Tag Archives: eTA

Don’t Shoot the Airline Company- CBSA’s IAPI is the other side of the eTA

155278373 aircraft stock

There is no doubt that Canada’s electronic Travel Authorization (“eTA”) regime, set to go into full legal effect  a little over a month from now, will be disruptive to the process of travelling to Canada.

As I have covered in an earlier blog on the topic, the eTA will create several consequences for those seeking entry by air into Canada. Some of the expected follow out could include permanent residents being trapped outside Canada with expired cards, Canadian dual citizens lacking proper documentation unable to fly home, and foreign nationals being unable to board planes to Canada. It will also have spillovers to those seeking to enter by land via private vehicle. One immigration lawyer suggested jokingly that a local U.S. land border was likely to get very busy due to the number of individuals forced to drive across in private vehicle in order to return to Canada. Individuals who drive by private vehicle are not under a  requirement to produce a valid PR card upon entry.

This all begs a question.  How will the eTA be enforced from the other side – by airlines companies? To look more closely we need to study Canada Border Services Agency (“CBSA”) Interactive Advanced Passenger Information (“IAPI”) system and the increased role airline companies now play as the front line to screen out individuals flying to Canada with improper/expired documents.

IAPI

Prior to the eTA, individuals with expired permanent resident cards has several options. One of them (for individuals who did hold travel documents), was to present a visa-exempt passport in order to get past airlines and hop  the plane. Upon arrival they would then attempt to enter Canada on the basis of the expired PR card and a confirmation of permanent residence. For many  passengers this worked. Very little was done to keep the individual off the plane and little was enquired of the passenger’s immigration status.

IAPI changes that by requiring that “pre-departure traveller and flight data to be submitted by commercial air carriers prior to an international flight’s departure for Canada.”

For all international flights for Canada, CBSA will both require the advanced passenger information and ultimately issue a board/no-board message for each passenger. This means that prior to the flight, CBSA will no whether an individual is required to have a valid travel document (eTA or visa), is a permanent resident, or a Citizen. They will also be able to track if the individual is subject to a removal order or an Authority for Negative Discretion (“AND”).

The technical nature of the IAPI system is at first glance very confusing and complex. I expect that the airline companies that already have state of the art IT  will likely try and figure out internal systems to facilitate the provision of passenger information to CBSA.

Exit Controls Coming Soon.

The next major development will be the implementation of exit controls, which to my best estimate will occur sometime in early-mid 2017. From my review of CBSA briefing material for airline companies, much of the technical infrastructure is in place for this already. Once exit controls get rolled out, I think we can see integration with both PR and Canadian passports as well allowing the CBSA to better track and record the entries and exits of all air and land border.

For more information about the eTA, IAPI, and how it may affect your travel plans feel free to email me at will.tao@larlee.com

Canada’s New Electronic Travel Authorization Regime: 5 Things You May Not Have Known

Because the actual requirement to hold an Electronic Travel Authorization (eTA) does not kick in until March 2016, the regime has been understudied and largely unreported outside of the immigration legal community.

On the surface, the new eTA requirement conceptually seems quite simple. Up to now, those exempt from the temporary resident visa requirement process did not undergo any prior screening or vetting. Decisions were made solely at the port of entry and concurrently Canada’s border/immigration system was susceptible to allowing in visitors, who had not made prior applications to Citizenship and Immigration Canada (CIC) and who are ultimately inadmissible, into Canada.

Importantly, Canada made some commitments in the Canada–U.S. Beyond the Border Action Plan several years ago where they pledged to introduce an eTA regime. They were bound by those commitments to introduce the regime.

I want to highlight in this piece, five things you might not know about the eTA regime.  

By the way, I will not go through a comprehensive review of the regime. For those who want to read more about the policy changes in general, check out CIC’s Program Delivery Update for August 1, 2015 and the text of new Immigration and Refugee Protection Regulations (IRPR) via the Part 2 – Gazette in April of this year. Check out also my colleague Steve Meurren’s post for a summary of the new regime.


#1 – The eTA now allows for visa-exempt visitors to Canada to be issued removal orders from outside Canada.  Until that removal order is enforced, the visitor will not get an eTA and not be allowed to come to Canada.

This authority is created by  by subsection 240(2) of IRPR which states (emphasis added):

 (1) A removal order against a foreign national, whether it is enforced by voluntary compliance or by the Minister, is enforced when the foreign national

. . . .

When removal order is enforced by officer outside Canada

(2) If a foreign national against whom a removal order has not been enforced is applying outside Canada for a visa, an authorization to return to Canada or an electronic travel authorization, an officer shall enforce the order if, following an examination, the foreign national establishes that

(a) they are the person described in the order;

(b) they have been lawfully admitted to the country in which they are physically present at the time that the application is made; and

(c) they are not inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

And until that removal order is enforced (i.e. they meet the above requirements), s.25.2 of IRPR applies:

Electronic travel authorization not to be issued

25.2 An electronic travel authorization shall not be issued to a foreign national who is subject to an unenforced removal order.

#2 Cancelling an eTA (at least from a legal perspective) is not as easy as CIC makes it seem (from a policy perspective).

The intersection between policy and law always play an interesting role in Canadian immigration law. As the Federal Courts have made clear on several occasions, online instruction guides, processing manuals, operational bulletins (which now can be extended to include program delivery updates) do not constitute law.

Often times CIC will provide instructions that summarize the law without providing its full details or make recommendations that aren’t legal policy (e.g. when they tell applicants they should apply for extensions 30 days before expiry for several programs, when often times doing may hurt their implied status).

CIC writes on their webpage regarding eTAs:

For how long is an eTA valid?

Section 12.05 of the Immigration and Refugee Protection Regulations indicates that an eTA is valid for five years or until the applicant’s passport expires, whichever occurs sooner.

Section 12.06 of the Regulations indicates that an eTA can be cancelled by a designated officer. Once cancelled, an eTA is no longer valid.

While this statement is not incorrect per-se- it omits a few important details.

Cancellation

12.06 An officer may cancel an electronic travel authorization that was issued to a foreign national if

  • (a) the officer determines that the foreign national is inadmissible; or

  • (b) the foreign national is the subject of a declaration made under subsection 22.1(1) of the Act.

Subsection 22,.1(1) of the Act (Immigration and Refugee Protection Act) is an interesting one.

This section allows the Minister, on his or her own initiative, to declare that a foreign national cannot be come a temporary resident for a period of three years, justified by “public policy considerations.” The underlying provisions has been in force since August 2013 but it appears no Federal Court jurisprudence (at least none that I could find) talk about this provision. To me it is a very discretionary provisions.

Could we see an increase of cancellations of eTAs on s.22.1(1) IRPA grounds where inadmissibility has not yet been made out but there is some concern about the individual’s background? I certainly think so.

 

#3 – Adverse Information on your immigration file may mean your eTAs might take a while.

CIC has made available by way its most recent program delivery update, updated instructions for how to assess adverse information on file for an eTA applicant.

CIC writes (emphasis in original and added):

If the applicant previously applied for entry to Canada (either through a CIC program or through the CBSA at the port of entry), or if they are already known to CIC (through intelligence, for example), and if there is adverse information on file for the applicant, it will be uncovered through the automated eTA screening process, which will cause the application to be referred for manual review.

Officers should consider:

  • Did the adverse information result in a previous refusal?
    • If so:
      • What is the full story behind the refusal? Look at the case notes to fully understand the reason for the previous refusal. It is not sufficient to only look at the refusal ground(s).
      • Was the applicant previously refused because they did not meet the specific needs of the category to which they were applying? For example, if they were refused a work permit because they did not provide a labour market impact assessment, would this impact their eligibility to come to Canada as a visitor?
      • Have their circumstances changed since the refusal? Is this still a concern?
      • Has the applicant received an approval between the time of their eTA application and the adverse information on file? Note that the automated eTA screening process will not take this into account when determining if a case should be referred for manual review.
    • If not:
      • What type of adverse information is on file?
      • How long ago was it entered?
      • Has the applicant received an approval between the time of their eTA application and the adverse information on file? Note that the automated eTA screening process will not take this into account when determining if a case should be referred for manual review.

An officer must be satisfied that an applicant is not inadmissible to Canada under A34 to 40 prior to issuing an eTA. Officers initiate and conduct admissibility activities as needed. This may include screening requests to partners, criminal record checks, info sharing, medical exams and misrepresentation activities.

I find CIC’s example of applying for a work permit without an LMIA kind of curious, as not meeting program requirements does not directly lead to an inadmissibility. However, it appears to suggest that for these type of cases, a procedural fairness letter may be sent to eTA applicants asking them to “explain the circumstances”, with the ultimate fear being that an applicant is attempting to enter Canada to work without authorization.

What this all means, is an Applicant needs to be very careful with misrepresentation (a topic I have written about quite extensively, so see previous posts!).

 

#4 Permanent Resident Problems are Coming 

Strategically for a permanent resident, there may have been reasons in the past to enter Canada on a separate passport or travel document (particularly if their permanent resident card had expired or was lost and/or they no longer met the residency requirement).

eTAs effectively end that practice and create an added barrier – the e-relinquishment process.

CIC writes in their website section titled “Manual processing Electronic Travel Authorization (eTA) applications“) (emphasis added):

Officers should consider:

  • Based on case history, is the applicant indeed a permanent resident?
  • Based on case history, has the applicant renounced their permanent resident status? Often, even though a person has renounced their status, their GCMS profile still shows them as a permanent resident.

Procedure

Level 1 decision-makers at the OSC will query for these applications by performing a search in “IMM activities, Auto Searches.” The “Activity” will be “Derogatory information,” the “Sub-activity” will be “Client Derogatory Information,” and the “Status” will be “Review Required.”

If the applicant is a permanent resident and has not already gone through the formal process of relinquishing their status, they should be contacted to determine whether they would like to voluntarily relinquish their status

  • If the applicant does not wish to relinquish:

    • The officer must withdraw the application
    • Advise the applicant that they will need to get an appropriate travel document that demonstrates that they are a permanent resident, which may necessitate a determination of their status (PDF, 665.91 KB)
  • If the applicant would like to relinquish:

Again, expect this new eTA to increase the number of residency determinations and will likely trickle through to more appeals at the Immigration Appeal Division.

 

#5 Interactive Advance Passenger Information (IAPI) and Carrier Messenger Requirements (CMR) make Airline Staff the Front-Line Messengers for the new eTA program

An Applicant holds a valid eTA and is now booking a plane ticket. Now what?

There is a whole process that runs in the backdrop between commercial Airline Carriers and Canada Border Services Agency to inform them of who is on the plane that will be arriving in Canada. A lot of the front end information sharing will essentially begin with you entering your name into a flight reservation system to buy tickets all the way until you arrive in Canada. This includes any questions or document requirements asked of you by Airline staff.

I have written a bit about this in a previous post. I have signed up for the webinars offered by CBSA to try and understand this process better (from the Airlines side). Hope to update everybody soon.

 

Overall Takeaway

I think a perfect conclusion is to quote Canadian  immigration lawyer, Liz Wozniak on the new eTA regime – it’s like “Visas for the visa-exempt”:

Ultimately, there is no reason to wait to file your eTA application. As the requirement deadline comes in. If you expect to come to Canada as a potentially, visa-exempt visitor by March 2015, it would be a very good idea to start applying for an eTA now.

It may also be a good idea to get notes on your file first, so you at least have a good idea of what might come down the pipeline for an eTA application.

Hope this post was somewhat enlightening.

Increased Canadian Immigration Obligation on Transportation Companies (Pt. 1)

This is the first part of a multi-part series which will look at the effect of the Canadian Government’s increased security and information sharing measures may have on transportation to and from Canada.

On June 27, 2015, the Federal Government introduced new proposed “Regulations Amending the Protection of Passenger Information Regulations” through Part 1 – Canada Gazette.

While these regulations are several months away from being in force,  I thought it would be an interesting exercise to see how the Immigration and Refugee Protections Regulations are being amended by the new legislation. In essence, I wanted to ask the question – “what will change?”

You will see below in the embedded pdf that I have taken a particularly interesting snippet from the proposed regulations, those placing obligations on commercial transporters to report information about their passengers, and done a comparison.

IRPR-Proposed-Amendments-Transport

The highlighted portions represent major changes.

Lessons Learned from this Exercise

I think the one thing we can take away is that the legislation in this area is becoming much more specific. The broad language that governed previous rules is being replaced by specific steps that commercial transporters (with a heavy emphasis now on both air and ground transport) must take and when they must take it.

It is very interesting to note that the requirements will be placed on commercial transporters to provide information about not only who was on the vessel but who is expected to be on the vessel. While not clarified in the legislation, it can be reasonably assumed that the Government wants to know more about the entire process – from the reservation to who actually boards the flight.

Another very interesting revelation is that the proposed regulations suggest that there will be much more communication between Canada Border Services Agency (CBSA) and the commercial transporters. CBSA will let the commercial transporters know in advance who may be inadmissible and who may not have adequate documentation. This makes a lot of sense in the context of the electronic-Travel Authorization (eTA) requirement being implemented on August 1, 2015. Meanwhile, commercial transporters appear now to have increased obligations to guarantee the swift exit of those who are not authorized to enter Canada, including strict time deadlines.

What does this mean for the traveller? I think it means that much more vetting will occur at the front end with many airline/transport companies playing the role of a “quasi-2nd line CBSA officer.” I think travellers also need to be very careful when questioned by CBSA officers that they provide accurate information about their travel itineraries. What does this mean for the transport companies?  I think it is time to seek competent counsel (either in-house or external), as I expect the liabilities and compliance costs to increase drastically under several of these new regimes.

More to come in future posts on this topic!