Immigration and Refugee Protection Regulations

Whereas, pursuant to subsection 5(2) of the Immigration and Refugee Protection Act a, the Minister of Citizenship and Immigration has caused a copy of the proposed Immigration and Refugee Protection Regulations to be laid before each House of Parliament, substantially in the form set out in the annexed Regulations;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration and the Treasury Board, pursuant to subsection 5(1) of the Immigration and Refugee Protection Act a and paragraphs 19(1)(a)b and 19.1(a)b and subsection 20(2) of the Financial Administration Act, and, considering that it is in the public interest to do so, subsection 23(2.1)c of that Act, hereby makes the annexed Immigration and Refugee Protection Regulations.

1. (1) The definitions in this subsection apply in the Act and in these Regulations.

“common-law partner” means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait)

(a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or

(b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of the denial or delay in the provision of those services to Canadian citizens or permanent residents. (fardeau excessif)

“health services” means any health services for which the majority of the funds are contributed by governments, including the services of family physicians, medical specialists, nurses, chiropractors and physiotherapists, laboratory services and the supply of pharmaceutical or hospital care. (services de santé)

“social services” means any social services, such as home care, specialized residence and residential services, special education services, social and vocational rehabilitation services, personal support services and the provision of devices related to those services,

(a) that are intended to assist a person in functioning physically, emotionally, socially, psychologically or vocationally; and

(b) for which the majority of the funding, including funding that provides direct or indirect financial support to an assisted person, is contributed by governments, either directly or through publicly-funded agencies. (services sociaux)

“student” means a person who is authorized by a study permit or these Regulations to engage in studies in Canada and who is studying or intends to study in Canada. (étudiant)

“studies” means studies undertaken at a university or college, or any course of academic, professional or vocational training. (études)

“study permit” means a written authorization to engage in studies in Canada issued by an officer to a foreign national. (permis d'études)

(2) For the purposes of the Act and these Regulations, an individual who has been in a conjugal relationship with a person for at least one year but is unable to cohabit with the person, due to persecution or any form of penal control, shall be considered a common-law partner of the person.

(3) For the purposes of the Act, other than section 12 and paragraph 38(2)(d), and for the purposes of these Regulations, other than sections 159.1 and 159.5, “family member” in respect of a person means

(b) a dependent child of the person or of the person's spouse or common-law partner; and

2. The definitions in this section apply in these Regulations.

“administration fee” means an administration fee that represents a portion of the total average costs incurred by Her Majesty in right of Canada in respect of foreign nationals referred to in subsection 279(1), and includes the costs relating to

(d) fingerprinting, photographing and the verification of documents with other governments and national or international police agencies;

(a) for the purposes of section 148 of the Act, any person in Canada who provides services as a representative of a vehicle owner, a vehicle operator or a charterer; and

(b) for the purposes of paragraph 148(1)(d) of the Act, in addition to the person referred to in paragraph (a), a travel agent, a charterer, and an operator or owner of a reservation system. (mandataire)

“authorized representative” means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003. (représentant autorisé)

“Canadian citizen” means a citizen referred to in subsection 3(1) of the Citizenship Act. (citoyen canadien)

“commercial transporter” means a transporter who operates a commercial vehicle. (transporteur commercial)

“commercial vehicle” means a vehicle that is used by a commercial transporter for commercial purposes. (véhicule commercial)

“conjugal partner” means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year. (partenaire conjugal)

“Department” means the Department of Citizenship and Immigration. (ministère)

(i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or

(ii) has depended substantially on the financial support of the parent since before the age of 22 — or if the child became a spouse or common-law partner before the age of 22, since becoming a spouse or common-law partner — and, since before the age of 22 or since becoming a spouse or common-law partner, as the case may be, has been a student

(A) continuously enrolled in and attending a post-secondary institution that is accredited by the relevant government authority, and

(B) actively pursuing a course of academic, professional or vocational training on a full-time basis, or

(iii) is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition. (enfant à charge)

“Hague Convention on Adoption” means the Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption that was concluded on May 29, 1993 and came into force on May 1, 1995. (Convention sur l'adoption)

“Indian” means any person registered as an Indian under the Indian Act. (Indien)

“in-transit passenger” means a person who arrives by aircraft at a Canadian airport from any country for the sole purpose of reboarding their flight or boarding a connecting flight departing from that airport to a country other than Canada. (passager en transit)

“in-transit preclearance passenger” means an in-transit passenger who is subject to a preclearance procedure in accordance with the Preclearance Act. (passager en transit bénéficiant d'un précontrôle)

“live-in caregiver” means a person who resides in and provides child care, senior home support care or care of the disabled without supervision in the private household in Canada where the person being cared for resides. (aide familial)

“marriage”, in respect of a marriage that took place outside Canada, means a marriage that is valid both under the laws of the jurisdiction where it took place and under Canadian law. (mariage)

“minimum necessary income” means the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published annually by Statistics Canada under the Statistics Act, for urban areas of residence of 500,000 persons or more as the minimum amount of before-tax annual income necessary to support a group of persons equal in number to the total number of the following persons:

(b) the sponsored foreign national, and their family members, whether they are accompanying the foreign national or not, and

(i) in respect of whom the sponsor has given or co-signed an undertaking that is still in effect, and

(ii) in respect of whom the sponsor's spouse or common-law partner has given or co-signed an undertaking that is still in effect, if the sponsor's spouse or common-law partner has co-signed with the sponsor the undertaking in respect of the foreign national referred to in paragraph (b). (revenu vital minimum)

“Minister” means the Minister referred to in section 4 of the Act. (ministre)

“National Occupational Classification Classification nationale des professions” means the National Occupational Classification published by the Department of Human Resources Development, as amended from time to time. ( Classification nationale des professions )

“officer” means a person designated as an officer by the Minister under subsection 6(1) of the Act. (agent)

(b) a place designated by the Minister under section 26 as a port of entry, on the dates and during the hours of operation designated for that place by the Minister. (point d'entrée)

“relative” means a person who is related to another person by blood or adoption. (membre de la parenté)

“social assistance” means any benefit in the form of money, goods or services provided to or on behalf of a person by a province under a program of social assistance, including a program of social assistance designated by a province to provide for basic requirements including food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care, including dental care and eye care. (assistance sociale)

“sterile transit area” means an area in an airport where in-transit passengers, in-transit preclearance passengers or goods that are in transit or precontrolled are physically separated from other passengers and goods. (espace de transit isolé)

(a) a person who owns, operates, charters or manages a vehicle or a fleet of vehicles and an agent for that person;

(b) a person who owns or operates an international tunnel or bridge and an agent for that person; or

(c) a designated airport authority within the meaning of subsection 2(1) of the Airport Transfer (Miscellaneous Matters) Act and an agent for that authority. (transporteur)

“vehicle” means a means of transportation that may be used for transportation by water, land or air. (véhicule)

“vessel” means a vessel within the meaning of section 2 of the Canada Shipping Act. (bâtiment)

“work” means an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market. (travail)

“work permit” means a written authorization to work in Canada issued by an officer to a foreign national. (permis de travail)

3. (1) For the purposes of these Regulations,

(a) “member of a crew” means a person who is employed on a means of transportation to perform duties during a voyage or trip, or while in port, related to the operation of the means of transportation or the provision of services to passengers or to other members of the crew, but does not include

(i) any person whose fare is waived in exchange for work to be performed during the voyage or trip,

(ii) any person who performs maintenance or repairs under a service contract with a transporter during the voyage or trip or while the means of transportation is in Canada, or

(iii) any other person who is on board the means of transportation for a purpose other than to perform duties that relate to the operation of the means of transportation or to provide services to passengers or other members of the crew; and

(iii) they have been hospitalized and have failed to return to the means of transportation or leave Canada after leaving the hospital, or

(iv) they have been discharged or are otherwise unable or unwilling to perform their duties as a member of a crew and failed to leave Canada after the discharge or after they first became unable or unwilling to perform those duties.

(2) For the purposes of these Regulations, “adoption”, for greater certainty, means an adoption that creates a legal parent-child relationship and severs the pre-existing legal parent-child relationship.

4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.

4.1 For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the foreign national has begun a new conjugal relationship with that person after a previous marriage, common-law partnership or conjugal partnership with that person was dissolved primarily so that the foreign national, another foreign national or the sponsor could acquire any status or privilege under the Act.

5. For the purposes of these Regulations, a foreign national shall not be considered

(a) the spouse or common-law partner of a person if the foreign national is under the age of 16 years; or

(i) the foreign national or the person was, at the time of their marriage, the spouse of another person, or

(ii) the person has lived separate and apart from the foreign national for at least one year and is the common-law partner of another person.

6. A foreign national may not enter Canada to remain on a permanent basis without first obtaining a permanent resident visa.

7. (1) A foreign national may not enter Canada to remain on a temporary basis without first obtaining a temporary resident visa.

(a) is exempted under Division 5 of Part 9 from the requirement to have a temporary resident visa;

(b) holds a temporary resident permit issued under subsection 24(1) of the Act; or

(3) In addition to any visa required under this section, a foreign national who is seeking to enter and remain in Canada on a temporary basis to receive medical treatment in the Province of Quebec must hold a certificat d'acceptation du Québec if the laws of that Province require the foreign national to hold that document.

8. (1) A foreign national may not enter Canada to work without first obtaining a work permit.

(2) Subsection (1) does not apply to a foreign national who is authorized under section 186 to work in Canada without a work permit.

9. (1) A foreign national may not enter Canada to study without first obtaining a study permit.

(2) Subsection (1) does not apply to a foreign national who is authorized under section 188 or 189 to study in Canada without a study permit.

10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall

(c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;

(d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and

(e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.

(a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;

(c.1) include the name, postal address and telephone number of any person who represents the applicant, and the person's fax number and electronic mail address, if any;

(c.2) if the person who represents the applicant is charging a fee for representation, include

(i) the name of the organization referred to in the definition “authorized representative” of which the person is a member, and

(ii) the membership identification number issued by that organization to the person; and

(d) include a declaration that the information provided is complete and accurate.

(3) The application is considered to be an application made for the principal applicant and their accompanying family members.

(4) An application made by a foreign national as a member of the family class must be preceded or accompanied by a sponsorship application referred to in paragraph 130(1)(c).

(5) No sponsorship application may be filed by a sponsor in respect of a person if the sponsor has filed another sponsorship application in respect of that same person and a final decision has not been made in respect of that other application.

(6) A sponsorship application that is not made in accordance with subsection (1) is considered not to be an application filed in the prescribed manner for the purposes of subsection 63(1) of the Act.

11. (1) An application for a permanent resident visa — other than an application for a permanent resident visa made under Part 8 — must be made to the immigration office that serves

(a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year; or

(b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.

(2) An application for a temporary resident visa — or an application for a work permit or study permit that under these Regulations must be made outside of Canada — must be made to an immigration office that serves as an immigration office for processing the type of application made and that serves, for the purpose of the application,

(a) the country in which the applicant is present and has been lawfully admitted; or

(3) An application to remain in Canada as a permanent resident as a member of one of the classes referred to in section 65 or subsection 72(2), and an application to remain in Canada referred to in subsection 175(1), must be made to the Department's Case Processing Centre in Canada that serves the applicant's place of habitual residence.

(4) An applicant for a permanent resident card must send the application to the Department's Case Processing Centre in Canada that serves the applicant's place of habitual residence.

(5) A person who applies to sponsor a foreign national must send the application to the Department's Case Processing Centre in Canada that serves the applicant's place of habitual residence.

12. If the requirements of sections 10 and 11 are not met, the application and all documents submitted in support of the application shall be returned to the applicant.

13. (1) Subject to subsection (2), a requirement of the Act or these Regulations to produce a document is met

(c) in the case of an application, if there is an application form on the Department's website, by completing and producing the form printed from the website or by completing and submitting the form on-line, if the website indicates that the form can be submitted on-line.

(2) Unless these Regulations provide otherwise, a passport, a permanent resident visa, a permanent resident card, a temporary resident visa, a temporary resident permit, a work permit or a study permit may be produced only by producing the original document.

13.1 (1) Subject to subsection (2), no person who is not an authorized representative may, for a fee, represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board.

(2) A person who is not an authorized representative may, for a period of four years after the coming into force of this section, continue for a fee to represent, advise or consult with a person who is the subject of a proceeding or application before the Minister, an officer or the Board, if

(a) the person was providing any of those services to the person who is the subject of the proceeding or application on the coming into force of this section; and

(b) the proceeding or application is the same proceeding or application that was before the Minister, an officer or the Board on the coming into force of this section.

(3) A student-at-law shall not be deemed under subsection (1) to be representing, advising or consulting for a fee if the student-at-law is acting under the supervision of a member in good standing of a bar of a province or the Chambre des notaires du Québec who represents, advises or consults with the person who is the subject of the proceeding or application.

14. For the purpose of determining whether a foreign national or permanent resident is inadmissible under paragraph 34(1)(c) of the Act, if either the following determination or decision has been rendered, the findings of fact set out in that determination or decision shall be considered as conclusive findings of fact:

(a) a determination by the Board, based on findings that the foreign national or permanent resident has engaged in terrorism, that the foreign national or permanent resident is a person referred to in section F of Article 1 of the Refugee Convention; or

(b) a decision by a Canadian court under the Criminal Code concerning the foreign national or permanent resident and the commission of a terrorism offence.

15. For the purpose of determining whether a foreign national or permanent resident is inadmissible under paragraph 35(1)(a) of the Act, if any of the following decisions or the following determination has been rendered, the findings of fact set out in that decision or determination shall be considered as conclusive findings of fact:

(a) a decision concerning the foreign national or permanent resident that is made by any international criminal tribunal that is established by resolution of the Security Council of the United Nations, or the International Criminal Court as defined in the Crimes Against Humanity and War Crimes Act;

(b) a determination by the Board, based on findings that the foreign national or permanent resident has committed a war crime or a crime against humanity, that the foreign national or permanent resident is a person referred to in section F of Article 1 of the Refugee Convention; or

(c) a decision by a Canadian court under the Criminal Code or the Crimes Against Humanity and War Crimes Act concerning the foreign national or permanent resident and a war crime or crime against humanity committed outside Canada.

16. For the purposes of paragraph 35(1)(b) of the Act, a prescribed senior official in the service of a government is a person who, by virtue of the position they hold or held, is or was able to exert significant influence on the exercise of government power or is or was able to benefit from their position, and includes

(e) senior members of the military and of the intelligence and internal security services;

17. For the purposes of paragraph 36(3)(c) of the Act, the prescribed period is five years

(a) after the completion of an imposed sentence, in the case of matters referred to in paragraphs 36(1)(b) and (2)(b) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act; and

(b) after committing an offence, in the case of matters referred to in paragraphs 36(1)(c) and (2)(c) of the Act, if the person has not been convicted of a subsequent offence other than an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.

18. (1) For the purposes of paragraph 36(3)(c) of the Act, the class of persons deemed to have been rehabilitated is a prescribed class.

(2) The following persons are members of the class of persons deemed to have been rehabilitated:

(a) persons who have been convicted outside Canada of no more than one offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely,

(i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

(ii) at least 10 years have elapsed since the day after the completion of the imposed sentence,

(iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(iv) the person has not been convicted in Canada of any summary conviction offence within the last 10 years under an Act of Parliament or of more than one summary conviction offence before the last 10 years, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(v) the person has not within the last 10 years been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vi) the person has not before the last 10 years been convicted outside Canada of more than one offence that, if committed in Canada, would constitute a summary conviction offence under an Act of Parliament, and

(vii) the person has not committed an act described in paragraph 36(2)(c) of the Act;

(b) persons convicted outside Canada of two or more offences that, if committed in Canada, would constitute summary conviction offences under any Act of Parliament, if all of the following conditions apply, namely,

(i) at least five years have elapsed since the day after the completion of the imposed sentences,

(ii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(iii) the person has not within the last five years been convicted in Canada of an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(iv) the person has not within the last five years been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(v) the person has not before the last five years been convicted in Canada of more than one summary conviction offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vi) the person has not been convicted of an offence referred to in paragraph 36(2)(b) of the Act that, if committed in Canada, would constitute an indictable offence, and

(vii) the person has not committed an act described in paragraph 36(2)(c) of the Act; and

(c) persons who have committed no more than one act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, if all of the following conditions apply, namely,

(i) the offence is punishable in Canada by a maximum term of imprisonment of less than 10 years,

(ii) at least 10 years have elapsed since the day after the commission of the offence,

(iii) the person has not been convicted in Canada of an indictable offence under an Act of Parliament,

(v) the person has not within the last 10 years been convicted outside of Canada of an offence that, if committed in Canada, would constitute an offence under an Act of Parliament, other than an offence designated as a contravention under the Contraventions Act or an offence under the Youth Criminal Justice Act,

(vii) the person has not been convicted outside of Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament.

18.1 (1) The class of foreign nationals who are inadmissible solely on the basis of having been convicted in Canada of two or more offences that may only be prosecuted summarily, under any Act of Parliament, is a prescribed class for the application of paragraph 36(2)(a) of the Act.

(2) A member of the class prescribed in subsection (1) is exempt from the application of paragraph 36(2)(a) of the Act if it has been at least five years since the day after the completion of the imposed sentences.

19. For the purposes of paragraph 36(2)(d) of the Act, indictable offences under the following Acts of Parliament are prescribed:

20. An officer shall determine that a foreign national is inadmissible on health grounds if an assessment of their health condition has been made by an officer who is responsible for the application of sections 29 to 34 and the officer concluded that the foreign national's health condition is likely to be a danger to public health or public safety or might reasonably be expected to cause excessive demand.

21. Protected persons within the meaning of subsection 95(2) of the Act are exempted from the application of section 39 of the Act.

22. Persons who have claimed refugee protection, if disposition of the claim is pending, and protected persons within the meaning of subsection 95(2) of the Act are exempted from the application of paragraph 40(1)(a) of the Act.

23. For the purposes of paragraph 42(a) of the Act, the prescribed circumstances in which the foreign national is inadmissible on grounds of an inadmissible non-accompanying family member are that

(a) the foreign national has made an application for a permanent resident visa or to remain in Canada as a permanent resident; and

(i) the spouse of the foreign national, except where the relationship between the spouse and foreign national has broken down in law or in fact,

(iii) a dependent child of the foreign national and either the foreign national or an accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law, or

(iv) a dependent child of a dependent child of the foreign national and the foreign national, a dependent child of the foreign national or any other accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law.

24. For the purposes of subsection 38(2) of the Act, a foreign national who has been determined to be a member of the family class is exempted from the application of paragraph 38(1)(c) of the Act if they are

(a) in respect of the sponsor, their conjugal partner, their dependent child or a person referred to in paragraph 117(1)(g); or

(b) in respect of the spouse, common-law partner or conjugal partner of the sponsor, their dependent child.