CIMM - Asylum Claimants and Border Restrictions (Orders in Council 10 and 14, STCA)

Key messages

• In March, Canada and the United States agreed to temporarily return foreign nationals arriving at their respective borders and seeking asylum. As of May 22, 2020, the agreement was extended for another 30 days.
• The agreement will continue to apply between official ports of entry along the land border and at air and marine ports of entry. This means that generally asylum claimants entering Canada from the United States irregularly will continue to be directed back.
• Individuals who are directed back generally have the opportunity to return to make a claim once the border measures no longer apply.
• For claims made at a land port of entry, the Safe Third Country Agreement and its exceptions will be applied.
• Any refugee claimant who qualifies for a specific and limited exception to the Order in Council or Safe Third Country Agreement must follow the legal requirements to isolate and quarantine, as with all travelers to Canada. The Government is responsible for the transportation and accommodation of any claimants who do not have the means to isolate or quarantine.
• This is a rapidly evolving situation and we will continue to assess the impacts of these measures on an ongoing basis.
• No removals of failed claimants are currently taking place (date for resumption is to be confirmed). Failed claimants continue to have access to the Interim Federal Health Program, and for those that are able to, they can continue to work.

Supplementary messages

How the Order in Council applies at land ports of entry (i.e., the Order in Council aligns with the Safe Third Country Agreement)?

• The Safe Third Country Agreement has long provided an effective tool for Canada and the United States to work together on the orderly handling of asylum claims made in both countries.
• The new border measures were implemented as an urgent response to the extraordinary circumstances of this global pandemic. Canada and the United States have agreed to make amendments to these measures so that they better align with the Safe Third Country Agreement, which has served as a successful framework for over 15 years.

Will these changes lead to higher volumes of claimants?

• It is important to note that the exceptions to the Safe Third Country Agreement have always applied and have not led to volumes comparable to the influxes of claimants entering irregularly over the last few years.
• While we continue to prepare for any possible scenario, given current global travel restrictions, we anticipate that the overall number of arrivals will be low in the short term.

United States assurances for individuals directed back to the United States

• United States officials have provided assurances that claimants who enter between ports of entry and who are directed back to the United States may generally return to Canada to resume their claim once the Order no longer applies.

Ministerial discretion

• Under the revised Order, extraordinary individual circumstances have been provided for through a Ministerial discretion clause to permit an exemption in exceptional circumstances, from the prohibition on entering Canada if an individual’s presence in Canada, in the opinion of the Minister of Public Safety and Emergency Preparedness or Minister of Immigration, Refugees and Citizenship Canada, is in the national or public interest.
• This clause can support Canada in continuing to meet its international and Charter obligations.

Supporting facts and figures

• Between the introduction of travel restrictions between Canada and the United States on March 21 and May 31, 2020, there were 3,500 asylum claims made in Canada. (Please note: this is the latest available, publically releasable data per the Department’s data release protocol):

  Asylum Claims* - March 22, 2020 to May 31, 2020

  Location		Total
  Regular Claims	Inland	3,250
  	Airport	10
  	Border	185
  	Marine	5
  	Regular Claims Total	3,450
  Irregular Claims		50
  Total Claims (March 22 to May 31, 2020)		3,500

  Directed backs and/or Safe Third Country Agreement exceptions

  * From March 22 to May 31, 32 asylum seekers were directed back to the U.S.

  * Of the 185 claims received at the Border, 65 were admitted under exceptions** to the Safe Third Country Agreement*** (April 22 to May 31)

  * Numbers have been rounded to the nearest five

  ** Excludes asylum claims made by U.S. citizens or stateless individuals.

  *** Based on Safe Third Country Agreement 1st Exception with a recorded family exception.

  Data is under review and is subject to change without notice.

  Asymptomatic Asylum Seekers Accommodated in IRCC Hotels by Location and Date of Arrival (by week)

  N/A	Week 1 (April 19-25)	Week 2 (April 26-May 2)	Week 3 (May 3-9)	Week 4 (May 10-16)	Week 5 (May 17-23)	Week 6 (May 24-30)	Week 7 (May 31-June 6)	Total
  [redacted]	N/A	5	10	0	15	N/A	5	35
  [redacted]	0	5	5	0	0	N/A	N/A	10
  [redacted]	0	N/A	N/A	0	0	0	N/A	N/A
  [redacted]	0	0	0	0	N/A	0	0	N/A
  [redacted]	0	0	0	0	0	N/A	0	N/A
  Total by Week	N/A	10	15	0	15	N/A	5	45

  Source: IRCC Occupancy Report Data as of June 9, 2020

• Data are based on preliminary manual tracking and are therefore subject to change without notice.
• All values between 0 and 5 are shown as “--”. This is done to prevent individuals from being identified when IRCC data is compiled and compared to other publicly available statistics. All other values are rounded to the closest multiple of 5 for the same reason; as a result of rounding, data may not sum to the totals indicated.

Backlogs at the Immigration and Refugee Board Canada

• Despite investments, and measures put in place to improve and sustain productivity, as well as enhance quality and consistency in decision-making, the intake of new refugee claims continues to outpace the Immigration and Refugee Board Canada’s funded processing capacity.
• This has resulted in a backlog of approximately 90,971 claims as of the end of April 2020.
• The situation that Canada is facing as a result of COVID-19 has had a significant impact on the Immigration and Refugee Board Canada’s operations, which includes the postponement of all refugee hearings since mid-March. However, during this period, the Immigration and Refugee Board Canada’s refugee decision-makers have continued to work on written decisions for claims that have already had hearings, as well as some less-complex claims which can be determined by file-review without a hearing.
• The Immigration and Refugee Board Canada is establishing a phased approach to business resumption in consultation with national stakeholders, including how to maximize the work that can be done remotely, which would see the resumption of some hearings and proceedings. To ensure claimants and counsel have adequate time to prepare, Immigration and Refugee Board Canada has committed to giving 30 days’ notice to all parties before the resumption of hearings.

Background

• Under section 5 of the Order in Council issued under the authority of the Quarantine Act titled Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States), first issued on April 20, 2020, and extended for an additional 30 days on May 22, foreign nationals are prohibited from entering Canada from the United States to make a claim for refugee protection unless they enter Canada at a designated land port of entry and meet an exemption or exception under the Canada-United States Safe Third Country Agreement as a:
  • Citizen of the United States or stateless habitual resident of the United States;
  • Claimant with a family member in Canada;
  • Unaccompanied minor;
  • Claimant who holds a valid travel document issued by Canada;
  • Claimant who is from a visa-exempt country for Canada but requires a visa to enter the United States; or
  • Case in the public interest (claimants charged with or convicted of a crime subject to the death penalty).
• Under the Order in Council, refugee claimants entering Canada from the United States at a location other than a designated land port of entry are prohibited from entering Canada to make a claim for refugee protection and will be directed back to the United States. This includes claimants who enter Canada between designated land ports of entry (such as Roxham Road) as well as those who arrive at airports or marine ports of entry. Claimants who are directed back to the United States may return to resume their claim once the border measures no longer apply.
• This said, to ensure that Canada can continue to meet its domestic and international obligations, targeted exceptions to the prohibition on entering Canada to make a refugee claim at a location other than a land port of entry (between ports/marine/air) have been provided for citizens and stateless habitual residents of the United States and unaccompanied minors. The Order in Council also provides the Minister of Public Safety or the Minister of Citizenship and Immigration with national and public interest exemption authority.
• Canada and the United States made amendments to the border measures originally implemented on March 21, 2020, and extended twice, so that they better align with the Safe Third Country Agreement, which has served as a successful framework for over 15 years. The current measures expire on June 21. The Safe Third Country Agreement has long provided an effective tool for Canada and the United States to work together on the orderly handling of asylum claims made in both countries.

Implications of Order in Council 10

• As a result of Order in Council 10, which came into effect on April 15, 2020, asylum claimants who are permitted to enter Canada are required to meet the 14 day quarantine or self-isolation requirements. The Federal Government is assuming responsibility for transportation and accommodation requirements for symptomatic and asymptomatic claimants who do not have the means to self-isolate or quarantine.
• Those that are allowed to enter Canada to make an asylum claim based on a Safe Third Country Agreement exception, generally do so on the basis of a family member already in Canada. As a result, many will have a place to stay.
• Any symptomatic or COVID-positive individuals unable to isolate themselves are managed by the Public Health Agency of Canada. With respect to asymptomatic claimants, Immigration, Refugees and Citizenship Canada is facilitating the quarantine of those who do not have an appropriate place to stay. Contracts with service providers, including for security and transportation, have been put in place at six key ports of entry.
• Following the end of the quarantine period, asylum claimants can continue on to their own accommodations, or they could potentially move to provincial/municipal shelters if they do not have a place to go.