Who Can Cross Canada-U.S. Border? IRCC, CBSA Need Same Interpretation of COVID-19 Restrictions

Last Updated on mai 26, 2020

Canada’s federal government officials tasked with implementing Canada-U.S. border restrictions in place due to coronavirus need to be on the same page in their interpretation of the new rules.

Guidance from Immigration, Refugees and Citizenship Canada on who can cross the border is differing in practice from the interpretation of Canada Border Services Agency officials.

The result is that people are arriving at the border expecting to be able to cross based on IRCC advice, but finding themselves turned away by officers from the CBSA applying a stricter interpretation.

In other cases, travellers are arriving at the border presenting situations that are not covered in any guidance, leaving their cases open to CBSA interpretation.

The problem is a result of the chaos being caused by the speed at which the COVID-19 crisis has engulfed Canada and the world.

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Restrictions have been put in place with minimal time to plan and decide on details that officials would normally give themselves weeks and months to consider.

Under the cloud of COVID-19, these decisions have had to be made quickly, and officials are filling in the details as they go along.

Canada Prime Minister Justin Trudeau on March 18 closed the Canada-U.S. border to all non-essential travel. At the time, he classified ‘non-essential’ as travellers wishing to cross for recreation and tourism.

The same day, Trudeau’s deputy, Chrystia Freeland, said in a tweet that ‘trade and essential travel across the border will continue unimpeded’.

“Our supply chains ensure that food, fuel, and life-saving medicines reach people on both sides of the border,” Freeland said. “Canadians and Americans also cross the border every day to do essential work.”

IRCC officials have since issued guidance on what constitutes non-essential travel. Examples of the types of optional and discretionary travel not allowed include:

• To visit family for a vacation.
• For the birth of a grandchild, nephew, niece, cousin, etc. (For the parent of a child, this may be considered non-discretionary travel; however, it will still require assessment.)
• To spend time at a secondary residence (vacation home, hunting or fishing lodge, etc.). This includes entry for upkeep or maintenance purposes.
• To attend the funeral of a family member (This purpose of travel would be improbable due to quarantine measures and limits to the number of attendees at funerals under provincial restrictions.)

Despite this guidance, work permit and visa holders are arriving at the border to be told their travel is considered optional and discretionary, by CBSA officers.

Certain scenarios, such as valid work permit holders who have lost their jobs, are not covered in the advice. Such candidates are seeing the recreation and tourism definition of non-essential travel and expecting to be able to cross the border, only to find themselves turned away. 

Meanwhile, among the IRCC’s examples of non-optional and non-discretionary reasons for travel is a catch-all final clause that leaves a vast area of interpretation down to CBSA officials: “Any other activities that are deemed non-optional or non-discretionary by the Government of Canada or based on an officer’s assessment.”

Despite this vast area of interpretation, there exists no guidance from the CBSA on how its officers will make the assessment.

Until that guidance is issued, or the IRCC and CBSA are able to combine their interpretations of pandemic-related orders issued under the Quarantine Act, an element of trial and error enters the situation at the Canada-U.S. border.

The COVID-19 pandemic has left a huge swathe of candidates who were planning to come to Canada mired in uncertainty. Temporary foreign workers, international students, plus skilled worker and family class immigration candidates at every stage of the process have seen their futures thrust into doubt.

These candidates are searching for clear communication from the government on how Canada will emerge from the crisis.

The latest figures, released on Wednesday May 13 show permanent resident arrivals in Canada dropped 26 percent in March compared to February. 

Immigration Minister Marco Mendicino has said immigrants will continue to be welcomed in post-pandemic Canada, but Trudeau says he plans to be ‘very, very careful’ with reopening borders, meaning the limbo for immigration candidates looking likely to continue.