Operational Bulletin 440-D – August 30, 2012

Designated Foreign Nationals – Restrictions on Applications for Permanent Residence   

Issue

This Operational Bulletin (OB) provides instructions to officer on dealing with specific Applications for Permanent Residence (APRs). It guides them on the process they would need to follow when dealing with Applications for Permanent Residence (APRs) submitted by Designated Foreign Nationals (DFNs).

Background

The Bill C-31 received Royal Assent on June 28, 2012. Bill C-31 dealt with the Protecting Canada’s Immigration System Act (PCISA). It introduced various amendments to the Immigration and Refugee Protection Act (IRPA). In particular, it authorised the Minister of Public Safety (PS) to designate the arrival of certain individuals in Canada as an irregular arrival, when the Minister formed the opinion that, with regards to public interest:

• The authorities could not conduct the examinations of the persons in the group in a timely manner for:
• The objective of establishing the identity of the individuals or,
• Determining the inadmissibility of the persons involved in the arrival and,
• For any related investigations concerning people in the group OR
• There are reasonable grounds for suspecting that, with regards to the arrival of the group, there has been or will be, a contravention of subsection 117 (1) concerning organised human smuggling:
• For profit or,
• For the benefit of a:
• Criminal organisation or,
• Terrorist group
• At the direction of a:
• Criminal organisation or,
• Terrorist group or,
• In association with a:
• Criminal organisation or,
• Terrorist group

The authorities would make a designation over a foreign national. This individual would be a member of the group, whose arrival is the subject of the designation. On receiving the designation, the individual would become the Designated Foreign National (DFN).

This designation applies to all foreign nationals, arriving as part of a designated arrival. However, it does not apply to foreign nationals:

• Referred to in Section 19 of the Immigration and Refugee Protection Act (IRPA) and,
• Who have the required documentation for entering Canada and satisfying an officer that they are not inadmissible to Canada

This is in accordance with subsection 20.1 (2).

Typically, the authorities would confer a foreign national with refugee protection. Thereafter, the foreign national would be able to apply for permanent resident status. However, the authorities do not permit Designated Foreign Nationals (DFNs) to apply for permanent resident status for a period of at least five years, up to a maximum duration of six years. This five year bar applies to all Applications for Permanent Residence (APRs) submitted by Designated Foreign Nationals (DFNs). It includes those Applications for Permanent Residence (APRs) submitted via other immigration streams such as:

• The family class or,
• The Humanitarian and Compassionate consideration

The authorities have established this five year bar Applications for Permanent Residence (APRs) submitted by Designated Foreign Nationals (DFNs) to act as a deterrent. They believe that it would act as a deterrent to those considering to enter Canada as part of an irregular arrival.

The Implications of these Amendments

A Designated Foreign National (DFN) can submit an Application for Permanent Residence (APR) through any immigration category. Depending on when the Designated Foreign National (DFN) submits an Application for Permanent Residence (APR), the authorities can:

• Bar the Application for Permanent Residence (APR) from being submitted or,
• Suspend the Application for Permanent Residence (APR), in case it has already reached the processing stage

The timeframe for both the scenarios remains the same i.e.:

• Five years after the day on which the authorities made a final determination on:
• The refugee claim or,
• A Pre-Removal Risk Assessment (PRRA) OR,
• Five years after the date of designation as an irregular arrival, in case there is:
• No refugee claim or,
• No application for a Pre-Removal Risk Assessment (PRRA)

Designated Foreign Nationals (DFNs) will continue to remain subject to reporting requirements. The authorities could extend the bar or suspension of a person’s Application for Permanent Residence (APR) up to a sixth year if the person fails to comply with:

• The requirements stipulated in Section 98.1 of the Immigration and Refugee Protection Act (IRPA) without a reasonable excuse or,
• The conditions specified under subsection 58 (4) or Section 58.1 of the Immigration and Refugee Protection Act (IRPA) without a reasonable excuse

In certain situations, the authorities could deem the Designated Foreign Nationals (DFNs) as being protected persons. In this scenario, these Designated Foreign Nationals (DFNs) will be subject to the reporting requirements. This stipulation will be valid for five or six years:

• After the authorities confer the status of a protected person on the Designated Foreign Nationals (DFNs) in addition to,
• The time taken by the authorities for processing the Application for Permanent Residence (APR)

Cessation: In some situations, the Designated Foreign Nationals (DFNs) might not become permanent residents. This typically takes place when the Minister makes an application for the cessation of refugee protection. In this scenario, the Designated Foreign Nationals (DFNs) will not become permanent residents until the conclusion of the Minister’s application.

Situations could arise where the Minister makes an application for cessation for Designated Foreign Nationals (DFNs) after the Designated Foreign Nationals (DFNs) have submitted their Applications for Permanent Residence (APRs). In this scenario, the officers would need to suspend the processing of the Applications for Permanent Residence (APRs). They would need to do this until the conclusion of the application for cessation.

Officers could resume processing the Applications for Permanent Residence (APRs) if:

• The cessation process has not resulted in the loss of refugee protection and,
• The five year or six year delay has also lapsed

The Role of the Canada Border Services Agency (CBSA)

The Canada Border Services Agency (CBSA) Inland Enforcement would need to notify individuals in writing about:

• When they become Designated Foreign Nationals (DFNs) and,
• The implications of this designation

The Canada Border Services Agency (CBSA) Inland Enforcement would do this for all:

• Released cases
• Detained cases and,
• New cases

The Canada Border Services Agency (CBSA) Inland Enforcement would need to notify individuals in writing about:

• When they become Designated Foreign Nationals (DFNs)
• The reporting requirements and,
• The implications of this designation

They would do so regardless of whether the released individuals already have reporting requirements or not.

The Canada Border Services Agency (CBSA) Inland Enforcement would need to provide information on the release mechanisms available to certain individuals. They would do this for Designated Foreign Nationals (DFNs) in detention, at the time of a designation.

The Canada Border Services Agency (CBSA) would also need to record a breach of reporting conditions in:

• The Field Operations Support System (FOSS) and,
• The National Case Management System (NCMS)

Doing so would enable Citizenship and Immigration Canada (CIC) to access the information.

The CIC would review the records available on:

• The Field Operations Support System (FOSS) and,
• The National Case Management System (NCMS)

Thereafter, the CIC would be able to take certain action. For example, they might need to determine whether the authorities need to:

• Extend the bar period or,
• Extend the suspension period

They would do this for an existing Application for Permanent Residence (APR).

In addition, they would need to give the applicant an opportunity for making submissions. These submissions would pertain to the applicant’s failure to comply with the reporting requirements prescribed under:

• Subsection 58 (4) of the Immigration and Refugee Protection Act (IRPA)
• Subsection 58.1 of the Immigration and Refugee Protection Act (IRPA) or,
• Subsection 98.1 of the Immigration and Refugee Protection Act (IRPA)

The applicant would need to make the necessary submissions. Thereafter, the CIC would make a decision on whether or not they should extend the bar.

The following table explains the restrictions on the Applications for Permanent Residence (APRs). It concerns the applications received from Designated Foreign Nationals (DFNs). It covers all categories, including those received overseas.

The following chart explains when the authorities would need to suspend the processing of an existing Application for Permanent Residence (APR). It concerns applications received from Designated Foreign Nationals (DFNs). It covers all categories, including those received overseas.

Note:

• Officers have the requisite authority to refuse to consider an Application for Permanent Residence (APR) from Designated Foreign Nationals (DFNs) until the 12 months have passed, if the Designated Foreign Nationals (DFNs), without any reasonable excuse:
• Fail to comply with any condition imposed on them under:
• A58 (4) or,
• A58.1
• Fail to comply with any requirement imposed on them under:
• A98 (1) AND,
• Less than 12 months have elapsed since the end of the applicable period referred to above

Fees

• The authorities would not refund any fees for suspended cases. They would only refund fees if:
• The officers have not begun processing the application and,
• The applicant withdraws the application
• The authorities would need to refund any fees they receive for new Applications for Permanent Residence (APRs) from Designated Foreign Nationals (DFNs) and return the applications to the applicant if:
• They receive the new Applications for Permanent Residence (APRs) on or after the date of designation and,
• The five year bar is applicable on the particular application

The Instructions Applicable for Applications for Permanent Residence (APRs) Submitted by Designated Foreign Nationals (DFNs) that are Already in Process on the Field Operations Support System (FOSS) and the Global Case Management System (GCMS)

The Field Operations Support System (FOSS)

• The officers would need to change the final dispositions for the Applications for Permanent Residence (APRs) created in the Field Operations Support System (FOSS) to “Code 9 – Transferred to GCMS”
• Then, the officers would need to re-create the Application for Permanent Residence (APR) in the Global Case Management System (GCMS)
• While doing this, they would need to set the application status as “On hold”
• The officers would also need to enter a Non-Computer Based Entry (NCB) in the Field Operations Support System (FOSS)
• This entry would need to include the following information:
• The date the Minister designated the applicant as an irregular arrival
• The information that the applicant cannot apply for permanent residence for at least five years after the day:
• The authorities made a final decision [i.e. the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD) or a Federal Court (FC) decision on the claim for refugee protection or a Pre-Removal Risk Assessment (PRRA)] – whichever is latest; or,
• The authorities made a designation, in case there is no decision
• The notification that the authorities have suspended the processing of the application and will resume processing it no earlier than [The Enter Date + Five Years + One Day]
• The notification that the officers are closing the application in this system and are re-creating it in the Global Case Management System (GCMS)
• The officers would need to copy the same notes and paste it into the “Notes” section, when they re-create the Application for Permanent Residence (APR) in the Global Case Management System (GCMS)

Note:

• In the Field Operations Support System (FOSS), the Case Processing Centre – Vegreville (CPC-V) might see that the Minister has made an application for cessation of refugee protection in:
• An Non-Computer Based Entry (NCB) screen or,
• The Refugee Protection Division (RPD) screen
• In this scenario, the officers would need to follow the same steps as listed above
• However, in the “Notes” section, the officers would need to highlight that the application for cessation is in process, therefore they have suspended the Application for Permanent Residence (APR)

The Global Case Management System (GCMS)

• Here, the officers would need to enter notes that contain the following information:
• The date the Minister designated the applicant as an irregular arrival
• The information that the applicant cannot apply for permanent residence for at least five years after the day:
• The authorities made a final decision [i.e. the Refugee Protection Division (RPD), the Refugee Appeal Division (RAD) or a Federal Court (FC) decision on the claim for refugee protection or a Pre-Removal Risk Assessment (PRRA)] – whichever is latest; or,
• The authorities made a designation, in case there is no decision
• The notification that the authorities have suspended the processing of the application and will resume processing it no earlier than [The Enter Date + Five Years + One Day]

The Interim Instructions on the Field Operations Support System (FOSS) and the Global Case Management System (GCMS) for Designated Foreign Nationals (DFNs) who Submit a New Application for Permanent Residence (APR) [for Case Processing Centre – Vegreville (CPC-V)]

The Field Operations Support System (FOSS)

• The officers would also need to enter a Non-Computer Based Entry (NCB) in the Field Operations Support System (FOSS)
• This entry would need to include the following information:
• The fact that the applicant is a Designated Foreign National (DFN)
• The information that the applicant cannot submit an Application for Permanent Residence (APR) earlier than [The Enter Date + Five Years + One Day]
• Thereafter, the officers would need to:
• Refund the fees and,
• Return the application to the client with the template letter

The Global Case Management System (GCMS)

• Here, the officers would need to create the application and then close it
• They need to do this for refunding any fees collected
• Thereafter, the officers would need to:
• Refund the fees and,
• Return the application to the client with the template letter
• Then, the officers would need to enter case notes stating that:
• The applicant is a Designated Foreign National (DFN)
• The applicant cannot submit an Application for Permanent Residence (APR) earlier than [The Enter Date + Five Years + One Day]

Note:

• The authorities would issue fresh instructions as and when the system changes come into effect for:
• The Field Operations Support System (FOSS) and,
• The Global Case Management System (GCMS)

The Instructions on the Field Operations Support System (FOSS) for Designated Foreign Nationals (DFNs) for whom the Minister has Made an Application for Cessation of Refugee Protection

• In the Field Operations Support System (FOSS), the Case Processing Centre – Vegreville (CPC-V) might see that the Minister has made an application for cessation of refugee protection in:
• An Non-Computer Based Entry (NCB) screen or,
• The Refugee Protection Division (RPD) screen
• In this scenario, the officers would need to enter a Non-Computer Based Entry (NCB) in the Field Operations Support System (FOSS)
• In the entry, the officers would need to highlight that they have kept the processing of the Application for Permanent Residence (APR) on hold
• The officers would also need to state in the entry that they would resume processing the Application for Permanent Residence (APR) once they receive the final decision on the application for cessation

The Communication with Applicants

The CIC has the option of sending two template letters to the applicants described in this OB. These include:

• The template letter concerning suspensions and,
• The template letter concerning the refusal to examine the application

Source: Citizenship and Immigration Canada (CIC)