IRCC Minister Transition Binder 2023: Asylum
[Redacted] appears where sensitive information has been removed in accordance with the principles of the Access to Information Act and the Privacy Act.
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
- Refugee protection is about saving lives and providing refuge to the persecuted and displaced. Canada’s objectives are to establish fair and efficient asylum procedures that will maintain the integrity of the Canadian refugee protection system.
- In accordance with the Immigration and Refugee Protection Act (IRPA), refugee protection (protected person status) is conferred on a person who fits the definition of a refugee as enumerated in the Refugee Convention as well as a person who faces a risk to life or cruel and unusual treatment or punishment in another country.
- International and domestic law defines someone as a convention refugee if they are outside their country of nationality, if stateless, or outside of their former country of habitual residence, and have a well-founded fear of persecution based on race, religion, nationality, political opinion, membership in a particular social group. In Canada, membership in a “social group” category includes claims from LGBTQI+ persons, or persons facing persecution for gender-related reasons.
Who Seeks Asylum in Canada?
- Global levels of forced displacement are at record levels. The United Nations Refugee Agency reported that globally 108.4M million people were displaced at the end of 2022 (or 1 in 74 persons), including an estimated over 35 million refugees/asylum seekers. Despite geographic isolation, Canada has seen a significant rise in asylum claims in recent years.
- Foreign nationals can make an asylum claim in Canada at a CBSA office inland or ports-of-entry (POE) (land border, marine, or airports) or at an inland IRCC office, with claims made online or in person. A significant proportion of asylum claimants arrive as temporary residents, such as visitors (with or without a visa), temporary foreign workers, and international students. Other foreign nationals may also make a refugee claim in Canada, including individuals who do not have any valid identity document or may show a false identity document.
- Once in Canada, eligibility to make an asylum claim is based on whether the individual has been convicted of a serious criminal offence; previously 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; and entering Canada from the U.S. along the land border unless they are subject to an exception or exemption under the Canada-U.S. Safe Third Country Agreement (STCA). Once a foreign national is determined to be eligible to claim asylum and have their claim referred to the Immigration and Refugee Board, their claim is assessed in the same manner, regardless of how they entered.
Impacts
The In-Canada Asylum System
- Within the federal government, the Ministers of IRCC and Public Safety have a joint responsibility for delivering the asylum system, in conjunction with other implicated partners, including other levels of government:
- Immigration, Refugees and Citizenship Canada (IRCC): Overall mandate for the asylum system, including policy direction, guiding implementation, monitoring, reporting, ministerial interventions, as well as operations including intake of inland claims, pre-removal risk assessments, representing the Minister at refugee protection hearings and processing applications for permanent resident status submitted by protected persons. IRCC also issues work permits and provides temporary healthcare coverage under the Interim Federal Health Program. In recent years IRCC has been providing temporary accommodations to asylum claimants and reimbursing jurisdictions for interim housing on a temporary basis.
- The Canada Border Services Agency (CBSA): Responsible for border management; security at POEs; enforcement policies; intake of POE asylum claims security screening; representing the Minister at hearings; and the arrest, detention, and removal of failed claimants.
- The Royal Canadian Mounted Police (RCMP): Responsible for border security, including monitoring of irregular crossings and investigating and prosecuting border-related criminal activity (e.g., migrant smuggling).
- Immigration and Refugee Board of Canada (IRB): An independent administrative quasi-judicial tribunal responsible for refugee claim determination, refugee appeals, immigration determination, and immigration appeals.
- Federal Court: Responsible for judicial review of decisions made by government officials along the program continuum as well as the IRB.
- Provinces and Territories: Generally responsible for providing interim housing, social services (social assistance, education), and legal aid (through the Department of Justice programming), while a decision on a claim is pending.
- Municipalities: Provide supports based on services delegated to them by provinces.
Current Program
- Foreign nationals can make an asylum claim at a POE or inland in Canada. The CBSA or IRCC determine eligibility of the individual’s asylum claim for referral to the IRB for adjudication. Individuals who are determined ineligible are referred to the CBSA for removal from Canada.
- In accordance with the Refugee Convention, 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.
- Claims referred to the IRB are further 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.
- 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
- A key tool to managing asylum along the Canada-U.S. border is the STCA and its Additional Protocol. In effect since 2004 at POEs, and since March 25, 2023 to those crossing between POEs along the land border, the STCA requires refugee claimants to request protection in the first safe country they arrive in, either the U.S. or Canada, unless they qualify for an exception or exemption to the STCA. Otherwise, individuals are returned to the U.S. to pursue their asylum claim.
- U.S., Canadian citizens and stateless persons who are habitual residents of either country are exempt from the STCA. Under the Additional Protocol, which applies the STCA to individuals who cross irregularly (i.e., in-between POEs), an asylum claimant must be intercepted or make their claim to IRCC or CBSA within 14 days of crossing to be subject to the terms of the STCA and returned to the U.S. IRPA requires the continual review of the U.S. as a safe third country.
Recent Developments
Increase Capacity to Handle More Cases:
- Canada received historic high numbers of asylum claims, and the number of asylum claims is expected to remain high in 2023 due to a combination of factors, including significant volumes of claimants entering by air. These volumes will put pressure on the asylum system’s capacity, which is funded to process 50K claims per year.
- Following a Budget 2022 funding decision, [Redacted].
Managing and Discouraging Irregular Crossings and STCA Litigation:
- Since the STCA Additional Protocol came into effect in March 2023, the number of irregular crossing has dropped significantly, most notably at Roxham Road in Quebec. The Additional Protocol ensures that asylum claimants entering from the U.S. land border are treated consistently, regardless of how they enter. IRCC and CBSA continue to monitor the Protocol’s implementation, recognizing that its full impact will only be seen over time. [Redacted].
- On June 16, 2023, the Supreme Court of Canada 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), but sent the case back to the Federal Court Trial Division for a determination of the s. 15 (discrimination) arguments raised by the litigants. The timing of the Federal Court proceedings has not yet been announced, [Redacted].
Temporary Resident Visa Policy Framework and Program Delivery, a Key Lever on the Demand Side:
- An increasing number of asylum claimants arriving at airports hold immigration documents, such as Electronic Travel Authorizations and Temporary Resident Visas. These volumes are closely tracked and monitored, in support of managed migration and to mitigate the risk of losing the confidence of Canadians.
- IRCC has various levers to enable the Department to influence the visa claim rate, including public policies.
- [Redacted]. The Government recently also committed to welcome an additional 15,000 migrants from the Western Hemisphere on a humanitarian basis, alongside the announcement of the modernized STCA.
Expectations From Provinces for Additional Federal Support:
- High asylum volumes will continue to place increased pressure on provinces and municipalities in providing interim housing, social services and legal aid to asylum claimants.
- Some provinces continue to position asylum pressures as a federal responsibility and are seeking compensation for costs incurred (e.g., housing, legal aid, social services). The province of Quebec has requested that IRCC backstops their provincial shelter capacity due to an increase in airport arrivals. However, since the implementation of the STCA Additional Protocol, there has been a significant decrease of arrivals between ports of entry, particularly at Roxham road in Quebec. As such, IRCC has been working to gradually ramp down its hotel operations across Canada.
Upcoming Milestones
- Higher asylum claim volumes are becoming Canada’s new normal. The Government must continue innovating its policies and programs, while increasing system capacity to handle more cases. Collaboration with provincial and municipal governments on interim housing, legal aid, and services for asylum claimants will remain essential as the federal fiscal environment becomes more constrained, and provinces continue to benefit from the contributions of these populations.
Page details
- Date modified: