Immigration Policy Changes

Written by on August 16, 2010 in Immigration

Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issue and objectives

Foreign nationals who wish to live in Canada as permanent residents must normally apply for and obtain a permanent resident visa before they arrive in Canada. Alternatively, they may apply for permanent residence from within Canada if they meet the eligibility requirements of an in-Canada immigration class. Despite the foregoing, foreign nationals in Canada or abroad who do not meet the eligibility requirements to apply within an immigration class may be granted permanent resident status or an exemption from any criteria or obligations of the Immigration and Refugee Protection Act (IRPA), if justified on humanitarian and compassionate or on public policy grounds, as is stipulated in section 25 of the IRPA.

Section 25 of the IRPA is a discretionary provision that gives the Minister of Citizenship and Immigration the authority to grant permanent resident status or an exemption from any applicable requirement of the IRPA or its Regulations, if it is justified by humanitarian and compassionate or public policy considerations. The purpose of section 25 of the IRPA is to provide the Minister with the flexibility to approve cases in exceptional circumstances. It is a discretionary tool designed to enhance the attainment of the objectives of the IRPA and to uphold Canada’s humanitarian tradition; it is not intended to be an alternative stream for immigration to Canada or an appeal mechanism.

Section 25 provides the legal basis for both the humanitarian and compassionate provision and public policies. Although both humanitarian and compassionate and public policies may be used to grant permanent resident status or an exemption from any criteria or obligations of the IRPA, these provisions differ in the following ways:

  • A humanitarian and compassionate provision is a discretionary provision taken on a case-by-case basis by the Minister or Minister’s delegate. Humanitarian and compassionate decisions have no eligibility criteria per se, though there are guidelines for decision-makers to follow. The humanitarian and compassionate process is triggered either by the foreign national making an application, or by the Minister (on the Minister’s own initiative).
  • A public policy, unlike the humanitarian and compassionate provision, is designed to facilitate processing of a number of individuals in similar circumstances, all of whom must meet specific eligibility criteria. Only those applicants who meet those criteria may be granted permanent residence under the public policy. Public policies are established by the Minister.

An Act to amend the Immigration and Refugee Protection Act and the Federal Courts Act, also known as the Balanced Refugee Reform Act, which recently received Royal Assent, contains several amendments to the humanitarian and compassionate provision, including the separation of section 25 into three sections. Section 25, as it previously read, was a complex provision which either compelled or allowed the Minister to consider requests for humanitarian and compassionate consideration, discussed both humanitarian and compassionate and public policy considerations, and involved applicants inside or outside Canada.

For purposes of clarity, the current aspects of section 25 have been separated into three distinct sections. As a result, section 25 concerns requests for humanitarian and compassionate consideration from foreign nationals in Canada, section 25.1 concerns humanitarian and compassionate grounds considered on the Minister’s own initiative, and section 25.2 concerns public policy considerations. The legal and technical refinements to section 25 improve the clarity of the humanitarian and compassionate provisions, and assist in more consistent application and interpretation of the Act and associated regulations.

In light of the changes to section 25, the regulations related to humanitarian and compassionate considerations that currently exist should be amended to include reference to the new sections. Thus, the changes to the humanitarian and compassionate provisions that require regulatory amendments may be characterized as technical in nature. The objective of proposing corresponding amendments to the Regulations is to maintain the status quo by ensuring that applicants who are granted positive humanitarian and compassionate consideration on the Minister’s initiative (25.1) or positive consideration on public policy grounds (25.2) would continue to benefit from the Regulations.

Description and rationale

The following amendments to the Immigration and Refugee Protection Regulations (IRPR) are proposed:

1. Insert reference to sections 25.1 and 25.2 of the Act in sections 67 and 68 of the Regulations (regarding permanent resident visas)

Sections 67 and 68 of the IRPR relate to the issuance of permanent resident visas to foreign nationals granted exemptions from eligibility requirements under subsection 25(1) of the IRPA who have applied for humanitarian and compassionate consideration outside Canada (section 67) or in Canada (section 68). Currently, the above-noted Regulations only make reference to exemptions granted under subsection 25(1) of the IRPA. In order to maintain the status quo, amendments to sections 67 and 68 of the IRPR, by adding a reference to sections 25.1 and 25.2 of the IRPA, would be necessary. This would ensure that foreign nationals and accompanying family members who may be granted an exemption on the Minister’s initiative (section 25.1) or on public policy grounds (section 25.2) would continue to be eligible for the possible issuance of permanent resident visas under sections 67 and 68 of the Regulations.

2. Insert reference to sections 25.1 and 25.2 of the Act in paragraph 207(d) of the Regulations (regarding work permits)

Paragraph 207(d) of the IRPR addresses the issuance of work permits to foreign nationals in Canada who have been granted an exemption under subsection 25(1) of the IRPA. In order to maintain the status quo, it is proposed that reference to sections 25.1 and 25.2 be included in paragraph 207(d) of the IRPR. Such an amendment would ensure that foreign nationals who have been granted an exemption on the Minister’s initiative (section 25.1) or on public policy grounds (section 25.2) would continue to be eligible for the possible issuance of a work permit under paragraph 207(d) of the IRPR.

3. Insert reference to sections 25.1 and 25.2 of the Act in section 233 of the Regulations (regarding stays of removal)

Section 233 of the IRPR refers to stays of removal granted further to subsection 25(1) of the IRPA. In order to maintain the status quo, section 233 of the Regulations would require an amendment to include references to sections 25.1 and 25.2 of the IRPA. This would ensure that removal orders against foreign nationals and any of their family members may continue to be stayed if the Minister is of the opinion that there exist humanitarian and compassionate or public policy considerations under section 25.1 (on the Minister’s initiative) or under section 25.2 (public policy considerations).

4. Insert reference to sections 25.1 and 25.2 of the Act in paragraph 298(2)(b) of the Regulations (regarding exceptions to the payment of fees for temporary resident permits)

Paragraph 298(2)(b) of the IRPR refers to exceptions to the payment of fees for temporary resident permits for persons with pending applications further to subsection 25(1) of the IRPA. In order to maintain the status quo, paragraph 298(2)(b) of the Regulations would require an amendment to include references to sections 25.1 and 25.2 of the IRPA. This would ensure that foreign nationals with a pending decision under section 25.1 (on the Minister’s initiative) or under section 25.2 (public policy considerations) would continue to be exempt from the payment of fees for temporary resident permits.

Consultation

Provincial and territorial members of the Department’s Immigration Planning Table were advised in May 2010 of these proposed regulatory amendments and were invited to submit any comments or concerns. To date, no feedback has been received.

Implementation, enforcement and service standards

The proposed amendments entail minimal implementation requirements. Guidelines in policy manuals would be updated to inform immigration officers of the new Regulations. Such measures, including training of current staff, would be funded out of resources already allocated.

Contact

Brenna MacNeil
Director
Social Policy and Programs
Immigration Branch
Department of Citizenship and Immigration
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: 613-941-9022
Fax: 613-941-9014
Email: Brenna.MacNeil@cic.gc.ca

Leave a Comment