Operational Bulletin 440-D - August 30, 2012

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Designated Foreign Nationals – Restrictions on Applications for Permanent Residence

Issue

The purpose of this Operational Bulletin (OB) is to provide instructions to officers on how to deal with applications for permanent residence (APR) submitted by designated foreign nationals (DFNs).

Background

On June 28, 2012, Bill C-31, the Protecting Canada’s Immigration System Act (PCISA), received Royal Assent. Bill C-31 amended the Immigration and Refugee Protection Act (IRPA) to give the Minister of Public Safety (PS) the authority to designate the arrival of persons in Canada as an irregular arrival when, having regard to the public interest, the Minister is of the opinion that:

  • the examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility of the persons involved in the arrival, and any related investigations concerning person in the group, cannot be conducted in a timely manner; or
  • there are reasonable grounds to suspect that, in relation to the arrival of the group, there has been or will be, a contravention of subsection 117(1) related to organized human smuggling, for profit, or for the benefit of, at the direction of, or in association with a criminal organization or terrorist group.

When a designation is made, a foreign national who is part of the group whose arrival is the subject of the designation becomes a DFN.

The designation, in subsection 20.1(2) applies to all foreign nationals arriving as part of a designated arrival, except for foreign nationals referred to in section 19 of the IRPA and except for foreign nationals who have the required documentation to enter Canada and satisfy an officer that they are not inadmissible to Canada.

Instead of being able to apply for permanent resident status after conferral of refugee protection, DFNs are not eligible to apply for permanent resident status for a period of at least five years, to a maximum of six years. The five-year bar applies to all APRs by DFNs, including those submitted through other immigration streams such as humanitarian and compassionate consideration or the family class.

The five-year bar on APRs by DFNs is intended to act as a deterrent to those considering coming to Canada as part of an irregular arrival.

What this means

  • Depending on when a DFN submits an APR (through any immigration category), the APR will either be barred from being submitted or suspended if the APR is already in process. The timeframe for both scenarios remain the same — five years after the day on which a final determination is made on the refugee claim or a pre-removal risk assessment (PRRA) or five years after the date of designation as an irregular arrival if no refugee claim or PRRA application was made.
  • DFNs will be subject to reporting requirements. The bar or suspension of a person’s APR may be extended up to a sixth year if they fail to comply with the requirements imposed under section 98.1 or conditions under subsection 58(4) or section 58.1 of the IRPA, without a reasonable excuse.
  • DFNs who have become protected persons will be subject to the reporting requirements for five or six years following conferral of refugee protection plus the time needed to process the APR.
  • Cessation – If the Minister has made an application for cessation of refugee protection as per A108(2) the DFN may not become a permanent resident until the application of the Minister has been concluded. If an application for cessation is made regarding a DFN who has already submitted an APR, the processing of the APR should be suspended until the application for cessation is concluded. If refugee protection is not lost through the cessation process, processing of the APR can resume if the five-year or six-year delay has also elapsed.

CBSA’s role

  • Canada Border Services Agency (CBSA) Inland Enforcement will advise individuals in writing (released, detained and new cases) when they become DFNs and of the implications of the designation.
  • Whether or not released individuals already have reporting requirements, CBSA Inland Enforcement will notify them that they are DFNs, what the reporting requirements are and the implications of the designation.
  • DFNs in detention at the time of a designation will also be informed by CBSA Inland Enforcement of the release mechanisms available to them.
  • A breach of reporting conditions will be recorded by the CBSA in the Field Operations Support System (FOSS) and the National Case Management System (NCMS), allowing CIC to access the information. Following a review of FOSS and NCMS records, CIC will be able to take action to determine if the bar or suspension period on an existing APR should be extended. The applicant is to be given an opportunity to make submissions regarding the failure to comply with reporting requirements imposed pursuant to subsections 58(4), 58.1 or 98.1 of the IRPA before CIC makes a decision to extend the bar.

The following chart explains the restrictions on APRs (all categories including overseas) from DFNs:

When an applicant is a DFN and… Then an APR
has not made a refugee claim, an application for protection or an APR cannot be made until five years after the day of becoming a DFN
has made a refugee claim but has not applied for a PRRA cannot be made until five years after the day on which there is a final determination on the refugee claim
has applied for a PRRA cannot not be made until five years after day on which there is a final determination on the PRRA

The following chart explains when to suspend processing of an existing APR (all categories including overseas) from a DFN:

When an applicant becomes a DFN after submitting an APR and… Then APR
has not made a refugee claim or an application for protection is suspended until five years after the day of becoming a DFN
has made a refugee claim but has not applied for a PRRA is suspended until five years after the day on which there is a final determination on the refugee claim
has applied for a PRRA is suspended until five years after the day on which there is a final determination on the PRRA

Note: If the DFN fails, without reasonable excuse, to comply with any condition imposed on them under A58(4) or A58.1 or any requirement imposed on them under A98(1) and less than 12 months have passed since the end of the applicable period referred to above, an officer may refuse to consider an APR until the 12 months have passed.

Fees

  • For suspended cases, there will be no refund of fees. Fees are only refunded if processing has not begun and the applicant withdraws their application.
  • Any fees received for new APRs submitted by DFNs on or after the date of designation and for whom the five-year bar applies should be refunded and applications returned to the applicant.

FOSS and Global Case Management System (GCMS) instructions for APRs submitted by DFNs that are already in process

FOSS

  • The final dispositions for the APRs created in FOSS should be changed to code 9 – transferred to GCMS. The APR should then be re-created in GCMS with the application status set at “On hold”.
  • Enter a Non-computer-based Entry (NCB) in FOSS that includes the following information:
    • the date the Minister designated the applicant as an irregular arrival;
    • that the applicant may not apply for permanent residence for at least five years after the day a final decision was made (i.e. Refugee Protection Division (RPD), Refugee Appeal Division (RAD), or a Federal Court (FC) decision on the claim for refugee protection or PRRA — whichever is the latest) or in the absence of a decision, when the designation was made; that the processing of the application has been suspended and may resume processing no earlier than (enter date + five years + a day);
    • that the application is closed in this system and being re-created in GCMS.
  • When re-creating the APR in GCMS, the same notes should be copied and pasted into the “Notes” section.

Note: Cessation – In FOSS, CPC Vegreville (CPC-V) may see that the Minister has made an application for cessation of refugee protection either in an NCB or in the RPD screen. Follow the same steps as above but in notes indicate that the application for cessation is in process and therefore APR is suspended.

GCMS

Enter notes that include the following information:

  • the date the Minister designated the applicant as an irregular arrival;
  • that the applicant may not apply for permanent residence for at least five years after the day a final decision was made (i.e. RPD, RAD, or an FC decision on the claim for refugee protection or PRRA — whichever is the latest) or in the absence of a decision, when the designation was made;
  • that the processing of the application has been suspended and may resume processing no earlier than (enter date + five years + a day).

FOSS and GCMS interim instructionsFootnote 1 for DFNs who submit a new APR (for CPC-V)

FOSSEnter an NCB with notes stating that the applicant is a DFN and may not submit an APR earlier than (enter date + five years + a day). Refund the fees and return the application to the client with the template letter.

GCMSCreate the application and then close it. This step needs to be done in order to refund any fees collected. Refund the fees and return the application to the client with the template letter.

Enter case notes stating that the applicant is a DFN and may not submit an APR earlier than (enter date + five years + a day).

FOSS instructions for DFNs for whom the Minister has made an application for cessation of refugee protection

  • In FOSS, CPC-V may see — either in an NCB or in the RPD screen — that the Minister has made an application for cessation of refugee protection.
  • For these cases, enter an NCB in FOSS that states the processing of the APR is on hold and may resume processing upon final decision on the application for cessation.

Communication with applicants

There are two template letters that CIC may send to applicants described in this OB: one for suspension and the other for refusal to examine the application.

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