Ministerial Instructions 81 (MI81): Ministerial Instructions Regarding the Protection of Foreign National Victims of Human Trafficking in Canada via the Issuance of Temporary Resident Permits

Objective

By these instructions, the Department of Citizenship and Immigration Canada (the Department) recognizes the following as it pertains to human trafficking (also known as “trafficking in persons”):

• Its protection role regarding foreign national victims of human trafficking in Canada or as a result of transnational trafficking and the crossing of Canadian borders into Canada;
• The fact that the Department may encounter diverse forms of human trafficking, including sex trafficking and labour trafficking, which trigger a protection response when these cases are brought to its attention;
• The exploitation and multiple types of abuse to which these victims may be exposed (e.g. psychological, sexual, physical, financial abuse and neglect) as part of human trafficking; and
• The impacts and harmful consequences exploitation and abuse may have on the victims, including: fear for their own personal safety and of the safety of their loved ones; shame; low self esteem; sense of powerlessness; post-traumatic stress disorder; fear or mistrust of authorities; inability to work, seek employment or attain financial independence to support themselves or their dependants.

The objective of these Ministerial Instructions is to provide protection to these victims and their dependants in Canada when justified in the circumstances. These protection measures relate to: the regularization of their temporary resident status through the issuance of a temporary resident permit; their eligibility to apply for a work and/or study permit; and their access to healthcare coverage through the Interim Federal Health Program for the duration of their temporary resident permit, when the victims are not already covered under another healthcare program or insurance.

This protection is distinct from the situation of vulnerable workers exposed to abuse in the context of their employment in Canada, for whom specific protective measures are in place when they have a work permit or are authorized to work pursuant to s. 186(u) of the Immigration and Refugee Protection Regulations (the Regulations).

This protection also differs from the situation of migrants involved in smuggling activities, although smuggled foreign nationals could become victims of trafficking once they are in Canada and may then be in need of protection.

Overview

These Instructions are given, pursuant to subsection 24(3) of the Immigration and Refugee Protection Act (Act), by the Minister of Citizenship and Immigration to guide officers when examining whether a temporary resident permit for victims of human trafficking in Canada should be issued to foreign nationals under subsection 24(1) of the Act.

For the purposes of these Instructions, dependants are defined as persons who meet the definition of a “family member” in subsection 1(3) of the Regulations, as assessed by officers.

Considerations

Foreign national victims of human trafficking in Canada may be referred to the Department by law enforcement partners (e.g. the Canada Border Services Agency, the Royal Canadian Mounted Police, provincial/local police force) or non-governmental organizations. These victims may also self-identify to the Department. In any case, in order to get protection, they must apply for a special temporary resident permit for victims of human trafficking.

Officers of the Department who are assessing an application for a temporary resident permit should consider issuing a temporary resident permit for victims of human trafficking to a foreign national and their dependants in Canada if they determine that the applicant is or may be a victim and if they are of the opinion that issuance of such a temporary resident permit is justified in the circumstances.

Criteria for the issuance of temporary resident permits

The criteria used to assess whether the applicant is a victim of human trafficking should include indications that the recruitment, transfer or transport of the foreign national was fraudulent, deceptive or coerced (e.g., intimidation, extortion, kidnapping), and either:

1. The foreign national’s freedom was restricted; for instance: by the exercise of control (e.g., receipt, harbouring, holding, concealing, directing, influencing over their movements or debt bondage), the use of force (e.g. abduction, physical assault, sexual assault, confinement, restraint) or the threat of the use of force; or 
2. The foreign national was coerced into exploitative employment or other exploitative activities (e.g., sexual exploitation, forced labour or services, slavery, organ removal).

Purposes for the issuance of temporary resident permits

The issuance of these temporary resident permits to foreign national victims of human trafficking and their dependants in Canada may be justified for any of the following purposes:

1. To allow them to escape the influence of traffickers;
2. To provide them with a period of time to further consider their options and help them make an informed decision on a future course of action;
3. To allow them to recover from physical and/or mental trauma resulting from the exploitation and abuse they were exposed to (e.g. counseling and/or medical treatment may be necessary); or
4. For any other purpose officers may find relevant to facilitate the protection of vulnerable foreign nationals who are victims of human trafficking in Canada.

Effects of the issuance of temporary resident permits on the victims

In addition to the protection the issuance of these temporary resident permits would have by regularizing the status of the victims and their dependants in Canada, these permits will provide them with the following:

1. Eligibility to apply for a work permit under section 200 or 201 of the Regulations and/or a study permit under section 216 or 217 of the Regulations; and
2. Healthcare coverage under the Interim Federal Health Program for the duration of their temporary resident permit, when the victims are not already covered under another healthcare program.

Officers’ assessment related to the issuance of temporary resident permits for foreign national victims of human trafficking in Canada

Initial temporary resident permits

When a foreign national comes to the attention of the Department by applying for a temporary resident permit for foreign national victims of human trafficking in Canada, and when officers are able to conduct an in-depth analysis of the applicant’s situation, they should consider issuing a temporary resident permit of at least 12 months, if they have reasonable grounds to believe that the applicant is a victim of human trafficking.

However, when it is not possible for officers to conduct an in-depth analysis of the situation while an urgent response from the Department is nevertheless required to respond to its protection role, the officers should consider issuing a shorter-term temporary resident permit if they have reasonable grounds to believe that the applicant may be a victim of human trafficking. The temporary resident permit issued following that assessment should be valid for a period of up to 12 months.

In both situations, the officers must also be of the opinion that the issuance of a temporary resident permit for victims of human trafficking is justified in the circumstances.

Subsequent temporary resident permits

A subsequent temporary resident permit for foreign national victims of human trafficking may also be issued if, based on an in-depth assessment, officers have reasonable grounds to believe that the applicantis a victim of human trafficking.

The officers must also be of the opinion that the issuance of a subsequent temporary resident permit for victims of human trafficking is justified in the circumstances, taking into consideration the purposes listed above.

Scope

These Instructions apply to applications for temporary resident permits for victims of human trafficking submitted to or pending review by the Department on or after the coming into force of these Instructions.

Applications in processing

Applications in processing at the time of signature shall be assessed under these instructions upon their coming into force.

Effective date

These instructions come into force one week after signature.

These Ministerial Instructions will supersede and replace Ministerial Instructions regarding the issuance of Temporary Resident Permits to victims of human trafficking that came into effect on June 12, 2007.