IRCC Deputy Minister Transition Binder 2024 – Asylum

Context

Canada’s asylum system reflects our domestic legal framework, our international obligations, and humanitarian traditions. Once in Canada, individuals have a right to seek asylum and may not be returned to a country of persecution (concept of “non-refoulement”).^{Footnote 1}

Who seeks asylum in Canada?

• Global levels of forced displacement are at record levels and Canada is not immune. The United Nations Refugee Agency reported that globally 110M people were forcibly displaced at mid-2023, including 42.5M refugees and asylum seekers, and projects that this number could be as high as 130.8M people by the end of 2024.
• Foreign nationals can make an asylum claim in Canada to the Canada Border Services Agency (CBSA) at ports-of-entry (POE) (land border, marine, or airports) or at CBSA or Immigration, Refugees and Citizenship Canada (IRCC) inland offices (including by submitting on line). Asylum claimants typically arrive as temporary residents, such as visitors, workers or students after receiving visas and permits. Other foreign nationals may also make a refugee claim after reaching Canada without advanced travel authorization, such as those who enter between official POEs. Claims can be filed immediately upon arrival at a POE, or from inside Canada.
• Regardless of method of entry, all those eligible to claim asylum will have their claim referred to the Immigration and Refugee Board (IRB) who will make a determination on their refugee claim. If they are deemed ineligible, they are subject to removal from Canada by CBSA. Eligibility is based on factors such as whether the individual has been convicted of a serious criminal offence; previously been found ineligible to make a claim in Canada or had their claim denied; made an asylum claim in a country with which Canada has an information-sharing agreement; or has entered Canada from the United States along the land border and thereby subject to the Canada- U.S. Safe Third Country Agreement (STCA) unless they meet an exemption or exception.

Current Program

• Claims referred to the IRB are reviewed by CBSA and IRCC for concerns relating to credibility, program integrity, and grounds for exclusion from refugee protection. IRCC and CBSA intervene at the IRB hearing to present identified concerns on behalf of the Minister. If the IRB accepts the individual’s claim is founded, it will confer “protected person” status on the individual, who may then apply for permanent resident status and eventually citizenship.
• If an individual is deemed ineligible to make a claim in Canada, or if the IRB rejects the claim, the individual is subject to removal by the CBSA. In accordance with international and domestic law, individuals who are subject to removal from Canada may, in certain instances, apply for a Pre-Removal Risk Assessment (PRRA) which evaluates the risk of whether a person would face persecution, torture, risk to life or risk of cruel and unusual treatment or punishment upon return. Certain PRRA positive decisions may result in refugee protection. The PRRA is not an appeal of a negative refugee claim decision, and is restricted to new evidence, which was not reasonably available at the time the claim was heard.
• It should be noted that until a claim is adjudicated by the IRB, individuals do not hold an immigration status in Canada. Individuals whose claims are rejected are required to leave Canada once they exhaust recourse avenues available to them (e.g., IRB Refugee Appeal Division, Federal Court). For the most part, failed claimants have 30 days to voluntarily depart or are removed by the CBSA as soon as possible.

Canada-U.S. Safe Third Country Agreement

• The STCA requires asylum claimants to request protection in the first safe country in which they arrive, either the U.S. or Canada, unless they qualify for an exception or exemption under the STCA. Otherwise, individuals are returned to the U.S. to pursue their asylum claim.
• The STCA has been in effect since 2004 and its application was expanded, through an Additional Protocol on March 25, 2023, to those crossing between POEs along the land border, including cross-border internal waterways (e.g. Great Lakes), and making a claim within 14 days.
• The STCA is intended to apply to third country foreign nationals; as such, U.S., Canadian citizens and stateless persons who are habitual residents of either country are exempt from its application. There are four types of exceptions under the STCA, which consider the importance of family unity, the best interests of children and the public interest:
  • Having a family member over 18 years of age in Canada (most used);
  • Being an unaccompanied minor;
  • Holding a valid document that would allow entry to Canada; or
  • Being the basis of public interest determined by the government.

Even if an individual qualifies for one of these exceptions, the claimants must still meet all other eligibility criteria (e.g. criminality, previously denied) to have their claim referred to the IRB for consideration.

• IRPA permits the designation of safe third countries for the purpose of sharing the responsibility with those states for consideration of refugee claims. Only countries that are party to and comply with obligations under the Refugee Convention and Convention Against Torture and respect human rights may be designated as safe third countries. The U.S. is the only country that is designated as a safe third country under IRPA and with which Canada has a safe third country agreement.

Recent Developments

Increasing volumes

• Canada received historic high numbers of asylum claims in 2022 and 2023, and the number of asylum claims is expected to remain high in 2024. These volumes continue to put pressure on the asylum system’s capacity, which is funded to process 50K asylum claims per year following investments made through Budget 2022.

• As of December 31, 2023, the top five countries of origin for all claimants were Mexico, India, Nigeria, Turkey, and Colombia. The top five countries for irregular claims were Turkey, Afghanistan, Colombia, Venezuela and Haiti.
• IRCC, the CBSA, and the IRB continue to work on initiatives in order to respond to increased volumes and address processing delays. [Redacted]

Managing and discouraging irregular crossings and STCA litigation

• Since the expanded application of the STCA in March 2023, the number of irregular crossing along the land border has dropped significantly from an average of 165 a day earlier in March to an average of around 12 a day post STCA-Additional Protocol. The Additional Protocol ensures that asylum claimants entering from the U.S. land border are treated consistently, regardless of how they enter. IRCC, CBSA and the Royal Canadian Mounted Police continue to monitor the Protocol’s implementation, recognizing that its full impact on irregular crossings and potential emergence of new methods of evasion will only be seen over time. The Department also continues to work with the U.S. and others to build capacity and address root causes of irregular migration and forced displacement, notably in the Americas.
• On June 16, 2023, the Supreme Court of Canada (SCC) confirmed the designation of the U.S. as a safe third country under section 7 of the Charter (life, liberty, and security of the person). However, the SCC sent back to the Federal Court for a determination the question of the s. 15 (equality rights) arguments raised during the initial challenge, as this was never assessed by the lower Courts. The hearing is anticipated in fall 2024 and [Redacted]

Managing claim intake from documented temporary residents

• Record levels of displacement, instability, and natural catastrophes could turn a legitimate visitor into a refugee claimant (e.g., a civil war breaks out in a client’s home country and they believe they would be persecuted if they return). However, flows may also come as a result of Canada’s decisions to lift visa requirements, and/or relax screening for certain clients. These particular volumes are closely tracked and monitored, in support of policy decisions in order to maintain the confidence of Canadians regarding public safety and managed migration.
• The government continues to explore new regular migration pathways, including those related to economic mobility for refugees, to provide vulnerable individuals with alternatives to irregular migration in order to come to Canada. In March 2023, the government announced it would welcome an additional 15,000 migrants from the Western Hemisphere on a humanitarian basis, as an alternative to irregular migration. This includes 4,000 temporary foreign workers from the region and up to 11,000 Colombians, Haitians and Venezuelans who have extended family connections in Canada, through a new humanitarian permanent residence pathway launched in November 2023. Canada has also offered temporary residence pathways in response to crises in Ukraine and Gaza.

Upcoming Milestones

• Canada continues to experience growing asylum volumes. The government must continue innovating its policies and programs, while increasing system capacity to handle more cases. Based on ministerial direction in December 2023, IRCC is seeking authorities and funding to continue to make improvements to the capacity and efficiency of the asylum system. These are expected to include legislative and regulatory changes in 2024.
• The Department of Justice is leading the S.15 litigation challenge to the designation of the U.S. as a safe third country before the Federal Court. [Redacted]
• Forward decisions relating to the provision of interim accommodations will also be advanced given the pressure these volumes are having on provincial and territorial shelters and services.