A general introduction to immigration law and policy in Canada

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Introduction to the immigration framework

i Legislation and policy

Canada’s immigration policies are grounded in federal legislation, specifically the Immigration and Refugee Protection Act (IRPA). Its associated Regulations, the Immigration and Refugee Protection Regulations (IRPR), outline how to apply the provisions of the IRPA. The IRPA was introduced in 2002, and replaced the Immigration Act, 1976. The primary objectives of the IRPA are to facilitate economic immigration and family reunification, and to fulfil Canada’s obligations toward refugee protection.

The IRPA is primarily administered by the Minister of Citizenship and Immigration. The IRPA allows for the Minister to issue binding ministerial instructions that direct immigration policy without the need for Parliamentary review or legislative amendment. To date, these ministerial instructions have been used for such purposes as establishing permanent residence pilot programmes, regulating the processing of temporary residence applications and managing application intake.

Operational manuals and instructions, and programme delivery updates, play a critical role in establishing immigration policy and are meant to provide guidance to delegated immigration authorities. They outline various temporary public policies and programme requirements and are subject to frequent change as they can be quickly released and amended as required. In practice, they are heavily relied upon by immigration authorities in their decision making.

With the onset of the covid-19 pandemic, we have also seen the use of emergency orders in council, which is a legislative tool rarely used in the immigration context. Orders in council are recommendations from Federal Cabinet and are not subject to Parliamentary review before they are implemented. Currently, orders in council govern the temporary travel prohibitions and the quarantine and isolation obligations for persons entering Canada that have been introduced to curb the spread of covid-19. These orders have been frequently amended throughout the course of the pandemic and remain in place at the time of writing.

ii The immigration authorities

The ultimate responsibility for administering the IRPA is shared by the Minister of Citizenship and Immigration Canada and the Minister of Public Safety and Emergency Preparedness.

The Minister of Citizenship and Immigration Canada oversees Immigration, Refugees and Citizenship Canada (IRCC), to which he delegates his administrative responsibility. IRCC’s responsibilities include facilitating the entry of temporary and permanent residents, granting refugee protection, granting citizenship and the issuance of passports for Canadians. IRCC maintains a network of inland processing offices and consular visa offices abroad where applications are processed.

The Minister of Public Safety and Emergency Preparedness oversees the Canada Border Services Agency, which is responsible for port of entry examinations, enforcement (including arrest, detention and removal) and evaluating inadmissibility on criminality and security grounds. In certain circumstances, visa-exempt individuals are eligible to apply for temporary residence status, including work authorisation, at the port of entry. In this case, a Canada Border Services Agency officer has the authority to assess the application.

The department of Employment and Social Development Canada (ESDC) administers the temporary foreign worker programme, which is accessed by employers who must undertake a labour market test before hiring a temporary foreign worker. ESDC assesses labour market impact assessment applications and has the authority to review the activities and ongoing compliance of employers who use the programme.

The year in review

The covid-19 pandemic has continued to drastically effect Canadian immigration policy, which has changed dramatically. Many regular immigration provisions are not being followed during these pandemic times, and while some of the ‘temporary’ provisions have been discontinued, we expect that others that have been introduced in response to covid-19 will continue for at least the next year

i Covid-19 travel restrictions

Canada’s borders have somewhat opened, specifically to fully vaccinated individuals. This has undoubtedly been the most significant policy change this past year. There remain orders in council that are updated from time to time. The latest version came into effect on 28 February 2022. One regulates entry. Another speaks to quarantine. The orders in council that deal with travel allow entry for ‘optional and discretionary’ purposes, such as tourism, recreation or entertainment. Foreign nationals seeking to enter can apply for entry under regular immigration rules including as business visitors and for work permits. However, practically foreign nationals seeking entry from outside the United States face far greater uncertainty as they must use aircraft to travel and cannot simply ‘drive to the border’. Prior to entering Canada, a person must download and fill in the ‘Arrive Can App’.

Up until 1 April 2022, all those five years of age or older who wish to travel to Canada must have completed a PCR test within 72 hours of entry or of the scheduled departure of their flight, or a rapid antigen covid test within 24 hours of arriving at the port of entry or of the departure of their flight. As of that date, fully vaccinated travellers no longer had to undergo a covid-19 test prior to travel. Travellers may still be randomly selected to take a covid test at the port of entry, however, and if they are arriving from outside the United States, may be asked to quarantine while they wait for results.

In addition, those who wish to enter must be ‘fully vaccinated’ with a vaccine that has been approved by Health Canada. Fully vaccinated as of this date means two doses of a vaccine (except for the Johnson vaccine).

There are certain exceptions to the above. For example, if an individual is involved in essential work, they may be exempt from the requirement to be fully vaccinated. Canadian citizens or permanent residents may enter Canada if they are not vaccinated. Travellers who are not vaccinated will have to quarantine for 14 days and take a covid test on arrival and on day 8. Non-vaccinated foreign nationals who are not performing essential activities will not be allowed to enter Canada.

These changes, allowing fully vaccinated foreign nationals from outside the United States to travel to Canada has enabled visa-exempt individuals to once again apply for a work permit at the port of entry as they normally could prior to the pandemic. They no longer have to make application through the applicable visa office overseas. In the early months of the pandemic, processing was at a near standstill as many visa offices closed or drastically reduced their staff. While processing through many overseas offices has improved, many are still operating at reduced levels and are accordingly prioritising applications that they consider to constitute essential work. The prioritisation of applications is riddled with discretion, and the uncertain and prolonged processing times have significantly impacted employers who wish to employ individuals who require visas to enter.

Business travel from outside the United States is now possible.

While foreign nationals travelling from the United States face fewer restrictions and can seek business visitor entry at a land port of entry, the quarantine requirements are a significant impediment and deterrent for those who are performing what could be considered essential activities and are unvaccinated.

ii Covid-19 quarantine requirements

In March 2020, Canada introduced mandatory quarantine requirements shortly after implementing the travel restrictions. In the normal course, all persons who entered Canada (including Canadians) were required to self-isolate for 14 days upon entry to Canada. In late February 2021, in responding to the increasing spread of covid-19 variants of concern, Canada introduced mandatory government hotel quarantine stays for all persons entering Canada by air. Upon arrival in Canada, travellers had to take a covid-19 test, and then self-isolate at a government-approved hotel while waiting for the negative test result, which could take up to three days. Upon receipt of the negative test, travellers could then move to a suitable quarantine location where they spent the remainder of the 14 days in self-isolation. These quarantine hotels proved to be problematic and ineffective and were phased out in the summer of 2021.

As of this writing, quarantine is limited to Canadian citizens and permanent residents who are not fully vaccinated and returning to Canada from abroad, certain essential workers who are unvaccinated, and at the discretion of Public Health Canada, some individuals travelling to Canada from outside the United States who are randomly selected to take a covid-19 test when entering.

iii Temporary residents in Canada

Canada has been very generous regarding its treatment of those who are already in Canada in temporary status. For example, applicants who are on work permits may in certain circumstances apply for a new work permit for a new employer on an expedited basis. This was not the case previously. Further, in specific and unique circumstances visitors can change their status to worker. Again, this was not permissible previously.

Outlook and conclusions

Frankly, it has been a very difficult year for Canada Immigration. The covid pandemic has created a tremendous amount of uncertainty and confusion. In addition, processing has slowed considerably as Canada Immigration and Canada Border Services have scrambled to keep up with constantly changing policies and procedures. Obviously, we look forward to a normalisation of processing and foresee a time when both temporary and permanent applications can be adjudicated in a more timely fashion. In addition, Canada has not been successful in fulfilling the desired number of permanent residents that were anticipated as a result of the pandemic; therefore, in the short term (one to two years), there may be initiatives to boost these numbers. We do anticipate that the immigration programme will be dealing with the effects of covid-19 for at least the next 12 to 18 months.