CBSA Emergency Regulations
- As you are aware, on March 16, 2020, the Government of Canada announced the closure of the Canadian border to any person who is not a Canadian citizen, permanent resident, registered Indian or United States citizen arriving via the air mode.
- This announcement was followed by an agreement between the Government of Canada and the United States on March 18, 2020 to temporarily close the border between the two countries to non-essential, discretionary travel, which includes tourism, recreation and entertainment purposes.
- While orders or regulations prohibiting the entry of persons to Canada may be made by the Governor in Council either pursuant to the Emergencies Act, or the Quarantine Act, these statutes do not provide the CBSA with authority to deny entry to Canada by persons who may be prohibited from entering the country.
- Therefore, on March 18, the amendments to the Immigration and Refugee Protection Regulations were tabled in both Chambers and brought into force.
- These amendments establish an authority for the CBSA to temporarily direct back a prohibited foreign national seeking entry from the United States, including refugee claimants.
- In addition, the regulations allow me to designate the immigration services to be available at ports of entry to ensure that CBSA resources are dedicated where they are most needed.
- These new regulatory authorities are sufficiently flexible to allow the CBSA to do its work as the situation evolves, and provides them with the suite of tools needed to restrict entry of a class of persons who may present a threat to the health, safety or security of Canadians.
On March 21, 2020, the Governments of Canada and the United States suspended non-essential travel along the Canada-U.S. border in response to the spread of the coronavirus disease (COVID-19) and to continue to facilitate trade and support to our economy.
To achieve this policy objective, the Governor in Council may prohibit the entry to Canada by certain persons in all modes (i.e. air, land, rail and marine). Orders or regulations prohibiting the entry of persons to Canada may be made by the Governor in Council either pursuant to the Emergencies Act, or the Quarantine Act. In either case, these statutes do not provide the CBSA with authority to deny entry to Canada by persons who may be prohibited from entering the country. Rather those statutes provide only for criminal enforcement with respect to these cases, whereby a contravention on the prohibition to enter could result in a fine or term of imprisonment or both. These enforcement actions are insufficient to achieve the Government of Canada’s policy intention with respect to targeted prohibitions on entry by certain persons who may pose a health and safety risk to Canada. Regulatory amendments to the Immigration and Refugee Protection Regulations (IRPR) are required in order to implement the policy intent with respect to prohibitions on entry.
The IRPR amendments tabled in both Chambers which came into force on March 21 provide the CBSA with authorities that are necessary to respond to a pandemic, particularly with respect to prohibitions on entry by foreign nationals. With respect to persons who may be prohibited from entering Canada by virtue of an order or regulation made by the Governor in Council, the regulatory amendments will:
- establish an authority for the CBSA to temporarily direct back a prohibited foreign national seeking entry from the United States, back to that country, and issue a removal order in the event of non-compliance with that direction; and
- require that they not be carried to Canada by commercial transportation companies.
There are exceptions prescribed in the regulations, including:
- A citizen of the United States;
- A stateless habitual resident of the U.S.;
- A mother, father or legal guardian of a minor who is a U.S. citizen; and
- Unaccompanied minors.
The Safe Third Country Agreement continues to apply to any foreign national making an asylum claim at a port of entry or inland, and are subject to be returned to the U.S. as a claim must be made in the first safe country available.
The regulatory amendments support a temporary prohibition made by an order or regulation pursuant to either the Emergencies Act or the Quarantine Act. Unless a person is non-compliant with a direction to return to the United States made under the regulations, those prohibited entry may return to the border to seek entry after the travel prohibitions have been lifted. Should a person be non-compliant with the direction to return to the United States, they may be found inadmissible to Canada and issued a removal order at the port of entry in accordance with existing processes. The amendments do not impact any of the currently available recourse mechanisms with respect to immigration enforcement.
- Date modified: