On June 19, 2013, the Faster Removal of Foreign Criminals Act (FRFCA) received royal assent. The new provisions will result in important changes to the security and inadmissibility provisions of the Immigration and Refugee Protection Act (IRPA).
Among the most significant changes to the IRPA are the:
- loss of appeal rights;
- limits on Humanitarian and Compassionate considerations;
- increased inadmissibility period for misrepresentation; and
- obligation to appear for examination at the request of an officer or appear for an interview conducted by the Canadian Security Intelligence Service (CSIS).
Loss of Appeal Rights for Serious Criminality
According to the new legislation, the definition of “serious criminality” has changed and is now in respect to a crime that was punished in Canada by a term of imprisonment of at least six months. As a result, permanent residents with convictions in Canada punished by a term of imprisonment of six months or longer (including any credit for time served) will no longer have a right of appeal to the Immigration Appeal Division (IAD). Prior to the legislative change, the threshold for an appeal to the IAD was a sentence of two years or more.
If the permanent resident had a right to an appeal before June 19, 2013 and had been provided appeal instructions following a removal order, they will not be affected by the new law even if their term of imprisonment was between six months or two years. If the permanent resident with a criminal conviction in Canada is the subject of a report under subsection 44(2) of the IRPA which was referred to the Immigration Division before June 19, 2013, that person is also not affected by the new law. However, if the permanent resident was convicted in Canada for a criminal act and was sentenced to more than six months in prison before June 19, 2013 but had not yet been referred to the Immigration Division or been the subject of a report under subsection 44(2) by June 19, 2013, that person will not have a right of appeal of their resulting removal order to the IAD.
The FRFCA also introduced a new bar to the IAD for permanent residents who have a conviction outside of Canada or those who committed an act outside of Canada, which if committed inside Canada, would carry a maximum sentence of at least 10 years, regardless of the foreign sentence that was imposed on them. Thus, permanent residents who have convictions outside of Canada also lose their right to an appeal of their removal order.
The new law will result in a streamlined process for deporting foreign nationals found inadmissible on serious criminality, security grounds, for violating human and international rights, or for organized criminality by limiting their access to the IAD.
New limits to Humanitarian and Compassionate (H&C) considerations
The discretion to consider humanitarian factors is important in balancing the breadth of the inadmissibility with positive personal considerations. However, under the new legislation, the possibility of considering humanitarian and compassionate factors in balancing whether to deport individuals from Canada are no longer available to those who are determined to be inadmissible to Canada for security, violations of human or international rights, or for organized crime.
Instead of having the discretion to consider humanitarian and compassionate factors, only national security and public safety factors can be taken into consideration, when deciding to grant a request for relief from inadmissibility on grounds of security, certain human or international rights violations, or organized criminality.
Individuals who have already made a request for relief to remain in Canada on H&C grounds prior to June 19, 2013 are not affected by the change and their request will continue to be processed.
Inadmissibility for Misrepresentation increases from two to five years
The new law extends the duration of inadmissibility for those found inadmissible for misrepresentation from two to five years. It also prohibits those found inadmissible for misrepresentation from applying for permanent residence during that five-year period.
Obligation to appear for an examination or an interview
There is now a mandatory obligation for those making an application under the IRPA to appear for an examination at the request of an officer. The authority to compel a person for an examination may be used overseas, inland and at ports of entry.
In addition, there is also an explicit obligation for foreign nationals who make an application in Canada or at a port of entry to attend a Canadian Security Intelligence Service (CSIS) interview and answer all questions “for the purpose of an investigation,” if requested by an immigration officer.
Other changes concerning temporary residents and foreign nationals
The Minister of Citizenship and Immigration may deny temporary resident status for up to three years on the basis of public policy considerations such as Promoting Terrorism, Violence, or Criminal Activity or Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials.
Foreign nationals would be inadmissible to visit Canada if they have a family member (accompanying or not) who is inadmissible on grounds of security, human or international rights violations, or organized criminality. However, low-risk foreign nationals could be admissible for temporary entry to Canada if they are travelling with a family member who is inadmissible on grounds of serious criminality, criminality, health, finance, misrepresentation or non-compliance, who has received a Temporary Resident Permit to overcome their inadmissibility.
Please click here for a link to the Faster Removal of Foreign Criminals Act.
For more information on how these changes may affect you, please contact Green and Spiegel, LLP.