CIMM - Asylum, Border Restrictions and STCA - Mar 8, 2021

Key messages

• Canada continues to accept asylum claims made by people who are already inside Canada.
• As part of the overall border restrictions to protect the health and safety of Canadians, we extended a reciprocal and temporary measure with the United States to restrict entry into Canada for the purpose of claiming asylum until March 21, 2021.
• This means that generally asylum claimants entering Canada from the United States between official land ports of entry will continue to be directed back. Individuals who are directed back will 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 (STCA) regime continues to apply. As of January 31, 2021, approximately 1,322 claimants met an exception under the Agreement and entered Canada following the mandatory quarantine period.
• The Federal Court of Appeal has granted the requested stay of the Federal Court’s July 2020 ruling on the provisions implementing the Safe Third Country Agreement. We are satisfied with the stay decision, as the Agreement’s regime remains in effect until a decision on that appeal is made. The Government of Canada is appealing the decision of the Federal Court because we believe there are errors in fact and in law of some of the key findings.

Supplementary messages

Enhancing Canada’s asylum system

• Funding was announced in the Economic and Fiscal Snapshot 2020 to enable the asylum system to process 50,000 asylum claims annually until March 2023.
• The goal is to maintain processing capacity up to the Refugee Appeal Division at 50,000 claims for two years (2021-2022 and 2022-2023), with one additional year of post-Refugee Appeal Division processing (2023-2024). The 2021-2022 Immigration, Refugees and Citizenship Canada (IRCC) funding ($13.6M excluding Public Services and Procurement Canada, Shared Services Canada and employee benefits payments) under this envelope is required for processing, policy and communications activities, governance, legal services, and internal services.

Impact of the recent Federal Court decision

On October 26, 2020, the Federal Court of Appeal granted a stay of the Federal Court’s decision until the appeal is decided. As a result, the Safe Third Country Agreement regime remains in effect. The appeal and cross-appeal were heard in the Federal Court of Appeal on February 23 and 24, 2021. The panel reserved its decision.

Order in Council application at land ports of entry (i.e. Order in Council alignment with the Safe Third Country Agreement)

• Under the Order in Council ( the Order), 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 STCA, namely:
  • Citizens of the United States or stateless habitual residents of the United States
  • Claimants with a family member in Canada
  • Unaccompanied minors, as defined in the STCA
  • Claimants who hold a valid travel document issued by Canada
  • Claimants who are from a visa-exempt country for Canada but require a visa to enter the United States
  • Cases in the public interest (i.e. in Canadian context, claimants charged with or convicted of a crime subject to the death penalty)
• The STCA has long provided an effective tool for Canada and the United States to work together on the orderly handling of asylum claims made at their common land border.
• The Government of Canada uses a robust framework to monitor developments in the United States and the impact that changes in policies and practices may carry with respect to the integrity of the country’s refugee protection system.

Asylum policies of United States President Biden

• Canada will continue to monitor asylum policy developments in the United States under the Biden administration. President Biden has made a number of recent announcements that aim to increase access to refugee protection in the United States, including expanding eligibility to claim asylum, significantly increasing refugee resettlement, and reducing the use and length of immigration detention.

United States assurances for individuals directed back to the United States

• United States officials have provided assurances with respect to claimants who attempt to enter Canada between ports of entry and who are directed back to the United States, and their eventual return to Canada to resume their claims once the Order no longer applies. It remains unclear at this time when the border restrictions will be lifted given the current COVID situation in both countries.

Ministerial discretion

• The Order created ministerial authority to exempt asylum claimants, who would otherwise be prohibited from entering Canada, to enter Canada so that they may make a claim for refugee protection if it is in the national or public interest, while recognizing the paramount public health interests of Canada and Canadians. The ability to exempt certain claimants helps maintain Canada’s longstanding international domestic and legal obligations and commitments with respect to refugee protection.

Irregular migration

• Since implemented in March 2020, border measures to decrease the spread of COVID-19 have significantly reduced the number of asylum claimants who attempt to enter Canada in-between designated ports of entry (irregular asylum claimants) in order to avoid being subject to the Canada-US STCA.
• In 2020, the number of irregular asylum claims decreased by approximately 80% when compared to 2019.
• Between March 21, 2020 and January 31, 2021, 304 asylum seekers were directed back to the United States after attempting to enter Canada.
• While the border measures were first introduced in March 2020, the application of the STCA for claimants arriving at a designated land port of entry under the measures began in April 2020. Between April 22, 2020 and January 31, 2021, there were approximately 1,977 asylum claims at designated land border ports of entry. Of these, 1,322 claimants met an exception under the STCA and were permitted entry to Canada.

Accommodations for asymptomatic asylum claimants

• In the context of COVID-19, IRCC provides temporary accommodation and basic necessities of life (e.g. meals and basic health services) to asymptomatic asylum claimants who do not have a means to quarantine to ensure they are able to comply with the Order in Council requiring them to self-quarantine for 14 days upon entry to Canada. This also includes security services onsite and transportation services as required.
• Currently, IRCC has 8 hotels (367 rooms) near key ports of entry, to provide temporary accommodations to this cohort who do not have a suitable plan for quarantine. Since April 19, 2020, IRCC has accommodated just over 560 asymptomatic asylum claimants (as of January 31, 2021).
• Upon arrival at the hotel, the asymptomatic asylum claimants are greeted by IRCC staff and service providers who explain their role and what they can expect during their stay. In addition, upon departure, they again meet with IRCC staff and service providers to confirm that they have completed their quarantine period and to undergo a basic COVID-19 screening test to detect signs and symptoms of the virus before leaving for their final destination.
• The Public Health Agency of Canada is responsible for providing temporary accommodation to all symptomatic travelers, including asylum claimants. If an asymptomatic asylum claimant at an IRCC temporary accommodation site becomes symptomatic during their stay, they along with all family members will be transferred to a Public Health Agency of Canada quarantine facility, as agreed upon by the Agency and IRCC.

Health screening

• To ensure sufficient capacity to conduct immigration medical examinations, the Department reviewed the panel physician network capacity near the Canada-United States border and targeted ports of entry. IRCC developed, and is implementing, a plan to increase the capacity of panel physicians in some cities, and ensuring that they are enrolled with the Interim Federal Health Program.

Supporting facts and figures

• Since the introduction of travel restrictions between Canada and the United States, there were 13,287 asylum claims made in Canada (as of January 31, 2021):

Directed back and/or Safe Third Country Agreement exceptions

From March 21 to January 31, 2021, 304 asylum seekers were directed back to the United States after attempting to enter Canada.

Between April 22 and January 31, 2021, there were approximately 1,977 asylum claims at land border ports of entry. Of these, 1,322 claimants met an exception under the Safe Third Country Agreement and were permitted entry to Canada.

Data is under review and is subject to change without notice

Asymptomatic Asylum Claimants Accommodated in IRCC Hotels by Location and Date of Arrival (by month)

Source: IRCC Occupancy Report Data as of January 31, 2021

• 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.
• Data more recent than January 31, 2021, has not been publicly released.

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 last extended for an additional month until March 21, 2021, 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 included into the Order in Council, namely:
  • Citizens of the United States or stateless habitual residents of the United States;
  • Claimants with a family member in Canada;
  • Unaccompanied minors, as defined in the STCA;
  • Claimants who hold a valid travel document issued by Canada;
  • Claimants who are from a visa-exempt country for Canada but require a visa to enter the United States; or
  • Cases in the public interest (i.e. in Canadian context, claimants charged with or convicted of a crime subject to the death penalty).
• Under the Order in Council, asylum 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). Claimants who are directed back to the United States may return to resume their claim once the border measures no longer apply.
• 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 and the Minister of Immigration, Refugees and Citizenship with national and public interest exemption (NIE) authority.

Implications of Quarantine / Self-Isolation Requirements

• Asylum claimants who are permitted to enter Canada are required to meet the 14-day quarantine or self-isolation requirements. They are also required to take a COVID-19 molecular test upon arrival and another test later (e.g. on Day 10) in their quarantine period. 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, as included in the Order in Council, generally do so on the basis of having a family member already in Canada. As a result, they may have a place to stay.
• Any symptomatic or COVID-positive individual unable to isolate themselves are managed by the Public Health Agency of Canada. With respect to asymptomatic claimants, the Department 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 eight locations near 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.

Asylum policies of United States President Biden

• United States President Biden has committed to reversing many of the policy changes enacted by President Trump; this includes ending the use of for-profit immigration detention centres, using alternatives to detention, significantly increasing the number of resettled refugees and expanding eligibility to claim asylum. President Biden has also signaled that he intends to put in place a pathway to citizenship for the 11 million people in the United States without lawful status.
• The President has issued a number of Executive Orders on immigration issues, however it is unclear when these will be implemented given the pressing domestic issues the President will face, including the pandemic and economic recovery.

COVID Impacts on Immigration and Refugee Board operations

• Health and safety measures were put in place in all Immigration and Refugee Board (IRB) offices in accordance with the Public Health Agency of Canada protocols. Following an assessment, the Agency confirmed that the IRB’s health and safety protocols offer robust measures to mitigate the risk of COVID-19 infection and transmission on premises.  
• During the initial phase of the pandemic from mid-March to early summer 2020, refugee hearings were postponed and decision-makers worked on written decisions for claims that had already been heard and on less complex claims that can be determined without a hearing.
• In July 2020, operations resumed and the option of virtual hearings was introduced, with most claimants preferring this option. On January 18, 2021, with health and safety of individuals in mind and giving the changing situation and increased provincial restrictions, the IRB shifted towards a new remote-only hearings operating model, with only urgent and particularly sensitive cases considered for in-person hearings on a case-by-case basis.
• Despite the significant impact the pandemic has had on operations, IRB has already finalized nearly 30,000 refugee claims and appeals, and more than 7,000 immigration-related decisions since April 1, 2020.
• Overall, between April 1, 2020 and January 31, 2021 the inventory across all IRB divisions has declined by 15%.  More specifically, in this timeframe, the board has been able to reduce the backlog of refugee claims in the Refugee Protection Division by 14%, the Refugee Appeal Division by 24% and the Immigration Appeal division by 19%.
• IRB remains committed to providing fair and efficient adjudication of refugee and immigration matters.

COVID Impacts on IRCC Asylum program operations

• IRCC adjusted quickly in order to continue to receive inland asylum claims.
• Given the closures of inland immigration offices, temporary measures were introduced to allow those already in Canada to continue to apply for asylum via e-mail and using Canada Post’s epost Connect for the sharing of documents and application forms.
• Once claimants provide their required information, officers issue the Acknowledgement of Claim document to claimants, which allows them to access certain benefits such as social services and health care coverage under the Interim Federal Health Program (IFHP).
• Asylum claimants are eligible for health-care coverage under IFHP for the full duration of the refugee determination process, until they either become eligible for provincial health-insurance or are removed from Canada.
• The IFHP includes limited, temporary coverage of basic benefits (e.g., hospital, physician, ambulance services), as well as supplemental benefits (e.g., dental care, vision care, assistive devices, mental health counselling) and prescription drug coverage.
• Given reduced availability of in-person services and other barriers in attending health services across Canada, the IFHP introduced coverage of tele-services and virtual appointments, such as virtual mental health counselling services, to facilitate access to care for asylum claimants who may be disproportionately affected by the pandemic.
• IRCC received Treasury Board approval of $738.9M in additional two-year funding for the IFHP, to access through Main Estimates, in order to ensure that asylum claimants and protected persons continue to have access to health coverage to meet their essential medical needs, while supporting Canada’s mandate of protecting overall public health in Canada.
• Renewals of expired refugee protection claimant documents are not being processed at this time and are valid until further notice.
• In February 2021, IRCC offices re-opened in order to perform the critical in-person services of biometric collection, document seizure, and Ministerial Delegate reviews. All offices except Vancouver had been closed between mid-December and mid-February.
• Until these critical in-person services are provided, asylum claimants cannot be issued a work permit as an eligibility decision and referral of the claim to IRB is required before a work permit can be issued, although asylum claimants with an existing work permit that has expired may obtain a renewal, if still eligible. 
• As of December 28, IRCC eligibility inventory stood at 9,655 claims, with 81% of cases remaining in the inventory over 60 days. As IRCC offices have now re-opened for critical in-person services, IRCC is striving to eliminate this backlog at the earliest opportunity.
• The Canada Border Services Agency continues to make eligibility decisions on claims made at an official port of entry.
• On December 14, 2020, Canada started to accept applications for permanent residence from pending and unsuccessful refugee claimants who worked in Canada's health care sector and provided direct care to patients during the COVID-19 pandemic.