IRCC Minister Transition Binder 2025-05

Legal Framework Around Decision-Making Authority and Management of Complex Cases

Departmental Legal Services Unit
May 2025

Overview

• Introduction
• Legal Framework
• IRPA—Who are the different players
• Legal Framework: Who makes decisions
• IRPA—Who makes the decisions
• IRPA—Ministerial Authorities
• IRPA—Humanitarian and Compassionate
• IRPA—Temporary Resident Permit
• IRPA—Public Safety Minister “relief” authority & Stay of Removal
• Citizenship Act and Canadian Passport Order authorities
• High Profile, Sensitive and/or Contentious Cases
• Exercising Ministerial Authority
• Principles and Considerations in Ministerial Decision Making
• Support to Minister’s Office

Introduction

Making decisions is at the core of our business at Immigration, Refugees and Citizenship Canada (IRCC). We have regular and more complex decisions that are made within the applicable legal framework.

• A regular case may refer to an application or group of applications that can be decided by processing offices across the Department, without the need for consultation or input from supporting policy, legal, program or migration integrity branches, such as legal services, program guidance, or case management.
• A complex case may refer to any case that includes a high-risk element, such as a possible serious inadmissibility, fraud, or misrepresentation (beyond what can be handled by processing offices) or may otherwise represent a high reputational or legal risk to the Department, such that broader consultation may be required to effectively mitigate the associated risk.

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;
  • Canadian Passport Order and Diplomatic and Special Passports Order.

Types of Decisions Making Authorities Covered in Above:

• Decisions on applications for temporary and permanent residence
• Decisions on refugee claims and pre-removal risk assessments
• Decisions on travel documents
• Decisions on citizenship grants and revocations

What is an Inadmissibility (IRPA)?

• A person who applies for permanent or temporary residence may be found inadmissible by an officer and have their application refused based on grounds set out in the IRPA, including security-related grounds, human rights violations, organized crime, criminality, misrepresentation, danger to public health or safety, and non-compliance with requirements in the Act or Regulations.
• Discretionary authorities exist to allow a person to enter or remain despite their inadmissibility (see slides 8 and 9).

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, human rights violations, and organized crime) and the granting of relief in relation to these inadmissibilities.
• The Minister of Employment and Social Development Canada (ESDC) 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 (IRB), an independent administrative tribunal, is responsible for making decisions on refugee claims referred to it by IRCC or the Canada Border Services Agency (CBSA). In certain cases, they make inadmissibility and removal decisions in respect of foreign nationals and permanent residents. The IRB also provides for an administrative appeal process, including refugee appeals and family class sponsorship appeals.
• Any decision, measure, or other matter under IRPA can be challenged in the Federal Court by way of an application for leave and judicial review. An applicant can also seek a judicial stay of removal pending the outcome of the legal challenge. The Department of Justice counsel defend IRCC and IRB decisions in the Federal Court.

Legal Framework: Who Makes Decisions?

• Other than decisions that only the Minister makes (see slide 7), the Instrument of Designation and Delegation (immigration) and the Instrument of Delegation (citizenship) specify which officials 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 the applicable legislation and in compliance with the Canadian Charter of Rights and Freedoms (Charter) and applicable administrative law principles, such as making decisions in an unbiased and procedurally fair manner.

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IRPA—Ministerial Authorities

• There are two types of “Minister” authorities that have not been delegated:
  • the authorities to issue Ministerial Instructions (MI) notably with regard to the creation of pilot economic programs (s. 14.1), the management (including capping intake) of applications (s. 87.3), conduct of examinations (s. 15(4)), issuance of temporary resident permits (s. 24(3)), and some of the Express Entry MI authorities (s. 10.3); and
  • the authority to establish a Public Policy under s. 25.2 for officers to consider granting exemptions specified by the Minister to individuals who meet the conditions that the Minister sets out in the public policy.
• Two “Minister” authorities cannot by law be delegated:
  • negative discretion—a declaration that prevents a foreign national from becoming a temporary resident on public policy grounds (s. 22.1); and
  • jointly with the Minister of Public Safety, the signing of a security certificate in relation to a person inadmissible on security, human rights violations, organized crime, or serious criminality grounds. A security certificate process involves a Federal Court review, procedures to protect sensitive information, and detention of the individual subject to a certificate. This authority has not been used for many years.

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Citizenship Act and Canadian 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 based on fraud/misrepresentation, the Federal Court is the default decision maker unless the person requests that the Minister decides. This authority and the authority to assess personal circumstances have been delegated to officials.

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, celebrities with criminal backgrounds, or Olympic athletes, 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 departmental senior officials for transmittal to the Minister’s Office.
  • 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 decide to intervene in a particular case.
• If it is a case where the Minister has authority to make a decision (e.g., s. 25.1 IRPA H&C exemption, or a s. 5(4) Citizenship Act discretionary grant of citizenship), the file can be provided to the Minister for making the decision, provided a delegated officer has not yet made a decision in the case.
• Case officers provide information and analysis for the Minister, as needed, to support the Minister in making a decision based on relevant information and considerations.
• The Department prepares the file and communicates the decisions made by the Minister to the client. If the Minister gives instructions on issuance of a TRP (s. 24(3) IRPA), the Department communicates this to the appropriate office in Canada or overseas.
• The Department coordinates and consults with partner departments that may be implicated in the exercise of the authority by the Minister (e.g., CBSA, Global Affairs Canada, ESDC).
  • Coordination/consultation with CBSA and Public Safety Minister’s office is important when considering intervention in a removal case. If the matter is in litigation, coordination with Justice counsel is also important.

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Support to Minister’s Office

• As of April 1, 2025, the Service Delivery Sector provides information to the Minister’s Office to support the Minister’s decision-making function or for senior officials to bring high profile cases to the Minister’s attention.
• 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 business days.
• Routine requests (i.e., not flagged as urgent or time-sensitive) are prioritized based on date of receipt.
• The Service Delivery Network offers after-hour service for urgent requests for information on immigration cases only. Citizenship and passport questions are dealt with during regular work hours.