Operational Bulletin 525 (Modified) – September 10, 2013

Summary

This Operational Bulletin specifies the changes to subsection 64(2) of the Immigration and Refugee Protection Act (IRPA). This subsection specifies the circumstances under which:

• A foreign national or a permanent resident has,
• No right of appeal to the Immigration Appeal Division (IAD) of,
• The Immigration and Refugee Board

Background

On June 19, 2013, the CIC received royal assent on Bill C-43 of the Faster Removal of Foreign Criminals Act. This Bill amended the IRPA. Most of the provisions of the Bill would become effective later. However, certain provisions came into effect immediately. These included the amendments to the circumstances under which people have no right of appeal to the IAD. This includes:

• Foreign nationals
• Sponsors or,
• Permanent residents

According to Subsection 64(1):

• If an officer of the Immigration Division (ID)
• Deems a foreign national or a permanent resident inadmissible on grounds of:
• Security violations
• International rights violations
• Human rights violations
• Serious acts of criminality or,
• Organised acts of criminality
• The foreign national or permanent resident cannot appeal to the IAD

Currently, Subsection 64(2) reads (with the amendments highlighted in bold):

For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c)

Thus, Subsection 64(2) specifies that individuals cannot appeal their removal order to the IAD if they:

• Have a conviction punished in Canada with an imprisonment term of at least six months or,
• Are convicted for an offence outside Canada, which if it had been committed in Canada, would have secured an imprisonment term of at least 10 years (according to paragraph 36(1)(b) or (c)

Previously, the CIC specified the term of imprisonment as two years.

Sponsors too cannot appeal the refusal to the IAD in certain situations. For example, if:

• A Canadian citizen or permanent resident files,
• An application to sponsor a foreign national as a member of the foreign class and,
• The application is refused after June 19, 2013

The Canadian citizen would lose the right to appeal to the IAD in this case if:

• The foreign national was inadmissible for serious criminality and,
• Was punished with an imprisonment term of at least six months in Canada or,
• Met the criteria specified in paragraph 36(1)(b) or (c)

The amendments made to appeal rights to the IAD do not affect existing provisions of the IRPA designated as exceptional circumstances. Such circumstances could include:

• Humanitarian considerations
• Compassionate considerations or,
• Situations where an officer could use temporary resident permits for overcoming the grounds of inadmissibility

Instructions

Citizenship and Immigration officers must evaluate whether individuals have the right to appeal. The officers must consider this when they issue a family class refusal letter on grounds of serious criminality. This is in accordance with Section 7.7 of ENF 19 (Loss of appeal rights for procedures on calculating the sentence imposed).

The changes to the rights of appeal affect the work of the Canada Border Services Agency hearings. Thus, officers must:

• Evaluate the provisions of the act
• Determine whether the individual can appeal before the IAD
• Communicate their evaluation to the individual accordingly and,
• Record their decision in the file

Transitional Provisions

Two transitional provisions apply to the changes in appeal rights. These relate to:

• Applicants sponsoring a relative in Canada and,
• Individuals given the deporting orders

Individuals have the right to appeal to the IAD if:

• They are sponsors of foreign nationals whose:
• Family class applications were refused prior to June 19, 2013 on grounds of,
• Serious criminality and:
• Were punished with an imprisonment term of at least six months in Canada or,
• Met the criteria specified in paragraph 36(1)(b) or (c)

These individuals have the right to appeal until the time for submitting the appeal expires.

• They are people subject to a report under,
• Subsection 44(2) of the IRPA on grounds of,
• Serious criminality and:
• Were punished with an imprisonment term of at least six months in Canada or,
• Met the criteria specified in paragraph 36(1)(b) or (c)

These individuals have the right to appeal if:

• The Minister’s Delegate (MD) signed the referral to the ID before June 19, 2013 (regardless of when the referral was sent to the ID)

Note:

• People would maintain their right to appeal if:
• The request for an inadmissibility hearing was sent after June 19, 2013 to the ID (including referrals signed prior to June 19, 2013) and,
• The person had a right of appeal before June 19, 2013 (according to Subsection 63(3))

Source: Citizenship and Immigration Canada (CIC)