IRCC Deputy Minister Transition Binder 2022: Legal Framework Around Decision-Making Authority and Management of Complex Cases

July 2022

Legal Framework

• Immigration, citizenship and passport decision-making authorities are established in a number of federal Acts, Regulations and Orders-in-Council, including:
  • The Immigration and Refugee Protection Act (IRPA) and its Regulations;
  • The Citizenship Act and its Regulations;
  • The Department of Citizenship and Immigration Act; and,
  • Canadian Passport Order and Diplomatic and Special Passports Order.
• Other than decisions that only the Minister is authorized to make, the Instrument of Designation and Delegation (immigration) and the Instrument of Delegation (citizenship), specifies which officials (position, level) can exercise each of the authorities. These instruments are approved by the Minister, and the choice of authorized decision maker is generally based on:
  • the anticipated volume of decisions;
  • the need for consistency;
  • the consequences related to the powers exercised;
  • the complexity of and sensitivities around the type of decision.
• All decisions must be made within the authorities provided by law including in compliance with the Charter of Rights and Freedoms and applicable administrative law principles, such as making decisions in an unbiased and procedurally fair manner.

IRPA – Who are the different players?

• The Minister of IRCC is generally responsible for the administration of IRPA, notably as it relates to refugees and the selection of temporary and permanent residents.
• The Minister of Public Safety is responsible for enforcement matters, in particular port of entry examinations, detention and removals, policies on serious inadmissibilities (security, war crimes, and organized crime) and the granting of relief in relation to these inadmissibilities.
• The Minister of Employment and Social Development Canada is responsible for certain provisions regarding Temporary Foreign Workers.
• The Minister of Justice is responsible for matters relating to special advocates, who play a role in the security certificate process.
• The Immigration and Refugee Board, an independent administrative tribunal, is responsible for adjudicating and making decisions on inland refugee claims that are referred to it by IRCC (or sometimes CBSA), and, for certain cases, making removal decisions and providing for an administrative appeal process.
• Any decision, determination or order made, measure taken or question raised under IRPA can be challenged by way of an application for leave and judicial review to the Federal Court. The Federal Court can also issue a judicial stay of removal pending the outcome of the legal challenge.

IRPA – Who makes the decisions?

• Most decision-making authorities in IRPA are given to “officers”, such as in relation to temporary and permanent resident visa applications, including determinations on inadmissibilities.
• The IRCC Minister designates which officials can make these decisions, but they cannot make the decision themselves; designated officers are guided in their decision-making by the law, departmental policies and operational guidelines.
• Other authorities are given to the “Minister”, such as the authority to grant exemptions from requirements in the Act and Regulations or permanent resident status on humanitarian and compassionate grounds, and pre-removal risk assessment authorities.
• The Minister often delegates these powers to various officials in the department, who are guided by departmental policies and operational guidelines in making their decisions.

IRPA – Ministerial Authorities

There are two types of ministerial authorities that have not been delegated:

• the authority to issue Ministerial Instructions, such as with regard to the creation of pilot economic programs (s. 14.1), the management of applications (s. 87.3), and instructions regarding the issuance, by officers, of temporary resident permits to inadmissible foreign nationals or foreign nationals who do not meet the requirements of IRPA; and,
• the authority to establish a public policy under s. 25.2, for officers to consider grant specified exemptions to individuals who meet the conditions that the Minister sets out in the public policy.

Finally, there are two IRCC ministerial authorities that, by law, cannot be delegated:

• a declaration that prevents a foreign national from becoming a temporary resident on public policy grounds; and,
• jointly, with the Minister of Public Safety, the signing of a security certificate.

IRPA – Humanitarian and Compassionate Grounds

• Certain IRCC officials in Canada and overseas have been delegated the authority to waive certain legislative or regulatory requirements or grant permanent resident status:
  • for humanitarian and compassionate considerations; and,
  • in accordance with a public policy.
• This authority is to be exercised with respect to Foreign Nationals, and if based on an application by a Foreign National, is limited to Foreign Nationals who apply for permanent resident status.
• As IRPA gives this power to the Minister, the Minister always retains full authority and can make decisions him or herself, unless a delegated officer has been seized with the matter.
• As of June 19, 2013, IRPA was amended so that it is no longer possible for applicants inadmissible on security grounds, for human or international rights violations or organized crime, to request a waiver of their inadmissibility on humanitarian and compassionate grounds, nor may the Minister consider such a waiver on his or her own initiative nor grant permanent resident status on humanitarian and compassionate grounds to these individuals. The Associate Deputy Minister, Operations has been delegated to approve waivers on cases where requests were made before June 19, 2013.

IRPA – Other Authorities

Temporary Resident Permit

• Allows a foreign national to enter and stay in Canada on a temporary basis even though they may not meet the eligibility requirements, when “justified in the circumstances”.
• Primarily issued by IRCC officials, the Minister may issue instructions regarding the issuance of a temporary resident permit.
• The number of Temporary Resident Permits issued each year is reported annually to Parliament.

Public Policy Temporary Resident Visas and National Interest Temporary Resident Permits

• When it is in Canada’s national interest, the entry of certain inadmissible high-profile individuals is facilitated through the issuance of a Public Policy Temporary Resident Visa or a National Interest Temporary Resident Permit.
• The Associate Assistant Deputy Minister of Operations is the delegated authority in these cases.

IRPA – Authorities of the Minister of Public Safety

Ministerial Relief

• The Minister of Public Safety has the authority (cannot be delegated) to grant relief permanently in cases where a person is inadmissible to Canada because of concerns related to security, violation of human or international rights or organized crime.
• If Ministerial Relief is granted, provided the applicant meets all other requirements, they may be granted a permanent or temporary resident visa/status by departmental officials.

Stay of Removal

• The Public Safety Minister, or the Federal Court, have authority to stay a removal order to temporarily halt removal. Certain CBSA officials have been delegated this authority. Individuals may also apply to the Federal Court for a judicial stay.

Security Certificate

• The Minister of Public Safety and the Minister of IRCC must both sign (cannot be delegated) a security certificate, stating that a permanent residence or a foreign national is inadmissible on security or criminality.

Citizenship Act and Passport Order authorities

Citizenship Act

• Most decision-making authorities in the Citizenship Act are given to the Minister, such as for issuance of proof of citizenship, grants of citizenship and waivers of certain requirements for such grants.
• The Minister ordinarily delegates all of his powers to various officials in the department, who are guided by departmental policies and operational guidelines in making their decisions.
• A Citizenship Judge (Governor-in-Council appointee) has the authority to decide on whether persons seeking a grant of citizenship meet the residency requirement in case of doubt.
• For revocations of citizenship for fraud and misrepresentation, the Federal Court is the decision-maker unless the person requests that the Minister decides. This authority has been delegated to officials.
• In cases related to national security or organized crimes, after assessing the potential prohibition, the Minister may make a report to the National Security and Intelligence Review Agency (NSIRA) and it is the Governor in Council that renders the decision.

Canadian Passport Order

• Most decision-making authorities in the Canadian Passport Order are given to the Minister of IRCC, such as for the issuance, refusal, revocation or cancellation of a passport.
• Officials in appropriate positions within IRCC may exercise the Minister’s powers,  guided by departmental policies and operational guidelines in making their decisions. 
• The Minister of Public Safety is given the authority for the refusal, revocation or cancellation of a passport in cases of terrorism or national security.

High-Profile, Sensitive and/or Contentious Cases

• Cases may be high-profile or sensitive because they involve foreign dignitaries with complicated political affiliations or celebrities with criminal backgrounds, among others.
  • These include cases that come to the attention of the Minister or Members of Parliament from constituents and individuals who have gone to the media.
• Most cases are managed by officials, including providing up to date information about departmental procedures and case status, responding to media and engaging with the concerned public and expediting outstanding decisions, when appropriate.
• Proactive briefs on high profile cases are sent regularly to the Minister’s Office and the Assistant Deputy Minister of Operations’ Office by Departmental officials.
  • This includes cases that have or will attract media attention and cases where the Minister might have to respond to Parliament in Question Period, or to an inquiry from a Member of Parliament.

Exercising Ministerial Authority

• At times, the Minister may proactively exercise authority to intervene in a particular case.
• The Minister may exercise an authority that has been delegated, provided that the delegated decision-maker has not made a decision. The Minister cannot influence nor overturn an officer’s decision.
• Case officers provide information and analysis for the Minister as needed.
• The Department prepares the file and communicates instructions issued by the Minister to offices in Canada and overseas.
• The Department coordinates and consults with partner departments that may be implicated (Canada Border Services Agency, Global Affairs Canada, Employment and Social Development Canada).
  • Coordination/consultation with the Canada Border Services Agency and the Public Safety Minister’s office is important when considering intervention in a removal case.

Principles and Considerations in Ministerial Decision-making

• A decision by the Minister to act in a case may lead to other requests for decision in similar cases or brought by the same stakeholders, and create expectations of personal action by the Minister.
• Reasons are required for all decisions, and decisions are subject to judicial review with leave, and are reviewable by the Federal Court.
• Decisions should be made with full information and a complete picture of the case.
• Media attention with respect to cases is often significant and sometimes inaccurate.
• Public statements can impact on existing litigation.
• Timing of interventions is important, especially if a case is in litigation or in the removal stream.

Support to Minister’s Office

• The Case Management Branch provides information to the Minister’s Office to support the Minister’s decision-making function or for the Minister’s awareness of high profile cases.
• The service standard in responding to Minister’s Office requests flagged as urgent is 48 hours.
• The service standard in responding to any other time sensitive requests is five (5) business days.
• Routine requests (i.e., not flagged as urgent or time sensitive) are prioritized based on date of receipt.
• Case Management Branch offers after hour service for urgent requests for information on immigration cases only. Urgent citizenship and passport questions are handled during regular work hours.
• Further information on support for the Minister’s office is provided in the “Case Management Branch Protocol on Information Sharing with the Minister’s Office.”