CIMM – Asylum, Border Restrictions and STCA – March 3, 2022

Key Messages

• Canada remains firmly committed to upholding a fair and compassionate refugee protection system and to aiding those genuinely in need of help and protection. At the same time, we have an obligation to protect the safety, security and health of Canadians.
• Throughout the pandemic, Canada continued to accept asylum claims made by people who were already inside Canada and by people who arrived at designated ports of entry and who met an exception to the Safe Third Country Agreement (STCA).
• The STCA serves Canada well by ensuring that our shared border with the U.S. remains well-managed. Canada believes that the STCA remains a comprehensive means for the compassionate, fair, and orderly handling of asylum claims in our two countries.
• Since the onset of the pandemic, the Government of Canada implemented temporary border restrictions to protect the health and safety of Canadians and stop the spread of COVID-19. This included temporary restrictions on the entry of asylum seekers who attempted to enter between official land ports of entry. These individuals were temporarily directed back to the U.S.  
• On November 21, 2021, Canada removed the temporary measures restricting asylum claims from foreign nationals seeking entry from the U.S. between designated land ports of entry.
• Asylum claim volumes are difficult to predict and depend on many factors. Immigration, Refugees and Citizenship Canada (IRCC) continues to work with the Canadian Border Services Agency (CBSA) and the Royal Canadian Mounted Police (RCMP) along with the provinces and territories to respond to claim volumes. 
• Per the STCA, individuals should continue to seek asylum in the first safe country in which they enter after fleeing persecution.

Supplementary Messages

Enhancing Canada’s asylum system

• Economic and Fiscal Snapshot 2020 provided funding to maintain the capacity at the Refugee Protection Division at 50,000 claims for two years (2021-2022 and 2022-2023), with one additional year of post-Refugee Appeal Division processing (2023-2024).

Removing the prohibition to enter Canada from the U.S. for the purposes of making an asylum claim

• In response to the global COVID-19 pandemic, Canada put in place measures to temporarily restrict asylum claimants crossing between designated land ports of entry. These measures were put in place from March 2020 until November 21, 2021.
• Throughout this period, Canada continued to accept asylum claims made by people who were already inside Canada and by people who arrived at designated ports of entry and met an exception to the STCA.
• Asylum claimants who attempted to enter between designated land ports of entry were temporarily directed back to the U.S. 
• In August 2021, Canada started reaching out to asylum claimants who had been directed back to confirm their intent to return to Canada to pursue their claim. The objective was to allow for a phased return of these claimants, prioritizing those who have been fully vaccinated.
• On November 21, 2021, the prohibition on entering Canada from the U.S. between designated land ports of entry for the purposes of making an asylum claim came to an end.
• Between March 21, 2020 and November 21, 2021, 939 individuals were directed back to the U.S. Of these, 237 individual entry exemptions had been approved for individuals who were temporarily directed back to allow for their return and 162 individuals had returned to continue with their claims for asylum in Canada following issuance of an exemption letter.
• Asylum claimants are a vulnerable group, and Canada has international obligations under the Refugee Convention that do not apply to other cohorts of travellers.
• The asylum prohibition was always intended to be temporary. Current public health border measures, such as testing unvaccinated claimants on entry and providing temporary accommodations and basic necessities of life (e.g. meals and basic health services) at an IRCC quarantine facility for those who do not have a suitable quarantine plan, are in place to help alleviate any public health risks posed by unvaccinated asymptomatic claimants.

STCA modernization

• We are committed to protecting the safety of Canadians and keeping our border secure. At the same time, asylum seekers must be treated with compassion and afforded due process under the law.
• Canada and the U.S. benefit from a long history of mutual cooperation on issues related to border integrity.
• STCA is an important bilateral tool for managing asylum claims at the Canada-U.S. land border.
• We are in regular contact with the U.S. government on issues related to our shared border, including STCA.

If Pressed

• Canada is working with the U.S. on a range of border issues, including the STCA so that it can continue to be a compassionate and fair way to handle asylum claims between our two countries.

STCA litigation

• Leave to appeal to the Supreme Court of Canada was granted on December 16, 2021 and the appellants filed a Notice of Appeal and a Notice of Constitutional Question with the Supreme Court of Canada on January 17, 2022. The hearing on the merits is anticipated to take place between fall 2022 and winter 2023. A decision is expected 3‑12 months following the hearing.

Review of the U.S. as a safe third country

• The Department reviews and continually monitors the U.S. in accordance with the four factors denoted under subsection 102(2) in the Immigration and Refugee Protection Act (IRPA): 1) whether the country is party to the Refugee Convention and Convention Against Torture; 2) its policies and practices with respect to claims and with respect to its obligations under the Convention Against Torture; 3) its human rights record; and 4) whether it is party to an agreement with Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Asylum claim volumes

• Asylum claim volumes are difficult to predict and can depend on many factors. Contingency plans have been implemented to handle high volumes of asylum claimants crossing at ports or between ports of entry (irregular claims).
• Since the end of the direct back arrangement with the U.S. on November 21, 2021, IRCC has rapidly expanded its accommodations and support services capacity in the province of Quebec in order to keep up with the pace of the increased volumes of asylum claimants arriving between designated ports of entry near Lacolle, Quebec.
• As expected, irregular claims increased significantly once the direct-back arrangement came to an end, and remained high as of early January, particularly near Lacolle, Quebec.
• The Department continues to engage regularly with officials from Quebec, Ontario and British Columbia, as the provinces most directly affected by a surge in asylum claims. The focus of this engagement has been on sharing information, ensuring operational readiness and addressing issues as they arise.

Temporary accommodations for asymptomatic asylum claimants

• In the context of COVID-19, since April 2020, IRCC has entered into contracts with hotels and service providers to provide temporary accommodations and basic necessities of life (e.g. meals and basic health services) to unvaccinated asymptomatic asylum claimants who do not have a suitable quarantine plan. This ensures these individuals are able to comply with the Orders in Council requiring them to quarantine upon entry to Canada. Onsite security and transportation services are also available as required.
• Currently, IRCC has arrangements with 18 hotels across Canada with a capacity of over 1000 rooms near key ports of entry, to provide temporary accommodations to those who do not have a suitable plan for quarantine. Since the end of the direct back arrangement with the U.S. on November 21, 2021, asylum claimants entering between ports of entry materialized immediately in volumes not seen since before the COVID-19 pandemic began. As such, since November 21, IRCC has also provided temporary accommodations to fully vaccinated asymptomatic asylum claimants who do not require quarantine but are waiting to be transferred to the shelter system in Quebec, which has reached capacity since these volumes materialized. Since April 19, 2020, IRCC has accommodated just over 3,700 asylum claimants (as of December 31, 2021).
• Upon arrival at the hotel, asymptomatic asylum claimants are greeted by service providers who assign them to a room 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.
• 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 one and day eight).
• The Public Health Agency of Canada (PHAC) is responsible for providing temporary accommodation to all symptomatic travellers, including asylum claimants. 
• If an asymptomatic asylum claimant at an IRCC temporary accommodation site becomes symptomatic during their stay, they and their close contacts are transferred to PHAC designated quarantine facility.

Eligibility screening backlog due to COVID-19

• Pandemic-related office closures and office capacity limits led to a backlog of inland refugee claimants awaiting a decision on the eligibility of their claim.
• Starting in spring 2021, IRCC established 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. Significant progress has been made and remaining inventory of asylum claims is being addressed.

Immigration Medical Examinations

• Separate from the COVID-19 health measures in place, refugee claimants must also undergo an immigration medical examination. To ensure sufficient capacity to conduct immigration medical examinations, the Department continues to review the panel physician network capacity near the Canada-U.S. border and targeted ports of entry. IRCC has added additional panel physician capacity in some cities, and is ensuring that all Canadian panel physicians are enrolled with the Interim Federal Health Program (IFHP).

Supporting Facts And Figures

Asylum Claims

• Since the introduction of COVID-related travel restrictions between Canada and the U.S., there were 37,189 asylum claims made in Canada (i.e. March 21, 2020 to December 31, 2021).

Source: IRCC Cognos (CBR) as of January 9, 2022)

Directed back and/or Safe Third Country Agreement exceptions

• From March 21, 2020 to November 21, 2021, 939 asylum seekers were directed back to the U.S. after attempting to enter Canada. Of these, 162 claimants had returned to Canada after being issued a national interest exemption by the Minister authorizing their return.
• Between April 22, 2020 and December 31, 2021, there were 6,967 asylum claims at land border ports of entry. Of these, 4,819 claimants met an exception under STCA and were permitted entry to Canada.

(Data is under review and is subject to change without notice)

Source: IRCC Occupancy Report Data as of December 31, 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

Safe Third Country Agreement

• The STCA, in effect since December 2004, requires that asylum claimants seek protection in the first safe country that they enter (i.e. either Canada or the U.S.). This concept is supported by the United Nations High Commissioner for Refugees (UNHCR). Claimants who are in the U.S. are expected to pursue their claim in the U.S., rather than seeking protection in Canada. Similarly, those in Canada are expected to apply in Canada.
• The objectives of the STCA are to enhance the orderly handling of refugee claims, strengthen public confidence in the integrity of our refugee systems, reduce abuse and share responsibility for providing protection to those who meet the refugee definition.
• The STCA applies to asylum claimants who have not yet entered and are seeking entry to Canada from the U.S. at an official land port of entry. The Agreement does not apply to a number of groups as provided for in the regulations, including U.S. citizens or to those who arrive from the U.S. by sea or at an airport, claimants with family in Canada; unaccompanied minors; holders of certain Canadian documents (such as visas or work or study permits); and public interest exceptions. It also does not apply to claims made by people who have entered Canada between official ports of entry along the land border.
• Persons who are not eligible to make an asylum claim because of the application of the STCA are immediately returned to the U.S.

Modernizing the STCA

• The Government of Canada has been in continuous contact with the U.S. Department of Homeland Security and U.S. State Department, on issues related to our shared border, including the STCA.
• Modernizing the STCA has been a Government priority for several years. Minister Fraser’s mandate letter directs him to continue to work with the U.S. to modernize the STCA. The Prime Minister recently confirmed publicly that this work with the U.S. is underway.
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STCA litigation

• The STCA regime remains in effect. 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.
• The opposing parties filed an application for leave to appeal to the Supreme Court of Canada (SCC) on June 14, 2021. On December 16, 2021, the SCC granted leave to appeal.
• The notice of appeal and notice of constitutional question (NCQ) were filed with the SCC on January 17, 2022. These documents confirm that the Appellants are seeking declarations that s. 159.3 of the IRPR and s. 101(1)(e) of IRPA infringe sections 7 (liberty and security of the person) and 15 (equality rights) of the Charter.
• The appellant’s arguments are due by March 14, 2022. Canada’s reply is due by May 9, 2022. The hearing on the merits is anticipated to take place between fall 2022 and winter 2023. A decision is expected 3-12 months following the hearing.

Implications of quarantine / self-isolation requirements

• Unvaccinated claimants 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 eight) 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 STCA exception 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 (PHAC). 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.

COVID impacts on Immigration and Refugee Board operations

• The Immigration and Refugee Board of Canada (IRB) has continued to provide fair and efficient adjudication of refugee and immigration matters throughout the COVID-19 pandemic.
• In 2020, in response to the pandemic, the IRB adapted its operations and began to pilot virtual hearings. Within the year, the Board moved to a remote-only hearings approach with only particularly sensitive cases considered for in-person hearings.
• From June 2020 to end of January 2021, 99% of hearings have been held remotely, representing almost 48,000 hearings, with a satisfaction rate over 95% in the Refugee Protection Division post-hearing surveys.
• In the context of the ongoing pandemic and changing public health guidance, this approach allows the Board to continue to provide access to justice while safeguarding the health and well-being of employees and people appearing before the IRB. The IRB will continue to hear the majority of its matters virtually for the foreseeable future, with increased in-person proceedings once health conditions allow.
• Despite pandemic disruptions, significant access to justice has been maintained:
  • Wait times have been significantly lowered for new claims:
    • At the end of December 2021, wait times for new cases at both the Refugee Protection Division (RPD) and Refugee Appeal Division (RAD) were at their lowest levels since September 2016 – 14 months for a first level decision at the RPD (down from 23 months average processing time in 2021), and an additional five months for those seeking recourse at the RAD (down from nine months average processing time in 2021).
  • Inventory is also down appreciably between April 2020 and December 2021:
    • Across all divisions, inventories are down 38% – refugee claims and appeals, down 39% from 102,000 to 62,000 claims, with fewer than 57,000 pending claims at the RPD and 5,000 pending appeals at the RAD

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 later using Canada Post’s epost Connect for the sharing of documents and application forms. Claims are now being made via a new portal, introduced on October 6, 2021.
• Once claimants provide their required information, they are issued an Acknowledgement of Claim document, which allows them to access certain benefits such as social services and healthcare coverage under the IFHP.
• Claimants receive limited and temporary IFHP coverage, including basic, supplemental, and prescription drug benefits, until they either qualify for provincial health insurance after receiving a positive decision on their claim by the IRB 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. Refugee Protection Claimant Documents are being considered 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, medical exam 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. 
• All refugee claimants aged 18 years and older are referred to security partners (Canadian Security Intelligence Service and CBSA) 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. This process will remain in place notwithstanding factors influencing refugee claimant application volumes.
• On December 14, 2020, under the Guardian Angels public policy, Canada started to accept applications for permanent residence from pending and unsuccessful refugee claimants who worked in Canada's healthcare sector and provided direct care to patients during the COVID-19 pandemic.