Horizontal Evaluation of the Immigration and Refugee Protection Act Division 9 / National Security Inadmissibility Initiative

Background

The Immigration and Refugee Protection Act (IRPA) is the primary federal legislation regulating immigration to Canada. IRPA sets out the core principles and concepts that govern Canada's immigration and refugee protection programs, including provisions related to detention reviews and admissibility hearings, and the jurisdiction and powers of tribunals.

The Act outlines various grounds for inadmissibility to Canada for permanent residents and foreign nationals (non-citizens). These grounds include, among others;

• security (section 34);
• human or international rights violations (section 35); and
• organized criminality (section 37).

The admissibility to Canada of non-citizens is usually determined by immigration authorities using open-source information or information that is known to the applicant. However, non-disclosable information is sometimes relevant to assessing admissibility, particularly when considering one of the three grounds for inadmissibility listed above.

In these cases, the disclosure of such information may be injurious to national defence, international relations, national security, or endanger the safety of an individual. For example, the release of such information may impede ongoing and future intelligence and criminal investigations, expose intelligence agencies' tradecraft, harm relationships with Canada's partners and international allies, or risk the safety of the source of the information.

Within the IRPA, Division 9 provides the legal framework that allows for the use and protection of non-disclosable information in immigration proceedings. These include:

• security certificates before the Federal Court (section 77);
• admissibility proceedings, detention reviews, and immigration appeals before the Immigration and Refugee Board (IRB) (section 86); and
• judicial review proceedings and related appeals before the Federal Court (section 87).

The IRPA Division 9/ National Security Inadmissibility Initiative (the Initiative) includes policy development and management of cases that have one or more of the following characteristics:

• non-disclosable information is used to determine whether a foreign national or permanent resident (non-citizen) is inadmissible to Canada as described in the IRPA;
• non-disclosable information is used in the context of a review of grounds for detention or of release conditions;
• non-disclosable information is used in proceedings before the IRB;
• non-disclosable information is used in applications for leave and judicial review before the Federal Court and subsequent appeals before the Federal Court of Appeal and Supreme Court of Canada; or
• Enhanced diplomatic assurances against torture are sought and relied upon to facilitate the removal of an inadmissible foreign national from Canada to another country.

The goal of the Initiative is to ensure that: the integrity of the immigration system is maintained; national security is safeguarded and Canada's borders are secured through the identification of, enforcement action against, and risk management of inadmissible non-citizens; the integrity of the security and intelligence system is maintained; and, there is fair representation of subjects through a Charter-compliant process.

The Initiative is a combination of the activities of nine departments and agencies including: Public Safety Canada (PS), Immigration, Refugees, and Citizenship Canada (IRCC), Justice Canada (JUS), Global Affairs Canada (GAC), Canada Border Services Agency (CBSA), Canadian Security Intelligence Service (CSIS), Courts Administration Service (CAS), Immigration and Refugee Board of Canada (IRB), and Royal Canadian Mounted Police (RCMP).

The IRB is an independent tribunal, and CAS is an independent agency. Both operate at arm's length from the federal government. RCMP is a non-funded department involved in case coordination activities therefore they were not scoped into the evaluation.

Engagement Purpose and Methodology

The purpose of the evaluation was to assess the relevance, performance and governance of the Initiative. The evaluation covered the period from fiscal year 2019-2020 to 2024-2025 and was conducted in accordance with the Treasury Board Policy on Results and the Directive on Results.

Interviews

28 interviews were conducted with senior management and program staff from eight Initiative organizations.

Program Document Review

Program documents and literature (e.g. government reports, articles, academic research) were reviewed.

Performance and Financial Data

Available performance data was reviewed and program financial data was analysed.

Limitations

Division 9 provides the legal framework within the IRPA legislation that allows for the use and protection of non- disclosable information. The Initiative does not function as a traditional distinct program, as it is only used in specific circumstances. This presents challenges in evaluating its performance. However, the requirement to evaluate the Initiative was documented in the Authorities section of the 2018 Treasury Board submission which provided ongoing and stable funding, therefore the evaluation focussed on the activities of the Initiative departments' and agencies' to assess the achievement of intermediate outcomes.

The Performance Measurement Strategy may not accurately reflect the work being done as part of the Initiative or the level of effort undertaken for specific activities as Division 9 is used only in exceptional circumstances. The evaluation team made use of interviews and a review of documents and literature to assess Initiative performance.

Findings

Relevance

Activities under the Initiative are aligned with and support the Government of Canada's priority to protect the safety and security of Canadians and maintain the integrity of the immigration system. Among the Initiative organizations, there is a consensus that activities under the Initiative are in line with their respective departmental mandates (Annex A).

While the mandates of the various partners are complementary, their priorities or approaches to fulfilling these mandates may differ. Initiative organizations believe the Initiative continues to mitigate threats to national security by protecting the safety of individuals and non-disclosable information, while ensuring fairness and respecting a Charter-compliant process.

Impacts on the Initiative

Increased annual immigration targets have impacted the Initiative. From 2021 to 2025, it was the Government of Canada's goal to welcome over 2.2 million new permanent residents. This goal placed a significant burden on the immigration system, resulting in a backlog. Immigration cases have increased 109% from 2020 to 2022, with over 85% of the Federal Court cases in 2022 being immigration related. These increases occurred at the same time as the COVID-19 pandemic, causing additional delays and amplifying pressure on the Immigration system.

In immigration cases where non-disclosable information is involved, there is an added layer of complexity, such as, additional legal proceedings where written reasons for the use of non-disclosable information must be carefully drafted by decision-makers, as well, the material has to be viewed in person and may involve coordination among Initiative organizations, leading to additional constraints. Immigration targets are set to decrease 21% in 2025 for permanent residents with continual gradual decreases planned until 2027.

As global displacement and humanitarian crises arise, Canada is being increasingly called upon to respond with appropriate immigration measures. Interviewees have noted that this has led to increased workload and resource reallocation within Initiative organizations to address these challenges.

Performance - Effectiveness

Cases

There are many cases where individuals apply for temporary or permanent residency and are denied. The Division 9 Initiative comes into use when inadmissibility concerns for an individual are identified, and there is a need to use and protect non-disclosable information to obtain an inadmissibility finding, or during the judicial review of a decision where there is injurious information on file. Among the various grounds for inadmissibility to Canada for permanent residents and foreign nationals, three allow for the use of non-disclosable information. Of these, section 34 (security) is the one most often referred to as a reason for inadmissibility by IRCC. 50% of the temporary and permanent residence applications refused by IRCC for inadmissibility determinations pursuant to section 34, 35, and 37 in Canada and overseas were for section 34 reasons. For CBSA, section 37 (organized criminality) is the most common grounds for inadmissibility. However, it is not clear if the above determinations were made using non-disclosable information as this is not tracked under the Initiative's performance strategy.

There are three types of proceedings where the government may use and protect non-disclosable information in immigration cases (section 77, section 86, and section 87).

Although security certificates (section 77) were considered effective in mitigating security threats, there have been no new security certificates referred since 2008 when the five most recent security certificates were signed by the Ministers of PS and IRCC. Two of these certificates were determined to be reasonable by the Supreme Court of Canada and the individuals are being monitored by the CBSA, under the Initiative, solely for the purposes of ensuring compliance with the terms and conditions of release from detention. Prolonged litigation continues on all security certificate files to various degrees.

Section 86 allows the protection of non-disclosable information only in admissibility hearings, detention reviews and appeals before the IRB. It is important to note that the first detention review application must be conducted by the IRB during the first 48 hours after a non-citizen is taken into detention or without delay afterward, then 7 days following the first review, and every 30 days after. These reviews require CBSA officers to demonstrate that continued detention is warranted. There is greater complexity to detention reviews involving an application under section 86 as they use non-disclosable information. The applications for section 86 is labour-intensive and requires significant resources from the IRB and CBSA. CSIS and JUS resources may be called upon to review and identify non-disclosable information as well as to litigate the section 86 application. The use of secure space at the IRB to review the non-disclosable information is also required. Between 2020 and 2024, only one section 86 application was filed on a detention review.

The process for the protection of non-disclosable information in a judicial review (section 87), is similar to section 86, however it is used during the defense of an immigration decision before the Federal Court. An application for judicial review may be initiated by the Minister of IRCC or PS, or by the individual who was subject to the IRB hearing. Between 2020 and 2024 there was an increase of section 87 applications, as seen in Table 1.

The most significant increase was between 2021-2022 and 2022-2023, whereby a 110% increase in cases occurred. It was reported that the overall growth in immigration and mandamus pressures are contributing factors to the increase of section 87 cases.

Challenges to the Initiative

The backlog of immigration cases during the COVID-19 pandemic created delays with decisions. This led to a surge in mandamus applications in the Federal Court seeking court orders requiring IRCC and CBSA to make decisions on outstanding immigration cases in a given timeframe. If the immigration file contains non-disclosable information, a Certified Tribunal Record (CTR) would require redactions and an application for non-disclosure. This additional court case requires an affidavit to be filed explaining the injury if the information was to be disclosed. The Court-ordered timelines to produce the CTR pose a challenge and additional litigation steps are necessary to amend these timelines. If the necessary information is not produced by the deadline, the Court may demand an explanation and while the Court may allow an extension, the process of producing a CTR containing non-disclosable information consumes significant resources from multiple Initiative organizations.

Additionally, some departments and agencies have raised concerns regarding the increase in demand for physical and digital infrastructure. There may be inadequate funding to maintain, upgrade and expand cybersecurity, IM/IT, and physical environments posing significant operational risks as well as risks to hearing cases in a timely manner.

Protection of Rights

The Special Advocates Program (SAP) was established in 2008, following the Supreme Court case of Charkaoui v. Canada regarding a security certificate case. The case found that Canada could do more to ensure individual rights were protected under the Initiative. Subsequently, the SAP was created to ensure Division 9 mechanisms are Charter-compliant. In 2014, the Supreme Court of Canada upheld the constitutional validity of Division 9's Special Advocates provisions.

Each Special Advocate is a pre-screened and security-cleared private lawyer who defends the applicants' interests in Division 9 proceedings that occur in designated secure facilities to ensure the confidentiality and security of the information. The Special Advocate's role is to protect the interests of the permanent resident or foreign national in a proceeding when non-disclosable information is heard in the absence of the public and of the permanent resident or foreign national and their counsel. The Special Advocate may not communicate with the individual once they have reviewed the non-disclosable information, other than with the Court's authorization. Special Advocates rely on access to secure electronic platforms to ensure the protection of non-disclosable information.

A designated judge may appoint one to two Special Advocate for section 86 and section 87 applications. Between 2020 and 2023, there were 10 to 11 Special Advocates on the roster with three assigned to section 87 cases.

While the role of the SAP has decreased over the years, the number of trained Special Advocates went from 10 to 21 in 2023-2024. During the renewal of the Special Advocate list, a Gender-based Analysis Plus (GBA Plus) lens was considered through a call for interest and a committee to ensure Special Advocates were diverse. The list was renewed to be balanced based on gender, regions, background, and legal experience.

Overall, the SAP ensures procedural fairness for the applicant by advocating for the interests of the person during these closed proceedings while also ensuring the Initiative protects non-disclosable information, thereby protecting the rights of the individual along with the security of Canadians.

Secure Administrative Review Proceedings (SARP)

The impacts of foreign interference have resulted in the legislative response of an Act Respecting Countering Foreign Interference (Bill C-70). Under Bill C-70, IRPA Division 9 was amended to expand the grounds for protecting information from disclosure, to include information that could be injurious to international relations and national defence, along with national security, and the safety of any person.

Bill C-70 also established a process for Secure Administrative Review Proceedings (SARP). Under SARP, a Special Counsel represents the interests of a non-government party when Canada seeks to protect sensitive (non-disclosable) information for non-immigration administrative proceedings. The SAP regime has been established as constitutional by the Supreme Court, given this context it suggests the Courts may also find SARP sufficient to guarantee fairness. The SARP is completely separate from the Initiative, although Special Counsel for these proceedings may be selected from the existing list of Special Advocates.

Assurances against Torture

In addition to providing Special Advocates, the Initiative protects the rights of individuals through efforts to obtain enhanced diplomatic assurances against torture to facilitate the removal of an inadmissible foreign national who is subject to a security certificate. Canada is a signatory of the United Nations Convention Against Torture which explicitly prohibits state parties from returning a person to another state where there are substantial grounds for believing that he or she would be in danger of being subject to torture. During the evaluation period, there were no cases requiring enhanced diplomatic assurances against torture.

Efficiency

Governance

Overall, roles and responsibilities with respect to the Initiative are understood. While the mandates of various partners are complementary, they have distinct approaches to analyzing information leading to inadmissibility decisions. There are opportunities to better support the way in which partners work with one another.

The IRB, IRCC, CSIS, and CBSA play key roles in determining the admissibility to Canada of permanent residents or foreign nationals.

For immigration applications that are referred to CSIS by IRCC or CBSA, CSIS provides national security advice that informs decision making by IRCC in determining inadmissibility. CBSA in turn makes recommendations on inadmissibility to its delegated officers and to IRCC.

For inland enforcement cases, CBSA Inland Enforcement Officers are responsible for initiating immigration investigations, consulting with security partners, and initiating immigration enforcement by way of an inadmissibility report which sets out the relevant facts. The contents of the inadmissibility report are assessed by the IRB by way of an admissibility hearing, which could result in a removal order. The CBSA and Justice play a distinct role in protecting the sensitive information from being disclosed through litigating, respectively, section 86 and section 87 applications.

While some partners reported being satisfied with the level of horizontal coordination of the Initiative, there are opportunities to address challenges with coordination and training. Some interviewees reported difficulty in accessing secure networks, especially in the regions, a lack of standardization across systems, and inconsistency with contacts within Initiative organizations due to personnel changes. Others suggested that the Initiative would benefit from a coordinated approach to training. Interviewees expressed the need for more support and specialized training in areas, such as access to and the use of secure networks to discuss and store non-disclosable information as well as clear processes to protect against inadvertent disclosure of protected material.

Many interviewees were unaware of PS' role or whether any active committees exist to address case-related or Initiative-wide challenges. Some interviewees noted the benefits of the former Strategic Case Review Committee, which was an interdepartmental forum to discuss high-risk national security immigration cases as well as options and approaches to cases. Most interviewees agreed that the Initiative could be better supported by a forum such as an interdepartmental working group or committee to strategize complex cases, raise legislative or policy issues, and discuss other Initiative-related challenges.

Such a committee or working group could also facilitate information sharing amongst Initiative organizations regarding the use of non-disclosable information for both immigration (Division 9) and non-immigration (Bill C-70) proceedings.

Performance Data

A horizontal performance measurement strategy was developed as part of the Initiative's funding renewal in 2018. The Initiative's departments and agencies committed to collecting data on a wide range of indicators, with PS identified as the department responsible for overall leadership and coordination.

The 2020 evaluation of the Initiative recommended a review of the Initiative's performance indicators and performance measurement strategy. Initiative organizations modified 10 indicators, removed 9, and added 2, for a current total of 70 indicators.

As part of the implementation of the 2020 evaluation Management Action Plan, PS prepared a report on the Initiative's performance in fiscal year 2021-2022. Given that there was minimal input into the report, and that the performance data may not accurately reflect the work being done or the level of effort required for Initiative activities, PS determined that there was limited value in reviewing the performance strategy. PS made a decision to stop drafting these reports.

Resources

Permanent funding for the Initiative was established in 2018-2019. The total amount of funding for the Initiative is $23M per year. This funding is provided to departments and agencies as part of a special allotment, and any unspent funding is returned to the Treasury Board. Not all Initiative organizations are tracking their spending the same way, resulting in a wide variance in allocated and spent funds. Initiative organizations spent from 42 to 100% of their allocated funding.

It was noted that additional funding is required by some organizations to support the increased costs of Initiative salaries and to support physical and IT infrastructure. While some of these funding pressures are not exclusive to the Initiative, there is no mechanism or forum to discuss and address when Initiative departments and agencies face challenges in delivering on their responsibilities under the Initiative.

For example, CAS has spent 100% of their funding over the 5 years of the evaluation and have been under increasing pressure to upgrade and maintain the Top Secret Court facility as well as supporting IT/IM infrastructure. If there continues to be an increase in immigration cases, with a corresponding increase in the amount of section 87 cases, and to maintain readiness when a section 86 application is made, additional funding may be required by certain partners.

Conclusions

Within IRPA, Division 9 provides the legal framework for using and protecting non-disclosable information in immigrations proceedings, when the disclosure of such information would be injurious to national security, international relations, national defence, or endanger the safety of an individual.

The Division 9/National Security Inadmissibility Initiative is aligned with the Federal Government and Initiative organizations' mandates. The Initiative continues to be a necessary tool in Canada's immigration system and contributes to national security and border management while protecting Charter and international human rights of potentially inadmissible persons.

While the Initiative enables the use and protection of non-disclosable information, these cases are complex and require significant amounts of resources as well as specialized infrastructure and secure electronic platforms. The existing Performance Measurement Strategy may not accurately reflect the work being done as part of the Initiative or the level of effort undertaken for specific activities.

Some Initiative organizations have expressed that their current capacity is under pressure by existing demands and that they are concerned that future demands will exceed their capacities. The Initiative could be strengthened by creating a forum for the participating organizations to discuss their funding pressures and the mechanism to reallocate unspent funds.

There are opportunities to further support Initiative organizations through horizontal governance which could improve processes, training, and performance measurement as well as increase collaboration.

Recommendations

The Assistant Deputy Minister, National and Cyber Security Branch, Public Safety, supported by the Initiative's departments and agencies should:

Ensure there are appropriate governance structures and processes, and training in place to support the organizations within the Initiative, with a focus on:

• Providing a forum for discussions particularly in support of decision-making related to complex situations^{Footnote 1};
• Escalation of issues, such as financial pressures, that may impact the utilization and success of the Initiative;
• Secure information sharing and storage corresponding to cases and emerging issues; and
• Monitoring and assessing performance.

Management Action Plan

Annex A