IMMIGRATION & REFUGEE IMMIGRATION & REFUGEE PROTECTION ACTPROTECTION ACT

Inadmissibility, Inadmissibility, Detention and RemovalDetention and Removal

Mechanisms of Mechanisms of Deflection/Deterrence/InterdictionDeflection/Deterrence/Interdiction

Visa requirementsVisa requirements Ineligibility of refugee claimants Ineligibility of refugee claimants

passing through safe 3passing through safe 3rdrd country (s. country (s. 101(e), 102)101(e), 102)

Carrier sanctions on transportation Carrier sanctions on transportation companies transporting companies transporting undocumented or improperly undocumented or improperly documented migrants (ss.148-150)documented migrants (ss.148-150)

Division 4: InadmissibilityDivision 4: Inadmissibility

Facts constituting inadmissibility include acts or Facts constituting inadmissibility include acts or omissions which there are reasonable grounds omissions which there are reasonable grounds to believe have occurred, are occurring or may to believe have occurred, are occurring or may occuroccur

Categories of inadmissibility:Categories of inadmissibility:

34.34. SecuritySecurity35.35. Violating human or int’l rights Violating human or int’l rights 36.36. Serious criminality / criminalitySerious criminality / criminality37.37. Organized criminalityOrganized criminality38.38. Health groundsHealth grounds39.39. Financial reasonsFinancial reasons40.40. MisrepresentationMisrepresentation41.41. Failure to comply with ActFailure to comply with Act42.42. Inadmissible family memberInadmissible family member

Categories of inadmissibility:Categories of inadmissibility:

34.34. SecuritySecurity35.35. Violating human or int’l rights Violating human or int’l rights 36.36. Serious criminality / criminalitySerious criminality / criminality37.37. Organized criminalityOrganized criminality38.38. Health groundsHealth grounds39.39. Financial reasonsFinancial reasons40.40. MisrepresentationMisrepresentation41.41. Failure to comply with ActFailure to comply with Act42.42. Inadmissible family memberInadmissible family member

Division 5: Loss of Status Division 5: Loss of Status and Removaland Removal

Officer has discretion to prepare report on Officer has discretion to prepare report on inadmissibility of permanent resident or foreign inadmissibility of permanent resident or foreign national (s. 44)national (s. 44)→ Minister →Immigration Division→ Minister →Immigration Division

Where Immigration Division is not satisfied that Where Immigration Division is not satisfied that foreign national/permanent resident is admissible, foreign national/permanent resident is admissible, it shall make applicable removal order it shall make applicable removal order (deportation, exclusion, departure) in accordance (deportation, exclusion, departure) in accordance with the grounds for inadmissibility, as set out in with the grounds for inadmissibility, as set out in regulationsregulations

Types of Removal OrdersTypes of Removal Orderss. 223-225s. 223-225

DepartureDeparture: complies with 240(1)(a)-(c) : complies with 240(1)(a)-(c) within 30 days of enforceabilitywithin 30 days of enforceability

Need not obtain authorization Need not obtain authorization (IRPA s.(IRPA s. 52(1))52(1)) to re-enter Canada to re-enter Canada

ExclusionExclusion: require : require s.52 s.52 authorization to authorization to re-enter Canada within one or two re-enter Canada within one or two years of enforcementyears of enforcement

DeportationDeportation: require : require s.52s.52 authorization authorization to re-enter Canada any timeto re-enter Canada any time

Enforcement of Removal OrdersEnforcement of Removal Orders

Conditional departure order against refugee Conditional departure order against refugee protection claimant comes into force on latest protection claimant comes into force on latest of the following dates:of the following dates:

the day the claim is determined ineligible or 7 the day the claim is determined ineligible or 7 days after, depending on grounds of ineligibilitydays after, depending on grounds of ineligibility

15 days after notice of rejection by Refugee 15 days after notice of rejection by Refugee Protection Division if no appeal made, or by Protection Division if no appeal made, or by Refugee Appeal Division, if appeal madeRefugee Appeal Division, if appeal made

15 days after notice of abandonment/ 15 days after notice of abandonment/ withdrawal of claimwithdrawal of claim

15 days after proceedings terminated because 15 days after proceedings terminated because of misrepresentation about eligibility or prior of misrepresentation about eligibility or prior claimclaim

conditional order is for deportation if claimant conditional order is for deportation if claimant falls within certain categories of falls within certain categories of inadmissibilityinadmissibility

Circumstances where removal Circumstances where removal order stayed include:order stayed include:

for duration of stay imposed by IAD, court of for duration of stay imposed by IAD, court of competent jurisdiction, or Minister competent jurisdiction, or Minister (H&C, (H&C, generalized risk in country)generalized risk in country)

until refugee claimant’s judicial review options are until refugee claimant’s judicial review options are exhausted (time limits exceeded, leave denied, exhausted (time limits exceeded, leave denied, application refused), except where refugee claim is application refused), except where refugee claim is denied for ‘no credible basis’, claimant is ineligible denied for ‘no credible basis’, claimant is ineligible or inadmissible for serious criminality, sojourns in or inadmissible for serious criminality, sojourns in USUS

to make determination under Pre-Removal Risk to make determination under Pre-Removal Risk AssessmentAssessment s. 96-98 s. 96-98

  

unenforced removal order becomes void if unenforced removal order becomes void if foreign national becomes permanent residentforeign national becomes permanent resident

foreign nationals who remain in Canada foreign nationals who remain in Canada without authorization will be issued exclusion without authorization will be issued exclusion ordersorders

S. 44 Report forwarded to Minister who has S. 44 Report forwarded to Minister who has discretion to refer to Immigration Division for discretion to refer to Immigration Division for admissibility hearing except where grounds of admissibility hearing except where grounds of inadmissibility are:inadmissibility are:

• non-compliance by permanent resident with non-compliance by permanent resident with residency obligation residency obligation → departure order → departure order 228(2)228(2)

• foreign national’s serious foreign national’s serious criminality/criminality in relation to a criminality/criminality in relation to a conviction → deportation order s. 228(1)(a)conviction → deportation order s. 228(1)(a)

• foreign national’s misrepresentation in foreign national’s misrepresentation in relation to vacation of refugee status → relation to vacation of refugee status → deportation order (228(1)(b)deportation order (228(1)(b)

• foreign national’s breach of specific foreign national’s breach of specific provisions of Act → exclusion or provisions of Act → exclusion or deportation order (depending on deportation order (depending on breach) s. 228(1)(c)breach) s. 228(1)(c)

• inadmissible family member → same inadmissible family member → same removal order as inadmissible family removal order as inadmissible family member s. 228(1)(d)member s. 228(1)(d)

Division 6: Detention & ReleaseDivision 6: Detention & Release ss. 54-61ss. 54-61

Arrest and detention with warrant of permanent Arrest and detention with warrant of permanent resident/foreign national who is inadmissible and resident/foreign national who is inadmissible and danger to public or unlikely to appear at hearingdanger to public or unlikely to appear at hearing

Warrantless arrest and detention of foreign national Warrantless arrest and detention of foreign national (except protected person) where:(except protected person) where:• Inadmissible and danger to public or unlikely to Inadmissible and danger to public or unlikely to

appear at hearingappear at hearing• Officer not satisfied as to identity of foreign Officer not satisfied as to identity of foreign

nationalnational

Detention of permanent resident/ Detention of permanent resident/ foreign national on entry to Canadaforeign national on entry to Canada

• to complete examinationto complete examination

• inadmissibility based on security grounds or inadmissibility based on security grounds or violation of human/int’l rightsviolation of human/int’l rights

• Discretion to release within 48 hoursDiscretion to release within 48 hours

Mandatory review of detention by Mandatory review of detention by Immigration DivisionImmigration Division

• Within 48 hours or “without delay afterward”Within 48 hours or “without delay afterward”• Within 7 days thereafterWithin 7 days thereafter• Review of reasons for continued detention every 30 Review of reasons for continued detention every 30

days thereafterdays thereafter Minister is taking necessary steps to inquire into Minister is taking necessary steps to inquire into

reasonable suspicion of security/human rights reasonable suspicion of security/human rights inadmissibility inadmissibility OROR

Minister is of opinion that ID may be established Minister is of opinion that ID may be established and detainee has not “reasonably cooperated with and detainee has not “reasonably cooperated with the Minister by providing relevant information” to the Minister by providing relevant information” to establish IDestablish ID

Regs. S. 244-250 list factors to be Regs. S. 244-250 list factors to be taken into account when assessing taken into account when assessing existence of grounds for detention, existence of grounds for detention, and continued need for detentionand continued need for detention

• Flight riskFlight risk

• Danger to publicDanger to public

• Person whose identity has not been Person whose identity has not been establishedestablished

Detention of minors is last resort, Detention of minors is last resort, must take into account best interests must take into account best interests of childof child

Mandatory conditions on release Mandatory conditions on release from detention:from detention:

Notify of change of addressNotify of change of address

Surrender passport/travel document or Surrender passport/travel document or complete application for one (not to be complete application for one (not to be divulged to country of nationality if detainee is divulged to country of nationality if detainee is refugee claimant)refugee claimant)

Abide by any discretionary conditions Abide by any discretionary conditions imposed by officer or Immigration Divisionimposed by officer or Immigration Division

Categories of inadmissibility:Categories of inadmissibility:

34.34. SecuritySecurity35.35. Violating human or int’l rights Violating human or int’l rights 36.36. Serious criminality / criminalitySerious criminality / criminality37.37. Organized criminalityOrganized criminality38.38. Health groundsHealth grounds39.39. Financial reasonsFinancial reasons40.40. MisrepresentationMisrepresentation41.41. Failure to comply with ActFailure to comply with Act42.42. Inadmissible family memberInadmissible family member

Health Grounds (s. 37)Health Grounds (s. 37) Inadmissibility based on danger to public health/public Inadmissibility based on danger to public health/public

safety, or excessive demand on health or social servicessafety, or excessive demand on health or social services First Draft of Regs (not in final version)First Draft of Regs (not in final version)

• Excessive demand (s. 32) = costs in excess of Excessive demand (s. 32) = costs in excess of average Canadian per capita health and social average Canadian per capita health and social service costs over a period of 5-10 consecutive years service costs over a period of 5-10 consecutive years after medical exam after medical exam

oror• Demand that would add to existing waiting lists and Demand that would add to existing waiting lists and

would increase the rate of mortality/morbidity as a would increase the rate of mortality/morbidity as a result of denial or delay in provision of services to result of denial or delay in provision of services to citizens and permanent residentscitizens and permanent residents

Does not apply to:Does not apply to:

• spouse, common-law partner or child of spouse, common-law partner or child of sponsor s. 24sponsor s. 24

• Convention refugee or person in similar Convention refugee or person in similar circumstances circumstances

• Protected personProtected person

Financial Grounds (s. 39)Financial Grounds (s. 39)

Protected persons exempted from Protected persons exempted from inadmissibility on financial grounds s. 21inadmissibility on financial grounds s. 21

Misrepresentation (s. 40)Misrepresentation (s. 40)Foreign national / permanent resident is inadmissible for 2 Foreign national / permanent resident is inadmissible for 2

years for:years for: ““directly or indirectly misrepresenting or withholding directly or indirectly misrepresenting or withholding

material facts relating to a relevant matter that induces or material facts relating to a relevant matter that induces or could induce an error in the administration of the Act” could induce an error in the administration of the Act” • refugee claimants and protected persons exempted s. refugee claimants and protected persons exempted s.

22 22 being sponsored by person determined to be inadmissible being sponsored by person determined to be inadmissible

for misrepresentation (requires Ministerial approval)for misrepresentation (requires Ministerial approval) refugee whose claim has been vacatedrefugee whose claim has been vacated losing citizenship status for fraud/misrepresentation losing citizenship status for fraud/misrepresentation

Non-Compliance with Act (s. 41)Non-Compliance with Act (s. 41)

foreign national inadmissible for act/omission foreign national inadmissible for act/omission which directly/indirectly contravenes which directly/indirectly contravenes provision of IRPAprovision of IRPA

permanent resident inadmissible for failing to permanent resident inadmissible for failing to comply with any conditions imposed under comply with any conditions imposed under Regulations, or for failing to meet residency Regulations, or for failing to meet residency obligationobligation

Inadmissible Family Member (s. 42)Inadmissible Family Member (s. 42)

Foreign national is inadmissible if Foreign national is inadmissible if accompanying family member is inadmissibleaccompanying family member is inadmissible they are an accompanying family member of an they are an accompanying family member of an

inadmissible personinadmissible person non-accompanying family member is inadmissiblenon-accompanying family member is inadmissible

Non-accompanying family member is Non-accompanying family member is spouse/common law partner, dependent child in spouse/common law partner, dependent child in specified circumstances s. 23specified circumstances s. 23

Criminality (s. 36)Criminality (s. 36)

Conviction inside Canada of indictable or Conviction inside Canada of indictable or hybrid offencehybrid offence

Conviction or commission outside Canada of Conviction or commission outside Canada of equivalent of indictable or hybrid offence equivalent of indictable or hybrid offence (determined on balance of probabilities) (determined on balance of probabilities)

• deemed rehabilitation 10 years after deemed rehabilitation 10 years after completion of sentence or commission of completion of sentence or commission of act s. 18act s. 18

Conviction inside Canada of two summary Conviction inside Canada of two summary offences not arising out of a single occurrence offences not arising out of a single occurrence • deemed rehabilitation 5 years after sentence serveddeemed rehabilitation 5 years after sentence served

Conviction outside Canada of equivalent of 2 Conviction outside Canada of equivalent of 2 summary offences not arising out of single summary offences not arising out of single occurrenceoccurrence• deemed rehabilitation 5 years after sentence serveddeemed rehabilitation 5 years after sentence served

Commission “on entering Canada” of offence Commission “on entering Canada” of offence prescribed by regulationprescribed by regulation

Serious Criminality (s. 36(1))Serious Criminality (s. 36(1))

Conviction in Canada of an offence for whichConviction in Canada of an offence for which

• maximum term of imprisonment ≥ 10 years maximum term of imprisonment ≥ 10 years or or

• actual sentence of > 6 months imprisonmentactual sentence of > 6 months imprisonment Conviction/commission outside Canada for Conviction/commission outside Canada for

offence for which maximum penalty in Canada offence for which maximum penalty in Canada would be ≥ 10 years (balance of probabilities)would be ≥ 10 years (balance of probabilities)

34. A permanent resident/foreign 34. A permanent resident/foreign national inadmissible on security national inadmissible on security grounds for:grounds for:(a)engaging in an act of espionage or act of

subversion against a democratic government, institution or process as they are understood in Canada

(b)engaging in or instigating the subversion by force of any government

(c)engaging in terrorism(d)being a danger to the security of Canada

engaging in acts of violence that would or might endanger the lives or safety of persons in Canada

being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in (a), (b), or (c).

Terrorism (Terrorism (SureshSuresh, ¶98) =, ¶98) =

any act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict

purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act

Membership (Membership (SureshSuresh, ¶108, 110): , ¶108, 110):

persons who are or have been associated with things directed at violence, if not violence itself

excludes those who contribute to or become members of organizations in ignorance of organization’s terrorist activities

Security (ss. 14-16)Security (ss. 14-16)

Findings of fact by IRB, international criminal tribunal, Canadian court (made within their respective jurisdictions), that a foreign national or permanent resident has engaged in terrorism, war crimes, crimes against humanity, shall be conclusive

35.35. Violation of International or Violation of International or Human RightsHuman Rights

list of inadmissible senior officials moved to regulations

37.37. Organized CriminalityOrganized Criminality

(a) (a) Immigration Act definition +

(b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering.

Division 9Division 9Protection of InformationProtection of Information

Examination on Request by the Minister and the Solicitor General of Canada

Detention Consideration During an Admissibility

Hearing or An Immigration Appeal Consideration During Judicial Review

Examination by Request of Examination by Request of MinistersMinisters

77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court – Trial Division, which shall make a determination under section 80.

No statutory trigger (cf. s. 40.1 of Immigration Act)

Effect of referral to Federal Court is to pre-empt or adjourn any proceeding under IRPA (including refugee determination) except application for Pre-Removal Risk Assessment (PRRA) under s. 112(1). (s. 77(2))

No timelines governing judicial consideration of certificate

Judge shall determine whether certificate is reasonable and whether the decision on PRRA application, if any, is lawfully made (s. 80)

Effect of finding certificate to be reasonable:• Conclusive proof of inadmissibility• Certificate = removal order that is in

force and may not be appealed against• Determination of judge is final and may

not be appealed or judicially reviewed

Judge shall protect confidentiality of information upon which certificate is based and any other evidence submitted to judge if “in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person” (s. 78(b))

similar provisions regarding in camera hearing, non-disclosure of evidence, and summary, to provisions in Immigration Act

Exception to principle of non-Exception to principle of non-refoulement (s.115(2))refoulement (s.115(2))

(a) inadmissible on grounds of serious criminality and, in opinion of Minister, constitutes danger to public in Canada

(b) inadmissible on grounds of security/violating human or int’l rights/ organized crime, if Minister is of opinion that person should not be allowed to remain in Canada on basis of

danger to security of Canada nature/severity of acts committed

Danger to security of Canada Danger to security of Canada ((SureshSuresh ¶88-90) ¶88-90)

poses serious threat • grounded in objectively reasonable

suspicion based on evidence threatened harm must be substantial

• direct or indirect• direct proof of specific threat to Canada not

required must be real and serious possibility of

adverse effect on Canada, (e.g. distant events that indirectly create possibility)

Standard of Review for Minister’s Standard of Review for Minister’s opinion under s. 115(2)(b)opinion under s. 115(2)(b)

( (SureshSuresh ¶ 29-41) ¶ 29-41) Applies to findings of danger to national

security and risk of torture or similar harm

Patently unreasonable• Arbitrary• Bad faith• Cannot be supported on evidence• Failure to consider appropriate factors• [violation of s. 7]

s. 7 and deportation to tortures. 7 and deportation to torture(Suresh, (Suresh, ¶42-79)¶42-79)

“. . . The fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture.”

Procedural Requirements for s. 115 Procedural Requirements for s. 115 determination determination

((Suresh ¶Suresh ¶113-128, 113-128, AhaniAhani ¶ 24-26) ¶ 24-26) Where refugee makes prima facie

case that deportation involves risk of “torture or similar abuse”, duty of fairness/s. 7 require:

person “must be informed of case to be person “must be informed of case to be met”met”

subject to valid reasons for reduced subject to valid reasons for reduced disclosure, material upon which Minister disclosure, material upon which Minister relies must be provided (including memos relies must be provided (including memos containing recommendations)containing recommendations)

individual must have opportunity to individual must have opportunity to respond, including whether continued respond, including whether continued presence will be “detrimental to national presence will be “detrimental to national interest” [under ss. 34-37?]interest” [under ss. 34-37?]

assurances re: torture by state of assurances re: torture by state of nationality inherently unreliablenationality inherently unreliable

Minister must provide written reasons for Minister must provide written reasons for decisiondecision

Torture (Torture (ScheduleSchedule to IRPA) to IRPA)ARTICLE 1 OF THE CONVENTION AGAINST TORTURE AND

OTHER CRUEL, INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT:

1. For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Detention (ss. 82-85)Detention (ss. 82-85) Warrant required for arrest/detention

of permanent resident named in s. 77(1) certificate if Minister and Solicitor General have reasonable grounds to believe PR is• danger to national security• danger to safety of any person• unlikely to appear at proceeding or for

removal No warrant required required for

detention of foreign national

Judge shall commence review of reasons for continued detention of permanent resident within 48 hours and once every 6 months thereafter

[no provision for detention review of foreign nationals]

Permanent resident or foreign national may apply to Minister for release to permit departure from Canada

Foreign national may apply to judge for release (with or without conditions) if 120 days have passed since s.77 certificate upheld as reasonable and judge satisfied that:• foreign national will not be removed from

Canada in reasonable time• release will not pose danger to national

security or safety of any person