIAN COUNCIL FOR REFUGEES
IMMIGRATION AND REFUGEE PROTECTION ACT
OVERVIEW OF KEY PROVISIONS
17 June 2002
The Immigration and Refugee Protection Act (IRPA) is due to come into force 28 June 2002. It will completely replace the current Immigration Act.
SOURCES OF INFORMATION
The new law
The new law is made up of two elements:
Immigration and Refugee Protection Act (IRPA) – adopted by Parliament
and given royal assent 1 November 2001.
|The text can be found at www.cic.gc.ca
The Immigration and Refugee Protection Regulations (IRPR) – the
final version has just been made public.
The Act and Regulations will eventually be available at laws.justice.gc.ca/en/index.
IRB Rules – The Immigration and Refugee Board has new rules for
each of its divisions. The final version was published at the same
time as the Regulations.
on the IRB web site www.irb.gc.ca.
In addition to the law itself, the immigration manual is a useful resource for understanding how the new law will be implemented. The manual contains the instructions prepared for immigration officials and is divided up into different sections (Enforcement, Inland Processing, Overseas Processing...). Each section is further divided into chapters (e.g. IP 14 = Inland Processing chapter 14 and deals with in-Canada processing of resettled refugees). The amount of information contained in the manuals is huge: a chapter by itself can be over 100 pages.
The new manual chapters will be available on the CIC website.
OVERVIEW OF PRINCIPAL CHANGES
What follows is an overview of the principal changes in the law, in areas that the Canadian Council for Refugees has a particular interest.
REFUGEE DETERMINATION PROCESS
Eligibility: The categories of people who are ineligible to make a refugee claim are broader. Inaddition to existing ineligible categories:
Consolidated decision making at IRB: The IRB will be responsible for determining not only whether a person is a Convention refugee but also whether the claimant is
Single decision makers at IRB: Refugee claimants are only entitled to be heard by a single IRB member. In some cases, the IRB will appoint 3 member panels.
Refugee appeal: The Act says that refugee claimants can appeal a negative decision to a new Refugee Appeal Division, but the government has announced that it will not implement these sections of the Act, at least for the time being.
PDRCC is abolished: The risk review, known as Post-Determination Refugee Claimant in Canada Class, is abolished. [The risks considered in this process are transferred to the IRB through the above-mentioned consolidated decision making].
Pre-Removal Risk Assessment: A new and highly complex risk review, called PRRA, is created. Cases will be reviewed only when the person is about to be removed. Immigration officers will make the decisions, applying the same definitions of persons in need of protection as the IRB. The PRRA does basically two things:
Protected person documents: Persons granted refugee protection are entitled under the Act to a protected person document. A form will be available allowing protected persons to apply for the document. A protected person will be able to apply to the Passport Office for a travel document with the protected person document (i.e. there will be no need for a Minister's permit).
Transitional provisions: Claims made under the old system basically get treated as if they were claims under the new law. The following situations are of note:
Processing fees: Refugees applying for permanent residence (like other categories of applicants) will have to pay an extra $50 in processing fees per person ($550 per adult, $150 per child). The extra $50 is to pay for the new permanent resident card.
Dependent children: Refugees, like other categories, can include on their application any children under 22 years of age.
Medical inadmissibility: Refugees are now subject to medical inadmissibility if they are found to have a health condition that makes them a danger to public health or safety. (Refugees in Canada continue to be exempt from inadmissibility on the basis that they are likely to cause excessive demand on health or social services).
Identity documents: Refugees who cannot provide other satisfactory identity documents can submit affidavits to attest to their identity (this rule was established by the Federal Court in December 2000, but is now incorporated into the regulations).
UCRCC is abolished: The Undocumented Convention Refugees in Canada Class is abolished.
One year window of opportunity: In the year following a refugee becoming a permament resident, immediate family members who were not processed concurrently can apply for processing as part of the refugee's application (as long as they were named on the original application).
Detention on the basis of identity: Powers for detaining a person on the basis that the officer is not satisfied as to their identity are significantly expanded. Detention for ID can occur at any stage in the process (and not just at the port of entry). Detention reviews for ID cases take place according to the regular schedule for detention reviews (48 hours, 7 days, 30 days) rather than every 7 days.
Powers of detention: Immigration officers have broader powers to detain people without a warrant and can detain a person if considered necessary simply in order for an examination to be completed.
Factors to consider: The Regulations contain a series of factors that must be considered when deciding whether to detain or release a person. There are factors relating to flight risk, danger to the public, identity not established, special considerations for minors and other factors.
Minor children: The Act states that minors shall be detained only as a measure of last resort.
Immigration Division: What was the Adjudication Division becomes the Immigration Division. Adjudicators are now called members of the Immigration Division.
Medical inadmissibility: Refugees selected overseas are exempt from inadmissibility on the basis of excessive demand on health and social services. They can still be inadmissible if their health condition means they are likely to be a danger to public health or safety.
Judicial review: Refused applicants for resettlement must now receive leave from the Federal Court if they are seeking judicial review. The deadline for applying to the Federal Court is extended from 15 days to 60 days.
Successful establishment: The Regulations now list a series of factors to be considered by immigration officers when deciding whether a refugee has the capacity to successfully establish. These include the presence of relatives and the assistance of a sponsoring group.
Urgent and vulnerable cases: Refugees who meet the urgent or vulnerable definitions are exempt from the successful establishment requirement.
Referral agencies: To be considered as government-assisted refugees, applicants must be referred either by the UNHCR or by an organization with which the Canadian government has signed an agreement (no such agreements will have been signed by 28 June). This rule will not apply to areas designated by the Minister. The areas so designated on 28 June will be the source countries (i.e. Colombia, Guatemala, El Salvador, Democratic Republic of Congo, Sierra Leone and Sudan).
One year window of opportunity: In the year following a refugee's resettlement to Canada, immediate family members who could not be processed at the same time as the principal applicant can apply to come to Canada (as long as they were included on the refugee's application before they left for Canada). The following family members must pass criminality and medical screening, but there is no determination of eligibility or successful establishment.
Length of undertakings: Private sponsorship undertakings can be for a period of up to 36 months (previously the maximum was 24 months). Undertakings of over a year are requested based on the successful establishment evaluation.
Types of sponsoring groups: New types of sponsorships are possible, such sponsorships by organizations that do not have a sponsorship agreement. It is also possible to have various combinations of groups take joint responsibility for a sponsorship (including an organization and an individual).
Sponsor ineligibility: Regulations specify various categories of persons ineligible to sponsor, including people who have been convicted of a serious crime, people in default of support payment obligations, people subject to a removal order and people who are in jail.
Travel documents : Regulations give Canadian authorities power to issue temporary travel documents to refugees accepted for resettlement if they would not otherwise be able to travel to Canada.
Age limit of "dependent children": Any children under the age of 22 can be sponsored or included on the application of a parent.
Common law partner: A category of common law partner is created and has everywhere exactly the same rights as spouses. Common law partners can be same sex or opposite sex. The basic requirement for common law partners is that they have cohabited in a conjugal relationship for at least one year. There will be some provisions to deal with cases where people cannot cohabit but it is not yet known exactly what they will be.
Conjugal partner: A new category of conjugal partner, for the purposes of family sponsorship only, is created. A conjugal partner is a person outside Canada with whom one has been in a conjugal relationship for at least a year, but without necessarily ever having cohabited with the person.
Fiancés/fiancées class abolished: It will no longer be possible to sponsor a fiancé or fiancée.
Medical inadmissibility: Spouses, common-law partners and children who are part of the family class are exempt from inadmissibility on the basis of causing excessive demand on health or social services.
Length of the sponsorship: Two changes are being made to rules regarding length of undertakings:
Collection of money owed: There are simplified procedures for the government to collect on money owed in relation to a sponsorship undertaking.
Spouses/common law partners in Canada: A Class is created for the landing of sponsored spouses and common law partners who are in Canada. They must have temporary resident status in Canada (e.g. visitor visa, student visa or temporary foreign worker visa).
PERMANENT RESIDENT CARD
New card: A new card, to be called the "Maple Leaf card," will be introduced. Cards will be valid for 5 years.
Issuing of cards: People who receive their permanent residence after 28 June will be issued the card automatically (they just need to send in their address in Canada). People who are already permanent residents and want a card, or people applying later to renew the card, will have to fill in a long questionnaire.
Cost: The cost is $50 per card. For those becoming permanent residents, the cost is added in to the processing fees (i.e. fees go up to $550 per adult and $150 per child).
Travelling: The only time you actually need to produce the card by law is if you are outside Canada and trying to return. Transporters (e.g. airlines) are required to ask for the card as proof of permanent residence. This rule will not go into effect immediately in order to allow permanent residents time to get a card: cards will be necessary as of 31 December 2003.
Organized criminality: There is an addition to the inadmissible category for organized criminality, on the basis of "engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering". There is no requirement that the person have received a criminal conviction.
Misrepresentation: There is a new category of inadmissibility for misrepresentation, valid for 2 years from the time the person is removed. It includes direct and indirect misrepresentation, persons sponsored by a person who made the misrepresentation (if the Minister chooses) and persons whose refugee protection is vacated for misrepresentation.
Security certificate: The process for persons subject to a security certificate offers reduced rights. Permanent residents no longer have a right of review at the Security Intelligence Review Committee. Non-permanent residents are mandatorily detained and cannot be released during the certificate process for at least 120 days.
Residence in Canada: Permanent residents need to be in Canada for two years out of each five year period, otherwise they lose their status. An immigration officer is to look at humanitarian considerations and the best interests of any child affected before removing permanent residence.
Access to appeals from loss of permanent residence: Permanent
residents found inadmissible on the grounds of security, violating human
rights, serious criminality or organized crime are denied the right to
appeal to the Immigration and Refugee Board. Serious criminality
is defined here as a crime punished in Canada by a sentence of at least