ARCHIVED – Temporary public policy concerning failed refugee claimants subject to the 12-month bar on requests for humanitarian and compassionate consideration following the lifting of the temporary suspension of removals (TSR) on Haiti and Zimbabwe

Note: This public policy expired on August 4, 2016.

In the interest of enabling persons affected by the TSR lifting who qualify to benefit from the six-month administrative stay of removal agreed upon by the Canada Border Services Agency (CBSA) in which they can request permanent resident status on the basis of humanitarian and compassionate (H&C) considerations, I, Minister John McCallum, hereby establish the following temporary public policy under section 25.2 of the Immigration and Refugee Protection Act for Haitian and Zimbabwean foreign nationals in Canada who are failed refugee claimants and who are subject to the 12-month bar on requests for H&C consideration.

Officers should consider granting an exemption from paragraph 25(1.2)(c) of IRPA,  in order to allow those individuals to apply for H&C consideration, if the individual meets the following criteria:

  • Is a national of Haiti or Zimbabwe;
  • Is currently residing in Canada and was residing in Canada on the day of the TSR lifting (i.e., December 1, 2014);
  • Is the subject of a removal order (including conditional removal orders) or is out of status;
  • Has never been found to be ineligible to have a refugee claim referred to the Immigration and Refugee Board (IRB);
  • Is not inadmissible on grounds of security, human or international rights violations, serious criminality, criminality or organized criminality;
  • Has not been excluded by the IRB from refugee protection under the United Nations Convention Relating to the Status of Refugees;
  • Has not had criminal charges dropped by the Crown to effect a removal order;
  • Has never had an outstanding criminal warrant; and,
  • Has:
    • made an application for permanent residence on H&C grounds that is pending on or before the date this public policy comes into effect,
    • applied for permanent residence on H&C grounds in Canada no later than six months from the date this public policy comes into effect, or
    • applied for refugee protection and their claim for refugee protection is pending on the day before this public policy comes into effect, and the refugee claimant applies for permanent residence on H&C grounds no later than six months from a negative decision by the Refugee Protection Division of the Immigration and Refugee Board.

In this context, “negative decision” refers to the initial Refugee Protection Division’s decision rejecting the claim for refugee protection, or determining it abandoned or withdrawn. The six-month time frame from the negative decision begins on the day the Refugee Protection Division renders its decision on the claim for refugee protection, whether rejecting the claim or determining it abandoned or withdrawn, irrespective of any avenues of recourse, including any appeal at the Refugee Appeal Division of the Immigration and Refugee Board or judicial review by the Federal Court.

This public policy comes into effect on the day it is signed.

This public policy replaces the Temporary Public Policy concerning Failed Refugee Claimants subject to the 12 month-bar on Requesting for Humanitarian and Compassionate Consideration following the Lifting of the Temporary suspension of Removals (TSR) on Haiti and Zimbabwe which was signed on November 26, 2014.

John McCallum, P.C., M.P.
Minister of Citizenship and Immigration Canada
Dated at Ottawa, this 4th day of February, 2016

Legislative authority for public policy

Immigration and Refugee Protection Act
Part 1 - Immigration to Canada
Division 3 - Entering and Remaining in Canada
Status and Authorization to Enter

Public policy considerations

25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.

Provincial criteria

(3) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national.

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