Canadian immigration and refugee law

Canadian immigration and refugee law concerns the area of law related to the admission of foreign nationals into Canada, their rights and responsibilities once admitted, and the conditions of their removal. The primary law on these matters is in the Immigration and Refugee Protection Act, whose goals include economic growth, family reunification, and compliance with humanitarian treaties.

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Enabling laws

Immigration Act, 1976
Immigration Act, 1976
Parliament of Canada
Assented to1976
Effective1978
Repealed2002
Repealed by
Immigration and Refugee Protection Act
Related legislation
Immigration Act, 1869
Status: Repealed

The Immigration Act, 1976, insured by the Parliament of Canada, focused on who should be allowed into Canada, rather than on who should be kept out. The Act came into force in 1978, along with new immigration regulations, giving more power to the provinces to set their own immigration laws and defined "prohibited classes" in much broader terms. Individuals who could become a burden on social welfare or health services would now be refused entry, rather than specific categories of people, e.g., those who identified themselves as homosexual, disabled, and so on.

Further, it created four new classes of immigrants who could come to Canada: refugees, families, assisted relatives, and independent immigrants. While independent immigrants had to take part in the points system, other classes did not have to take part in this test so long as they passed basic criminal, security, and health checks. The Act also created alternatives to deportation for less serious criminal or medical offences, since deportation meant the immigrant was barred from entering Canada for life. After 1978, the government could issue 12-month exclusion orders and a departure notice, if the cause for a person's removal was not serious, but in some cases, it could be severe.

The enforcement team with the Department of Citizenship and Immigration Canada was responsible for enforcing the Act at border crossings with the United States as well as checkpoints at international airports in Canada.

The 1976 Immigration Act was replaced by the Immigration and Refugee Protection Act (IRPA) in 2002.[1]

Immigration and Refugee Protection Act

The primary statute regarding immigration and refugee law in Canada is the Immigration and Refugee Protection Act (IRPA), accompanied by the Immigration and Refugee Protection Regulations and Protection of Passenger Information Regulations. First introduced in 2002 to replace the former Immigration Act of 1976, the many changes brought on by IRPA included broader discretion for immigration officers when evaluating applications.

Other relevant legislation include the Citizenship Act, and certain immigration and refugee-related provisions of the Criminal Code.

Protecting Canada's Immigration System Act

The Protecting Canada's Immigration System Act (Bill C-31) was established in hopes of amending Canadian immigration and refugee law[2] by addressing the number of "bogus refugees" and claimants from European Union democracies.[3]

Safe Third Country Agreement

Under the Canada–United States Safe Third Country Agreement, people from a country that is not Canada or the United States who attempt to enter Canada at a legal border crossing seeking refugee status will be turned back.

Laws regarding administration
Department of Citizenship and Immigration Act
Parliament of Canada
CitationS.C. 1994, c. 31
Assented to23 June 1994
Status: Amended

Department of Citizenship and Immigration

The Department of Citizenship and Immigration Act established Canada's Department of Citizenship and Immigration (now known as Immigration, Refugees and Citizenship Canada), to be presided by the Minister of Citizenship and Immigration.[4]

The Revolving Funds Act authorized the establishment of certain revolving funds, including for the Minister of Citizenship and Immigration. Under the Act, the Minister is able to make expenditures out of the Consolidated Revenue Fund of Canada "for the purpose of passport and other travel document services in Canada and at posts abroad," as well as revenue received regarding that purpose.[5]

Canada Border Services Agency Act
Parliament of Canada
CitationS.C. 2005, c. 38
Assented to3 November 2005
Status: Amended

Canada Border Services Agency

The Canada Border Services Agency Act established the Canada Border Services Agency (CBSA), which was created by Order in Council on 12 December 2003. The Act renders the CBSA responsible for providing integrated border services that support Canada's national security priorities and that facilitate the free flow of persons and goods (including plants and animals) that meet all requirements under the program legislation.[6][7]

The Act also set out the responsibilities, mandate, powers, duties, and functions of the CBSA's President and of the Minister responsible for the Agency (Minister of Public Safety and Emergency Preparedness).[7]

International Boundary Commission Act
Parliament of Canada
CitationR.S.C., 1985, c. I-16
Status: Amended

Immigration and Refugee Board

Sections 151 through 186 of the Immigration and Refugee Protection Act (IRPA) dictate the functions and composition of the Immigration and Refugee Board of Canada (IRB).

The Immigration Division Rules (SOR/2002-229), pursuant to subsection 161(1) of IRPA, outlines the responsibilities of the IRB's Immigration Division, including those of admisibility hearings and detention reviews.[8]

The Immigration Appeal Division Rules (SOR/2002-230), sets out the rules for appealing immigration- related decisions (such as removal orders, inadmissibility, etc.) to IRB's Immigration Appeal Division.[9] Likewise, the Refugee Appeal Division Rules (SOR/2012-257) sets out the rules for appealing refugee-related decisions to the Refugee Appeal Division.

International Boundary Commission

The International Boundary Commission Act provides the International Boundary Commission (including its members, officers, employees, and agents) with certain powers for the purpose of maintaining an effective boundary line between Canada and the United States. This authority includes the Commission's ability to:[10]

  • "enter on and pass over the land of any person in order to gain access to the boundary or to survey the boundary;"
  • "erect and maintain boundary monuments on the land of any person;" and
  • "clear from the land of any person such trees and underbrush as the Commission deems necessary to maintain a vista ten feet in width from the boundary."

Other relevant laws

Admission classes

Canadian immigration policy allows several classes of people to enter.

The Family Class allows permanent residents or citizens to sponsor a family member's or spouse's entrance into the country. In the case of a same sex couple, if they are immigrating from a country where they cannot marry, proof of a long-term relationship is required.

The Economic Class provides admission to applicants (and their immediate families) who are supposed to be likely to find employment and contribute to the Canadian economy. This is determined by ranking candidates against one another, and the weighing of factors such as education, language skills, and work experience.[11] Some 60,000 come to Canada each year under the International Experience Canada initiative, which provides Working Holiday, internship, and study visas.[12]

Any immigrant can claim to be a refugee and it will be investigated. Claims for refugee status and for admissibility as well as appeals of the decisions of the immigration officers are directed to the Immigration and Refugee Board of Canada (IRB). The IRB is the largest tribunal in Canada and hears over 25,000 claims a year. Decision of the IRB can be appealed to the Federal Court, which hears about 2,500 appeals on immigration and refugee matters a year.[13]

Issues

The Parliament of Canada has previously debated whether to allow former U.S. war resisters, such as soldiers avoiding re-deployment to Iraq, to stay in Canada.[14] In mid-2010, the Federal Court of Appeal ruled that Jeremy Hinzman, an American soldier seeking asylum, should be allowed to remain in Canada based on his pacifist religious beliefs.[15] A Private Member's Bill on the issue of war resisters, by former Member of Parliament Gerard Kennedy, was defeated in late September.[16]

In June 2012, the Canadian government introduced a series of changes affecting the Interim Federal Health Program which covers refugee health care. Some have taken issue with the Canada–United States Safe Third Country Agreement (STCA), which prevents people from a country that is not Canada or the US who attempt to enter Canada at a legal border crossing seeking refugee status will be turned back, but processes the claims of those who arrive illegally. Moreover, some refugee advocates have argued for rescinding the STCA.

References
  1. "Facts and figures 2009 – Immigration overview: Permanent and temporary residents." Citizenship and Immigration Canada. 2010-08-01. Archived from the original on 2017-04-08. Retrieved 2012-07-24.
  2. "House Government Bill C-31". Parliament of Canada. Retrieved 7 April 2012.
  3. Elliott, Louise, and Laura Payton. 15 February 2012. "Refugee reforms include fingerprints, no appeals for some." CBC News.
  4. Department of Citizenship and Immigration Act, Justice Laws. 22 September 2020. Retrieved 7 October 2020.
  5. Revolving Funds Act, Justice Laws. 22 September 2020. Retrieved 7 October 2020.
  6. Canada Border Services Agency Act, Justice Laws. 22 September 2020. Retrieved 7 October 2020.
  7. "Acts, Regulations and Other Regulatory Information." Canada Border Services Agency. 31 July 2020. Retrieved 7 October 2020.
  8. Immigration Division Rules, Justice Laws.
  9. Immigration Appeal Division Rules, Justice Laws.
  10. International Boundary Commission Act, Justice Laws.
  11. "Everything you need to know about Express Entry". Moving2Canada. 2016-11-09. Retrieved 2018-11-08.
  12. "How to get a Working Holiday Visa in Canada". Moving2Canada. 2017-11-03. Retrieved 2018-11-08.
  13. Canadian Court of Appeals (May 6, 2019). "Refugee Appeals". Queens Printer. Retrieved 2019-05-06.
  14. Keen, Judy (May 28, 2010). "In Canada once more, U.S. troops fleeing a war". USA Today. Retrieved 2011-05-14.
  15. "Win for war resisters". Toronto Star. July 8, 2010. Retrieved 2011-05-14.
  16. "LEGISinfo - Private Member's Bill C-440 (40-3)". Parliament of Canada. Retrieved 2011-05-14.

Further reading
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