Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2024-11

Canada Gazette, Part II, Volume 158, Number 4

Registration
SOR/2024-11 February 2, 2024

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2024-79 February 2, 2024

Whereas, pursuant to subsection 5(2)footnote a of the Immigration and Refugee Protection Act footnote b, the Minister of Public Safety and Emergency Preparedness has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 5(1) and paragraph 53(e)footnote c of the Immigration and Refugee Protection Act footnote b, makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Paragraph 63(a) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

2 Section 209 of the Regulations is replaced by the following:

Invalidity

209 A work permit becomes invalid when it expires or when it is cancelled under section 243.2.

3 Paragraph 222(1)(b) of the Regulations is replaced by the following:

4 The Regulations are amended by adding the following after Division 4 of Part 13:

DIVISION 5

Cancellation of Immigration Documents

Making of a removal order

243.1 The following documents, held by a foreign national, are cancelled when a removal order is made against that foreign national :

Enforceable removal order

243.2 The following documents, held by a foreign national, are cancelled when a removal order made against that foreign national becomes enforceable:

Coming into Force

5 These Regulations come into force on March 15, 2024.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The current process of cancelling immigration documents after a foreign national has been found inadmissible and subsequently issued a removal order is inconsistent and inefficient. In addition, the current approach whereby inadmissibility determination does not automatically and directly affect the validity of immigration documents has unintended consequences that can lead to program integrity concerns, such as the continued use of such documents by inadmissible persons and the possibility of documents inadvertently not being manually cancelled by officers. The regulatory amendments will address these issues with respect to immigration documents, which include electronic travel authorizations (eTAs), temporary resident visas (TRVs), and temporary resident permits (TRPs).

Background

Through Budget 2019, the Government of Canada committed to investing $1.18 billion over five years and $55 million per year ongoing to enhance the integrity of Canada’s borders and asylum system. These investments support the Border Enforcement Strategy to increase the asylum system’s capacity to provide timely protection to refugees while ensuring that failed asylum claimants are removed faster. The amendments are a part of the Government’s broader Border Enforcement Strategy and align with its overall commitment to a well-managed asylum system that is “fair, fast and final.” The amendments will also similarly help to protect the integrity and fairness of Canada’s immigration system.

In its 2020 report entitled Immigration Removals, the Office of the Auditor General (OAG) noted that the timely removal of foreign nationals who are found inadmissible protects the integrity and fairness of Canada’s immigration system. It also noted that timely removals are one of the most effective ways to deter those who might otherwise seek to abuse the system. Similar observations were made by the Standing Committee on Public Accounts (PACP) in its spring 2021 report, entitled Immigration Removals. Moving forward with the regulatory amendments to automatically cancel immigration documents when removal orders are issued was a specific deliverable in the related government response. This approach supports timely removals by streamlining authorities, aligning related information technology processes, and fostering greater interdepartmental consistency with respect to case management between the Canada Border Services Agency (CBSA), and Immigration, Refugees and Citizenship Canada (IRCC).

National Strategy to Combat Human Trafficking

On September 4, 2019, the Government of Canada announced an investment of $57.22 million over five years, starting in 2019–2020, and $10.28 million annually thereafter, in new federal funding to combat human trafficking under a National Strategy to Combat Human Trafficking (the National Strategy). As part of the “protection” pillar of the National Strategy, the Canada Border Services Agency (CBSA) has committed to reviewing the immigration enforcement legislative and regulatory framework to ensure that sufficient protection is in place for such victims.

Inadmissibility and removal orders

The Immigration and Refugee Protection Act (IRPA) includes a number of grounds for inadmissibility, which can result in the issuance of a removal order. Under the IRPA, grounds for inadmissibility include security, human or international rights violations, criminality, organized criminality, health grounds, financial reasons, misrepresentation, having inadmissible family members, non-compliance with the IRPA, and cessation of refugee protection. Once a removal order becomes enforceable, foreign nationals are required to leave Canada. A foreign national in Canada who is under removal order can either leave voluntarily or be removed from Canada by the CBSA.

Removal orders can be issued once a person has been found to be inadmissible under the IRPA. Procedurally, the first step in seeking the issuance of a removal order is the preparation of a report on inadmissibility by an officer of either the CBSA or of IRCC. This report is then reviewed by a Minister’s Delegate (MD) to determine whether or not the allegation of inadmissibility outlined in the report is well founded. The MD review is a form of peer review, which is conducted by another CBSA or IRCC officer or a supervisor or manager. If the MD is of the opinion that the report is well founded, the MD may issue a removal order directly, as prescribed by regulations or refer the inadmissibility report to the Immigration Division (ID) of the Immigration and Refugee Board for an admissibility hearing.

The Immigration and Refugee Protection Regulations (IRPR) define the circumstances in which the MD has authority to issue a removal order for the purposes of an inadmissibility report (section 44 of the IRPA) and the circumstances where this responsibility resides with the ID if a person is determined to be inadmissible at an admissibility hearing. The amendments will not change the framework governing inadmissibility determination and removal order issuance.

Immigration document cancellation

The IRPA and the IRPR provide various immigration document cancellation authorities and requirements. The existing framework, however, was established incrementally over the years, as new initiatives were implemented. Until now, the various provisions related to the cancellation of immigration documents have not been reviewed holistically, particularly those associated with in-Canada inadmissibility determination and removal order issuance.

Authorities under the IRPA and the IRPR are inconsistent with respect to how immigration documents are cancelled following a removal order issuance. For example:

In some instances, the cancellation of immigration documents may occur at any time, or when a removal order is issued, whereas in other cases, there are no explicit cancellation authorities. There are also cases in which the cancellation happens automatically (i.e. by operation of law) when a removal order becomes enforceable. However, currently, these automatic cancellations still require manual data entry by officers to ensure that the documents that are automatically cancelled by law are also recorded in the same system of record in which both removal orders and immigration documents are processed (Global Case Management System or GCMS). As a result, the IRPR provisions governing the cancellation of immigration documents are considered inconsistent.

Furthermore, it is important to note that the current patchwork approach to discretionary cancellation authorities requires officers to document specific rationales supporting each cancellation decision. This is particularly inefficient and unnecessary in cases where removal orders are being issued against inadmissible persons, as the overarching rationale for cancelling immigration documents in this scenario is generally based on the inadmissibility of the person concerned and the enforcement decision to pursue the removal order itself.

Objective

The amendments will require that eTAs, TRVs, and TRPs be automatically cancelled whenever a removal order is issued against an inadmissible foreign national. The objective of this approach is to streamline internal processes, generate cost efficiencies, and improve consistency of application with respect to the cancellation of immigration documents when a removal order has been issued.

Description

The IRPR will be amended to require that certain immigration documents (i.e. eTAs, TRVs, and TRPs) be automatically cancelled as a direct consequence of a removal order being issued. No additional decisions or intervention are required by officers to effect the cancellation. Rather, the GCMS information technology system (the system of record for immigration that is used by both the CBSA and IRCC) will be updated to implement the amendments. When a removal order is issued in the GCMS, the system will concurrently and automatically cancel the immigration documents (which would also have been issued in the same system). Given the current patchwork approach in the authorities provided by the IRPR in relation to cancelling immigration documents, some existing authorities will be retained, and others will be added, as described below.

The current discretionary cancellation authorities for cancelling eTAs and TRPs will remain unchanged. However, an automatic cancellation provision will be added for when a removal order is issued against eTA and TRP holders. An automatic cancellation authority will also be created for TRVs. The existing IRPR provisions related to the automatic cancellation of work permits and study permits when a removal order becomes enforceable will be retained, though reordered into a new division of the IRPR. Under the amendments, individuals who are found to be inadmissible will have their immigration documents cancelled in the system of record (GCMS) automatically. To ensure that adequate protections are in place for certain vulnerable individuals who hold TRPs (e.g. victims of human trafficking or family violence), specific program guidance will require that the CBSA consult with IRCC on a case-by-case basis as to whether a new TRP should be issued to cover the new inadmissibility.

Overall, the amendments will also result in better alignment between the IRPR provisions related to eTA, TRV, and TRP document cancellation and existing provisions related to the loss of temporary resident status under the IRPA. Under the Act, temporary resident status is lost automatically when there is a determination of inadmissibility by an officer or the ID. Under the amendments, when a foreign national loses temporary resident status as a result of a removal order being issued (i.e. a determination by an officer [the MD] or the ID), their immigration documents will also be automatically cancelled.

With these regulations, most immigration documents held by an individual will be cancelled when a removal order is issued. While the Government of Canada’s vision is to eventually have all immigration documents cancelled when a removal order is issued, work and study permit cancellation has not been included in these regulations. Only some, but not all, inadmissible persons may have a work or study permit at the time a removal order is issued and so there is value on proceeding with the amendments at this time. Concurrent policy development with respect to the automatic cancellation of work and study permits remains underway. Additional regulatory amendments to also automatically cancel these immigration documents may follow at a later date.

As is the case with all decisions under the IRPA, inadmissible persons who are issued removal orders may seek judicial review of the decision. This will not change under the amendments. The amendments will not affect any foreign national’s status in Canada, nor any foreign national’s access to the asylum determination system. They also will not affect any foreign national’s ability to apply for permits or immigration documents in accordance with existing Canadian laws.

Finally, minor technical amendments will also be made. For instance, the term “cancellation” has been applied throughout the relevant IRPR provisions rather than the currently utilized term of “invalidation.” This approach is meant to improve clarity, as both words are interchangeable with respect to the policy intent of the cancellation provisions. Additional technical amendments will be made to align the validity period of immigration documents with the new automatic cancellation provisions.

Regulatory development

Consultation

A proposal for the automatic cancellation of immigration documents was included in the 2019–2021 CBSA Forward Regulatory Plan. Two public consultations were conducted on the regulatory amendments.

The CBSA held a 30-day online public consultation process through the CBSA’s website and also on the Consulting with Canadians website. This consultation ended in July 2019. The following stakeholders were notified of the opportunity to comment:

No public or stakeholder input was received at that time.

Prepublication

The proposed regulations were published in the Canada Gazette, Part I, on April 9, 2022. No comments were received during the 30-day publication period.

Four stakeholders, however, subsequently provided comments in February and April 2023 after the public consultation period closed.

The stakeholders raised concerns with the proposed regulations in the Canada Gazette, Part I, predominately focusing on the automatic cancellation of work and study permits of individuals who are issued a removal order, particularly those who are waiting for a determination on their refugee claim or whose removal order is otherwise not immediately enforceable. Stakeholders were concerned that if there is a delay between when a permit is cancelled and a new one is reissued (such as for pending refugee claimants), then these individuals could be left unable to work or study to support themselves. In response to these comments, the CBSA decided to sever the automatic cancellation of those documents from the regulations in order to provide more time to consider the feedback prior to deciding the way forward on those changes. Additional public consultation on the cancellation of work and study permits will be conducted should the approach deviate substantively from what was prepublished in the Canada Gazette on April 9, 2022.

The stakeholders also raised concerns with respect to the existing regulatory framework providing that work permits and study permits get automatically cancelled when the removal order against the permit holder becomes enforceable due to their concerns about the impact when a person cannot be removed and yet loses the ability to work. Some removal orders are enforceable, however, because of impediments such as a lack of travel documents or medical reasons, the removal orders cannot be practically enforced, making them “unenforceable.” However, the IRPR provides that individuals with unenforceable removal orders may be issued work and study permits. After consideration of these concerns, it was decided to proceed with the scope of the amendments, as proposed at prepublication. The concerns the stakeholders raise — that work and study permits are cancelled when a removal order becomes enforceable — has been enshrined in the IRPR since 2002, and there are provisions in place for individuals with unenforceable removal orders. Moreover, amending those sections was not part of these regulations, whose focus is on document cancellation when a removal order is issued. However, these existing regulations will be reordered in the IRPR as a result of these amendments.

Two stakeholders also raised concerns with respect to the automatic cancellation of TRPs. Their concerns were to ensure the proper exercise of discretion and a perception that the automatic cancellation of TRPs could be remedied. Operational guidelines, however, do not consist of remedying TRP cancellation but rather of ensuring that the CBSA’s proper exercise of enforcement discretion is in place, particularly for vulnerable TRP holders. Consequently, if IRCC determines that a new TRP is warranted for a vulnerable TRP holder to cover a new inadmissibility ground not covered by the existing TRP, then the CBSA may not issue a removal order (and no TRP is automatically cancelled).

Careful consideration has been given to these comments and it was decided to proceed with the amendments and implementation approach for TRPs, as proposed at prepublication. In particular, among other things, section 24 of the IRPA indicates that a TRP may be cancelled at any time and section 53 of the IRPA provides authority to create regulations on the effect of removal orders. A TRP, when it is issued, does not waive all inadmissibility grounds for a person for all time. The regulations thereby specify a point in time when a TRP will be cancelled (i.e. when a removal order is issued).

The approach taken in the Regulations also provides for the exercise of discretion (section 44) on whether or not to pursue a removal order against a vulnerable TRP holder, specifically victims of human trafficking and family violence. The implementation approach (as articulated below) will consist of a requirement for the CBSA to consult IRCC on these cases prior to seeking the issuance of a removal order against the TRP holder when he or she becomes inadmissible for a new reason that the initial TRP does not cover. This approach will allow IRCC time to consider whether or not to have the person granted a new TRP to cover the new inadmissibility circumstances prior to a removal order being issued, and prior to the TRP being automatically cancelled as a result. If IRCC confirms that a new TRP will be issued to cover the new inadmissibility, then the CBSA will not proceed with the issuance of the removal order and as a result the TRP would not be automatically cancelled. This is a proper exercise of discretion for victims of human trafficking and family violence, and affords these vulnerable TRP holders with greater protections than was in place previously. This approach also provides for better data integrity and case management between the CBSA and IRCC and thereby supports-related recommendations made by the OAG and PACP in the above-noted studies on immigration removals.

The regulations were tabled in the House of Commons and the Senate on June 16, 2022, and referred to the respective Committees of each House. No comments were received.

Modern treaty obligations and Indigenous engagement and consultation

No impacts on Indigenous peoples are anticipated as a result of the amendments, which only have an impact on foreign nationals determined to be inadmissible to Canada and who are issued removal orders.

Instrument choice

As noted above, there are existing authorities for the cancellation of immigration documents already in the IRPR. Since different approaches are prescribed (or not included) in the IRPR depending on the type of immigration document, alternative instruments, such as operational policy changes alone, are not sufficient to address the issue of inconsistent and inefficient cancellation authorities.

Regulatory analysis

Benefits and costs

The amendments are expected to result in $4.24 million in net benefits over a 10-year period following implementation, through automating the cancellation of immigration documents when the holder is issued a removal order. This is in addition to the benefit of improved consistency of application of document cancellation following removal order issuance.

The amendments will streamline the cancellation of immigration documents in cases where a person has been determined to be inadmissible and issued a removal order. They will provide for cost avoidance for both the CBSA and IRCC by eliminating unnecessary manual processes undertaken by officers involved in the removal order issuance and immigration document cancellation processes.

In 2018, over 28 000 removal orders were issued against the holders of eTA, TRV, and TRP immigration documents. The vast majority (92%) of the removal orders were issued against refugee claimants. Using an assumption baseline of 30 minutes to discretionarily cancel an immigration document, automatic cancellation following a removal order results in a reduction of over 14 300 person-hours of work per year.

The implementation costs for the Government of Canada associated with the amendments will include information technology changes, and updates to internal CBSA and IRCC policies and processes which include operational bulletins and program manuals. To achieve downstream cost avoidance, an upfront information technology investment is required so that the GCMS automatically cancels immigration documents when removal orders are issued in the system. These IT costs are not in the calculations in Table 1 or Table 3 as part of the monetized costs, as they were already spent and therefore “sunk,” before the Minister approved the amendments. The costs were $749,000.

The cost-benefit analysis has been updated since prepublication in the Canada Gazette, Part I, to reflect changes to the proposal since prepublication (i.e. the amendments no longer automatically cancel work and study permits and the amendments will come into force on March 15, 2024).

Table 1: Monetized costs in Canadian dollars (thousands — rounded)
Impacted stakeholder Description of cost 2024 2025–2033 2034 Total
(present value)		 Annualized value
Government Costs assumed by the CBSA and IRCC to implement the amendments $20 $19 $0 $39 $6
All stakeholders Total costs $20 $19 $0 $39 $6
Table 2: Monetized benefits (thousands — rounded)
Impacted stakeholder Description of benefit 2024 2025–2033 2034 Total
(present value)		 Annualized value
Government Cost avoidance by the CBSA and IRCC $570 $3,401 $310 $4,280 $609
All stakeholders Total benefits $570 $3,401 $310 $4,280 $609
Table 3: Summary of monetized costs and benefits (thousands — rounded)
Incidence table 3 note a 2024 2025-2033 2034 Total
(present value)		 Annualized value
Total costs $20 $19 $0 $39 $6
Total benefits $570 $3,401 $310 $4,280 $609
Net impact (benefit) $550 $3,382 $310 $4,241 $603

Note(s) table 3

Note a table 3

The quantified impacts are limited to the impact of the regulatory amendments. The costs of applying already existing regulatory requirements are excluded from this analysis. Notably, the costs associated with using discretionary cancellation provisions to cancel the immigration documents of persons issued removal orders before the coming into force of these amendments to the IRPR are not included.

Return to table note a referrer

Small business lens

There will be no impact on small business. The amendments only will impact foreign nationals who have been determined to be inadmissible to Canada and issued a removal order.

One-for-one rule

The one-for-one rule does not apply, as the amendments will not result in an incremental change in administrative burden on business.

Regulatory cooperation and alignment

There is no regulatory cooperation or alignment (with other jurisdictions) component associated with the amendments.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

In 2018, internal data analysis found that, among the removal orders issued to immigration document holders, 44% were issued to women and 56% to men. The amendments will not impact the distribution of who is determined to be inadmissible to Canada.

However, women, including racialized women, and lesbian, gay, bisexual, queer, trans and intersex (LGBTQ+) people are most vulnerable to gender-based violence. A potential gender-based analysis plus (GBA+) related impact associated with the amendments concerns victims of gender-based violence who may have been previously issued a TRP to overcome an inadmissibility and who have been subsequently found to be in violation of the IRPA for a new reason. Specific program guidance will be put into place to address certain specific classes of TRP holders, such as those related to human trafficking and family violence, by requiring advance consultation between the CBSA and IRCC Case Managementfootnote 2 prior to a decision to issue a removal order that, under the amendments, will cancel the associated immigration document. The requirement for advance consultation will provide an opportunity to consider on a case-by-case basis whether a new TRP should be issued to cover the new inadmissibility (which emerged after the issuance of the initial TRP). If it is determined that a new TRP will be issued to cover the new inadmissibility, then the person concerned will be able to temporarily remain in Canada subject to the terms of the new TRP rather than being removed from Canada.

In addition, the Minister of Public Safety and Emergency Preparedness increased the level of delegation to issue removal orders for these case types (i.e. from officer to manager/supervisor levels) to ensure this protocol is followed. These measures will ensure that the amendments are implemented in a balanced way that accounts for specific considerations relating to victims and survivors of human trafficking and gender-based violence in a way that does not inadvertently re-traumatize victims or survivors. This approach is expected to help mitigate the risks identified through the GBA+.

This approach (i.e. of advanced consultation between CBSA and IRCC prior to removal order issuance and of a more senior level decision-maker to seek the issuance of any related removal orders) provides greater protections to victims of gender-based violence in these circumstances than existed previously.

Implementation, compliance and enforcement, and service standards

Implementation

The amendments do not apply retrospectively. Rather than coming into force upon registration, as proposed when these amendments were prepublished, there is now a set coming into force date of March 15, 2024. This ensures the regulations are introduced before the busy summer travel season. This will correspond with the implementation of the above-noted GCMS changes that will provide an automated information technology solution aligning with the coming into force of the amendments.

ETAs, TRVs, and TRPs will be automatically cancelled in GCMS when a removal order is issued in the system. Rather than having separate discretionary decisions related to immigration enforcement (i.e. issuance of removal orders) and immigration document cancellation, a single unified process will be implemented so that immigration documents are automatically cancelled as a direct consequence of a removal order being issued. In the case of administrative error (e.g. should a removal order be issued incorrectly in GCMS), the system changes will provide the CBSA with the ability to reverse the automatic cancellation of immigration documents, as needed. The changes in GCMS have been subject to extensive testing.

The CBSA and IRCC will issue updated field guidance in the form of operational bulletins and program manual updates to officers who are responsible for preparing reports on inadmissibility and to those who are MDs to inform them of the updated automatic cancellation provisions. Operational policy will instruct MDs to inform all immigration document holders who are the subject of a report on inadmissibility that their documents will be automatically cancelled if a removal order is issued against them. Operational guidance and the Instrument of Delegation and Designation (the tool that authorizes the Minister to specify which officials carry out responsibilities in acts or regulations) will also be updated to reflect the changes that only supervisors and managers can issue or seek removal orders against TRP holders and that IRCC Case Management must be consulted before issuing a removal order against a vulnerable TRP holder.

The existing provisions that authorize the CBSA and IRCC to discretionarily cancel immigration documents remain in the IRPR. This has been kept to continue to allow the CBSA and IRCC to cancel immigration documents where warranted, even in situations where a removal order was not issued. Maintaining this authority will assist the CBSA with the transition to automatic cancellation of immigration documents in GCMS, especially in instances where foreign nationals were issued removal orders before the coming into force of the amendments.

Operational policy will be updated to align with the regulations coming into force on March 15, 2024, to support the implementation of the amendments. The operational policy will guide officers at ports of entry and within Canada towards utilizing the existing inadmissibility determination (44 report), and related Minister’s Delegate review function where document cancellation (either automatically or on a discretionary basis) will be intended to ensure a consistent, transparent and procedurally fair process for the travelling public who will or may be inadmissible and subject to document cancellation on that basis.

Compliance and enforcement

No new compliance and enforcement measures are required to support implementation of the amendments.

Contact

Anders Sorensen
Manager
Asylum Policy Unit
Strategic Policy Branch
Canada Border Services Agency
Email: IEPU-UPELI@cbsa-asfc.gc.ca