CIMM - Asylum Claimants and Border Restrictions (Orders in Council, Safe Third Country Agreement) - Nov 25, 2020

Key messages

• 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 December 21.
• 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 regime continues to apply, and approximately 775 claimants have met an exception under the Agreement (705 with family exceptions) and have entered the country and followed the mandatory quarantine period as of the end of October.
• Canada continues to accept asylum claims made by people who are already inside Canada.
• The Federal Court of Appeal has granted the requested stay of the Federal Court’s July 2020 ruling on 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.
• There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law.

Supplementary messages

Impact of the recent Federal Court decision

• On October 26, 2020, the Court granted a stay of the decision pending the final outcome of the appeal of this matter, therefore, the Safe Third Country Agreement regime remains in effect until the resolution of the appeal. The appeal and the cross-appeal have been expedited and the parties have been directed to hold the week of February 22, 2021, for a hearing of the appeal.

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, 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, namely:
  • Citizens of the United States or stateless habitual residents of the United States
  • Claimants with a family member in Canada
  • Unaccompanied minors
  • 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 (e.g. claimants charged with or convicted of a crime subject to the death penalty)
• 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 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-Elect Biden

• Canada will continue to monitor asylum policy developments in the United States under the next administration. President-elect Biden has made a number of platform commitments that aim to increase access to the asylum system 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 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. It remains unclear at this time when the border restrictions will be lifted given the current COVID situation in both countries.

Ministerial discretion

• To address exceptional and compelling cases, the Order created ministerial authority to exempt 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 address Canada’s longstanding international domestic and legal obligations and commitments with respect to refugee claimants.
• This clause can support Canada in continuing to meet its international and Charter obligations.

Irregular migration

• Border measures to decrease the spread of COVID-19 have significantly reduced the number of irregular asylum claimants since they were implemented.
• From January 1, 2020, to October 31, 2020, the number of irregular asylum claims in 2020 has decreased by approximately 76% when compared to the same period in 2019.
• Since March 21, 2020, 200 asylum seekers were directed back to the United States after arriving in Canada between ports of entry as of October 31, 2020.
• Since March 21, 2020, there have been approximately 1,245 asylum claims at the land border, 775 of who were permitted entry to Canada as they met an exception under the Safe Third Country Agreement as of October 31, 2020.

Accommodations for asymptomatic asylum seekers

• 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 seekers 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.
• Currently, IRCC has 6 hotels (139 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 320 asymptomatic asylum seekers across the 6 hotels (as of October 31).
• Upon arrival at the hotel, the asymptomatic asylum seekers 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.
• The Public Health Agency of Canada is responsible for providing temporary accommodation to all symptomatic travelers, including asylum seekers. If an asymptomatic asylum seeker 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.

Mitigation measures actions taken (including immigration medical exams and biometrics)

• 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

• Between the introduction of travel restrictions between Canada and the United States on March 21 and October 31, 2020, there were 9,510 asylum claims made in Canada. (Please note: This is the most recent available data; the latest publically available data per the Department’s data release protocol is September 30, 2020):

Directed back and/or Safe Third Country Agreement exceptions

From March 21 to October 31, 2020, 200 asylum seekers were directed back to the United States

Of the 1,245 regular claims received at the border, 775^{Footnote *} have been admitted under exceptions^{Footnote **} to the Safe Third Country Agreement. 705 of these claims met a family member exception under the Agreement^{Footnote ***}

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 month)

Source: IRCC Occupancy Report Data as of October 31, 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.
• Data more recent than September 30, 2020, 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 on October 21, 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;
  • 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 (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.
• 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.
• The current measures expire on December 21.

Implications of Order in Council 33

• As a result of Order in Council 33, 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, as included into the Order in Council, 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, 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 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.

Asylum policies of United States President-Elect Biden

• United States President-elect Biden has made a platform commitment to reverse 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-elect 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.
• However, it remains unclear how quickly the President-elect will be able to begin making these changes given the pressing domestic issues the President will face, including the pandemic and economic recovery. The control of the Senate by Democrats or Republicans will also have a significant impact on Biden’s ability to enact certain changes or new policies.

COVID Impacts on Immigration and Refugee Board operations

• Despite recent investments and measures put in place to improve productivity, the intake of new refugee claims continued to outpace the Immigration and Refugee Board’s (the Board) funded processing capacity prior to the COVID-19 pandemic, resulting in a growing inventory of claims. That said, the inventory grew at a pace much slower than would have been the case without recent investments and new case management practices at the Board.
• COVID-19 has had a significant impact on Board’s operations, including the postponement of all refugee hearings from mid-March to early summer 2020. However, during this period, the Board’s refugee decision-makers continued to work on written decisions for claims that were recently heard, as well as less-complex claims which can be determined without a hearing.
• The Board is now increasingly holding remote hearings across all of its Tribunals, while recognizing that in-person hearings will still be necessary in some cases, where strict health and safety measures are in effect.
• Due to lower intake levels since the beginning of the pandemic, and the resumption of operations beginning in early summer 2020, the Refugee Protection Division has been able to reduce its inventory by 6%, from approximately 93,000, down to 87,000 as of the end of September 2020.