Parliamentary Committee Notes: Possible Violations of the Immigration and Refugee Protection Act (IRPA)

Issue

The Canada Border Services Agency is mandated under the Immigration and Refugee Protection Act to remove inadmissible foreign nationals as soon as possible. Inland Enforcement Officers have the powers of a peace officer for the purposes of enforcing the Immigration and Refugee Protection Act and have the authority to investigate, detain, and remove foreign nationals who are found to be inadmissible to Canada.

Proposed Response

Background

One of the responsibilities of the CBSA is the enforcement of the Immigration and Refugee Protection Act (IRPA) both at the ports of entry (POE), as well as in Canada.

The CBSA identifies and takes appropriate enforcement action against foreign nationals and permanent residents who may be inadmissible to Canada. This includes the authority to arrest and detain inadmissible persons, where appropriate. If found inadmissible and issued a removal order, the person is then required to leave Canada, and the CBSA will take the necessary steps to enforce the removal order.

Immigration Enforcement Continuum

Immigration enforcement is initiated on the basis of information and circumstances that would lead an officer to believe that there has been a violation of the IRPA and Regulations. This can take place either at a POE when individuals seeking entry are being examined by CBSA officers or inland for those who are already in Canada.

Once the CBSA becomes aware of a possible IRPA violation by a foreign national or a permanent resident, the CBSA initiates an investigation, with priority given to cases involving the highest degree of risk (security, war crimes, human rights violations, organized crime and criminality).

Proceedings at the Immigration and Refugee Board (IRB)

CBSA Hearings Officers provide evidence, make arguments and recommendations at hearings before the IRB related to inadmissibility, detention, refugee protection claims as well as appeals regarding removal orders, residency obligations and sponsorships.

The Immigration Division of the IRB conducts admissibility hearings for cases referred to them by a Minister’s Delegate, and is responsible for making a determination on admissibility on the basis of evidence provided to them and representations made by both the CBSA Hearings Officer and the person concerned.

Proceedings Involving Refugee Claimants

When a refugee claim is made by an individual at a POE or inland, and if the claim is determined eligible to proceed, it will be referred to the IRB’s Refugee Protection Division for a hearing.

All adults who make a refugee claim undergo screening by security partners. Additionally, refugee claims are triaged to determine if there are indications of inadmissibility, including criminality, safety, security or credibility concerns, which warrant the Minister’s intervention in a claim. The CBSA and IRCC share responsibility for the refugee claim triage process.

If concerns relating to criminality, safety or security are identified, a CBSA Hearings Officer will intervene in the claim on behalf of the Minister of Public Safety to present facts as to why an individual should not be granted refugee status. IRCC may also intervene in a refugee claim where there are concerns relating to credibility and integrity (of the claimant).

If a refugee claim is accepted, the claimant may remain in Canada and apply for permanent residency. If a refugee claim is rejected, the individual has 30 days to voluntarily depart Canada; after this 30 day period, the individual may become the subject of CBSA enforcement action.

An individual who has been granted refugee protection may have their status vacated, if the individual engaged in misrepresentation or withheld information in their application, or cessated, if the individual no longer requires protection (e.g., the individual has acquired third country citizenship or has re-availed themselves of the protection of their country).

Immigration Arrest and Detention

IRPA allows for arrest and detention of individuals, with or without an immigration warrant (depending on the status of the person), where an officer has reasonable grounds to believe that the person is inadmissible to Canada and poses a danger to the public; and/or is unlikely to appear for an immigration proceeding (examination, admissibility hearing, Minister’s Delegate review or removal); and/or their identity has not been established in the course of an IRPA proceeding (e.g. refugee claim).

Immigration warrants are valid Canada-wide and are registered in the Canadian Police Information Centre (CPIC). This measure ensures that individuals who are the subject of an immigration warrant are referred to the CBSA if they are encountered by law enforcement partners. In addition, CBSA Inland Enforcement Officers actively undertake investigations in an attempt to locate and arrest persons subject to an immigration warrant.

IRPA requires that the Immigration Division of the IRB review the reasons for continued detention within 48 hours after the individual is taken into custody. If no release is offered at the 48 hour detention review, further detention reviews must take place at least once during the 7 days following the initial review and at least once every 30 days after.

Removals process

The CBSA has a statutory obligation to remove any foreign national that is subject to an enforceable removal order. Immigration removal is an integral part of the CBSA’s security mandate. Removals are prioritized for cases involving security, organized crime, human rights violations and criminality. Irregular migrant failed refugee claimants are also a priority due to their impact on program integrity and Canada’s asylum system. Failed refugee claimants that entered Canada through designated port-of-entry are the next priority followed by all other inadmissible persons.

The existence of a removal order does not automatically mean that the CBSA is in a position to immediately remove someone from the country; there are a number of legal and administrative processes that must first be addressed. Once all legal avenues that could stay a removal order have been exhausted, the CBSA can begin removal preparation.

Immigration Remedies

Not all inadmissible persons will be subject to enforcement action or ultimately be removed from Canada. There are various provisions available to potentially overcome inadmissibility:

IRPA Inadmissibility Grounds

The IRPA sets out inadmissibility categories and which Minister is responsible for the policy relating to each of the inadmissibilities:

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