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TABLE OF CONTENTS HIGHLIGHTS OF THE IMMIGRATION AND REFUGEE PROTECTION ACT AND ITS REGULATIONS
All of these people are affected in some way by Canada's new Immigration and Refugee Protection Act and its Regulations. The purpose of this booklet is to present the highlights of the legislation in a way that will help Canadians and others more easily understand its chief provisions and objectives, and their rights under it. However, this is not a legal document. Readers who require a legal reference should consult the Immigration and Refugee Protection Act and the accompanying Regulations, available from: Canadian Government
Publishing
HIGHLIGHTS OF THE At a glance, the legislation:
THE ACT IN MORE DETAIL The immigration plan The Act provides the government with the flexibility to link immigration to Canada's labour market needs. The government's long-term objective is to move gradually to immigration levels of approximately one percent of Canada's population, while bearing in mind Canada's absorptive capacity. For a variety of reasons -- primarily Canada's popularity as a place to live -- the number of people who want to come to Canada is much greater than the number of foreign nationals Canada plans to admit in a given year. This has had an impact on the management of the immigration program, especially on how long it takes to process an application. Section 94 of the Act requires an annual report on the number of foreign nationals projected to become permanent residents in the following year. This number is determined after consultation with the provinces and with appropriate organizations and institutions. Section 94 also requires the federal government to table an annual report to Parliament on activities under the Act, including:
Immigration accounts for a significant part of Canada's population, rate of growth and demographic structure. It can therefore have a strong impact on regional and provincial planning. Under the Constitution, immigration is a shared responsibility between the federal government and the provinces, with federal legislation prevailing. Section 8(1) of the Act provides for federal-provincial agreements on immigration. The Minister must publish an annual list of the federal-provincial agreements that are in force. Section 10(2) of the Act provides a legal basis for the federal government to consult the provinces regarding the number, distribution and settlement of permanent residents. This provision ensures that the federal government considers regional requirements when developing or amending immigration and settlement policies. Immigration agreements have been concluded with a number of provinces and territories. The most comprehensive of these is an agreement with the Province of Quebec. The Canada-Quebec Accord gives Quebec certain selection powers and sole responsibility for integration services. Canada maintains responsibility for defining immigration categories, determining inadmissible persons, planning levels of immigration and enforcement. Regulations under the Act specifically describe classes of applicants destined for Quebec, such as the Quebec Skilled Worker Class. Students and temporary foreign workers intending to settle in Quebec require the province's consent. Quebec also has exclusive selection authority for all foreign nationals who are neither members of the Family Class nor persons whom the Immigration and Refugee Board has determined to be Convention refugees. The federal government currently has agreements in place with eight provinces and one territory, covering a range of issues including settlement and integration services, language training, labour market access and the Provincial Nominee Program, which allows provinces to nominate skilled workers who settle in their jurisdiction. Part of the cost of providing immigration services is underwritten through a cost-recovery program. Fees apply for a variety of services. Precise information can be obtained from the brochure Fee Schedule for Citizenship and Immigration Services. The Immigration and Refugee Board (IRB) is an independent, quasi-judicial administrative tribunal. The Board reports to Parliament through the Minister of Citizenship and Immigration. The Board's mandate is "to make well-reasoned decisions on immigration and refugee matters efficiently, fairly and in accordance with the law." The IRB consists of four divisions:
All decisions made under the Act, including decisions by the divisions of the IRB, can be judicially reviewed by the Federal Court of Canada, but only after all rights of appeal under the Act have been exhausted. However, applicants must first obtain leave from a Federal Court judge to initiate such a review. Since 1967, Canada's immigration program has been based on non-discriminatory principles, both in law and in practice. Citizenship and Immigration Canada (CIC) assesses foreign nationals on standards that do not discriminate on the basis of race, national or ethnic origin, colour, religion or sex. The immigration program is universal -- CIC assesses applicants from around the world against universal criteria that assess their ability to adapt to Canadian life and to settle successfully. The Act establishes three basic categories that correspond to major program objectives: reuniting families, contributing to economic development and protecting refugees. Applicants can be admitted to Canada as permanent residents under three corresponding classes: Family Class, Economic Class or Refugee Class. Helping families reunite in Canada is a key objective of Canada's immigration policy. Members of the Family Class are people sponsored to come to Canada by a relative, a spouse, a common-law partner or a conjugal partner who is a Canadian citizen or a permanent resident of Canada. The Family Class applicant must be the sponsor's:
Dependent children of a sponsored foreign national may be included in that person's application. A dependent child is either a biological child or an adopted child. Children can be dependent if they meet one of the following conditions:
In addition, spouses or common-law partners who are 16 years of age or older, and have legal temporary status in Canada as visitors, students, temporary workers or temporary resident permit holders may apply under the In-Canada Class. Applicants and their family members are subject to medical, criminal and background checks. Successful applicants become permanent residents of Canada, giving the applicant and his or her family members the right to live, study and work in Canada for as long as they remain permanent residents. Sponsors must support their sponsored family members or relatives after they become permanent residents of Canada.
The duration of these federal undertakings applies only to sponsorship agreements outside Quebec. Sponsors who live in Quebec are governed by Quebec's laws. For more information, visit the Web site of the ministère des Relations avec les citoyens et de l'Immigration (Quebec Immigration) at www.mrci.gouv.qc.ca. While a sponsorship undertaking is in effect, if the sponsored persons receive social assistance, the sponsor is in default and is required to repay the social assistance payments. Permanent residents admitted to Canada under the Economic Class are selected for their skills and ability to contribute to Canada's economy. The Economic Class is comprised of two streams: skilled workers and business immigrants. Canada values skilled immigrants who can effectively compete and succeed in the country's knowledge-based economy. Foreign nationals who are skilled workers are chosen for their ability to become successfully established in Canada. The regulations under the Immigration and Refugee Protection Act stress education, language ability and skilled work experience rather than experience in a specific occupation. Skilled workers are assessed according to a selection grid (point system). The selection criteria are detailed on page 9. In order to be admitted to Canada, skilled workers must:
Selection criteria for skilled workers The Immigration and Refugee Protection Regulations establish a new selection grid for skilled workers. Applicants are assessed on a variety of selection criteria which evaluate their ability to adapt to the Canadian economy.
To be considered under the federal Skilled Worker category, applicants must score a minimum of 67 out of the possible 100 points. This pass mark is subject to change at any time and may be amended by the Minister to reflect changes in the Canadian labour market, economy and society as well as the changing demands of prospective newcomers to Canada. Transition to the new selection criteria To ensure that applications for skilled workers are assessed fairly, the regulations include measures to ease the transition from the rules in effect under the Immigration Act of 1976 to those under the new Immigration and Refugee Protection Act. Under a dual assessment, applicants who applied before January 1, 2002 will be assessed against the selection criteria of the former Immigration Act, or the current Immigration and Refugee Protection Act, whichever is more favourable. In cases where the results are not positive, the application will automatically be assessed under the selection criteria of the other regulations. The following groups will automatically receive a dual assessment:
The following groups must reapply before January 1, 2005, to receive the benefit of a dual assessment:
The Provincial Nominee Program Under the Provincial Nominee Program, most provincial and territorial governments may nominate a person for a permanent resident visa on the grounds that the individual's labour market skills are in particular demand in the province or territory. Provincial nominees are expected to live in the province that nominated them in order to contribute their particular employment skills. Skilled workers intending to live in Quebec The Canada-Quebec Accord gives the Province of Quebec sole responsibility for selecting skilled worker applicants and sole responsibility for integration services for newcomers who settle in Quebec. Skilled workers who intend to live in the Province of Quebec must satisfy the Quebec selection criteria and obtain a Certificat de sélection du Québec (Quebec certificate of selection) issued by the Government of Quebec. Business immigrants are selected to support the development of a strong and prosperous Canadian economy, either through their direct investment, their entrepreneurial activity or self-employment. Business immigration is made up of the Investor, Entrepreneur and Self-employed Person classes. To be eligible for immigration as a business immigrant, applicants who are investors and entrepreneurs require a specified net worth and business experience as set out in the Canadian immigration regulations. Self-employed applicants require specific experience. Investors Investor applicants must have legally obtained a net worth of at least $800,000. They must also have either controlled a portion of the equity of a qualifying business, or been responsible for the management of the equivalent of at least five full-time jobs per year in a business. They are also required to make an investment of $400,000 through the Receiver General for Canada before a visa is issued. The investment is subsequently allocated to participating provinces and territories in Canada, which use the funds for job creation and economic development. The investment of $400,000 is locked in for approximately five years, after which it is repaid without interest. Investments are guaranteed by participating provinces and territories. Quebec operates its own investor program. Entrepreneurs Entrepreneur applicants must have legally obtained a net worth of at least $300,000. They must also have controlled a portion of the equity of a qualifying business that was not operated primarily for the purpose of deriving investment income (such as interest, dividends or capital gains). Applicants must intend and be able to own and actively manage at least one-third of a business that will contribute to the Canadian economy and create at least one full-time job, other than for the entrepreneur and family members. Entrepreneurs and their family members are granted permanent residence under conditions that are monitored by CIC. They must report at specified intervals to an immigration officer in Canada on their progress in establishing a business which meets specified requirements and show that they have met these requirements for at least one year within three years of admission to Canada. Self-employed Self-employed applicants must demonstrate that they have the relevant experience and the intention and ability to become economically established in Canada by creating their own employment and contributing significantly to Canada in one of the following areas:
Applicants are expected to establish a business and become self-supporting, but are not required to make a minimum investment, employ others or report on progress towards the establishment of the business. Selection criteria To be eligible for selection as a business immigrant, applicants must first meet the applicable business immigration definition of the class in which they are applying (investor, entrepreneur or self-employed). Applicants are then assessed against a selection system. Entrepreneurs, investors and self-employed applicants are assessed against five selection criteria. Applicants must obtain a minimum of 35 points. However, the pass mark can change at the direction of the Minister. The selection factors and maximum points allocated are as follows:
Business applicants destined for Quebec The Canada-Quebec Accord gives Quebec the right to select its business applicants using its own selection criteria. For further information, contact Quebec Immigration (www.mrci.gouv.qc.ca.) or a Quebec Immigration Office outside Canada. Business applicants destined for British Columbia A business immigration pilot project was jointly launched in British Columbia by Citizenship and Immigration Canada and the B.C. Ministry of Employment and Investment in 1999. The program provides information to prospective entrepreneurs on business opportunities in British Columbia. Entrepreneur applicants are encouraged to visit B.C. and attend an immigration and investment seminar. For more information on business immigration to the province, contact the Government of British Columbia's Business Immigration Office. Canada has a long humanitarian tradition of helping people in need and lives up to its international commitments by welcoming between 20,000 and 30,000 Convention refugees and other displaced persons into Canada each year. Refugees are accepted into Canada under the following classes:
Refugee claims will not be considered if:
An officer may reconsider a claimant's eligibility if the claim is later found to be ineligible or the eligibility decision was based on fraud or misrepresentation. If the officer reverses the eligibility decision, the Refugee Protection Division will stop considering the claim. If the person is subject to extradition proceedings, the Extradition Act has precedence, and consideration of a claim for refugee protection will be suspended. The Immigration and Refugee Protection Act allows foreign nationals to apply for refugee protection while outside Canada and to be selected for resettlement in Canada. To be eligible, refugees must have no lasting alternative, such as voluntary repatriation, resettlement in their country of asylum or resettlement to a third country, or there must be no possibility of such an alternative within a reasonable period of time. Three classes of people are eligible for this program. Convention Refugees Abroad Class Convention refugees seeking resettlement are people who are outside their country of citizenship or habitual residence and who have well-founded fears of persecution for reasons of race, religion, political opinion, nationality or membership in a particular social group. Country of Asylum Class The Country of Asylum Class includes people who are outside their country of citizenship or habitual residence and who have been and continue to be seriously and personally affected by civil war, armed conflict or massive violations of human rights. Source Country Class This class includes people who would meet the definition of Convention refugee but who are still in their country of citizenship or habitual residence. It also includes people who are suffering serious deprivations of the right of freedom of expression, the right of dissent or the right to engage in trade union activity, and who have been detained or imprisoned as a consequence. Only citizens or habitual residents of specific countries are eligible under this class. The government may sponsor members of the Convention Refugees Abroad and Source Country classes. Members of any of the three classes may be privately sponsored. People selected for resettlement, regardless of their class, must demonstrate their ability to eventually re-establish in Canada and must undergo medical, security and criminality screening. Members of these classes must be referred to a visa office by the United Nations High Commissioner for Refugees (UNHCR) or another organization with which CIC has an agreement. In exceptional circumstances, they may apply directly to the visa office. If the UNHCR refers them as in urgent need of protection, the visa office will expedite processing. When family members are separated, they may be included in the application and allowed to come to Canada within one year after the principal applicant receives a permanent resident visa. Sponsoring refugees Organizations, groups of Canadian citizens and permanent residents may sponsor refugees under the Private Sponsorship of Refugees Program. Sponsoring groups commit to providing assistance in the form of accommodation, clothing, food and settlement assistance for one year from the refugee's date of arrival. There are three types of sponsoring groups. Sponsorship agreement holders and their constituent groups A number of organizations and groups across Canada have signed sponsorship agreements to facilitate the sponsorship process. Sponsorship agreement holders are essentially pre-approved sponsors. They may sponsor refugees themselves or their constituent groups may sponsor refugees with the approval of the agreement holder. Groups of five A group of five Canadian citizens or permanent residents can partner to sponsor refugees living abroad. Each member of the group must be at least 18 years of age, live in the community where the refugee will live and personally provide settlement assistance and support. Community sponsors Other groups interested in sponsoring refugees may consider a community sponsorship. This type of sponsorship is open to organizations, associations and corporations that have the necessary finances and that can provide adequate settlement assistance to refugees. Community sponsors must be located in the community where the refugee will live. A person who has arrived in Canada seeking protection may make a claim for refugee protection by notifying an immigration officer, who determines if the person is eligible to claim refugee protection. Claiming refugee protection Anyone may claim refugee protection at a port of entry or after entry to Canada. After completing an application form, refugee protection claimants are photographed and have their fingerprints taken. A decision on the eligibility of a refugee claim must be made within three working days or the claim is referred to the IRB. The decision may be suspended pending a decision on criminal charges or an admissibility hearing on issues of security, human rights violations, serious criminality, or organized criminality. A refugee protection claimant is issued a conditional removal order that does not come into force unless the claim is refused. If eligible, the person's claim is referred to the Refugee Protection Division for a refugee protection hearing. If an immigration officer receives new information that makes a person ineligible to make a claim, the officer may reconsider the previous eligibility decision. Refugee protection hearings In general, an oral hearing is held to determine refugee protection. Hearings usually take place in private to protect the safety of claimants and their families, but in some cases they are held in public. In these cases, the RPD takes necessary precautions to ensure confidentiality when the life, liberty or security of any person might be endangered. Representatives of the UNHCR may observe the hearing. The hearing is non-adversarial and allows claimants to put forward their cases as thoroughly as possible. Claimants enjoy the protection of the Canadian Charter of Rights and Freedoms, have the right to participate fully in the process, be represented by counsel and, if necessary, be provided with the services of an interpreter. The hearing normally takes place before one member of the Refugee Protection Division. If the Refugee Protection Division accepts a claim, the person applies for permanent residence within 180 days. The applicant may include family members in Canada and abroad. Permanent resident status may not be granted if there are concerns about identity or if the person is inadmissible for serious criminal or security reasons. If the Refugee Protection Division rejects a claim, the conditional removal order comes into force, and the claimant must leave Canada immediately. The removal order is stayed if the claimant applies for leave for judicial review of the decision. People who have been issued a removal order can apply for a Pre-Removal Risk Assessment. The Immigration and Refugee Protection Act provides a formal structured process for reviewing risk before a person is removed. The Pre-Removal Risk Assessment (PRRA) gives persons who may be exposed to compelling personal risk if removed the opportunity to apply to remain in Canada. A PRRA review is conducted immediately before removal. It is done by a CIC officer who has specialized training in matters relating to personal risk and who has access to up-to-date information on conditions in other countries. The PRRA officer assesses the risk to the individual case based on the same protection grounds as those considered by the IRB, including the criteria in the Convention on Refugees and the Convention against Torture, and risk to life or risk of cruel and unusual treatment or punishment. It is normally a paper-based review but an oral hearing is required in some circumstances. Applicants facing removal receive formal notification that they may apply for the PRRA. They have 15 days to apply. The PRRA is available to:
The following people are not eligible for a PRRA:
Successful applicants may apply for permanent residence in Canada. Persons who are not eligible for refugee protection based on grounds of security, serious criminality or human rights violations are entitled to consideration only under the Convention against Torture. They are not eligible to apply for permanent residence if they receive a positive PRRA decision, but benefit only from a stay of removal. People who receive a negative decision must leave Canada as required by the removal order they were issued. CIC makes removal arrangements. Settlement Some settlement assistance is available to newcomers (including refugees) through a variety of programs and services designed to help newcomers become participating members of Canadian society as quickly as possible. There are eligibility criteria. Newcomers may benefit from various government settlement services abroad, upon arrival at ports of entry and at their final destination in Canada. These services may include counselling and cultural orientation, loans to help with transportation to Canada, reception, information and orientation, referral to community resources, language training, translation and interpretation, and employment-related services. CIC provides resettlement assistance to Convention refugees and members of the Humanitarian Designated Class admitted to Canada as government-assisted refugees. The funds help pay for basic household items, income support and immediate essential services including reception, temporary accommodation, help finding permanent accommodation, financial orientation, and links to mandatory federal/provincial programs and services. Income support can last for up to 12 months or until the refugee becomes self-sufficient, whichever occurs first. Special initiatives in cooperation with provincial governments and the voluntary sector assist special-needs refugees, such as women at risk. These initiatives help when resettlement is urgently needed or when the refugee family may need longer-term support. In these instances, government and non-government organizations combine their resources to meet the needs of the refugee. Under the Immigration Loans Program, loans are made to applicants for permanent residence -- mostly refugees and members of humanitarian-designated classes -- to cover the costs of medical examinations abroad, transportation to Canada and the Right of Permanent Residence Fee (RPRF). Assistance loans are also available to disadvantaged newcomers to cover expenses such as housing rental, telephone deposits or work tools. A temporary resident is a person who is lawfully in Canada for a temporary purpose. Temporary residents include students, foreign workers and visitors such as tourists. Every temporary resident, except from countries specifically exempted, must obtain a temporary resident visa before arriving in Canada. Please consult the CIC Call Centre, at the number listed in the back of this booklet, or visit the CIC Internet site at www.cic.gc.ca/english/visit/visas.html for the list of countries whose citizens require visas to visit Canada. A processing fee is required for an application for a work permit, a study permit or a temporary resident visa (details are available in the brochure Fee Schedule for Citizenship and Immigration Services). Exemptions are listed in the Immigration and Refugee Protection Regulations and can be found on the CIC Web site. Foreign nationals wishing to come to Canada as temporary residents must demonstrate that they will respect the conditions that apply to temporary residents. One of these conditions is that they will voluntarily leave at the end of their visit. Officers look at many factors before deciding whether the applicant is a genuine temporary resident or someone who will seek to stay in Canada through a refugee claim or an illegal action. They consider the purpose of the visit and the applicant's ties to the home country, including the individual's family and employment situation, and the overall economic and political stability of the home country. Decisions on granting temporary residence visas are made on a case-by-case basis. Applicants must show that their intentions are genuine. Individuals who apply to come to Canada as temporary residents must satisfy the visa officer that they:
*Permanent residents and citizens of Greenland, St. Pierre and Miquelon, and the United States who come directly from their country of permanent residence or citizenship need proof of citizenship, but do not necessarily require a passport. Canada welcomes foreign students and recognizes the contribution they make to Canada's academic, business and cultural communities. A foreign student is a temporary resident who has been approved by an immigration officer to study in Canada. An application to come to Canada as a foreign student is normally approved at a visa office outside Canada, although in some cases, applicants may apply at a port of entry if they have a letter of acceptance from a Canadian educational institution. A study permit identifies the level of study and length of time the individual may study in Canada. Courses of less than six months do not require a study permit. Minor children in Canada attending pre-schools, or primary or secondary schools do not require a study permit unless they are children accompanying parents who are in Canada as visitors. Foreign students must meet certain requirements when applying for study permits. Officers look at many factors before deciding whether an applicant qualifies for a study permit. People wishing to study in Canada must:
Foreign students are allowed to work in Canada if they meet one of the following requirements:
Study permits can be renewed, but the application for renewal must be made before the study permit expires. In order for a renewal to be granted, students must have met all of the conditions of their permit and have complied with the provisions of the Immigration and Refugee Protection Act. Students who have previously worked or studied in Canada without proper authorization can be denied study permits. Under the Immigration and Refugee Protection Act, foreign nationals may work temporarily in Canada under certain conditions. Those who wish to do so are generally required to have a job offer and a work permit. Upon receipt of an approved job offer, an immigration officer will decide if the foreign worker qualifies for the work permit and assess the person's health and security requirements. A work permit is usually valid only for a specified job, employer and time period. In most cases, applications must be submitted from outside of Canada. Some temporary foreign workers do not require work permits, including:
A more complete list of exemptions and the conditions that apply is available from Citizenship and Immigration Canada. There is a fee for work permits. Temporary workers may not undertake full-time studies and may not change jobs or employers unless authorized by CIC. Additional procedures apply for foreign workers who intend to work in Quebec. Employers who wish to hire temporary foreign workers must normally have the job offer approved by Human Resources Development Canada. HRDC assesses the economic effect on the Canadian labour market and provides a confirmation either for an individual job or for a group of jobs. If the job provides acceptable Canadian wages and working conditions and qualified Canadians are not available, HRDC will approve the job offer. HRDC may also provide an opinion on specific types of jobs where labour market shortages exist. The government may reach agreements with industry sectors facing worker shortages to make it easier for them to hire foreign workers quickly. It is an offence for Canadian employers to hire anyone they know is not authorized to work in Canada. Only temporary residents possessing valid work permits can work in Canada legally. An employer can identify such workers through specially coded social insurance numbers. Under Chapter 16 of the North American Free Trade Agreement (NAFTA), citizens of Canada, the United States and Mexico can gain quicker, easier temporary entry into the three countries to conduct business-related activities or investments. All provisions are equally available to citizens of the three countries. NAFTA applies to four specific categories of business persons: business visitors, professionals, intra-company transferees and persons engaged in trade or investment activities, all of whom can enter Canada without a labour market test being applied. For more information, please refer to the booklet Temporary Entry to Canada under the NAFTA -- A Guide for American and Mexican Business Persons. The Canada-Chile Free Trade Agreement (CCFTA) is modeled on NAFTA and facilitates temporary entry on a reciprocal basis, by eliminating the requirement for an economic effect opinion. The rules governing temporary entry are similar to those in NAFTA and include the same four categories of business persons who can enter Canada without a labour market test being applied. However, minor changes were introduced in the CCFTA to reflect the bilateral nature of the agreement. For more information, please refer to the booklet Temporary Entry to Canada under the Canada-Chile Free Trade Agreement -- A Guide for Chilean Business Persons. Under GATS, Canada has made commitments to allow market access for foreign service providers in specified sectors. GATS commitments apply to over 130 nations. As with NAFTA, the temporary entry of a business person can be facilitated without the need for a labour market test. For more information, please refer to the booklet Temporary Entry to Canada under the General Agreement on Trade in Services (GATS). Once entry has been granted, temporary residents generally may not change their status. For example, a person admitted as a foreign student may not generally take a job or become a permanent resident. Similarly, temporary workers cannot change jobs, and some international students cannot change institutions or their course of study without first applying to have the authorization amended. Temporary residents may apply for extensions or amendments in a variety of ways. Contact the Citizenship and Immigration Call Centre at the number listed in the back of this booklet, or visit the CIC Internet site for further details. All temporary residents who stay in Canada after their authorized period of stay has expired are in violation of the Act and are subject to removal. Examinations Section 18 of the Act requires everyone seeking to enter Canada -- whether visitors, newcomers, temporary residents, returning residents or citizens -- to be examined by an immigration officer at the port of entry. In the case of foreign nationals seeking permanent status or temporary residents intending to study or work temporarily in Canada, a more detailed interview may be required before entry will be granted.
Possession of a visa or a permit does not guarantee a person's admission to Canada. The examining officer at the port of entry must be satisfied that the visa or permit is valid, that the person's circumstances have not changed since the visa or permit was issued, and that the person's presence in Canada will not contravene any of the provisions of the Immigration and Refugee Protection Act and its Regulations. When in doubt about the intention of a temporary resident to live up to the terms of admission, the examining officer may require payment of a deposit, or the posting of a guarantee, prior to granting entry. Cash deposits will be returned as soon as possible after all entry conditions have been met. Division 4 of Part I of the Act prohibits the admission of people to Canada on grounds related to security, human or international rights violations, criminality and organized criminality (sections 3437). Individuals can also be denied entry to Canada if they pose a threat to public health, if they have no visible means of support, if they misrepresent themselves or if they fail to comply with other measures in the Act (sections 3841). Exclusions on health grounds are based solely on danger to public health or safety, or on excessive demands on health or social services in Canada. Inadmissibility on criminal grounds is determined by the sentence that could be given for equivalent offences under Canadian law. The Immigration and Refugee Protection Act also protects the Canadian public by providing for the removal from Canada of persons identified as inadmissible, such as those involved in organized crime, espionage, acts of subversion, terrorism, war crimes, human or international rights violations, criminality and serious criminality. Canadian citizens Canadian citizens have an absolute right to come to or remain in Canada regardless of whether their citizenship was acquired through naturalization, parentage or place of birth. On entering Canada, however, they cannot merely claim that they have that status; in order to enter, they must satisfy an officer of their status. People registered under Canada's Indian Act, whether or not they are Canadian citizens, also have an absolute right to come to or remain in Canada. They must also be prepared to prove their status to an immigration officer. Persons who have been admitted to Canada as permanent residents have the right to come to the country and remain here, provided they have not lost that status or it has not been established that they have engaged in activities, such as criminal acts, that would otherwise subject them to removal. Conditions may be imposed for a certain period on some permanent residents, such as entrepreneurs. A permanent resident must live in Canada for at least 730 days (two years) within a five-year period. In some situations, time spent outside Canada may count. All permanent residents must comply with this residency requirement or risk losing their status. Like Canadian citizens, permanent residents also enjoy all the rights guaranteed under the Canadian Charter of Rights and Freedoms, such as equality rights, legal rights, mobility rights, freedom of religion, freedom of expression and freedom of association. The Immigration and Refugee Protection Act provides for the introduction of a Permanent Resident Card to make it easier for permanent residents to re-enter Canada after travelling abroad. As of June 28, 2002, all new permanent residents will receive Permanent Resident Cards. Existing permanent residents may apply for the card after October 15, 2002. Effective January 2004, permanent residents travelling outside Canada will need it for status identification in order to return to Canada. The card is revoked if it is lost or stolen, if the permanent resident becomes a Canadian citizen, or if the person loses permanent resident status. If the card is lost, permanent residents may apply for a travel document in order to return to Canada, but they must satisfy an officer that they meet the residency requirements. Temporary residents may enter or remain in Canada temporarily as long as they comply with any conditions imposed upon them. They must leave Canada by the end of their authorized stay. Temporary residents may lose their status and privileges if they:
A protected person is a person on whom refugee protection is conferred. If they meet the specified requirements, protected persons acquire permanent resident status and have the same rights to enter and remain in Canada as permanent residents. Arrests Immigration officers can arrest foreign nationals and permanent residents who are suspected of breaching the Immigration and Refugee Protection Act. While arrests of foreign nationals can be made with or without a warrant, immigration officers must have a warrant to arrest a permanent resident or a protected person. Immigration officers can detain people who are suspected of breaching the Immigration and Refugee Protection Act if they have reasonable grounds to believe that:
Immigration officers can detain a permanent resident or a foreign national at a port of entry in order to complete an examination, or if there are reasonable grounds to believe that the person is inadmissible for reasons of security or for violating human or international rights. Children under the age of 18 are detained only as a last resort. The child's best interests are taken into account when making a decision on detention. Whenever individuals are arrested or detained, the Canadian Charter of Rights and Freedoms requires that CIC officers inform them of the reasons for their arrest or detention, their right to legal representation, and their right to notify a representative of their government that they have been arrested or detained. Within 48 hours of a person's detention, immigration officers must review the reasons for the detention. A person who has been detained for 48 hours must appear as soon as possible before a member of the Immigration Division of the Immigration and Refugee Board, where a CIC officer presents information to justify the detention. The member reviews the case and decides if the individual should remain in detention or be released with or without conditions. If the person is not released, a member of the Immigration Division must review the case again in seven days and then again within every 30 days. Detention reviews before the Immigration Division are open to the public, except those that concern refugee protection claimants. Persons who are arrested and detained under the Immigration and Refugee Protection Act can be released only by an immigration officer or a member of the Immigration Division of the Immigration and Refugee Board. To enforce the Immigration and Refugee Protection Act, CIC investigates possible breaches of the Act. If there is sufficient evidence of a breach of the Act, CIC officers may deal with the people involved or direct them to appear at an admissibility hearing. CIC employs enforcement officers across Canada to investigate people who may have breached the Act. They work closely with the RCMP, CSIS, local police and other domestic and international agencies in their investigations. Investigations can begin with police reports, tips from the public or the person's own admission. If there is sufficient evidence that an offence has been committed, the officer may submit a report to the Minister's delegate. The person under investigation may then face an administrative process for minor offences or an admissibility hearing if the offence is more serious. For minor offences (for example, when a temporary resident has remained in Canada longer than authorized), an immigration officer can determine whether an offence has occurred and issue a removal order. In some instances involving criminal cases in Canada, immigration officers now have the authority to issue deportation orders. In cases where they do not have this authority, the case is referred to the Immigration Division of the IRB for an admissibility hearing. Persons believed to be inadmissible to Canada have the right to be heard at an admissibility hearing before a member of the Immigration Division of the Immigration and Refugee Board in some circumstances. An admissibility hearing is like a court hearing. It is held in public unless it involves a refugee protection claimant. The hearing proceeds in an adversarial manner, with the member of the Board's Immigration Division presiding like a judge. A hearings officer represents the Minister of Immigration. The person concerned has the right to be represented by counsel, and both parties can present evidence and call witnesses. At the conclusion of the hearing, the member of the Immigration Division will either authorize the person concerned to enter or remain in Canada, or will order the person to leave the country by issuing a removal order. Following an admissibility hearing, a member of the Immigration Division may issue a removal order, which requires the person named in it to leave the country within a specified time. There are three kinds of removal orders:
In all cases involving removal orders, the persons and their counsel are informed of the reasons for, and given a copy, of the orders. Once a removal order has been issued, CIC carries out the removal as soon as possible. CIC can assign an escort if there is concern that the person in question will not obey the removal order. If the individual is considered very dangerous or a threat to the health or safety of other travellers, the RCMP or a medical officer may assist CIC in escorting him or her out of the country. An officer or a member of the Immigration Division may include family members in a removal order unless they are Canadian citizens or permanent residents. Family members included in a removal order do not need authorization to return to Canada. However, in some circumstances, family members have the right to be heard at the admissibility hearing before being included. Any temporary or permanent resident, temporary worker or foreign student who violates the Immigration and Refugee Protection Act or its Regulations or is convicted of a criminal offence may be required to leave Canada. Anyone whose temporary resident permit has expired or been cancelled may also be directed to leave Canada within a specified period. Failure to comply will result in either a removal order being issued or an admissibility hearing being held. Persons found to be inadmissible to Canada on serious grounds or who have committed a major contravention of the Act must be removed from Canada. A person seeking admission at a port of entry who is inadmissible on minor grounds (e.g. lack of funds or improper or incomplete identification) may be allowed to leave Canada immediately rather than proceed to an admissibility hearing. Persons issued an exclusion order at a port of entry cannot be admitted to Canada for one year unless the Minister subsequently grants written consent to allow admission before the one-year period has expired. If a person commits a minor infraction of immigration law after having been granted temporary entry to Canada, a departure order may be issued instead of a deportation order. An immigration officer or a member of the Immigration Division of the Immigration and Refugee Board may issue departure orders. A deportation order may not be necessary if the person is willing and able to leave Canada by a specified date. A departure order may also be issued by an immigration officer for certain minor infractions of the Immigration and Refugee Protection Act. Once the terms of the departure order have been met, the person may reapply for entry at any time. Appeals on a variety of matters under the Immigration and Refugee Protection Act are heard by the Immigration Appeals Division of the Immigration and Refugee Board. The Board is independent of CIC, and its members are trained in immigration law. The Act allows certain people to appeal removal orders made by CIC officers or by a member of the Immigration Division at an admissibility hearing. In most cases, the following people can appeal a removal order:
In addition, the Minister may also appeal a decision not to issue a removal order. There is no right of appeal in cases of inadmissibility on grounds of security, human or international rights violations, war crimes, serious criminality or organized criminality. The Act allows sponsors to appeal a decision not to issue a visa to a foreign national sponsored as a member of the Family Class. If the Immigration Appeals Division decides that the foreign national is a member of the Family Class in accordance with the Regulations, it may consider humanitarian and compassionate factors. There is no right of appeal in Family Class cases refused for inadmissibility due to misrepresentation, except for sponsored spouses, common-law partners or dependent children. The appeal rights of sponsors do not extend to the Spouses or Common-Law Partner In-Canada Class. The Immigration Appeals Division can take one of three actions following an appeal hearing. Dismiss the appeal. The appeal is rejected and the removal order is confirmed. Allow the appeal. The appeal is successful and the removal order is cancelled. Stay the execution of the removal order. The IAD can "stay" (postpone) the removal order for a certain period of time. The IAD will impose the following conditions. The person must:
If, at the end of that period, the person has obeyed these conditions, the IAD may cancel the removal order. If the conditions have not been met, CIC can apply to have the stay lifted and then carry out the removal. Permanent residents may appeal decisions if they lose their status because they have not complied with the residency requirement, and a sponsor can file an appeal if an application by members of the Family Class is denied. The Immigration and Refugee Protection Act does not provide for appeals to the IRB against other decisions, such as refusals of temporary resident visas or removals of persons without status in Canada. Nevertheless, any decision by a government official may be subject to an application for judicial review by the Federal Court of Canada. Both the person in question and the Minister of Citizenship and Immigration can apply to the Federal Court of Canada for a review of an IAD decision. However, they must first obtain leave (permission) of the Court to make the request. If the Federal Court grants permission, it will then review the request and either dismiss it or set aside the IAD's original decision and order a new appeal hearing. Any matter under the Act is subject to judicial review by the Federal Court, providing that all rights of appeal under the Act are exhausted. The Court must grant leave before a judicial review hearing can be held. With certain exceptions, permanent residents have a right to come to and remain in Canada. Section 46 of the Act stipulates certain conditions under which they lose their permanent resident status:
The loss of permanent resident status can be appealed to the Immigration Appeal Division of the IRB. The loss of permanent resident status is not considered final until all appeal rights have been exhausted. Offences and punishment The Immigration and Refugee Protection Act introduces several new offences and sets severe penalties for breaches of the Act. Under Part 3 of the Act, new offences of human smuggling and trafficking in persons are introduced, with penalties of up to life in prison and fines of up to one million dollars. These provisions bring Canada into compliance with two new United Nations protocols on smuggling of migrants and on trafficking in persons, which require state parties to criminalize the act of smuggling and trafficking in humans. The Act also makes it an offence to disembark a person or a group of people at sea for the purposes of entering Canada illegally. New offences related to possession, use, import or export, or dealing in passports, visas and other documents to contravene the Act are also introduced, with prison terms of up to five years for possession and 14 years for the use, import or export, or dealing in these documents. The Act also sets higher penalties for a number of other offences under the Act and expands the provisions of a number of offences under the previous Immigration Act, which the Immigration and Refugee Protection Act replaces. The higher penalties are intended to provide greater deterrence in light of the large amounts of money that can change hands in illegal immigration schemes, particularly where organized crime is involved. For lesser offences, the Act introduces a new category of ticketable offences under section 144 for offences designated by regulations. This provides officers with an alternative to using other procedures set out in the Act or the Criminal Code. Fines of up to $10,000 may be assessed under ticketable offences. The Immigration and Refugee Protection Act maintains offences under the previous Act for entering Canada at any place other than a port of entry without reporting to an immigration officer. It is an offence to gain admission through the use of a false or improperly obtained passport, visa or other document. It is an offence to violate the terms or conditions under which admission was granted, or to knowingly make any false or misleading statements at an immigration examination or admissibility hearing. It is a serious offence for a Canadian employer to hire any temporary resident knowing he or she is not authorized to work in Canada. A FINAL NOTE Canada welcomes newcomers and visitors. At the same time, our immigration law works in the interests of Canada: to ensure the total number of permanent residents admitted to Canada and their skills and experience are linked more closely to demographic and labour market needs, and to protect the health and safety of Canadian residents. FOR MORE INFORMATION Telephone If you are in Canada, contact the CIC Call Centre, Monday to Friday, 8 a.m. 4 p.m.
If you are hearing impaired and use a text telephone, you can access the TTY service Monday to Friday from 8 a.m. to 4 p.m. by calling 1 888 576-8502. If you are outside Canada, contact the Canadian Embassy, High Commission or Consulate responsible for your region. Citizenship and
Immigration Canada
Planning a visit to Canada? Log on to the Canadian Tourism Commission's Web site at www.travelcanada.ca for tourism information. GLOSSARY conjugal partner: a person outside Canada who has maintained a conjugal relationship with the sponsor for at least one year. The term refers to both opposite-sex and same-sex couples. Convention refugee: any person who,
departure order: an order issued to a person who has violated the Immigration and Refugee Protection Act. It requires that person to leave Canada immediately and permits reapplication for admission. A departure order will be deemed to be a deportation order if the person named in it does not leave Canada within 30 days or fails to obtain a certificate of departure from CIC. If a certificate of departure is not obtained, reapplication for admission will not be possible without ministerial consent and the reimbursement of removal costs. dependent child: a son or daughter who is under 22 years of age and unmarried or not in a common-law relationship. deportation order: a type of removal order issued to someone who is inadmissible to Canada on serious grounds or who has committed a serious violation of Canadian law. Deportation permanently bars future admission to Canada unless ministerial consent is granted. entrepreneur: a foreign national who
examination: a procedure under the Act whereby an immigration officer interviews or examines any person making an application under the Act at ports of entry or at offices in Canada or abroad to determine and evaluate admissibility or compliance with the Act. Examinations may be conducted on persons:
exclusion order: a removal order that bars the individual named in it from entering Canada for either one or two years, unless given written permission by CIC to return to Canada. family class: the class of newcomers made up of close relatives of a sponsor in Canada (see the section entitled "Family Class" in this booklet for further details). family member: (a) the spouse or common-law partner of the person; (b) a dependent child of the person or of the person's spouse or common-law partner; and (c) a dependent child of a dependent child referred to in (b). foreign national: a person who is not a Canadian citizen or a permanent resident. This includes a stateless person. investor: a foreign national who:
permanent resident: permanent residents have the right to enter or remain in Canada. Conditions may be imposed for a certain period on some permanent residents, such as entrepreneurs. A permanent resident must live in Canada for at least 730 days (two years) within a five-year period. Permanent residents must comply with this residency requirement or risk losing their status. Permanent Resident Card: permanent residents receive a Permanent Resident Card as proof of their status in Canada. Replacing the former Record of Landing (IMM1000), the card is a secure, machine-readable and fraud-resistant document, valid for five years. Pre-Removal Risk Assessment: a formal structured process for reviewing risk before a person is removed. The Pre-Removal Risk Assessment (PRRA) gives the opportunity to apply to remain in Canada to persons who may be exposed to compelling personal risk if removed. protected person: a protected person is a person on whom refugee protection is conferred. If they meet the specified requirements, protected persons acquire permanent resident status and have the same rights to enter and remain in Canada as permanent residents. refugee: see Convention refugee. refugee protection claimant: a refugee protection claimant is a person who requests refugee protection status, either from abroad or from within Canada. A refugee claimant whose claim is accepted becomes a protected person and may become a permanent resident of Canada. removal order: an order issued by the Immigration and Refugee Board or an immigration officer that requires the person named in it to leave the country within a specified time. There are three types of removal orders: an exclusion order, a departure order and a deportation order. (Definitions for each type of removal order are included in this glossary.) self-employed person: a foreign national who has the intention and the ability to create their own employment by:
sponsor: a group, a corporation or an unincorporated organization or association that sponsors a successful refugee claimant or a person in similar circumstances. A sponsor can also be a Canadian citizen or permanent resident who is at least 18 years of age, resides in Canada and has filed a sponsorship application in respect of a member of the Family Class or the Spouse and Common-Law Partner in Canada Class. study permit: a document issued by a visa or immigration officer authorizing a foreign national to study in Canada. temporary resident: a temporary resident is a person who is lawfully in Canada for a temporary purpose. Temporary residents include students, foreign workers and visitors such as tourists. work permit: a document that authorizes a foreign national to work in Canada.
This is not a legal document. For precise legal information, consult the Immigration and Refugee Protection Act and Regulations. © Minister
of Public Works and Government Services Canada, 2002 |
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| Date Published: 2002-08 |  |
Important Notices | |
