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

Former legislation and policy

See also: History of immigration to Canada

Canada has had laws and regulations governing the admission of immigrants since 1869, two years following Confederation.[1]

The following is a timeline of the former Canadian legal system, both federal and provincial, as it relates to immigration:[1]

Immigration Act, 1976

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Repealed by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Status: Repealed

The Immigration Act, 1976, insured by the Parliament of Canada, was the first immigration legislation to clearly outline the objectives of Canadian immigration policy, define refugees as a distinct class of immigrants, and mandate the Canadian government to consult with other levels of government in the planning and management of immigration.[1]

It focused on who should be allowed income a burden on social welfare or health services would now be refused entry, rather than specific categories of people, e.g., those who identified themselves as homosexual, disabled, and so on.

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

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

The 1976 Immigration Act was replaced by the Immigration and Refugee Protection Act (IRPA) in 2002.[8]

Current enabling laws

Immigration and Refugee Protection Act

Main article: Immigration and Refugee Protection Act

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

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

Immigration detainees in Canada are held in Immigration Holding Centres (IHCs; French: Le centre de surveillance de l'immigration),[9] under the auspices of the Canada Border Services Agency (CBSA). Immigration detainees may also be kept in provincial jails, either because the IHCs are full, there is no centres in their region, or the detainee's file has a link to criminality.[10] Detainees can include: asylum seekers without sufficient amount of necessary identification papers; foreign workers whose visas had expired; and individuals awaiting deportation.[11]

Protecting Canada's Immigration System Act

Main article: Protecting Canada's Immigration System Act

The Protecting Canada's Immigration System Act (Bill C-31) was established in hopes of amending Canadian immigration and refugee law[12] by addressing the number of "bogus refugees" and claimants from European Union democracies.[13]

Safe Third Country Agreement

Main article: Canada–United States Safe Third Country Agreement

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

There are 4 types of exceptions to the STCA: refugee claimants who have a family member in Canada; unaccompanied minors under the age of 18; individuals holding a valid Canadian visa; and those who have been charged with or convicted of an offence that could subject them to the death penalty in the United States or in a third country. The STCA also does not apply to claimants who entered Canada at a "location that is not a port of entry."[14][15]

International laws

The Government of Canada is held to comply with the following international laws in relation to migration and refuge/asylum:[16]

Current laws regarding administration

Department of Citizenship and Immigration Act
Parliament-Ottawa.jpg
Parliament of Canada
  • An Act to establish the Department of Citizenship and Immigration and to make consequential amendments to other Acts
CitationS.C. 1994, c. 31
Assented to23 June 1994
Status: Amended

Department of Citizenship and Immigration

The Department of Citizenship and Immigration Act established Canada's Department of Citizenship and Immigration (now known as Immigration, Refugees and Citizenship Canada), to be presided by the Minister of Citizenship and Immigration.[18]

The Revolving Funds Act authorized the establishment of certain revolving funds, including for the Minister of Citizenship and Immigration. Under the Act, the Minister is able to make expenditures out of the Consolidated Revenue Fund of Canada "for the purpose of passport and other travel document services in Canada and at posts abroad," as well as revenue received regarding that purpose.[19]

Canada Border Services Agency Act
Parliament-Ottawa.jpg
Parliament of Canada
  • An Act to establish the Canada Border Services Agency
CitationS.C. 2005, c. 38
Assented to3 November 2005
Status: Amended

Canada Border Services Agency

The Canada Border Services Agency Act established the Canada Border Services Agency (CBSA), which was created by Order in Council on 12 December 2003. The Act renders the CBSA responsible for providing integrated border services that support Canada's national security priorities and that facilitate the free flow of persons and goods (including plants and animals) that meet all requirements under the program legislation.[20][21]

The Act also set out the responsibilities, mandate, powers, duties, and functions of the CBSA's President and of the Minister responsible for the Agency (Minister of Public Safety and Emergency Preparedness).[21]

International Boundary Commission Act
Parliament-Ottawa.jpg
Parliament of Canada
  • An Act respecting the International Boundary Commission
CitationR.S.C., 1985, c. I-16
Status: Amended

Immigration and Refugee Board

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

The Immigration Division Rules (SOR/2002-229), pursuant to subsection 161(1) of IRPA, outlines the responsibilities of the IRB's Immigration Division, including those of admissibility hearings and detention reviews.[22]

The Immigration Appeal Division Rules (SOR/2002-230), sets out the rules for appealing immigration- related decisions (such as removal orders, inadmissibility, etc.) to IRB's Immigration Appeal Division.[23] Likewise, the Refugee Appeal Division Rules (SOR/2012-257) sets out the rules for appealing refugee-related decisions to the Refugee Appeal Division.

International Boundary Commission

The International Boundary Commission Act provides the International Boundary Commission (including its members, officers, employees, and agents) with certain powers for the purpose of maintaining an effective boundary line between Canada and the United States. This authority includes the Commission's ability to:[24]

Case law

Terminology

Most terminology relevant to immigration and refugee law in Canada are defined under the Immigration and Refugee Protection Act (IRPA) and its accompanying regulations; such terms include:[26][17]

Admission classes

Under Canadian policy, (legal) permanent immigrants are categorized by Immigration, Refugees and Citizenship Canada (IRCC) as either of the following:[31][32][33]

  1. Family: persons closely related to one or more Canadian residents who live in Canada. The Family class allows permanent residents or citizens to sponsor a family member's or spouse's entrance into the country. In the case of a same-sex couple, if they are immigrating from a country where they cannot marry, proof of a long-term relationship is required.
  2. Economic: skilled workers, caregivers, or business persons. The Economic class provides admission to applicants (and their immediate families) who are supposed to be likely to find employment and contribute to the Canadian economy.[33] This is determined by ranking candidates against one another, and the weighing of factors such as education, language skills, and work experience.[34] Some 60,000 come to Canada each year under the International Experience Canada initiative, which provides Working Holiday, internship, and study visas.[35]
  3. Protected person or Refugee: persons who are escaping persecution, torture, and/or cruel and unusual punishment. Any migrant can claim to be a refugee and it will be investigated. Claims for refugee status and for admissibility as well as appeals of the decisions of the immigration officers are directed to the Immigration and Refugee Board of Canada (IRB). The IRB is the largest tribunal in Canada and hears over 25,000 claims a year. Decision of the IRB can be appealed to the Federal Court, which hears about 2,500 appeals on immigration and refugee matters a year.[36]
  4. Humanitarian or other: persons accepted as immigrants for humanitarian or compassionate reasons. This category includes broadly-defined humanitarian and compassionate grounds such as specific hardships that applicants would face if they were to return to their home countries. Individuals must receive permission to apply.[33]

Other relevant laws and systems

Issues

The Parliament of Canada has previously debated whether to allow former U.S. war resisters, such as soldiers avoiding re-deployment to Iraq, to stay in Canada.[38] In mid-2010, the Federal Court of Appeal ruled that Jeremy Hinzman, an American soldier seeking asylum, should be allowed to remain in Canada based on his pacifist religious beliefs.[39] A Private Member's Bill on the issue of war resisters, by former Member of Parliament Gerard Kennedy, was defeated in late September.[40]

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

See also

References

  1. ^ a b c d "Canadian Immigration Acts and Legislation | Pier 21". pier21.ca. Retrieved 2021-05-26.
  2. ^ "Archived copy". www.collectionscanada.ca. Archived from the original on 30 September 2007. Retrieved 12 January 2022.((cite web)): CS1 maint: archived copy as title (link)
  3. ^ "Dominion Lands Act". The Canadian Encyclopedia. Archived from the original on 2014-04-29. Retrieved 2021-05-26.
  4. ^ "Immigration Act, 1906 | Pier 21". pier21.ca. Retrieved 2021-05-26.
  5. ^ "Chinese Head Tax in Canada | The Canadian Encyclopedia". www.thecanadianencyclopedia.ca. Retrieved 2021-05-26.
  6. ^ "Order-in-Council PC 1911-1324 | Pier 21". pier21.ca. Retrieved 2021-05-26.
  7. ^ "Immigration Regulations, Order-in-Council PC 1962-86, 1962 | Pier 21". pier21.ca. Retrieved 2021-05-26.
  8. ^ "Facts and figures 2009 – Immigration overview: Permanent and temporary residents." Citizenship and Immigration Canada. 2010-08-01. Archived from the original on 2017-04-08. Retrieved 2012-07-24.
  9. ^ "Arrestations, détentions et renvois - Centres de surveillance de l'immigration". Agence des services frontaliers du Canada (in French). 15 August 2016. Retrieved 28 December 2020.
  10. ^ "Arrests, detentions and removals - Immigration holding centres". Canada Border Services Agency. CBSA. 15 August 2016. Retrieved 28 December 2020.
  11. ^ Bureau, Brigitte. 10 November 2020. "Immigration detention centres emptied over fear of possible COVID-19 outbreaks." CBC Investigates. Montreal: CBC/Radio-Canada. Retrieved 2020 November 16.
  12. ^ "House Government Bill C-31". Parliament of Canada. Retrieved 7 April 2012.
  13. ^ Elliott, Louise, and Laura Payton. 15 February 2012. "Refugee reforms include fingerprints, no appeals for some." CBC News.
  14. ^ a b c Immigration, Refugees and Citizenship Canada (2017-03-02). "Claiming asylum in Canada – what happens?". www.canada.ca. Retrieved 2021-05-26.
  15. ^ Immigration, Refugees and Citizenship Canada (2013-03-15). "Processing in-Canada claims for protection: The Safe Third Country Agreement". www.canada.ca. Retrieved 2021-05-26.
  16. ^ Immigration, Refugees and Citizenship Canada (2013-03-15). "Terms and definitions related to refugee protection". www.canada.ca. Retrieved 2021-05-26.
  17. ^ a b Branch, Legislative Services (2020-04-30). "Consolidated federal laws of canada, Immigration and Refugee Protection Regulations". laws-lois.justice.gc.ca. Retrieved 2021-05-26.
  18. ^ Department of Citizenship and Immigration Act, Justice Laws. 22 September 2020. Retrieved 7 October 2020.
  19. ^ Revolving Funds Act, Justice Laws. 22 September 2020. Retrieved 7 October 2020.
  20. ^ Canada Border Services Agency Act, Justice Laws. 22 September 2020. Retrieved 7 October 2020.
  21. ^ a b "Acts, Regulations and Other Regulatory Information." Canada Border Services Agency. 31 July 2020. Retrieved 7 October 2020.
  22. ^ Immigration Division Rules, Justice Laws.
  23. ^ Immigration Appeal Division Rules, Justice Laws.
  24. ^ International Boundary Commission Act, Justice Laws.
  25. ^ "Hinzman v. Canada (Minister of Citizenship and Immigration) - Federal Court". decisions.fct-cf.gc.ca. Retrieved 2021-05-26.
  26. ^ Branch, Legislative Services (2019-06-21). "Consolidated federal laws of canada, Immigration and Refugee Protection Act". laws-lois.justice.gc.ca. Retrieved 2021-05-26.
  27. ^ a b "designated foreign national". Steps to Justice. Retrieved 2021-05-26.
  28. ^ "exclusion order". Steps to Justice. Retrieved 2021-05-26.
  29. ^ "departure order". Steps to Justice. Retrieved 2021-05-26.
  30. ^ "deportation order". Steps to Justice. Retrieved 2021-05-26.
  31. ^ "2019 Annual Report to Parliament on Immigration" (PDF). Immigration, Refugees and Citizenship Canada. Archived (PDF) from the original on 2020-04-14. Retrieved 13 July 2020.
  32. ^ "2020 Annual Report to Parliament on Immigration." Immigration, Refugees and Citizenship Canada. 2020 October 30. ISSN 1706-3329.
  33. ^ a b c "What Is Canada's Immigration Policy?". Council on Foreign Relations. Retrieved 2021-05-26.
  34. ^ "Everything you need to know about Express Entry". Moving2Canada. 2016-11-09. Retrieved 2018-11-08.
  35. ^ "How to get a Working Holiday Visa in Canada". Moving2Canada. 2017-11-03. Retrieved 2018-11-08.
  36. ^ Canadian Court of Appeals (May 6, 2019). "Refugee Appeals". Queens Printer. Retrieved 2019-05-06.
  37. ^ Immigration, Refugees and Citizenship Canada (2013-02-15). "Acts and Regulations — Immigration, Refugees and Citizenship Canada". www.canada.ca. Retrieved 2021-05-26.
  38. ^ Keen, Judy (May 28, 2010). "In Canada once more, U.S. troops fleeing a war". USA Today. Retrieved 2011-05-14.
  39. ^ "Win for war resisters". Toronto Star. July 8, 2010. Retrieved 2011-05-14.
  40. ^ "LEGISinfo - Private Member's Bill C-440 (40-3)". Parliament of Canada. Retrieved 2011-05-14.

Further reading