HUMA – Asylum Claimants and Border Restrictions - Orders in Council 10 and 11

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 April 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 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 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 Interim Federal Health, and for those that are able to, they can continue to work where appropriate.

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 it better aligns 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 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 April 30, 2020, there were over 2,090 asylum claims made in Canada, including over 35 claims made at the land border.

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), issued on April 20, 2020, 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 have agreed to make amendments to the border measures originally implemented on March 21, 2020, and extended on April 22 for an additional 30 days, so that they better align with the Safe Third Country Agreement, which has served as a successful framework for over 15 years. 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, IRCC 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 will be transferred to provincial/municipal shelters if they do not have a place to go.