Operational Bulletin 214 - June 23, 2010

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

R186(s) – Work permit exemptions for vessel crew members


Purpose/Issue

The purpose of this Operational Bulletin (OB) is to provide information and processing guidelines regarding foreign nationals entering Canada as members of a crew on a vessel under paragraph 186(s) of the Immigration and Refugee Protection Regulations (IRPR).

While this OB addresses the cruise mode of transportation due to discussions in the last year, other modes will be addressed in future manual updates.

Background

Under R186(s) of IRPR, a work permit (WP) exemption is granted to foreign nationals who work aboard a means of transportation as a “member of a crew”. As a condition of this exemption, foreign crew members must work aboard a means of transportation “engaged primarily in international transportation”.

The lack of established guidelines for interpreting this criterion has resulted in the need to clarify the exemption for crews under R186(s) and provide guidelines which may assist officers in making their determination regarding the applicability of the exemption. Citizenship and Immigration Canada (CIC) has consulted with federal partners and undertaken a review of the interpretation and application of this regulation in the context of all means of transportation.

Current policy/procedures – Cruise Ships

Regulation R186(s) of IRPR states that a member of a crew is permitted to work in Canada without a WP under certain conditions.

R186(s). A foreign national may work in Canada without a work permit as a member of a crew who is employed by a foreign company aboard a means of transportation that

(i) is foreign-owned and not registered in Canada, and

(ii) is engaged primarily in international transportation

To date, CIC has approached the issue of WP exemptions for crew members by using a general interpretation of this regulation in the absence of existing case law or definitive policy on the regulation. In the context of cruise ships, “engaged primarily in international transportation” has typically been interpreted as meaning vessels that i) begin or end their journey outside of Canada, or ii) whose home port is in Canada (i.e., initial and final port are the same Canadian port) but who make visits to ports of call that are primarily international. However, there has been some variation in the interpretation of this regulation among various regions.

Policy clarification

In order to clarify CIC’s policy for foreign crews, it is proposed that the interpretation of R186(s) be informed by existing federal regulations dealing with the domestic movement of goods and services through maritime, air, and land transportation. Note that the following instructions are guidelines for immigration officers designed to assist them in making determinations as to whether a foreign national member of a crew requires a WP or is exempt from this requirement under R186(s). Officers may consider these guidelines when making their determinations, however the unique circumstances of each case as well as other requirements under the Immigration and Refugee Protection Act (IRPA) and its regulations should also be considered by officers when making their determinations.

Instructions

Criteria from the Coasting Trade Act may be used by an immigration officer when determining if foreign members of a crew aboard a maritime vessel will require WPs. The Coasting Trade Act defines coasting trade “as the carriage of goods or passengers by ship… from one place in Canada… to any other place in Canada… either directly or by way of a place outside Canada”. When a vessel meets the criteria which defines coasting trade as outlined in the Coasting Trade Act, the ship requires a coasting trade licence.

For CIC and Canada Border Services Agency (CBSA) staff, the requirement for a coasting trade license will typically be a good indication that WPs will likely be required for foreign crew members as the license is indicative of the fact that the vessel is involved in activities within the domestic labour market.

When a WP may be required:

  • In the event that a cruise ship embarks passengers at a Canadian port and disembarks any of these passengers permanently at another Canadian port, a coasting trade license is required. For example a cruise ship embarking all passengers in Montreal, disembarking permanently some passengers in Charlottetown and continuing on to Boston to end the cruise by disembarking the remaining passengers, is engaged in coasting trade and will require a coasting trade license. Immigration officers may consider requiring a WP for foreign national crew members working under such circumstances.
  • In the event that a cruise ship embarks passengers at one Canadian port and then ends the cruise and disembarks passengers at another Canadian port, regardless of whether the itinerary included a stop at an international port of call, the cruise ship is considered to be engaged in coasting trade. For example, if passengers embark in Halifax, make a stop in Boston, USA, and end their cruise in Montreal, the cruise ship is considered to be engaged in coasting trade and will require a coasting trade license. Immigration officers may consider requiring a WP for foreign national crew members under such circumstances.

When crew may be eligible for the WP exemption:

  • For much of Canada, including the ocean coasts, the Coasting Trade Act does not consider the movement of passengers to be “coasting trade” if the itinerary of a cruise ship includes at least one foreign port of call and ends at the original port of embarkation within Canada. For example, if a cruise ship embarks passengers in Halifax, makes a stop in Boston, USA, during the course of its itinerary, and returns to Halifax for disembarkation, a coasting trade license would not be applicable and immigration officers may consider applying the WP exemption. This approach would be similar to that of the U.S. which does not require a work authorization for foreign crew members aboard a foreign vessel provided that the itinerary includes at least one foreign port of call.
  • The Coasting Trade Act also does not consider the movement of passengers to be “coasting trade” if a cruise ship which starts at a Canadian port of call ends its itinerary at a foreign port of call. For example, cruises which embark passengers in Halifax and end their cruise and disembark passengers in Boston, USA, would not be considered to be engaging in coasting trade and immigration officers may consider applying the WP exemption.
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