Vol. 137, No. 39 — September 27, 2003

Regulations Amending the Immigration and Refugee Protection Regulations

Statutory Authority

Immigration and Refugee Protection Act and Financial Administration Act

Sponsoring Department

Department of Citizenship and Immigration

REGULATORY IMPACT
ANALYSIS STATEMENT

Introduction

The Immigration and Refugee Protection Regulations came into force on June 28, 2002. Since that time, a number of technical amendments have been identified to clarify the meaning of the current provisions and to reflect more accurately the Department's policies.

Structure of the RIAS

For greater ease of reading and reference, the RIAS has been divided into segments which are analysed independently.

I — Temporary Residents

II — Family Issues

III — Business Immigrants and Skilled Workers

IV — Refugees

V — Permanent Residents

VI — Permanent Resident Card

VII — Enforcement

VIII — Fees

Cooperation with the Provinces and Territories

The provinces and territories were consulted extensively prior to the implementation of the Immigration and Refugee Protection Act (IRPA), and had input into the development of the policies now reflected in the Regulations. Cooperation with the provinces and territories is ongoing in areas of shared jurisdiction. The amendments regarding the Business Immigration Program were specifically developed in cooperation with the provinces and territories.

Consultations

Throughout the process of implementing the IRPA and its regulations, the Department has carried out on-going consultations with stakeholders, immigration and refugee advocacy groups and practitioners. For example, CIC took note of issues that were raised in discussions with Human Resources and Development Canada (HRDC), the Canadian Bar Association (CBA), the Immigration and Refugee Board (IRB), the United Nations High Commission for Refugees (UNHCR), the Canadian Council for Refugees (CCR), the Immigration Practitioners Operations and Operational Policy Working Group (now known as CIC and Immigration Practitioners Working Group) and various non-governmental organizations. The proposed amendments are reflective of the feedback that was received.

Gender-based Analysis

Gender-based analysis (GBA) is an analytical framework that assesses the differential impacts of policy, programs and legislation for men and women as well as the differential impact for various groups of men and women. A GBA Chart for the IRPA and its regulations was published as an annex to the RIAS in Part II of the Canada Gazette on June 14, 2002. The current regulatory refinements and improvements have undergone a similar process. Key issues and changes have been assessed for potential gender and diversity impacts and areas for future monitoring, research and data collection have been identified. The chart in Annex A identifies the regulatory area, potential gender impacts and areas that will require data collection, monitoring, analysis and follow-up.

I — TEMPORARY RESIDENTS — PART 1; PART 2, DIVISION 2; PART 9; PART 11; PART 12

Description

Amendments to provisions affecting temporary residents are required to ensure that the regulatory provisions capture the original policy intent, to facilitate entry into Canada of legitimate temporary residents, to provide greater clarity, and to ensure French/ English consistency.

What the regulations do:

The proposed changes to the Regulations:

— clarify the time limit for crew members to join ships;

— prescribe a new requirement to be met by students when applying for renewal of their study permit;

— expand the categories of temporary workers that can apply at a port of entry for their authorization to work;

— clarify the role of Human Resources Development Canada (HRDC) in providing an opinion to CIC.

What has changed

CREW MEMBERS

The amendments made to sections 3 and 184 of the Regulations clarify that crew members have only 72 hours to leave Canada when they are discharged from their duties or become unable or unwilling to perform their duties.

The proposed Regulations also make it clear in the French version that the requirement to join a means of transportation within 48 hours only applies to crew members who are entering Canada for the purpose of becoming a crew member, and not to those who are already entering as crew members on the means of transportation.

TEMPORARY WORKERS

Persons requiring a labour market opinion (confirmation) from Human Resources Development Canada (HRDC) are not currently allowed to apply at a port of entry unless they are citizens of the United States or residents of St. Pierre et Miquelon. The proposed amendments allow visa-exempt foreign nationals to apply for a work permit at a port of entry if they hold a confirmation from HRDC. This change is expected to facilitate the entry of visa-exempt HRDC-confirmed workers who need to start work in Canada quickly. However, this will not apply to seasonal agricultural workers and participants in the Live-In Caregiver Program, who have to apply at a mission abroad. All applicants still have the option of applying for their work permits at a mission abroad.

— Application after entry

The amendment to paragraph 199(b) of the Regulations eliminates the three-month waiting period previously required to apply for a work permit for temporary workers who are already working in Canada without a permit. This change focuses on workers such as crew or athletes who enter Canada as workers not requiring work permits. They can apply within Canada if they subsequently need to join the Canadian labour market in another capacity.

The proposed Regulations allow foreign nationals with valid visitor status to apply for a work permit from within Canada if they intend to work in a foreign mission in Canada and have a written statement of non-objection from the Department of Foreign Affairs and International Trade (DFAIT). Under the current regulations they would have to apply for their work permit outside Canada.

— Economic effect

The word 'economic' was removed from before 'effect' in subparagraph 200(1)(c)(iii) and subsection 203(1) to clarify that the opinion provided by HRDC is an opinion on the effect of offered employment on the labour market. HRDC does not provide an opinion on the broader economic effect. This change does not reflect a change in the HRDC opinion process, but merely corrects an inaccuracy.

— Other requirements

The restriction that a foreign national not be 'inadmissible' was removed from the work permit issuance requirements to ensure that Temporary Resident Permit holders could be authorized to work.

The wording of subsection 203(3) was changed to better reflect the criteria on which the factor is assessed as well as the criteria considered by HRDC.

STUDENTS

— Medical requirements

The proposed Regulations modify the medical requirements for study permit applicants who are work permit holders making refugee claims, work permit holders subject to an unenforceable removal order and protected persons or persons who were granted permanent residency on compassionate and humanitarian grounds [R216(2)]. These persons are now requested to meet the requirements of medical examinations found in section 30 of the Regulations when applying for a study permit. Considering that students will consort with classmates, such medical requirements are necessary to ensure standards of public health.

— New requirements

A new requirement is being proposed for the renewal of study permits. The proposed Regulations require foreign nationals to demonstrate that they are in "good standing" at the educational institution at which they have been studying. This regulatory change is necessary to protect the integrity of the program by refusing to renew study permits to students who have discontinued their studies after their entry.

The proposed Regulations also exempt foreign nationals who have been notified of successful completion of the requirements for a degree or a diploma from providing a letter of acceptance from an educational institution when applying to renew their study permit for a period of 90 days or less. This amendment will help foreign students apply for a post-graduate work permit. The current regulations provide that they can apply for this work permit within 90 days of notification of graduation, but only if their study permit is still valid. The amendment will allow students to bridge between study and work permits.

Alternatives

There is no alternative to regulating, since these changes modify regulatory requirements and clarify regulatory provisions.

Benefits and Costs

These amendments provide for greater program integrity, reduce ambiguity and ensure a more consistent application of medical requirements. The possibility to apply for a work permit at ports of entry will facilitate entry to foreign workers and improve client service in these areas.

The small increase in workload at ports of entry will be absorbed within existing resources. There are no significant additional costs associated with these amendments.

Compliance and Enforcement

Where a foreign national fails to meet the requirements for renewal of a study permit, the application is refused and the person is required to leave Canada. Failure to do so may result in a removal order being issued.

Crew members who do not leave Canada within 72 hours after ceasing to be a crew member may be subject to an inadmissibility report and be issued a removal order.

Work permit holders who have made a refugee claim, work permit holders subject to an unenforceable removal order, protected persons or persons who were granted permanent residence on compassionate and humanitarian grounds and who do not hold a valid medical certificate will not be issued a study permit. Foreign nationals applying outside Canada, temporary residents and foreign nationals applying to become permanent residents in Canada will all be required to comply with the same regulatory provisions concerning medical certificates.

Contact

Frank Andrews, Acting Director, Economic Policy and Programs, Selection Branch, Citizenship and Immigration Canada, Jean Edmonds Tower North, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 957-5805 (Telephone), (613) 954-0850 (Facsimile).

II — FAMILY ISSUES — PART 1; PART 2, DIVISION 2; PART 7; PART 20

Description

Proposed changes in Family Class regulations address discrepancies between the English and French versions of the Regulations, correct inconsistencies in terminology, provide for consistency with other classes where treatment was inconsistent, and modify provisions to correctly reflect the original policy intent.

What the regulations do

The proposed changes to the Regulations:

— Ensure that some family members who were not examined as part of their sponsor's application for immigration to Canada are not excluded from the family class;

— Clarify that the dissolution of a conjugal relationship between two persons and a subsequent resumption of a conjugal relationship between these two persons to facilitate immigration constitutes an act of bad faith;

— Allow new family members to be added to applications of persons applying in the family class;

— Clarify the criminal offences that would prevent a permanent resident or a Canadian citizen from sponsoring a member of the family class;

— Clarify the transitional provision for fiancés to reflect the original policy intent.

What has changed

The amendments to subparagraph (c)(ii) of the definition of "minimum necessary income" ensure consistency of wording with other parts in section 2 of the Regulations.

The amendment to paragraph 117(4)(a) of the Regulations removes the reference to provincial rules governing adoptions over the age of 18 because no province has such legislation.

The amendments to section 117 of the Regulations ensure that certain family members who were not examined as part of a sponsor's application for immigration to Canada are no longer excluded from the family class and could be sponsored. These family members were originally not examined because they were not required to be examined for administrative or policy reasons. This change affects family members of refugees, persons who submitted humanitarian and compassionate applications in Canada and persons who applied prior to the coming into force of IRPA.

By moving the provision for excluding former spouses and common-law partners from paragraph 117(9)(d) to section 4 of the Regulations, the amendments make clear that dissolution and subsequent resumption of a conjugal relationship to facilitate immigration constitutes an act of bad faith.

The amendments provide that new family members can be added to the application of a person applying in the family class. This is consistent with the treatment of family members in the economic and refugee classes.

The amendments add children to be adopted and children in guardianship arrangements to section 132 of the Regulations, which defines the duration of a sponsorship agreement for a sponsored foreign national. The duration of the sponsorship agreement will be the same as the duration of the sponsorship agreement for all other dependent children, i.e. the earlier of ten years from becoming a permanent resident or the 25th birthday of the child.

The amendments to paragraph 133(1)(e) modify the bar for sponsorship for persons convicted under the Criminal Code of an offence of a sexual nature, or an attempt or a threat to commit such an offence. This amendment reflects the policy intention to bar sponsorship for persons convicted of sexual offences, whether the victim is a relative or not, and to bar sponsorship for persons convicted under the Criminal Code of an offence that results in bodily harm or an attempt or a threat to commit such an offence where these crimes are committed against a family member or relative of a family member.

Finally, the amendments modify the transitional provisions for fiancés to ensure that applications for permanent residence supported by a sponsorship application that was submitted prior to June 28, 2002, are processed under the former Act and Regulations.

Alternatives

There are no alternatives available for making these clarifications. An alternative with respect to policy issues would be to address omissions through administrative guidelines. Although the guidelines are publicly available, placing these requirements in regulation increases transparency and creates certainty for applicants.

Benefits and Costs

These amendments aim at creating certainty for the immigration program and for family class applicants. Modifications that reflect policy intentions increase transparency and ensure that family class regulations are consistent with policy goals of the Government. The amendments clarify the requirements for sponsors and sponsored family members and correct unintended exclusions from the family class so that the affected family members can be sponsored and immigrate to Canada.

There are no additional costs associated with these regulatory amendments.

Compliance and Enforcement

Non-compliance with requirements may lead to refusal of applications or to the loss of permanent resident status.

Contact

Johanne DesLauriers, Director, Social Policy and Programs Division, Selection Branch, Citizenship and Immigration Canada, Jean Edmonds Tower North, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 941-9022 (Telephone), (613) 941-9323 (Facsimile).

III — BUSINESS IMMIGRANTS AND SKILLED WORKERS — PART 6

Description

The amendments to the regulations concerning Business Immigrants and Skilled Workers clarify the selection requirements in both categories. The amendments also modify the provisions regarding arranged employment to bring them closer to the original policy intent.

What the regulations do

The proposed changes to the Regulations:

— Clarify the definition of "qualifying business";

— Define the non-transferable aspect of the debt obligation for a fund that is approved by the Minister in the Investors Class;

— Clarify that the one-year continuous employment requirement in the federal skilled worker class applies to both full- and part-time employment;

— Clarify that where an applicant does not meet the minimum funds requirement, an officer may not substitute an evaluation in order to overcome the requirement;

— Broaden and clarify the circumstances where points for arranged employment may be awarded to applicants.

What has changed

BUSINESS IMMIGRANTS

The definition of "qualifying business" in subsection 88(1) of the Regulations is amended to make it clear that each year will be considered individually against the job, sales, income and asset requirements for the purpose of establishing "business experience."

Paragraph 92(e) of the Regulations is amended to limit the non-transferable aspect of the debt obligation in certain circumstances and to limit the non-transferable aspect of the debt obligation to the duration of the allocation period.

Amendments are proposed to paragraphs 108(1)(b) and (c) of the Regulations to introduce a generic reference to provinces which have entered into agreements with the Minister and a generic reference to selection certificates. This makes it clear that, although Quebec is the only province to date that has entered into such an agreement, other provinces will be able to do so in the future.

SKILLED WORKERS

— Requirements

The minimum requirement that in the preceding ten years an applicant has had at least one year of continuous full-time employment experience (or the equivalent in part-time employment) has been amended to clarify that the employment experience, whether full- or part-time, must be continuous. Short periods of part-time employment experience dispersed throughout the preceding ten years cannot be added up to meet the one-year employment experience requirement.

The proposed Regulations clarify that a visa officer cannot use positive substitution of evaluation — a provision that permits a visa officer to recommend the granting of a permanent resident visa to an applicant who has obtained insufficient points on the selection grid — to overcome the minimum funds requirement.

The amendments establish that the Minister shall set the minimum language test results required by applicants to be awarded points for the different language abilities and levels of proficiency included in the selection grid. This clarifies that the correlation of designated language test scores to the Canadian Language Benchmarks 2000 or the Standards linguistiques canadiens 2002 is not intended to be done on a case-by-case basis.

— Arranged Employment

With regard to the arranged employment of a skilled worker, the amendments specify that, under section 203 of the Regulations, the officer must determine the effect this offer of employment has on the labour market in Canada rather than its economic effect.

The amendments clarify that, in addition to being valid at the time the application for permanent residence is submitted, a work permit must also be valid at the time the permanent resident visa is issued in order for the applicant to be awarded points for arranged employment. This amendment ensures that applicants' opportunities to obtain arranged employment points to support their applications for immigration will not be prejudiced in the event that processing delays should occur. As the Regulations currently stand, to be awarded points for arranged employment, the work permit must be valid for a period of at least 12 months after the date of application for a permanent resident visa. However, many work permit holders such as those in Canada under the North American Free Trade Agreement (NAFTA) can only be issued permits for up to 12 months. By the time they are working in Canada and apply for permanent residence, they would have less than 12 months left on their work permit and would not be eligible for arranged employment points. This is inconsistent with the intent of the original policy of facilitating the retention of skilled workers in Canada.

Further amendments under arranged employment clarify the standards that are required for wages offered to the skilled worker and the working conditions.

The Arranged Employment section is modified to define the types of occupations that are acceptable and to allow skilled worker applicants holding temporary work permits points under this provision. In this respect:

— Amendments to subsection 82(2) of the Regulations specify that offers of arranged employment must be in Skill Type 0 or Skill Levels A or B of the National Occupational Classification (NOC) matrix. Bringing in skilled workers who have arranged employment at their skill level ensures that they have better economic prospects;

— The group of persons eligible for arranged employment points has been amended to include recent graduates who have studied and worked in Canada. These applicants have good economic settlement potential as skilled worker immigrants. Without the amendments to the provision, skilled workers who are recent graduates have greater difficulty in obtaining arranged employment points, as a permanent job offer needs to be confirmed by the Department of Human Resources Development Canada (HRDC) in order to be eligible;

— Eligibility for arranged employment points under the federal skilled worker class has also been broadened to include applicants with a permanent job offer for employment other than the one for which they currently hold a work permit. These applicants are not covered under the current section 82 of the Regulations and, given that these skilled workers are already working in Canada, they would be more likely to successfully establish themselves economically. This is consistent with the overall government direction of facilitating the retention of skilled workers with permanent job offers from Canadian employers. Other work permit holders who may be eligible for arranged employment points include:

(1) foreign nationals who intend to perform work pursuant to an agreement entered into by one or more countries and by or on behalf of one or more provinces;

(2) foreign nationals who intend to perform work pursuant to an agreement entered into by the Minister with a province or group of provinces under subsection 8(1) of the Act, such as persons selected under Provincial Nominee Agreements. They must have an offer of permanent employment which has been confirmed by Human Resources Development Canada (HRDC);

(3) foreign nationals who intend to perform work that would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries, such as persons on youth exchange programs, exchange professors or visiting lecturers. They must have an offer of permanent employment which has been confirmed by HRDC;

(4) foreign nationals who intend to perform work that is designated by the Minister as being work that can be performed by a foreign national on the basis of the following criteria, namely, the work is related to a research, educational or training program, such as foreign students whose intended employment forms an essential and integral part of their course of study in Canada and persons coming to Canada to work temporarily for the International Development Research Centre of Canada. They must have an offer of permanent employment which has been confirmed by HRDC;

(5) foreign nationals who intend to perform work that is of a religious or charitable nature, such as priests or missionaries. They must have an offer of permanent employment which has been confirmed by HRDC;

(6) foreign nationals issued a work permit because they had no other means of support while awaiting a determination on a claim for refugee protection or as a subject to an unenforceable removal order. They must have an offer of permanent employment which has been confirmed by HRDC;

(7) foreign nationals in Canada who have an offer of permanent employment which has been confirmed by HRDC and who

(a) are members of the live-in caregiver class set out in Division 3 of Part 6 and meet the requirements of section 113;
(b) are members of the spouse or common-law partner in Canada class set out in Division 2 of Part 7;
(c) are protected persons within the meaning of subsection 95(2) of the Act;
(d) have applied to become permanent residents and the Minister has granted them an exemption under section 25 of the Act; or
(e) are family member of a person described in any of paragraphs (a) to (d).

(8) foreign nationals who have an offer of permanent employment which has been confirmed by HRDC, who cannot otherwise continue residing temporarily in Canada and who

(a) hold a study permit and have become temporarily destitute through circumstances beyond their control and beyond the control of any person on whom they are dependent for the financial support to complete their term of study; or
(b) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months.

Alternatives

There is no alternative to regulations in view of the fact that these proposed Regulations are amendments to existing skilled worker and business immigrant regulations.

Benefits and Costs

Benefits

Making these changes will increase the pool of potential skilled workers from which Canadian employers may draw upon to meet their needs. This will contribute to the Government's commitment to make Canada a magnet for talented foreign students and skilled workers as well as to promote economic growth in Canada.

Costs

The proposed Regulations will not impose any significant costs on the Department. The cost of processing additional applications will be absorbed within existing resources.

Compliance and Enforcement

Applicants who fail to meet the requirements set out in the Regulations for the economic classes will not be issued a permanent resident visa. Those applicants who are already in Canada and who are without status will be required to leave. Failure to do so may result in a removal order being issued.

Contacts

Business Immigrants

Don Myatt, Director, Business Immigration Division, Selection Branch, Citizenship and Immigration Canada, Jean Edmonds Tower N, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 957-0001 (Telephone), (613) 941-9014 (Facsimile).

Skilled Workers

Frank Andrews, Acting Director, Economic Policy and Programs, Selection Branch, Citizenship and Immigration Canada, Jean Edmonds Tower N, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 957-5805 (Telephone), (613) 954-0850 (Facsimile).

IV — REFUGEES — PART 4, DIVISION 3; PART 8, DIVISION 1

Description

Three main changes are proposed to the provisions related to refugees with the view of facilitating the entry of refugees to Canada and their acquisition of permanent residence status, in accordance with international agreements.

What the regulations do

The proposed changes to the Regulations:

— Facilitate the referral of refugees identified by foreign governments;

— Create a new Protected Temporary Residents Class;

— Clarify that pending post-determination refugee claimants in Canada (PDRCC) benefit from a stay of removal until a decision on their pre-removal risk assessment (PRRA) is made.

What has changed

The current Regulations specify that refugee claimants abroad may be referred to Canada for resettlement by the United Nations High Commissioner for Refugees, or by an organization that has entered into a memorandum of understanding with the Minister. Refugees may also be sponsored by approved groups, corporations, organizations or associations.

The amendments to the Regulations (section 138, "referral organization" subparagraph (b)) clarify that foreign governments in the course of their day-to-day refugee resettlement activities may be referral organisations for the purpose of facilitating identification and referral of refugees who meet Canada's refugee selection criteria.

The amendments also ensure that a foreign government with which Canada has entered into an agreement that includes a resettlement component is able to make referrals under the agreement without the need for a separate memorandum of understanding with the Minister.

An amendment to the Regulations creates a new Protected Temporary Residents Class, which sets out the rules for acquiring permanent residence from within Canada: the creation of the Protected Temporary Residents Class ensures that refugees resettled from outside Canada on temporary resident permits, as well as those who have entered Canada on a Minister's permit, are able to apply for permanent residence from within Canada, at no cost and without a waiting period. Members of the Protected Temporary Residents Class will have to meet all requirements of the Act and of the Regulations to become permanent residents.

The amendments to section 346 of the transitional provisions in the Regulations clarify that persons who did not have a pre-removal risk assessment under the post-determination refugee claimants in Canada Class before IRPA came into force (pending PDRCCs) can benefit from a stay of removal.

Alternatives

There are no workable alternatives to a regulatory framework for the transitional provisions as well as the domestic asylum and resettlement programs. New regulations are required to support the delivery of these programs.

Any administrative measure or use of discretionary authority under the Act to enable refugees resettled from outside Canada on permits to become permanent residents in Canada would create a cumbersome process that would be contrary to the efficiency desired for the application of the IRP Regulations and would be contrary to the urgent need for resettlement of these persons.

Benefits and Costs

Benefits

These Regulations give the Minister the flexibility to work with foreign governments in the resettlement of refugees and to implement international agreements that include burden-sharing through resettlement components. In addition, the new provisions create a simpler way for refugees in urgent need of protection to become permanent residents. The changes also ensure that refugee claimants refused under the old Act who were awaiting a risk assessment prior to their removal will benefit from the same stay of removal as persons who have applied for a PRRA under the new Act.

Costs

There are no additional costs associated with these Regulations other than the communication materials required to inform staff of the changes found in the provisions.

Compliance and Enforcement

All decisions made about refugee applications are subject to a quality assurance program, which measures the quality of decision-making and the reliability of information provided. In addition, decisions concerning resettlement refusals are subject to review by the Federal Court.

Unless an applicant is described in an exception under the Regulations, the new transitional rules clarify that no refused refugee claimants will be removed without first having benefited from an assessment of the risk they could face if returned to their country of origin.

Contact

Rick Herringer, Director, Resettlement Division, Refugees Branch, Citizenship and Immigration Canada, Jean Edmonds Tower South, 17th Floor, 365 Laurier Avenue W, Ottawa, Ontario K1A 1L1, (613) 957-9349 (Telephone), (613) 957-5836 (Facsimile).

V — PERMANENT RESIDENTS — PART 5

Description

The Permit Holder Class (PHC) and the Humanitarian and Compassionate (H&C;) Category under IRPA allow certain foreign nationals who would otherwise be inadmissible to become permanent residents if their circumstances warrant an exception. The H&C; category is for foreign nationals who, for reasons of hardship, cannot apply for permanent residence outside Canada. The PHC is for foreign nationals in Canada who, having applied for permanent residence outside Canada were issued a temporary resident permit and who, despite a continuing inadmissibility, may apply in Canada for permanent residence through passage of time.

What the regulations do

The proposed changes to the Regulations:

— Exclude family members of in-Canada H&C; Category applicants who are not in Canada from concurrent processing for a permanent resident visa;

— Create a new Protected Temporary Residents Class (PTRC) for the resettlement of refugees in urgent need of protection to enable them to apply quickly for permanent residence in Canada;

— Consolidate Permit Holder Class (PHC) provisions by amalgamating the class provisions with the permanent residence requirements that apply to these persons;

— Ensure that all members of a family who are inadmissible by virtue of one family member being inadmissible for health grounds are subject to the same waiting period before they can apply for permanent residence in Canada.

What has changed

The amendments to the H&C; provisions clarify that family members who are in Canada may become permanent residents concurrently with the principal applicant. They also clarify that family members who are outside Canada cannot be processed for permanent resident visas concurrently with the principal applicant. This maintains the original policy intent of limiting exceptional provisions to foreign nationals and their family members who are in Canada. Family members outside Canada do not require an exception from applying outside Canada. They can be processed as members of the Family Class supported by a sponsorship or can, if required, request H&C; consideration through visa offices.

The creation of the new Protected Temporary Residents Class (PTRC) for resettlement of refugees in urgent need of protection is explained in further detail in the Refugee part of this RIAS. This change will allow refugees in urgent need of protection to apply for permanent residence within Canada without delay, unlike members of the Temporary Resident Permit Holders class.

The PHC is removed from the list of classes under subsection 72(2) of the Regulations because the nature of this class of persons is not consistent with the other classes in this list. The requirements to become a permanent resident related to this class are grouped together under Division 4 of Part 5 of the Regulations. This clarifies in the Regulations that this is an exceptional class consistent with the other exceptional provisions under H&C.; These provisions make it clear that, to become permanent residents, applicants and their family members should not be inadmissible for reasons other than the one(s) for which the permit was issued. Under the PHC, each member of the family is holding their own Temporary Resident Permit and as such can apply for permanent residence in their own right. Family members outside Canada cannot be processed for permanent resident visas concurrently with the permit holder in Canada, which is consistent with the H&C; provisions.

In addition, decreasing from five to three years the continuous period of residence for family members who are permit holders ensures that all members of the same family who are inadmissible by virtue of an accompanying family member who is inadmissible on health grounds can be processed for permanent residence concurrently. This corrects the current provisions, which allow members of the class who are inadmissible on health grounds to apply for permanent residence after three years while other members of their family who are permit holders cannot apply for five years.

Alternatives

There are no alternatives to regulations to address these changes.

Benefits and Costs

Benefits

These changes are required to ensure that regulatory provisions on permanent residence serve the purpose for which they were intended. They create a more consistent approach to permanent resident applications and, in doing so, may avoid unnecessary litigation.

Costs

There are no additional costs associated with these regulatory changes.

Compliance and Enforcement

Applicants who fail to meet the requirements set out in the Regulations and who do not qualify for exceptional provisions will not become permanent residents. Those applicants who are inadmissible will be required to leave if their temporary resident status has expired. Failure to do so may result in a removal order being issued.

Contact

Johanne DesLauriers, Director, Social Policy and Programs Division, Citizenship and Immigration Canada, Jean Edmonds Tower North, 7th Floor, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 941-9022 (Telephone), (613) 941-9323 (Facsimile).

VI — PERMANENT RESIDENT CARD — PART 5, DIVISION 1

Description

The Immigration and Refugee Protection Act (IRPA) requires that permanent residents be provided with a document indicating their status in Canada. Paragraph 32(f) of the IRPA authorizes the creation of regulations pertaining to the issuance of a status document for permanent residents (permanent resident card). The proposed amendments are intended to clarify and simplify the application process for the permanent resident card.

What the regulations do

— Clarify the requirements for the issuance of a permanent resident card (PR Card);

— Expand the range of documents which can be provided in support of a PR Card application;

— Clarify that permanent residents who did not submit the mandatory information to be provided with a PR Card must make an application for a PR Card to be issued;

— Impose additional mandatory information that must be provided to the Department before a PR Card can be provided;

— Clarify the time frames and distribution process of PR Cards.

What has changed

The proposed amendments clarify that PR Cards are documents indicating the status of permanent residents, whether they are provided to a new permanent resident under IRPA, are issued to a permanent resident who obtained that status under the former Act, or issued, upon application, to a permanent resident who obtained their status under IRPA. The amendments also clarify that applicants must meet the same requirements whether they are applying for a first PR card or for a replacement card. The amendments simplify the regulatory language and make clear that an application for a PR card must be made in Canada.

The current Regulations require applicants to provide the Department with a certified copy of their passport to obtain a permanent resident card. This has created difficulties for applicants who do not have access to a passport, and raised concerns about the expense and inconvenience associated with the requirement to certify copies of supporting documentation. The amendments respond to these concerns by expanding the range of documents which can be provided in support of a PR Card application to include all passports, travel documents and related documents currently accepted for the purpose of obtaining permanent resident status.

These amendments also eliminate the requirement to have copies certified. However, in order to maintain the integrity of the application process, a requirement has been added directing applicants to produce originals of these documents when they report to pick up their PR cards.

There are practical considerations associated with the production of the PR card. For example, a PR card cannot be produced without an image of the client's signature and adequate photograph. This imposes limits on the Department's ability to provide cards where the information and documents provided are inadequate. The amendments require the permanent resident to provide this information within 180 days of their entry into Canada in order to be provided with a PR Card. Permanent residents who do not comply with these requirements will be required to make an application for their PR Card and pay the application fee.

Finally, the amendments clarify the process for distribution of PR Cards. A notice sent by the Department to the applicant indicates the time and place where they have to report to pick up their card. Where applicants do not comply within 180 days of the date the notice was mailed, the card will be destroyed and the applicant must make a new application in order to obtain a PR Card. The amendments eliminate the current language making reference to the Department otherwise delivering the card and clarify the distribution process and timing.

Alternatives

These amendments represent adjustments to existing regulations and, as such, could not be accomplished with administrative guidelines.

Benefits and Costs

Benefits

These amendments are mainly facilitative in nature and respond positively to the concerns of applicants, practitioners and stakeholders. The requirements to provide a passport and certified documents were originally introduced to ensure that the applicant be properly identified and to minimize the risk of fraudulent applications. Those permanent residents who could not access a passport were caught in circular provisions where they needed the permanent resident card to obtain a travel document from the Department of Foreign Affairs and International Trade. The elimination of this requirement will result in improved client service. The new requirement to have clients produce originals of supporting documents when they pick up their PR Card will maintain the integrity of the application process, while simplifying administrative requirements.

Costs

There are no new costs associated with these amendments. The review of original documents at the point of PR Card distribution has already been implemented as an administrative practice. The amendments will serve to reduce the number of applications returned for correction, and will result in a modest reduction in processing costs. Simplification of language may result in fewer calls to the Call Centre for clarification of requirements.

Compliance and Enforcement

Applications that fail to provide the information specified by the Regulations will not be processed and will be returned to the applicant. Applicants who do not comply with time frames for providing information or picking up their card will have to re-apply and pay the application fee.

Contact

Pierre Goulet, Director, Enforcement Program Development, Enforcement Branch, Citizenship and Immigration Canada, 300 Slater Street, Ottawa, Ontario K1A 1L1, (613) 946-5007 (Telephone), (613) 954-2381 (Facsimile).

VII — ENFORCEMENT — PART 3; PART 13, DIVISION 2; PART 17; PART 20, DIVISION 3

Description

The purpose of these amendments is to refine several enforcement provisions of the Immigration and Refugee Protection Regulations (IRP Regulations) to ensure that they accurately reflect the intent of the policy. This is the case for amendments proposed with respect to deemed rehabilitation and the obligations of transportation companies. The amendments also clarify that the Immigration Division of the Immigration and Refugee Board has jurisdiction over cases involving unaccompanied minor children or unaccompanied persons unable to appreciate the nature of the inquiry proceedings.

What the regulations do

The proposed changes to the Regulations:

— Clarify the requirements to be met for persons with a criminal record to benefit from a deemed rehabilitation;

— Correct inconsistencies between French and English versions of the Regulations;

— Allow the Immigration Division of the Immigration and Refugee Board (IRB) to issue a removal order at a hearing resulting from multiple allegations that include failure to comply with residency obligations;

— Prescribe that all reports on inadmissibility concerning unaccompanied minors or persons who are incapable of understanding the proceedings will be referred to the Immigration Division for a hearing before a removal order can be issued;

— Clarify situations where transportation companies will not be assessed administrative fees for bringing in foreign nationals found to be inadmissible;

— Ensure that all persons will be notified by transportation companies when information about their passengers is provided to the Department;

— Clarify transitional provisions regarding Minister's opinions issued under the former Act for human rights violations.

What has changed

DEEMED REHABILITATION

Section 18 of the current Regulations provides that foreign nationals with a criminal record who are deemed to be rehabilitated are no longer inadmissible to enter or remain in Canada under the Immigration and Refugee Protection Act (IRPA). This section is being amended to clarify the criteria for membership in the class. Persons who have been convicted of more than one offence that, if committed in Canada, would carry a maximum penalty of less than ten years in prison, are not included in the class. Foreign nationals who have two or more summary offence convictions in Canada are removed from the class and are instead exempted from the inadmissibility provision if at least five years have elapsed since a sentence for any offence was served. The revised regulations also clarify that there must not have been any other offence during the prescribed period immediately preceding the examination.

MINORS AND PERSONS UNABLE TO APPRECIATE THE NATURE OF THE IMMIGRATION PROCEEDINGS

The amendments clarify that the inadmissibility reports involving unaccompanied minors or persons who are incapable of understanding the proceedings should be referred to the Immigration Division for a hearing before a removal order can be issued. The Department's long-standing practice is to request that the Immigration Division designate a representative to act on behalf of such persons.

GUARANTEES

The regulations respecting the criteria for guarantors are amended to eliminate inconsistencies between the English and French text. The French text is amended to clarify that guarantees are forfeited when one member of a group fails to comply with the conditions of the deposit and to specify that certain requirements for guarantors apply only where the guarantee is not in the form of a deposit.

REMOVAL ORDERS

Amendments to the Regulations concerning removal orders clarify that the Immigration Division of the Immigration and Refugee Board may issue removal orders at a hearing resulting from a report on inadmissibility based on multiple allegations that include failure to comply with the residency obligation of section 28 of IRPA. While subsection 44(2) of IRPA provides that a report based solely on lack of compliance with the residency obligation may not be referred to the Immigration Division, the Act does not limit the Immigration Division's authority regarding reports of inadmissibility that contain multiple allegations. An inconsistency between the French and English text has also been corrected to clarify that the Immigration Division has jurisdiction over permanent residents when a report is referred to the Division.

TRANSPORTATION COMPANIES

The Regulations are amended to clarify that commercial transportation companies will not be assessed administration fees for bringing visa-exempt foreign nationals to Canada who are found to be inadmissible because they intend to remain in Canada permanently. Transportation companies' obligations are limited to the verification of travel documents and visas; they are not required to assess the bona fides of their passengers. Minor changes were also made to achieve greater French/English consistency. Section 270 of the Regulations is being rescinded. As a result, under the proposed regulations all travellers will have to be notified by the transportation company when information given to them is being provided to the Department. This obligation is currently limited to cases where the person is subject to an inadmissibility report, an arrest or a removal order.

TRANSITIONAL PROVISIONS

A transitional amendment is included to clarify that opinions regarding the human rights records of foreign governments made under paragraph 19(1)(l) of the former Immigration Act continue to be valid for the application of paragraph 35(1)(b) of the IRPA.

Alternatives

There is no alternative to regulation making, given the substantive nature of these amendments relating to the rights and obligations of persons and transportation companies under the IRPA.

Benefits and Costs

By reducing the uncertainty surrounding the interpretation to be given to these provisions, these amendments will help avoid unnecessary litigation. The amendments also provide for increased procedural safeguards for unaccompanied minors and persons who are unable to appreciate the nature of the proceedings by ensuring that an independent decision-maker will have proper authority to appoint them with a representative.

Compliance and Enforcement

The elimination of ambiguity in the rehabilitation provision will improve CIC's ability to ensure compliance with the inadmissibility provisions. Under the proposed Regulations, foreign nationals who do not meet the requirements for rehabilitation are inadmissible on criminality grounds, which could lead to a removal order. The proposed jurisdiction of the Immigration Division will enhance the government's ability to ensure procedural fairness for unaccompanied minors and others who are unable to appreciate the nature of the proceedings. The proposed Regulations also ensure that allegations against permanent residents do not remain unresolved by giving the Immigration Division of the Immigration and Refugee Board the authority to make a determination on all allegations submitted. Finally, the proposed Regulations clarify that opinions issued by the Minister under the former Immigration Act in relation to terrorism, systematic or gross human rights violations, or any act or omission that would be considered a crime against humanity constitute an opinion under IRPA and could be used in corresponding inadmissibility proceedings.

Contact

Neil Cochrane, Director, Hearings and Inadmissibility, Enforcement Branch, Citizenship and Immigration Canada, 300 Slater Street, 8th Floor, Ottawa, Ontario K1A 1L1, (613) 957-4333 (Telephone), (613) 954-5238 (Facsimile).

VIII — FEES — PART 19

Description

Section 89 of the Immigration and Refugee Protection Act (IRPA) provides regulatory authority to establish fees for services provided in the administration of the Act and for waiver of fees by class. Section 19.1 of the Financial Administration Act provides regulatory authority to charge fees for rights and privileges.

These amendments restore certain fee exemptions that existed under the 1976 Immigration Act. They also introduce several new fee exemptions to address applications in Canada in the new Protected Temporary Residents Class and to ensure consistent treatment of dependent children who are principal applicants in the Permit Holder Class or who seek permanent resident status on Humanitarian and Compassionate (H&C;) grounds.

What the regulations do

The proposed changes to the Regulations:

— reinstate fee exemptions for applications for multiple entry temporary resident visas;

— reinstate fee exemptions with respect to applications for temporary resident permits for members of the clergy or of a religious order and for persons who apply at the same time and place for a work permit or a study permit;

— introduce a fee exemption with respect to applications for temporary resident permits for persons identified under the Foreign Missions and International Organizations Act (FMIOA) who are attending meetings in Canada;

— introduce a fee exemption with respect to applications for temporary resident permits for persons in transit to Canada when a new temporary resident visa requirement is implemented;

— introduce a fee exemption for persons who are applying for permanent resident status inside Canada who are members of the Protected Temporary Residents Class;

— introduce three new fee exemptions with respect to the right of permanent residence fee (RPRF). These include: principal applicants applying under H&C; grounds who are dependent children of a permanent resident or of a Canadian citizen; members of the Permit Holder Class who are dependent children of a permanent resident or of a Canadian citizen; and members of the Protected Temporary Residents Class who entered Canada on Minister's permits prior to the coming into force of the IRPA.

What has changed

MULTIPLE-ENTRY TEMPORARY RESIDENT VISA

During the drafting of the Regulations, the fee exemption for multiple entry temporary resident visas was omitted and is now being restored for certain clients. This fee exemption currently exists for single entry temporary resident visas.

TEMPORARY RESIDENT PERMIT

Under the 1976 Immigration Act, a temporary resident permit fee exemption existed for persons who are a members of the clergy, members of a religious order or lay persons who are to assist a congregation or a group in the achievement of its spiritual goals. An exception also existed for persons, other than a group of performing artists and their staff, who apply at the same time and place for a work permit or a study permit. These exceptions are being reinstated.

The Foreign Missions and International Organizations Act (FMIOA), which, pursuant to a recent amendment, has precedence over determinations of inadmissibility under the IRPA, necessitates the creation of a fee exemption for temporary resident permits for foreign nationals assessed under the FMIOA.

When a temporary resident visa requirement is implemented, some foreign nationals in transit to Canada are rendered inadmissible to Canada as soon as the regulations come into force. The proposed amendments create a fee exemption for clients in these situations to ensure that they do not incur a financial burden to enter Canada on a temporary resident permit when there was no advance notice of the visa requirement.

PROTECTED TEMPORARY RESIDENTS CLASS

Members of this new class are considered to be the equivalent of protected persons abroad, and as such will not be required to pay cost-recovery fees in Canada.

RIGHT OF PERMANENT RESIDENCE

The proposed amendments create three fee exemptions. The first fee exemption relates to principal applicants who are also dependent children of permanent residents or Canadian citizens and who apply for permanent resident status under H&C; considerations. The second fee exemption is for members of the Protected Temporary Residents Class, including those who entered Canada on a Minister's permit under the former Immigration Act. Finally, a fee exemption is created for principal applicants who are also dependent children of permanent residents or of Canadian citizens in the Permit Holder Class.

Alternatives

There is no alternative to a regulatory change for these provisions.

Benefits and Costs

Benefits

The proposed amendments ensure consistent treatment of applications of dependent children in the family class, dependent children of permanent residents or Canadian citizens in the Permit Holder Class and dependent children of permanent residents or of Canadian citizens seeking H&C; consideration.

Restoring fee exemptions will also maintain consistency of the Government's fee exemption policy.

Costs

These regulatory changes will have a minor impact on Government revenue.

Compliance and Enforcement

As these changes relate to fee exemptions only, no compliance or enforcement issues are anticipated.

Contact

Gerry Derouin, Director General, Finance and Administration, Citizenship and Immigration Canada, Jean Edmonds Towers North, 4th Floor, 365 Slater Street, Ottawa, Ontario K1A 1L1, (613) 957-4553 (Telephone), (613) 957-2775 (Facsimile).

Annex A

Immigration and Refugee Protection Act Amended Regulations Gender-Based Analysis

Gender-based analysis (GBA) is an analytical framework that assesses the differential impacts of policy, programs and legislation for men and women and for various groups of men and women. A GBA Chart for the Immigration and Refugee Protection Act was published as an annex in Part II of the Canada Gazette on June 14, 2002. The current regulatory refinements and improvements have undergone a similar process. Key issues and changes have been assessed for potential gender and diversity impacts, and areas for future monitoring, research and data collection have been identified.

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to section 5 of the Immigration and Refugee Protection Act (see footnote a)  and paragraphs 19(1)(a) (see footnote b)  and 19.1(a) (see footnote c)  of the Financial Administration Act, and, considering that it is in the public interest to do so, subsection 23(2.1) (see footnote d)  of that Act, proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 60 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice and be addressed to Alain Théault, Director General, Priorities, Planning and Research Branch, Department of Citizenship and Immigration, 365 Laurier Avenue West, 14th Floor, Ottawa, Ontario K1A 1L1.

Ottawa, September 19, 2003

EILEEN BOYD
Assistant Clerk of the Privy Council

Footnote a 

S.C. 2001, c. 27

Footnote b 

S.C. 1991, c. 24, s. 6

Footnote c 

S.C. 1991, c. 24, s. 6

Footnote d 

S.C. 1991, c. 24, s. 7(2)

Footnote 1 

SOR/2002-227

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