Procedures for Humanitarian and Compassionate Applications as a Result of Lifting the Temporary Suspension of Removals on Burundi, Liberia and Rwanda

/ / Published in 2013

Operational Bulletin 136 (Modified) – July 16, 2013

Background

A Temporary Suspension of Removal (TSR) results in stopping removals to countries or places, where the entire population faces a generalised risk. This could be because of situations like:

  • War
  • Civil Unrest or,
  • Environmental Disaster

Because of this risk, the authorities enable certain individuals to continue staying in Canada on a temporary basis. These individuals could be people who:

  • Have been unsuccessful in their refugee claim or,
  • Are inadmissible and whom the authorities – under normal circumstances – would regard as being subject to removal

The Minister of Public Safety has the authority to:

  • Impose a Temporary Suspension of Removal
  • Maintain a Temporary Suspension of Removal or,
  • Lift a Temporary Suspension of Removal

This is in accordance with R230 of the Immigration and Refugee Protection Regulations (IRPR). Therefore, individuals, who are subject to a TSR, could opt for returning to their country voluntarily.

This stay would not apply to certain individuals. These individuals would usually be people who are inadmissible for reasons like:

  • Criminality
  • Serious Criminality
  • Security Reasons
  • Violation of Human Rights
  • Violation of International Rights
  • Organised Crime or
  • Being people referred to in Article 1F of the United Nations Convention Relating to the Status of Refugees

Purpose

The Minister of Public Safety removed countries like Burundi, Liberia and Rwanda from the TSR list. This was with effect from July 23, 2009. The removal of these countries from the TSR list has bolstered Citizenship and Immigration Canada (CIC) into action. Currently, the CIC is implementing measures for the nationals of these countries, which have been affected the lifting of the TSR.

The purpose of this Operational Bulletin (OB) is to provide officers with functional guidance on these measures. The guidance of this OB would help officers to process Applications for Permanent Residence (APR) submitted by the nationals of these countries. Officers would process these APRs on humanitarian and compassionate (H&C) grounds.

The Administrative Deferral of Removal

The Canada Border Services Agency (CBSA) would need to defer administratively removals for affected individuals. However, they would only be able to do this once the affected individuals submit APRs on H&C grounds. Therefore, the nationals of Burundi, Rwanda and Liberia would need to meet the conditions specified subsequently in this document. If they are able to do so, the authorities would administratively defer the removals for these individuals.

Situations could arise where the applicants have already submitted an application. However, officers might not have entered the receipt of the application in the Field Operations Support System (FOSS). In these circumstances, applicants would need to exhibit their proof that they submitted the application. This evidence could include items like:

  • A copy of the H&C application and,
  • Handling Public Monies (HPM) receipts

Upon demonstrating the appropriate proof, applicants could earn the eligibility for a deferral.

The CIC or CBSA officers would wait for receiving the proof. Once they have this proof, they would enter a non-computer based (NCB) entry into FOSS.

Applicants would need to meet all the eligibility criteria listed below. Only then would the authorities consider them to be entitled to a deferral of their removal, pending their H&C review. The CBSA could take the necessary steps for applying the removal immediately. In addition, people could also apply to other avenues for recourse. These include the pre-removal risk assessment (PRRA).

The Eligibility Criteria for Administrative Deferral or Removal

Applicants seeking a deferral of their removal would need to meet certain criteria. Therefore, for meeting the eligibility criteria successfully, they would need to show that they:

  • Are nationals of Burundi, Liberia or Rwanda
  • Had been residing in Canada on July 23, 2009
  • Were the subjects of removal orders (this would also include conditional removal orders specified under A49(2) of the Immigration and Refugee Protection Act (IRPA))
  • Have never been found ineligible for having a refugee claim referred to the Immigration and Refugee Board (IRB) (according to A101 of IRPA)
  • Were not found to be inadmissible on the grounds of:
    • Security (according to A34 of IRPA)
    • Human or international rights violations (according to A35 of IRPA)
    • Criminality or serious criminality (according to A36 of IRPA) or,
    • Organised criminality (according to A37 of IRPA)
  • Were never excluded by the IRB from refugee protection under Article 1F of the United Nations Convention Relating to the Status of Refugees
  • Did not have criminal charges dropped by the Crown for effecting a removal order
  • Did not have an outstanding immigration or criminal warrant and,
  • Had applied for permanent residence on H&C grounds in Canada:
    • Not later than six months from July 23, 2009 or,
    • Not later than six months from the negative decision determined by the IRB (for applicants who made an application for refugee protection On or Before July 23, 2009) – refer to Note below

Note:

  • In these situations, a negative decision from the IRB:
    • Denotes the first decision arrived at by the IRB and,
    • Excludes all avenues of recourse before the Federal Court, including the judicial reviews
  • Applications would be subject to the 12-month H&C bar if the authorities have:
    • Received them within six months of the negative decision arrived at by the IRB and,
    • Received them on or after June 28, 2012
  • The only exceptions to applications subject to the 12-month H&C bar would be cases where the applicant meets either the medical or best interests of the child exception
  • OB 440-B contains further details on the H&C bar and exceptions
  • For applicants living in Quebec, they would need to show that they:
    • Were residing in Quebec on July 23, 2009 and,
    • Continue to reside in Quebec at:
      • The time they file the application and,
      • The time the authorities process the H&C application

Other Permanent Resident Categories

Situations could emerge where applicants have submitted an APR on or before July 23, 2009. However, they could have submitted this APR under an in-Canada class other than the H&C class that comprises:

  • Spouses or common-law partners
  • Live-in caregivers
  • Canadian experience class or,
  • Permit holder class

In this situation, officers would need to let the application continue.

If clients meet the eligibility criteria listed above, they would be able to qualify for these measures. However, they would need to submit an H&C application within six months of July 23, 2009.

H&C Officer

Officers would need to examine H&C applications based on the existing provisions specified within the Inland Processing Manual (IP 5). This means that officers would need to consider all kinds of factors specified by the applicant including:

  • Prolonged stays in Canada because of circumstances beyond the applicant’s control contributing to the establishment
  • Integration into Canadian society and,
  • The best interests of the child

The authorities subjected Burundi and Rwanda to a TSR since 1994. They also subjected Liberia to a TSR since 2003. Officers could consider it reasonable for an applicant to stay in Canada because of circumstances that are beyond the applicant’s control. This would be especially in those circumstances, where:

  • The authorities have subjected the applicant’s country to a TSR for several years
  • The officers are processing the affected individual’s H&C application after the authorities have lifted the TSR

Officers could also encounter situations where the affected individuals’ prolonged stay in Canada resulted in their establishment. This would usually occur in cases where the authorities subjected the individual’s country to a TSR for many years. In this situation, officers would need to give this development a positive consideration.

Some applicants could also have faced the situation of receiving a negative decision on a previous APR on H&C grounds. These applicants would be able to re-apply. They would also be able to avail the opportunity of receiving a deferral of removal under the measures listed earlier. However, to achieve this, they would need to meet all the specified criteria. They would also need to include all information to receive a fair assessment. This would include providing information that officers would not have considered on a previous application.

PRRA Officer – H&C with Risk and PRRA

Inland CIC officers would need to refer H&C applications to the PRRA unit in certain circumstances. This could occur in situations where H&C applications contain an allegation of risk to life or the security of the person. Therefore, officers would need to perform the cursory triage on the application. Thereafter, if the officers feel that making a decision based on the non-risk factors in isolation would not result in a positive decision, they could refer the application to the PRRA unit. This is in accordance with IP 5 standard operating procedures.

PRRA officers would examine the application. They would consider both, the risk and the non-risk factors before making a decision. Thus, they would give due consideration to circumstances, which led the applicant to stay in Canada on a prolonged basis because of:

  • Circumstances beyond the applicant’s control contributing to establishment and,
  • The best interests of the child

The officers could lift this temporary suspension of removal. However, this does not denote that the risks against a favourable H&C consideration do not exist any longer. These risks would usually be:

  • Inherent and personal to the individual and,
  • Raised as hardships that warrant a favourable H&C consideration

In some cases, officers could reject H&C applications. These applicants could then be subject to an enforceable removal order. However, these applicants would be eligible for the PRRA via the regular process. Officers could halt the removal of those applicants, who apply under the PRRA. This is in accordance with the R232. However, officers could attempt to initiate a PRRA that would enable other officers to assess and determine the two applications concurrently.

Work Permits

Officers would allow applicants, who meet the eligibility criteria specified for the administrative deferral of removals, to continue to stay in Canada. Thus, these officers would not enforce the removal orders of these applicants. Therefore, these applicants could apply for a work permit. This is in accordance with R206(b).

Officers have the authority to issue work permits before they receive an H&C application. Officers also have the authority levels for extending work permits, if necessary. However, for this, clients would need to submit their H&C applications within the specified timeframe.

Officers could also issue work permits to individuals, who apply for a PRRA. The authorities allow this even if individuals do not make an H&C application. This is because a stay of removal is in effect at that specified point. Therefore, officers view the removal order as being unenforceable. However, please note that applicants would need to pay the applicable processing fees. This is also in accordance with R206(b).

Study Permits

Affected individuals are eligible for obtaining a study permit. This is in accordance with R215(1)(d). Officers could issue study permits even before they receive the H&C applications. Officers also have the authority levels for extending work permits, if necessary. However, for this, clients would need to submit their H&C applications within the specified timeframe.

Officers could also issue study permits to individuals, who apply for a PRRA. The authorities allow this even if individuals do not make an H&C application. This is because a stay of removal is in effect at that specified point. Therefore, officers view the removal order as being unenforceable. However, please note that applicants would need to pay the applicable processing fees. This is also in accordance with R215(1)(d).

The Joint Procedures for Eligible Applicants Residing in Quebec

The authorities have prescribed a series of joint procedures for eligible applicants residing in Quebec.

  • CIC or CBSA officers would need to determine the applicant’s deferral eligibility
  • The CIC would refer eligible applicants to the ministère de l’Immigration et des Communautés culturelles (MICC)
  • The MICC would assess applicants based on establishment factors
  • Thereafter, the MICC would inform the CIC of the assessment results
  • The CIC would examine applications for H&C consideration
  • They would also take into account the assessment conducted by the MICC, as per the provisions specified in the IP 5
  • The CIC would inform the MICC about its decision
  • The MICC would also notify CIC about its decision regarding the issuance of the Certificat de selection.
    • If the MICC refuses to issue a CSQ but the CIC finds sufficient H&C grounds for granting an exemption, the client would need to furnish evidence that they would not reside in Quebec any longer so that they could receive permanent residence
  • The CIC would assess admissibility, before making a final decision on all applications

The Process for Applying for H&C (Also Applicable to Applicants in Quebec)

Applicants residing in Quebec can also apply for H&C. They would need to send their applications along with the fee receipts to CPC-Vegreville as they usually do. Officers would need to ensure that these applications have a postmark dated no later than midnight January 23, 2010.

Applicants could submit an APR on H&C grounds, not later than six months from the first negative decision on their refugee claim from the IRB. However, officers would need to ensure that the first negative decision taken by the IRB has a date stamp that is after July 23, 2009. Officers would only treat these applications as being eligible for deferred removal. However, this process would only work for applicants who:

  • Filed a refugee claim on or before July 23, 2009 and,
  • Did not receive an IRB decision by that date

Applicants meeting the eligibility criteria would need to specify their country of origin. Therefore, they would need to label their envelope with the words “TSR H&C application from [Burundi, Liberia or Rwanda]”.

The Processes to Follow When an Officer Receives an Application

The date of receipt of H&C applications has a direct bearing on the eligibility of an applicant. Because of this, CPC-Vegreville would open these applications within one month. It would then create a line of business in the Work in Progress (WIP) screen. Thereafter, officers would be able to process applications in the customary manner.

CPC-Vegreville bears the responsibility for processing applications like all APRs, excluding the H&C applications that do not have any sponsorship. Therefore, CPC-Vegreville would enter the NCB “General Information – 12” and the special program code into FOSS in those cases. In cases referred directly to them, the local CIC office would bear the responsibility for entering the NCB “General Information – 12” and the special program code into FOSS. The local CIC would also do this in cases where CPC-Vegreville has not accomplished this.

The authorities mandate that officers enter these details as soon as they determine the client to be eligible. This would help notify the CBSA that the client meets the eligibility criteria for deferral.

NCB Wording

The NCB wording prescribed by the authorities is:

“The client is eligible for consideration under the measures implemented as a result of the lifting of the temporary suspension of removals on July 23, 2009.”

Coding

Officers would need to use the following special program codes. This would facilitate the retrieval of statistics.

  • 153 – Burundi
  • 154 – Liberia
  • 155 – Rwanda

Counselling of Clients

1. The Postponement of Removals

a. CIC and CBSA officers would need to provide an update on the file if they receive enquiries from individuals from these affected countries, concerning the lifting of the TSR
b. Officers would need to counsel the applicants that their removals have been deferred if they meet the eligibility criteria specified above
c. Applicants would need to meet all the eligibility criteria for gaining an entitlement to the deferral of their removal, even if their H&C review is still pending
d. The CBSA has the authority to take action by effecting the removal immediately for applicants who do not meet all the specified eligibility criteria
e. Applicants would still be free to pursue other avenues of recourse, including a PRRA

2. Situations where Individuals could Apply on H&C Grounds

a. Individuals should have applied for permanent residence on H&C grounds in Canada not later than six months from July 23, 2009 i.e. not later than the midnight of January 23, 2010
b. Applicants should have applied for permanent residence on H&C grounds in Canada not later than six months from the negative decision of the IRB if the applicants:

i. Have a refugee claim pending on or before July 23, 2009 and
ii. The IRB subsequently denies the claim

c. In this situation, the IRB’s negative decision is their first decision.
d. In addition, the IRB’s first decision does not include any avenues of recourse before the Federal Court, including judicial review

3. Directions for Sending the H&C Applications

a. Applicants would need to mail their applications along with the supporting documents to CPC-Vegreville
b. They would need to specify the country of origin on the envelope
c. They would also need to label the envelope with the words “TSR H&C application from [Burundi, Liberia or Rwanda]”
d. Applicants would also need to pay the stipulated processing fees

4. Work Permits

a. Applicants would need to apply for a work permit through CPC-Vegreville
b. Applicants would also need to pay the stipulated processing fees

5. Study Permits

a. Applicants would need to apply for a study permit through CPC-Vegreville
b. Applicants would also need to pay the stipulated processing fees

 

 

Source: Citizenship and Immigration Canada (CIC)