Vol. 150, No. 26 — December 28, 2016

Registration

SOR/2016-316 December 16, 2016

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2016-1153 December 16, 2016

His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and sections 14 (see footnote a) and 26 (see footnote b) of the Immigration and Refugee Protection Act (see footnote c), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Subsection 25.1(3) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

Quebec economic candidate

(3) For the purposes of determining whether a child is a dependent child, the lock-in date for the age of a child of a person who is referred to in section 86, 90, 97 or 101, to whom a Certificat de sélection du Québec has been issued and who makes an application under Division 6 of Part 5 is the date on which the application for selection was made to Quebec.

2 Paragraph 70(2)(b) of the Regulations is replaced by the following:

3 The definition percentage of equity in subsection 87(9) of the Regulations is replaced by the following:

percentage of equity means

4 (1) The definitions agent, allocation period, approved fund, business experience, debt obligation, entrepreneur, entrepreneur selected by a province, full-time job equivalent, fund, investment, investor, investor selected by a province, minimum net worth, net assets, net income, net worth, percentage of equity, provincial allocation, qualifying business, qualifying Canadian business and self-employed person selected by a province in subsection 88(1) of the Regulations are repealed.

(2) Subsections 88(2) and (3) of the Regulations are repealed.

5 Sections 89 to 96 of the Regulations are replaced by the following:

Artificial transactions

89 For the purposes of this Division, a self-employed person is not considered to have met the applicable requirements of this Division if the fulfillment of those requirements is based on one or more transactions whose purpose is to circumvent, directly or indirectly, the requirements of this Division.

Quebec Investor Class

Class

90 (1) For the purposes of subsection 12(2) of the Act, the Quebec investor class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

Member of class

(2) A foreign national is a member of the Quebec investor class if they

6 The headings before section 97 and sections 97 to 99 of the Regulations are replaced by the following:

Quebec Entrepreneur Class

Class

97 (1) For the purposes of subsection 12(2) of the Act, the Quebec entrepreneur class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

Member of class

(2) A foreign national is a member of the Quebec entrepreneur class if they

7 Section 101 of the Regulations and the heading before it are replaced by the following:

Quebec Self-employed Persons Class

Class

101 (1) For the purposes of subsection 12(2) of the Act, the Quebec self-employed persons class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.

Member of class

(2) A foreign national is a member of the Quebec self-employed persons class if they

8 (1) The portion of subsection 102(1) of the Regulations before paragraph (a) is replaced by the following:

Criteria

102 (1) For the purpose of determining whether a foreign national, as a member of the self-employed persons class, and their family members will be able to become economically established in Canada, an officer shall assess the foreign national on the basis of the following factors:

(2) Paragraph 102(1)(e) of the Regulations is replaced by the following:

9 Subsections 103(1) and (2) of the Regulations are repealed.

10 Section 104 of the Regulations is repealed.

11 The portion of section 107 of the Regulations before paragraph (a) is replaced by the following:

Permanent resident status

107 A foreign national who is an accompanying family member of a person who makes an application as a member of the Quebec investor class, the Quebec entrepreneur class, the self-employed persons class or the Quebec self-employed persons class shall become a permanent resident if, following an examination, it is established that

12 (1) The portion of subsection 108(1) of the Regulations before paragraph (a) is replaced by the following:

Application for visa

108 (1) Subject to subsection (5), if a foreign national makes an application as a member of the Quebec investor class, the Quebec entrepreneur class, the self-employed persons class or the Quebec self-employed persons class for a permanent resident visa, an officer shall issue the visa to the foreign national and their accompanying family members if

(2) Paragraphs 108(1)(b) and (c) of the Regulations are replaced by the following:

(3) Subsections 108(2) and (3) of the Regulations are repealed.

(4) Subsection 108(5) of the Regulations is replaced by the following:

Federal-provincial agreement

(5) A permanent resident visa shall not be issued to a foreign national as a member of the Quebec investor class, or to their accompanying family members, if the Minister is engaged in consultations with the province in respect of the interpretation or implementation of the agreement, referred to in subsection 9(1) of the Act and entered into under subsection 8(1) of the Act, between the province and the Minister in respect of the selection of investors and the consultations have not been successfully completed.

13 The headings before section 109.1 and sections 109.1 to 109.5 of the Regulations are repealed.

14 (1) The portion of paragraph 295(1)(b) of the Regulations before subparagraph (i) is replaced by the following:

(2) Subsection 295(2.2) of the Regulations is repealed.

Transitional Provisions

15 In sections 16 to 18, preceding Regulations means the Immigration and Refugee Protection Regulations as they read immediately before the day on which these Regulations come into force.

16 (1) Subject to subsections (2) and (3), paragraph 70(2)(b), subsection 88(1), sections 89 and 90, subsections 102(1) and 103(1), sections 104 and 107, subsections 108(1) and (2) and paragraph 295(1)(b) of the preceding Regulations continue to apply in respect of an application for a permanent resident visa that was made before the day on which these Regulations come into force by a foreign national as a member of the investor class, as prescribed by subsection 90(1) of the preceding Regulations, until the day on which a determination is made in respect of the application.

(2) Subject to subsections (3) and (4), sections 88 and 91 to 95 of the preceding Regulations continue to apply in respect of a provincial allocation, within the meaning of that section 88, that has not been repaid before the day on which these Regulations come into force, until it is repaid to the investor in accordance with paragraph 92(i) of the preceding Regulations.

(3) If the Minister of Citizenship and Immigration and a province enter into an agreement with respect to an existing approved fund, as defined in subsection 88(1) of the preceding Regulations, that permits the province to vary the structure of the fund and the agreement comes into force on or after the day on which these Regulations come into force, the definition fund in that subsection 88(1) ceases to apply in sections 88 and 91 to 95 of the preceding Regulations as of the day on which that agreement comes into force.

(4) If the Minister of Citizenship and Immigration and a province enter into an agreement with respect to the requirements for periodic reports in relation to an existing approved fund, as defined in subsection 88(1) of the preceding Regulations, and the agreement comes into force on or after the day on which these Regulations come into force, paragraph 95(a) of the preceding Regulations ceases to apply in respect of the approved fund as of the day on which that agreement comes into force.

17 (1) Paragraph 70(2)(b), subsection 88(1), sections 89 and 97, subsections 102(1) and 103(2), sections 104 and 107, subsections 108(1) and (3) and paragraph 295(1)(b) of the preceding Regulations continue to apply in respect of an application for a permanent resident visa that was made before the day on which these Regulations come into force by a foreign national as a member of the entrepreneur class, as prescribed by subsection 97(1) of the preceding Regulations, until the day on which a determination is made in respect of the application.

(2) A foreign national who is a member of the entrepreneur class, as prescribed by subsection 97(1) of the preceding Regulations, is a member of the Quebec entrepreneur class, or is an entrepreneur selected by a province, as defined in subsection 88(1) of the preceding Regulations, and who becomes a permanent resident is not required to meet the conditions set out in section 98 of the preceding Regulations, unless

(3) A family member of a member of the entrepreneur class, as prescribed by subsection 97(1) of the preceding Regulations, of a member of the Quebec entrepreneur class or of an entrepreneur selected by a province, as defined in subsection 88(1) of the preceding Regulations, who becomes a permanent resident is not required to meet the condition set out in subsection 98(6) of the preceding Regulations, unless the member of that entrepreneur class or of the Quebec entrepreneur class or that entrepreneur selected by a province was, before the day on which these Regulations come into force, the subject of a report referred to in paragraphs (2)(a) and (b), in which case the family member continues to be subject to that condition.

18 Paragraph 70(2)(b), sections 109.1 to 109.5, paragraph 295(1)(b) and subsection 295(2.2) of the preceding Regulations continue to apply in respect of an application for a permanent resident visa that was made before the day on which these Regulations come into force, by a foreign national as a member of the transitional federal investor class, transitional federal entrepreneur class or transitional federal self-employed persons class, as prescribed by subsection 109.1(1) of the preceding Regulations, until the day on which a determination is made in respect of the application.

Coming into Force

19 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In 2011 and 2012, intake of new applications under the federal investor and entrepreneur programs was put on hold through ministerial instructions. In 2014, the Government took further action to terminate these programs by eliminating the remaining application backlogs through legislative amendments to the Immigration and Refugee Protection Act in the Economic Action Plan 2014 Act, No. 1 (formerly Bill C-31). As a result of these actions, the continued existence of the investor and entrepreneur program provisions in the Immigration and Refugee Protection Regulations (the Regulations) represents a regulatory redundancy. Those provisions are therefore being repealed in order to avoid potential misinterpretation and confusion regarding program authorities.

Background

The federal investor and entrepreneur programs were originally designed in the 1970s and 1980s, a time when Canada’s economic priorities were quite different than they are today.

The investor program was created in 1986 with the objective of attracting business expertise and investment capital to support job creation by Canadian enterprises. While this is an important objective, the global economy has changed significantly since then and investment capital flows increasingly more freely across borders. The structure of the investor program was no longer meeting Canada’s economic needs.

Similarly, the entrepreneur program was designed in the 1970s when the focus was on protecting jobs in Canada. While that is still important today, a more globalized economy requires a shift towards innovation, productivity and creating better jobs and stronger businesses that can compete on a global scale.

Reviews of these programs concluded that they were providing minimal value to Canada in the current economic context.

In response to the challenges presented by both programs, the Government committed to reforming business immigration programming to better support Canada’s current economic needs. As a first step, the Start-up Visa pilot program was launched in 2013 to test a new approach to recruiting immigrant entrepreneurs. This was followed by the launch of the Immigrant Investor Venture Capital Class pilot in 2015, to test demand for an investor program requiring a significant at-risk investment in Canada.

Investor and Entrepreneur applications that received a selection decision before February 11, 2014, are not affected by the legislative termination of existing inventories of applications (as outlined in section 87.5 of the Immigration and Refugee Protection Act).

Under the investor program, investment capital received from investors is allocated from the Government of Canada to eight participating provinces for use in economic development projects. These provinces are required to repay the full investment to the investors after five years and this process will continue until all investors have been repaid.

The province of Quebec, operating under the authority of the Canada-Quebec Accord, runs its own investor and entrepreneur programs for immigrants destined to that province. While Quebec’s programs have historically been linked to the federal programs in the Regulations, changes to the federal programs will not affect Quebec’s programs.

Objectives

The objective of these amendments to the Regulations is to eliminate regulatory redundancy by repealing the existing provisions in the Regulations that govern the federal investor and entrepreneur programs, to provide for a transitional period as those programs wind down and to leave a regulatory framework in place for the continued operation of Quebec’s programs.

Description

The Regulations

  1. repeal the provisions governing the federal investor and entrepreneur programs in the Regulations;
  2. provide for transitional provisions to continue processing federal Investor and Entrepreneur class applications that are not affected by the legislative termination of existing inventories of applications (i.e. those applications that received a selection decision before February 11, 2014, as outlined in section 87.5 of the Immigration and Refugee Protection Act);
  3. provide for transitional provisions for the Investor class so that funds continue to flow to and from approved funds until all investors have been repaid and provide for administrative flexibility for approved funds as their activities under the investor program wind down;
  4. provide for transitional provisions that formally conclude the application of post-landing conditions and associated government monitoring activities for the entrepreneur program; and
  5. delineate distinct classes for Quebec Investors, Quebec Entrepreneurs and Quebec Self-Employed persons in order to provide a regulatory framework for those classes to continue operating in the absence of their federal counterpart programs, consistent with authorities in section 9(1) of the Immigration and Refugee Protection Act and the Canada-Quebec Accord.

“One-for-One” Rule

The “One-for-One” Rule does not apply, as there is no change in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

Following concerns with investor program outcomes raised through internal departmental review, public online consultations were held from July 31 to September 4, 2012. During the public consultations, stakeholders expressed the view that there was a need to maximize the economic benefit of the investor program by ensuring that the money was actively invested in the Canadian economy. These views were taken into consideration when the Government announced the elimination of the investor and entrepreneur programs and when it designed pilot programs to test new approaches to investor and entrepreneur immigration.

Provinces participating in the federal investor program were consulted separately and asked for input on how they would be affected by changes to the program. Not all provinces provided input, but the three that did noted that continued access to investment capital through the program was valuable to them. It was also noted, however, that program requirements to guarantee repayment to investors after five years limited their use of this capital to low-risk initiatives.

Rationale

These amendments to the Regulations repeal regulatory program authorities made redundant by the termination of outdated programs and provide for a transitional period to formally conclude the investor and entrepreneur programs.

These amendments to the Regulations support a Government objective of improving the immigration system, by eliminating ineffective regulatory programs and focusing resources on programming that better supports Canada’s needs.

These amendments to the Regulations do not impact stakeholders directly, as the impact on stakeholders has already taken place as a result of the termination of these programs as well as their applications in 2014.

Contact

Laurie Hunter
Director
Economic Immigration Policy and Programs
Immigration Branch
Immigration, Refugees and Citizenship Canada
Telephone: 613-437-1111