COW - Asylum, Border Restrictions and STCA - June 10, 2021

Key messages

• Over the course of the pandemic, Canada has continued to receive asylum claims:
  • At inland offices, made by foreign nationals already in Canada;
  • At land ports of entry, the Safe Third Country Agreement (STCA) regime continues to apply, claimants meeting an exception (e.g. family member in Canada) are able to enter Canada and are required to follow the mandatory quarantine period; and,
  • At marine ports and airports, where a number of claims have also been made despite significantly lower travel volumes.
• Under a temporary and reciprocal agreement with the United States, asylum claimants seeking to enter 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 public health border measures under the Quarantine Act no longer apply.
• The Federal Court of Appeal has granted the Government of Canada’s appeal of the July 2020 Federal Court decision. As a result, the application of the STCA at land ports of entry remains in effect.
• As of June 2, 2021, Immigration, Refugees and Citizenship Canada (IRCC)’s network of panel physicians will offer vaccines to Canada-bound migrants who require an Immigration Medical Examination where available. We are also working closely with provinces, territories, and international partners to find a proof of vaccine status solution that those vaccinated in Canada can apply for, for use in international travel.

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.
• With this funding, the capacity at the Refugee Protection Division will be maintained 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 IRCC funding ($13.6M excluding Public Services and Procurement Canada, Shared Services Canada and employee benefits payments) under this envelope will be used for processing, policy and communications activities, governance, legal and internal services.

Impact of the recent Federal Court of Appeal’s decision

• On April 15, 2021, the Federal Court of Appeal granted the Government of Canada’s appeal of the July 2020 Federal Court decision which found that the provisions implementing the STCA violated section 7 of the Canadian Charter of Rights and Freedoms (life, liberty and security), which would have rendered the STCA regime invalid. The Federal Court of Appeal also dismissed the cross-appeal raised with respect to possible s.15 violations (equality) and the vires (i.e. legality) of the designation.
• Therefore, the STCA regime remains in effect. 
• The opposing parties may appeal to the Supreme Court of Canada within 60 days of the decision (i.e. by June 14, 2021).
• The STCA has long provided an effective tool for Canada and the United States to work together to manage 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.

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) issued under the Quarantine Act, 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)
• 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 April 30, 2021, there were approximately 2,550 asylum claims at designated land border ports of entry. Of these, 1,757 claimants met an exception under the STCA and were permitted entry to Canada.

Order in Council application between land ports of entry and irregular migration

• Under this Order, those who seek to make asylum claims between land ports of entry are prohibited entry unless they are citizens of the United States or stateless habitual residents of the United States, or unaccompanied minors.
• This Order is used in conjunction with paragraph 41(d) of the Immigration and Refugee Protection Regulations, to temporarily direct back individuals to the US who are seeking to claim asylum between land ports of entry.
• Since implemented in March 2020, public health border measures to decrease the spread of COVID-19 have also 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 April 30, 2021, 412 asylum seekers were directed back to the United States after attempting to enter Canada.

Ministerial discretion

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

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.

Assurances for individuals directed back to the United States

• United States officials have provided assurances with respect to claimants who are directed back to the United States, and their eventual return to Canada to resume their claims once the Order no longer applies.
• On May 3rd, 2021, the Canadian Association of Refugee Lawyers (CARL) filed an application for leave and judicial review in relation to Canada’s Order that allows for asylum seekers arriving between ports of entry to be temporarily directed back to the US.

Accommodations for asymptomatic asylum claimants

• In the context of COVID-19, IRCC provides temporary accommodation and ensures asymptomatic asylum seekers’ needs are met (e.g. meals, health care, etc.) during the quarantine period for those who do not have a means to quarantine. This ensures these individuals are able to comply with the Order in Council requiring them to self-quarantine for 14 days upon entry to Canada. Onsite security and transportation services are also available as required.
• Currently, IRCC has 9 hotels (364 rooms) near key ports of entry, to provide temporary accommodations to those who do not have a suitable plan for quarantine. Since April 19, 2020, IRCC has accommodated just over 750 asymptomatic asylum claimants (as of April 30, 2021).
• Upon arrival at the hotel, asymptomatic asylum claimants are greeted by service providers who assign them to a room for their 14-day stay and provide them with the housing agreement document. IRCC staff then connect with the asylum seeker over the phone to explain the Department’s role and what they can expect during their stay such as the virtual form filling of their asylum claim.
• Before leaving for their final destination, they again meet with IRCC staff (virtually) and service providers to confirm that they have completed their quarantine period and have undergone the mandatory testing related to COVID-19 (on Day 1 and Day 8).
• 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 and their family members are be transferred to a Public Health Agency of Canada quarantine facility.

Health screening

• To ensure sufficient capacity to conduct immigration medical examinations, the Department continues to review the panel physician network capacity near the Canada-United States border and targeted ports of entry. IRCC 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.

Backlog Reduction

• Pandemic-related office closures and office capacity limits have led to a backlog of refugee claimants awaiting a decision on the eligibility of their claim.
• IRCC is establishing measures to reduce this backlog, including reopening offices to provide critical biometrics collection services, and working with partners to deliver virtual services for the refugee intake process.

Supporting facts and figures

• Since the introduction of COVID-related travel restrictions between Canada and the United States, there were 16,823 asylum claims made in Canada (as of April 30, 2021):

Directed back and/or Safe Third Country Agreement exceptions

From March 21, 2020 to April 30, 2021, 412 asylum seekers were directed back to the United States after attempting to enter Canada.

Between April 22, 2020 and April 30, 2021, there were approximately 2,550 asylum claims at land border ports of entry. Of these, 1,757 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

Source: IRCC Occupancy Report Data as of April 30, 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.

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 May 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 generally 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 Biden Administration has been working to both address the root causes leading to irregular migration and strengthen the collaborative migration management strategy to ensure “safe, orderly, and humane migration in the Americas”.
• The President has issued 12 executive orders on immigration issues including: the creation of a task force to reunite families separated by policies of the previous Administration and to prevent future occurrences; a review of existing policies that could be impeding access to legal immigration; rebuilding infrastructure to support the Administration’s new refugee admission target; and planning for the impact of climate change on migration.

COVID Impacts on Immigration and Refugee Board operations

• The Immigration and Refugee Board of Canada (IRB) remains committed to providing fair and efficient adjudication of refugee and immigration matters.
• Since January 2021, the Refugee Protection Division has adopted a remote-only hearings approach with only urgent and particularly sensitive cases considered for in-person hearings. In the limited cases where people must be physically present in IRB offices, rigorous health and safety measures are in place in accordance with the Public Health Agency of Canada protocols.
• Despite the significant impact the pandemic has had on operations, the IRB has already finalized nearly 43,000 refugee claims and appeals, and more than 9,000 immigration-related decisions since April 1, 2020, and up to April 30, 2021.
• Overall, between April 1, 2020, and March 31, 2021, the inventory across all IRB divisions has declined by 25%. The Board has been able to reduce the backlog of refugee claims in the Refugee Protection Division by 24%, the Refugee Appeal Division by 41%, the Immigration Division by 4%, and the Immigration Appeal division by 25%.
• After border restrictions are eased, the Board expects that the growth in inventory will return, as anticipated intake will once again exceed the Board’s available capacity.

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 IFHP.
• Asylum claimants receive health-care coverage under the IFHP for the full duration of the refugee determination process, including while awaiting an eligibility decision for referral to the IRB, until they either qualify for provincial health-insurance or are removed from Canada. 
• IRCC received Treasury Board approval of $738.9M for the IFHP in fiscal years 2021-2022 and 2022-2023 to ensure 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 May 9, 2021, the IRCC inventory of asylum claims pending an eligibility decision stood at 9,865 claims, with 83% of cases remaining in the inventory over 60 days (Data Source: IRCC Cognos (CBR) as of May 9, 2021).
• The Canada Border Services Agency continues to make eligibility decisions on claims made at an official port of entry.
• All refugee claimants aged 18 years and older are referred to security partners (Canadian Security Intelligence Service and Canada Border Services Agency) for security screening. Security partners provide recommendations pursuant to the national security provisions of the Immigration and Refugee Protection Act to IRCC for final decision-making. IRCC officers review security partners’ recommendation and make a decision on the file, or consider a remedy. This process will remain in place notwithstanding factors influencing refugee claimant application volumes
• 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.

COVID-19 Vaccination Strategy for Canada-bound Migrants

• Implementation of the first phase of the Covid-19 vaccine implementation strategy is scheduled to begin on June 2, 2021.
• In Phase 1, Panel Physicians will offer Health Canada-approved vaccination to Canada-bound migrants who require an Immigration Medical Examination, where available.
• Vaccinations as part of the Immigration Medical Examination will not be mandatory nor be required for determination of admissibility. The offer of voluntary COVID-19 vaccination is intended to protect the public health of migrants and Canada.
• Until now, vaccinations have not been offered during Immigration Medical Examinations, however resettled refugees who are bound for Canada are offered childhood immunizations as part of the Immigration Medical Examination on a voluntary basis.

Proof of Vaccination Credentials

• A proof of vaccination credential is intended to be a trusted, verifiable proof of vaccination status, in paper or digital form, which is used to facilitate international travel and support the evaluation of public health risk.
• Vaccine Credentials are not “passports” and will not be linked to passports.
• The Government of Canada will be working with provinces, territories, and international partners to find a proof of vaccine status solution that those vaccinated in Canada can apply for, for use in international travel.
• Recognizing the crucial importance of protecting Canadians and their public health data, the following key principles will be used to guide program design work:
  • Interoperability: use global standards to ensure credentials are easily accepted internationally.
  • Citizen-centric: place citizen journey is at the centre of design, with a simple, accessible experience.
  • Privacy: safeguard citizen privacy, only requiring minimum amount of information needed for use and verifiability in the travel continuum; and, designing federal-PT connectivity to minimize the exchange of personal information.
  • Security and Verifiability – protect against tampering/fraud, and ensure it can be trusted and verified remotely by foreign borders and others (e.g., air industry)
  • Implementable – scope the solution and any FPT connections appropriately such that it can be operationalized in the coming months to support a safe resumption of travel.
• It is expected that carrying a proof of vaccination credential while travelling will afford travellers with fewer restrictions, such as decreased testing and quarantine requirements.