Eligibility for referral to the IRB
This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.
General assessment guidelines
The claimant must prove that their claim is eligible to be referred to the Refugee Protection Division (RPD) of the IRB.
For the purpose of an eligibility determination, refugee claimants may make a claim against just one country, even if they have multiple nationalities. The RPD will assess the merits of the claim against each country of nationality. Refugee claim eligibility is determined during the eligibility examination.
In the absence of evidence that the person is ineligible, resolve eligibility in favour of the claimant.
If eligibility cannot be determined because the claimant may be inadmissible due to serious criminality, security, human/international rights violations or organized criminality, and as a result an A44 report is referred to the Immigration Division for an admissibility hearing, suspend the consideration on eligibility as per A100(2). If the claim has already been referred to RPD, suspend under A103(1).
Steps for determining eligibility:
Grounds for ineligibility
A claim is not eligible to be referred to the Refugee Protection Division (RPD) if the claimant is described in section 101 of the Immigration and Refugee Protection Act (IRPA), as outlined below:
- Paragraph A101(1)(a)
- Paragraph A101(1)(b)
- Paragraph A101(1)(c)
- Paragraph A101(1)(c.1)
- Paragraph A101(1)(d)
- Paragraph A101(1)(e)
- Paragraph A101(1)(f)
- Paragraph A101(2)(a)
- Paragraph A101(2)(b)
A person who has already become a protected person in Canada is not eligible to make a refugee claim, as they already enjoy refugee protection in Canada. This includes a person who
- became a protected person through resettlement [A95(1)(a)]
- has been found to be a refugee by the Immigration and Refugee Board (IRB) [A95(1)(b)]
- has had a positive pre-removal risk assessment (PRRA) [A95(1)(c)]
This provision prevents a person from making multiple refugee claims, whether their previous claim was made under the Immigration and Refugee Protection Act (IRPA) or previous immigration legislation [R339]. This includes claims that have been vacated or ceased by the RPD (or the Convention Refugee Determination Division, under the former act) and claims that have been rejected by the Minister under the former act.
Note: A claimant who has been refused resettlement at a Canadian visa office is not ineligible under paragraph A101(1)(b), as their refugee protection concerns have not been heard by the IRB.
A person who has previously been found ineligible to make a refugee claim or who made a previous claim that was subsequently determined by an officer to have been withdrawn or abandoned is barred from a subsequent referral to the RPD, even if the circumstances with respect to their ineligibility have changed.
The person may be entitled to apply for a pre-removal risk assessment (PRRA).
- Paragraph A101(1)(c.1) refers to a person who, before they made a refugee claim in Canada, made a refugee claim in a country with which Canada has an information-sharing agreement.
- A claim is not ineligible under paragraph A101(1)(c.1), unless the existence of a refugee claim in the other country has been confirmed through information sharing.
- A refugee claim in this instance means an in-country asylum claim, not an overseas refugee selection application, such as for a government-assisted refugee. These people could be ineligible under paragraph A101(1)(d).
Biographic information-sharing results generally do not reveal asylum-related information. In addition, they are not considered sufficiently reliable on their own.
Personal declaration by the claimant of a claim in another country
A personal declaration by the claimant is insufficient to find them ineligible under paragraph A101(1)(c.1), even if they are supported by documentation. The allegation must be supported by information from the partner organization responsible for asylum in that country. Case-by-case requests should not be sent, as this is simply a manual process that replicates the automated process.
People who allege persecution in the concerned country
Section 315.3 and subsection 315.4(2) of the Immigration and Refugee Protection Regulations (IRPR) hold that biometric checks may not be done for people who allege persecution in the concerned country.
GCMS automatically checks to ensure that queries are not sent to a country that is recorded as the country of persecution. While officers are encouraged to double check this, GCMS should prevent the query from going through if the application meets the intended threshold or is manually triggered by an officer.
Note: Section R315.3 and subsection R315.4(2) are not intended to apply to people who do not have status in the country of alleged persecution and cannot return there. Therefore, when a person alleges persecution in one of the countries, but it is believed that they do not have status there (for example, there is no indicative documentation, or the person was only temporarily in the country), officials are asked not to record that country as a country of persecution until information sharing has been carried out.
Information should not be shared with a country when the claimant is known to be a citizen of that country. However, if an officer is unaware of such citizenship, the burden is on the receiving country to realize the query concerns one of their citizens and to provide a response of no reportable trace (NRT).
There are no restrictions on sharing information concerning a citizen of 1 of the 4 countries with 1 of the other 3 countries.
- A person who has been recognized as a Convention refugee by a country other than Canada, and who can return to that country, is not eligible for determination by the RPD.
- The phrase “return to that country” refers to whether or not that jurisdiction will readmit the person. If the country will not readmit the claimant, then paragraph A101(1)(d) does not apply.
- To determine if paragraph A101(1)(d) applies, there is a 2-part test, and both parts must be met:
- Has the claimant been recognized as a Convention refugee by a country other than Canada?
- Can the claimant return to that country?
- Paragraph 101(1)(d) does not apply to people who have become citizens of the country that recognized them as Convention refugees.
- The officer must be satisfied that the person in question has been recognized as a refugee under the 1951 United Nations Convention Relating to the Status of Refugees (Refugee Convention) or the 1967 Protocol Relating to the Status of Refugees. People may be in possession of an identity or travel document stating that they have been granted refugee protection in the issuing country. The person’s status may also be confirmed by the person’s own statements. Some countries grant protection from refoulement or deportation on grounds that are not related to the requirements of the Refugee Convention. An example of this is protection pursuant to Article 3 of the United Nations Convention against Torture, which is not the same as protection under the Refugee Convention.
If the country that granted protection has not signed either the Refugee Convention or the Protocol Relating to the Status of Refugees (PDF, 42.9 KB), the claim may be determined to be eligible for referral to the RPD.
- If a person who has been recognized as a Convention refugee states that the concerned country will not readmit them, the officer must confirm this with officials of that country.
- People who have a “Withholding of Removal” status in the U.S. are considered to have been recognized as Convention refugees for the purposes of paragraph 101(1)(d). However, not all people with this status are readmitted to the U.S. once they have left. The officer must confirm with officials that the person will be readmitted.
The Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries is commonly known as the Safe Third Country Agreement (STCA) or the Agreement.
- The U.S. is the only country that has been designated by the regulations as a safe third country, under section R159.3.
- A claimant who arrives at a land border port of entry (POE) from the U.S. may not be eligible for referral to the IRB under paragraph A101(1)(e).
There are exemptions and exceptions to the STCA that permit some claimants to make a refugee claim in Canada, even if they have come from the U.S. For more information on the STCA, see section R159.1 to section R159.7 and procedures on the STCA.
- Under the terms of the Refugee Convention, a country does not need to provide protection if the claimant poses a danger to security, or if they have violated human or international rights or committed a serious non-political crime outside the country of refuge before their admission to that country as a refugee.
- While a person found inadmissible on grounds of participation in organized crime is ineligible, the provisions defining organized crime ensure that a person who has merely used the services of such organizations to come to Canada (for example, they have used the services of a people-smuggler) remains eligible to have their claim referred to the RPD.
- When a person appears to be inadmissible under section A34, section A35, paragraph A36(1)(b) or section A37, the officer cannot determine eligibility until the person’s admissibility has been determined conclusively by the Immigration Division of the IRB.
- A refugee claim is ineligible if the claimant is inadmissible on grounds of serious criminality due to a conviction
- in Canada that is punishable by at least 10 years in prison (irrespective of the prison sentence they received, if any)
- outside Canada that would be punishable by at least 10 years in prison if committed in Canada (there is no need to seek a danger opinion)
- When a claimant appears to be inadmissible for serious criminality, the officer is to
- prepare a section A44 report
- refer the case to the Immigration Division
- suspend the consideration of eligibility, per subsection A100(2)
If and when the client is determined to be inadmissible, the officer determines the person’s claim to be ineligible.
- People whose refugee claims are ineligible under paragraph A101(1)(f) are normally entitled to a PRRA. See Processing pre-removal risk assessment (PRRA) applications: Intake for instructions regarding applicants described in subsection A112(3).
Refugee claims of people who are inadmissible due to convictions in Canada are ineligible only if the offence is punishable by a maximum prison term of at least 10 years.
Refugee claims of people who are inadmissible due to convictions outside Canada are ineligible only if the conviction is for an offence that, if committed in Canada, would constitute an offence, under an act of Parliament, punishable by a maximum prison term of 10 years or more.
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