Background on Bill C-11 / Immigration and Refugee Protection Act (IRPA) (2002)
The IRPA received Royal Assent on November 1, 2001 and was implemented on June 28, 2002. IRPA replaces the Immigration Act of 1976 and is an attempt to balance Canada’s tradition of welcoming newcomers and protecting refugees, with tough enforcement measures meant to strengthen national security and public safety.
IRPA includes new tools to increase the security of Canadian borders, such as front-end security screening for all refugee claimants, clearer grounds for detention, fewer appeals and opportunities for the courts to delay the removal of serious criminals, and suspension of refugee claims for people charged with serious crimes until the courts have made a decision.
Admissibility
The IRPA establishes that Canadian citizens, permanent resident and persons registered in the Indian Act have the right to enter or remain in Canada. Other persons wanting to come to Canada as permanent or temporary residents are permitted to enter Canada if they possess a valid visa (if required) and are admissible to Canada. A permanent resident can be found to be inadmissible under certain circumstances. These include the following: being a danger to the security of Canada, being involved in espionage, subversion and terrorism; or for being a member of an organization that has or will engage in such acts.
Inadmissibility
The IRPA sets out the reasons why a person would be excluded from entering or remaining in Canada. These include:
- Security reasons, including espionage, subversion, violence or terrorism, or membership in an organization involved in such activities
- Human or international rights violations, including war crimes or crimes against humanity, or being a senior official in a government engaged in gross human rights violations or subject to international sanctions
- Serious criminality, involving an offence, or equivalent, punishable by a maximum term of imprisonment of at least 10 years
- Criminality, including conviction for an offence or commission of a criminal act
- Organized criminality, including membership in an organization that takes part in organized criminal activity, people smuggling or money laundering
Foreign nationals or sponsors have no right of appeal when admissibility has been denied on grounds of security issues. Nevertheless, any decision by a government official may be subject to an application for judicial review by the Federal Court, but only after all rights of appeal under the act have been exhausted. Applicants must first obtain permission from a Federal Court judge to initiate such a review.
Investigations
CIC employs enforcement officers to investigate people who may have breached any aspect of IRPA. Investigations can begin with police reports, tips from the public or the person’s own admission. 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. For both temporary and permanent residents, major violations of the Act can result in removal from Canada. Permanent residents, permanent resident visa holders and protected persons can appeal a removal order. However, there is no right of appeal in cases of admissibility on grounds of security, human or international rights violations, war crimes, serious criminality or organized crime.
Arrests
Immigration officers can arrest foreign nationals and permanent residents who are suspected of breaching the IRPA. 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.
Detention
Immigration officers can detain people who are suspected of breaching the IRPA if they have reasonable grounds to believe that:
- the person will not appear for immigration proceedings such as an admissibility hearing or removal from Canada;
- the person poses a risk to the public b/c of past crimes, a medical condition or a history of physical violence;
- the person refuses to provide information to an immigration officer on his or her identity during an immigration proceeding.
Immigration officers can detain a permanent resident or 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. 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 IRB, where a CIC officer must present information to justify the detention. 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.
