Processing pre-removal risk assessment applications: Applicant restrictions on access to protection

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.

Pre-removal risk assessment (PRRA) applicants who are described in subsection 112(3) of the Immigration and Refugee Protection Act (IRPA) have restricted access to protection. With the exception of subsection A112(3) applicants who are also described in paragraph A113(e), subsection 112(3) applications from such persons are assessed on the basis of factors set out in section A97 only. Approved subsection 112(3) applicants do not become protected persons, they benefit only from a reviewable stay of removal.

Establishing that an applicant is described in subsection A112(3)

An applicant is described in subsection A112(3) only if they:

  • have been determined to be inadmissible on grounds of security, violating human or international rights, or organized criminality;
  • have been determined to be inadmissible on grounds of serious criminality, due to
    • a conviction in Canada punishable by a maximum prison term of 10 years or more, or
    • a conviction outside Canada that, if committed in Canada, would be punishable by a maximum prison term of 10 years or more.
  • have had a refugee claim rejected on the basis of Article 1F of the Refugee Convention; or
  • have been named in a certificate referred to in subsection A77(1).

A finding that a person is described in paragraph A112(3) (a) or (b) requires a determination of inadmissibility based on grounds set out in one of those paragraphs, even where the person is already the subject of a removal order on other grounds. That a PRRA applicant is described in subsection A112(3) is usually identified by a Canada Border Services Agency (CBSA) officer before referral of the application to a PRRA officer. Should a senior immigration officer be uncertain—before or during an assessment—as to whether an applicant is described in subsection A112(3), they may return the file, through the manager the CBSA for clarification. Where limited evidence is submitted in support of the asserted risk, the senior immigration officer may elect not to return the file and proceed with the risk assessment, returning the file to CBSA for clarification only if they believe that the applicant would be at risk. If the clarification is that the applicant has not been determined to be inadmissible on a ground set out in paragraph A112(3)(a) or (b), or paragraph A112(3)(c) or (d) does not apply, the applicant will benefit from a non-subsection 112(3) PRRA.

Chapter ENF 5 provides that where a CBSA enforcement officer is of the opinion that a person is inadmissible on grounds involving security, human or international rights violations, serious criminality or organized criminality, it is important to have a formal record of that alleged inadmissibility; this is initiated by preparation of a subsection A44(1) inadmissibility report. These reports must be transmitted to either a Delegate of the Public Safety Minister or the Immigration Division (depending on the type of inadmissibility), who will make a determination with respect to that alleged inadmissibility and, if warranted, issue the appropriate removal order.

Subsection A112(3) applicants who are also described in paragraph A113(e)

Applications from persons described in paragraph A113(e) are processed differently than other subsection 112(3) applications: Applicants who fall under paragraph A113(e) are as follows:

  • persons determined inadmissible due to a conviction in Canada punishable by a maximum prison term of at least 10 years, who receive a sentence of less than two years’ imprisonment (or no imprisonment);
  • persons determined inadmissible due to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence punishable by a maximum prison term of at least 10 years (unless they are found to be a person referred to in Article 1F of the Refugee Convention).

In short, applications from these persons are processed in the same way as other subsection A12(3) applications, with a key distinction: the risk assessment is not restricted to section A97 grounds.

Consideration of PRRA applications from persons inadmissible for serious criminality: former versus current legislation

The following tables highlight these changes:

Consideration of PRRA applications

PRRA applicants who have been determined inadmissible for serious criminality Before Dec. 15, 2012 As of Dec. 15, 2012
In-Canada conviction punishable by 10+ years and punished by 2+ years A97 only A97 only
In-Canada conviction punishable by 10+ years; punished by less than 2 years A96 and A97 A96 and A97
Outside Canada conviction that, if committed in Canada, would be punishable by 10+ years A97 only A96 and 97

Positive risk opinion goes to the Case Management Branch (CMB) for risk/danger balancing?

PRRA applicants who have been determined inadmissible for serious criminality Before Dec. 15, 2012 As of Dec. 15, 2012
In-Canada conviction punishable by 10+ years and punished by 2+ years Yes Yes
In-Canada conviction punishable by 10+ years; punished by less than 2 years N/A (application was approved by the officer) Yes
Outside Canada conviction that, if committed in Canada, would be punishable by 10+ years Yes Yes

Approved application results in refugee protection?

PRRA applicants who have been determined inadmissible for serious criminality Before Dec. 15, 2012 As of Dec. 15, 2012
In-Canada conviction punishable by 10+ years and punished by 2+ years No No
In-Canada conviction punishable by 10+ years; punished by less than 2 years Yes No
Outside Canada conviction that, if committed in Canada, would be punishable by 10+ years No No

Procedure: subsection 112(3) applicants

Applicant not described in section A97 nor [if applicant falls under paragraph 113(e)] in section A96

The assessment terminates at this point; the application is rejected.

Applicant described in section A97 or [if applicant falls under paragraph 113(e)] in section A96

The senior immigration officer sends their risk assessment, and any supporting documentation, to the CBSA removals office.

Note: The officer must print and include hard copies of all documentation relevant to their risk opinion. When a given document (e.g. a U.S. Department of State report) is lengthy, only the title/cover page and sections used need to be included.

The removals officer prepares supporting documentation regarding the restrictions set out in paragraph A112(3)(a), (b), (c) or (d) and subparagraph A113(d)(i) or (ii), as applicable, and sends it, along with the PRRA assessment and submissions in all subsection A112(3) cases, to the manager of the Danger Assessments Section (DAS), Inland Enforcement Operations and Case Management Division, CBSA.

In situations where the case must be dealt with on an urgent basis, due to the upcoming release from detention of the applicant, the removals officer must clearly note the following information on the referral slip:

  • the date of release from incarceration; and
  • where and by whom the applicant is being detained.

The DAS will forward paragraphs A112(3)(b) and (c) cases that dealt with article 1F(b) exclusion to the Immigration Cases Division at the Immigration, Refugees and Citizenship Canada (IRCC) CMB for processing. An analyst at the IRCC CMB Immigration Cases Division or the CBSA DAS, as applicable, will prepare an assessment, in accordance with paragraph 172(2)(b) of the Immigration and Refugee Protection Regulations (IRPR), with respect to whether the applicant’s presence in Canada is a danger to the public or to the country’s security or whether the nature or severity of the acts committed by the applicant are such that the application should be refused. The paragraph R172(2)(b) restriction assessments for hybrid cases involving both paragraph A112(3)(a), (c) or (d) and paragraph A112(3)(b) cases will be coordinated by both IRCC and the DAS prior to disclosure to the applicant.

The assessments referred to in paragraphs R172(2)(a) and (b), including the supporting documentation, are returned to the regional CBSA removals office, where they are disclosed to the applicant. A copy of all documentation that will be put before the decision maker must be provided to the applicant.

Exceptionally, information may be used that cannot be disclosed to the person concerned where the disclosure of this information would be injurious to national security or endanger the safety of any person. In such circumstances, all efforts will be made to provide as much information as possible to the person concerned and to limit the amount of undisclosed information to be considered.

Upon receipt of the disclosure package from National Headquarters (NHQ), the regional CBSA office should

  • advise when they receive the package from NHQ;
  • advise when the package is disclosed to the subject and their counsel;
  • provide an electronic copy of the disclosure letter that has been signed by the applicant;
  • provide the date by which the written submissions by the applicant are to be received (15 days);
  • advise when they receive written arguments (or fail to receive them).

Once the information is disclosed, the applicant has 15 days to respond in writing. The applicant is instructed to send any submissions directly to the CBSA removals office. Should the person or counsel retained by the person request an extension of the 15-day period, the CBSA office will

  • consider the reasons for the request and consult with the DAS, CBSA, NHQ;
  • grant an extension, if one is allowed, for a short period only, unless the complexity of the case requires a longer period;
  • acknowledge requests in writing and include them in the PRRA package; and
  • advise the appropriate section at NHQ that a request for extension was granted and provide the new date submissions are due.

If the request was made after submissions were due and the PRRA package has already been provided to the Minister for decision, the officer should advise the client or their counsel that, even though a late submission cannot be refused, there is no guarantee that the submission will be considered, as it may reach the decision maker after a decision has already been made. IRCC NHQ must always be made aware of such requests.

All submissions must be accepted by the local responsible office and referred to the appropriate section at NHQ, regardless of whether an extension was granted.

Upon receipt of the applicant’s submissions, the removals officer will forward any submissions made by the applicant (depending on the size of the material, this can be done electronically or via mail) to the CBSA DAS. At NHQ, the documents will be reviewed, and, if necessary, modifications will be made to the paragraph R172(2)(b) assessment. A new disclosure will be required if any modifications are made. Once finalized, the entire package will be provided to the Director, Case Determination, at the CMB, to render a decision. The Director, Case Determination, considers the assessments, the supporting documentation and the applicant’s submissions and renders a decision on the application. The decision is then returned, via the CBSA DAS, to the CBSA removals office. Upon receipt of the decision, the removals officer calls in the applicant and delivers the decision in person.

Special rules for security certificates

Instructions in light of Bill C-3 are under development. Contact the Immigration Program Guidance Branch (IPG) for guidance on security certificate cases.

Ministerial stay of removal

A ministerial stay under paragraph A114(1)(b) results if it is determined that the need for protection for a person described in subsection A112(3) outweighs the danger to the public in Canada, the danger to the security of Canada, or the nature or severity of the acts committed by the applicant. Such stays are subject to review to determine whether the circumstances surrounding a stay have changed. This typically involves an assessment of whether country conditions have changed. It may also involve assessing whether the individual has engaged in behaviour that could add more weight to the aspect of the person’s PRRA assessment related to danger to the public or danger to the security of Canada. Section R173 outlines procedural requirements of this re-examination. See Removals for more information on stays of removal.

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