Recently Canada’s Foreign Minister Chrystia Freeland made an announcement that 17 Saudi Nationals linked to the death of journalist Jamal Khashoggi had been sanctioned under the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Within her announcement, she mentioned that these 17 individuals (which notably do not include the Crown Prince MBS) are now inadmissible to Canada.
Given the Sergei Magnitsky Law is relatively new, I thought it would be worth looking at how these two legal provisions tie into each other.
They tie in to each other via the related amendments made to section 35 of the Immigration and Refugee Protection Act (IRPA) noted in the preamble and the Related Amendments in Section 18 of the Victims of Corrupt Foreign Officials Act.
As stated in the Regulatory Impact Analysis – “The Immigration and Refugee Protection Act renders inadmissible to Canada persons, other than permanent residents, subject to orders and regulations made under the new Act. Therefore, the individuals listed in the Regulations are inadmissible to Canada.”
We need to look at the IRPA to better understand the application of an s.35(1) IRPA inadmissibility.
IRPA and the Victims of Corrupt Foreign Officials Act
Human or international rights violations
35 (1) A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for
(e) being a person, other than a permanent resident, who is currently the subject of an order or regulation made under section 4 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
(2) For greater certainty, despite section 33, a person who ceases being the subject of an order or regulation referred to in paragraph (1)(d) or (e) is no longer inadmissible under that paragraph.
2001, c. 27, s. 35;
2013, c. 16, s. 14;
2017, c. 21, s. 18.
In order to get one’s name off the list, one needs to make an application under section 8 of the Justice for Victims of Corrupt Foreign Officials Act (Sergei Magnitsky Law).
Rights of Foreign Nationals Who are the Subject of an Order or Regulation
8 (1) A foreign national who is the subject of an order or regulation made under section 4 may apply in writing to the Minister to cease being the subject of the order or regulation.
(2) On receipt of the application, the Minister must decide whether there are reasonable grounds to recommend to the Governor in Council that the order or regulation be amended or repealed, as the case may be, so that the applicant ceases to be the subject of it.
(3) The Minister must make a decision on the application within 90 days after the day on which the application is received.
Notice if application rejected
(4) The Minister must give notice without delay to the applicant of any decision to reject the application.
(5) If there has been a material change in the applicant’s circumstances since their last application under subsection (1) was submitted, he or she may submit another application.
Currently, there are no cited cases to this law.
What If the Individual is in Canada
In the off chance that they are in Canada already when the order is made, the application removal order per R. 229(1) of the Immigration and Refugee Protection Regulations is
229 (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is
(b) a deportation order, if they are inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;
Update: On 22 December 2018, Canada Gazette, Part 1, Volume 152 Number 51: Regulations Amending the Immigration and Refugee Protection Regulations was released, which proposes to turn the applicable removal order (with Immigration Division designated responsibility) into a specified removal order (with the Minister’s Delegate designated responsibility. See more, here.
So far there is not a single case citing to s. 35(1)(e) IRPA – it is no doubt still in it’s legislative infancy. More is certainly yet to come on this interesting piece of law!