PACP - Pre-Removal Risk Assessment 101: Pre-Removal RA – Nov 24, 2020

Key messages

• Pre-Removal Risk Assessments (PRRA) continue to be conducted during the pandemic in line with Canada’s commitment to ensure that individuals are not removed to situations of risk.
• PRRA applicants may request more time to submit completed applications and supporting documents, if they were unable to meet timelines due to COVID-19 disruptions. PRRA hearings have been postponed since March 2020 when IRCC offices were closed to clients. PRRA hearings continue to be available via videoconference only as an essential service for persons detained by CBSA.
• Removals are generally only being actioned if possible to do so while ensuring compliance with restrictions and safety measures that may be in place in receiving countries.

Supplementary messages

• The Pre-Removal Risk Assessment (PRRA) is the mechanism by which allegations of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment are assessed prior to removal.
• The PRRA program is administered by IRCC and the CBSA. The CBSA is responsible for initiating PRRA for eligible applicants and, following a PRRA decision, for communicating PRRA decisions at pre-removal interviews and executing removal when the PRRA decision is negative. IRCC is responsible for decision-making on PRRA applications.
• Individuals who may be eligible to apply for a PRRA include:
  • failed refugee claimants;
  • persons whose claims are found ineligible to be referred to the Immigration and Refugee Board, including those recognized as a Convention refugee in another country and who can be returned to that country; and
  • persons who have never made a refugee claim (e.g. a person under a removal order for having overstayed their visa).
• A positive PRRA decision in a regular PRRA application results in the granting of protected person status and the ability to apply for permanent residence.

Supporting facts and figures

• The PRRA program is a relatively small program, with overall intake rates that have remained stable. In FY 2019/20, there were a total of 2,000 PRRA applications.
• Decisions rendered on PRRA applications in 2019:
  • Individuals Ineligible to be referred to the IRB -this includes claimants who have Convention Refugee status in another country or claimants with serious inadmissibilities: 174 (9% of the caseload)
  • Individuals referred to the IRB (failed claimants): 1,158 (61% of the caseload)
  • Individuals with No previous Asylum Claim but under a removal order (e.g., visa overstay): 581 (30% of the caseload)
• Processing time for PRRAs, starting from when CBSA notifies a person with an enforceable removal order that they may apply for a PRRA and ending when an IRCC officer renders a decision, was 10 months as of FY2019/20
• The approval rate for PRRAs was as follows (from January 2019 to December 2019):
  • Individuals ineligible to be referred to the IRB: 30%
  • Individuals referred to the IRB (failed claimants): 4%
  • Individuals with No previous Asylum Claim but under a removal order (e.g., visa overstay): 1%

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Background

How PRRA works:

• Under the Immigration and Refugee Protection Act (IRPA), persons subject to an enforceable removal order from Canada who allege risk if they were returned to their country of origin or habitual residence will not be removed before receiving a risk assessment. PRRA is grounded in Canada’s domestic and international commitments to the principle of non-refoulement (i.e., sending someone back to a situation of risk).
• When given a notice that their removal order is being enforced, eligible persons are notified by CBSA that they may apply for a PRRA. When a person applies on time, their removal order is stayed until the PRRA decision is made. IRCC is responsible for the determination of the PRRA application.
• The PRRA and the Refugee Protection Division at the IRB both consider the same factors and threshold when determining whether an individual is in need of protection under the Refugee Convention grounds and the Convention Against Torture (section s.96 and s.97 of IRPA). A positive PRRA decision generally results in the granting of protected person status and the ability to apply for permanent residence under the protected person category with access to the full spectrum of federally funded settlement services and a pathway to citizenship (restricted PRRAs do not result in protected person status). If the PRRA decision is negative, the individual must leave or be removed from Canada.

Restricted PRRAs:

• Individuals inadmissible on serious grounds such as security, violation of human rights, organized crime, and certain serious criminality or claims excluded under Article 1F of the Refugee Convention receive a “restricted” PRRA, an assessment based on s.97 only (on the basis of a danger of torture or a risk to life or cruel and unusual treatment or punishment). Should they receive a positive PRRA, which is weighed against the potential danger to Canadians posed by allowing them to remain in Canada, depending on the outcome, they will be granted a stay of removal until circumstances change in their source country and they can be safely removed. They do not become protected persons.

Failed asylum claimants:

• PRRA for failed claimants is not meant as an appeal of a negative refugee claim decision. As such, failed refugee claimants are barred from applying for a PRRA for a period of 12 months after the last negative decision from the Refugee Protection Division (RPD) or Refugee Appeal Division (RAD), or a negative leave or judicial review decision from the Federal Court. The objective of the 12-month bar is to bring finality in the asylum system and avoid duplicative applications for protection when the validity of a decision has recently been confirmed.
• Failed claimants are also subject to a 12 month bar to apply for a TRP or for an H&C following their last negative decision (at the IRB or the Federal Court). There are exceptions to this bar based on (1) medical reasons and (2) relating to the best interest of a child.
• A PRRA for failed claimants is restricted to new or newly obtained evidence of risk. This includes evidence that arose after the claimant’s last hearing, or evidence that was not accessible or that was not reasonably available for presentation at the time.

New ineligibility to make a claim at the IRB:

• The 2019 Budget Implementation Act introduced a new ground of ineligibility that makes asylum claimants who have previously applied for asylum in a country with which Canada has an information-sharing agreement, and the previous claim has been confirmed via info-sharing, ineligible to be referred to the Refugee Protection Division (RPD) of the Immigration and Refugee Board (IRB).
• Those impacted by the new ineligibility instead face removal to their source country. In line with Canada’s domestic and international legal obligations to the principle of non-refoulement, these individuals are eligible for a PRRA prior to their removal to ensure they are not being removed to persecution or torture, or a risk to life or of cruel and unusual treatment or punishment in their home country.
• PRRA applicants affected by the new ineligibility are offered a mandatory hearing, unless protection can be granted on the basis of the paper application alone.

PRRA Hearings:

• PRRA hearings have been postponed since March 2020 when IRCC offices were closed to all clients.
• Videoconference hearings have continued to be offered as an essential service for clients who are detained by CBSA. One (1) hearing has been held since March 16, for a person in detention. It was remote, using Videoconferencing technology between an IRCC office and a CBSA Immigration Detention Centre. In the same timeframe under normal circumstances we would have likely held approximately 100 hearings.
• All other PRRA hearings have been postponed while a remote videoconference process is developed to allow clients to connect to IRCC decision makers from outside of IRCC offices.

Facilitative measures during COVID-19:

• PRRA applications continue to be accepted during the pandemic.
• Individuals who cannot submit a complete PRRA application within the required 15 days because of COVID-19 disruptions are asked to submit what they can within the deadline, such as partially completed forms. Applicants must include a letter with their application explaining why the form cannot be completed or signed.
• Individuals unable to submit their supporting documents within the required 30 day period are automatically contacted and given a new 30-day submission period. A decision on their case will only be made after the new 30-day period expires.