Are we R.228-ing too many R.229s? – New COVID-Based Quarantine Act Inadmissibility and the Case for Procedural Fairness Amid Changing Administrative Efficiencies

Introduction

I did an earlier-COVID post about the criminal inadmissibility consequences of the Quarantine Act. In today’s post I want to update the Government’s approach here  but also bring a larger critique – that we should be advocating for the right of foreign nationals to access the Immigration Division (R.229 of the Immigration and Refugee Protection Regulations [IRPR]) where it is clear their case requires a balancing of evidentiary facts and greater (if still minimum by administrative legal standards) procedural fairness.

I see a worrisome trend of addressing (ramming) new inadmissibility through CBSA Minister’s Delegate [R.228] because it is administratively convenient. As technology improves and the ability of more hearings to be run administratively efficiently, is it still fair to deny foreign nationals at the heart of these matters, the ability to have an independent decision-maker preside over their cases and to present their full evidence?

The New Inadmissibility – Violation of Emergencies Act or Quarantine Act

On 20 April 2020, the Federal Government introduced a new inadmissibility for foreign national (visitors, students, and workers) who violate the Quarantine Act.  

The change adds an inadmissibility under s.41(a) of the Immigration and Refugee Protection Act (“IRPA”) and does so by also creating automatic inadmissibility for any Foreign National with a Quarantine Act conviction.

22.1 For the purpose of determining whether a foreign national is inadmissible under paragraph 41(a) of the Act for having failed to comply with the condition set out in paragraph 43(1)(e) or 183(1)(d) of these Regulations, if the foreign national has been convicted for having contravened an order or regulation made under the Emergencies Act or the Quarantine Act, the facts on which the conviction is based shall be considered to be conclusively established.

This operates through the adding of a General condition under s.183(d) which applies to all temporary residents:

General conditions

• 183 (1) Subject to section 185, the following conditions are imposed on all temporary residents:

  • (a) to leave Canada by the end of the period authorized for their stay;

  • (b) to not work, unless authorized by this Part or Part 11;

  • (b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

  • (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii);

  • (c) to not study, unless authorized by the Act, this Part or Part 12; and

  • (d) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

The law also applies by way of adding a condition under Regulation 43(1)(e) in the context of continued examinations under s.23 IRPA.

Conditions

• 43 (1) An officer must impose the following conditions on every person authorized to enter Canada under section 23 of the Act:

  • (a) to report in person at the time and place specified for the completion of the examination or the admissibility hearing;

  • (b) to not engage in any work in Canada;

  • (c) to not attend any educational institution in Canada;

  • (d) to report in person to an officer at a port of entry if the person withdraws their application to enter Canada; and

  • (e) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

It is important hear that the IRPA imposes an obligation beyond the criminal context, to require compliance with ‘all requirements.’ There are several Quarantine Act requirements that do not directly attach a conviction for. Furthermore, this brings into the realm of immigration inadmissibility several convictions found in s.67-72 of the Quarantine Act that would not have rendered a foreign national inadmissible by way of a sole summary offence conviction.

There are major questions of its overbreadth and as well whether the inadmissibility will be disproportionately pursued against low-skilled workers working in fields such as agricultural, largely at the whim of the direction of the employer or their agents. While there are also employer compliance issues (which this piece will not explore) it is foreseeable that a wrong of the employer could be attached to the employee by way of inadmissibility.

The Regulatory Impact Analysis Statement acknowledges as much in what I still feel is a severely short assessment:

Gender-based analysis plus (GBA+)

The power imbalance inherent in most employment relationships is intensified for foreign workers as a result of their temporary status in Canada, and in the case of employer-specific work permit holders, the conditional nature of their authorization to only work for one employer. This imbalance can be further exacerbated by factors such a lack of proficiency in English or French, lack of knowledge of their rights, and misinformation. Gender and intersectional factors (e.g. age, race, low-wage level) may further increase vulnerability to workplace abuse.

One of the policy objectives of these regulatory amendments is to protect temporary foreign workers to help ensure that they are not put in situations where they are at risk of being infected by COVID-19 and/or at risk of infecting others. The proposal is expected to safeguard against an employer encouraging a worker to violate any requirements under the Quarantine Act or the Emergencies Act.

Colour me sceptical but I do not see how putting punitive immigration consequences on foreign workers protects temporary foreign workers. I do see individuals who are racialized and in low-paying jobs (with assumed lower levels of language ability and presumed less shelter-at-home circumstances) being subject to greater surveillance and immigration consequences.

No Referral to the Immigration Division

Where I think this provisions steps into the line of being a major problem in my perspective is is listed as a R.228 IRPR inadmissibility rather than as a s.229 IRPR admissibility.

11 (1) Subparagraph 228(1)(c)(v) of the Regulations is replaced by the following:

• (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in paragraph 183(1)(d), section 184 or subsection 220.1(1), an exclusion order,

(2) Paragraph 228(1)(c) of the Regulations is amended by adding “or” at the end of subparagraph (vi) and by adding the following after that subparagraph:

• (vii) failing to comply with the condition set out in paragraph 43(1)(e), an exclusion order;

The difference between R.228 and R.229 IRPR is that R.228 IRPR allows a Minister’s Delegate of the Canada Border Services Agency (including at the Port of Entry) to issue an exclusion order.

Subsection 44(2) of the Act — foreign nationals

228 (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division…

R.229 inadmissibilities require the Minister Delegate to refer the matter to the Immigration Division (ID):

Paragraph 45(d) of the Act — applicable removal order

• 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

At an Immigration Division hearing, the burden of proof is on the Minister to prove that the person concerned is inadmissible to Canada. The ID Member who makes a decision is a third-party, impartial decision-maker. They are obligated to assess the submissions and the evidence submitted by the person concerned.

In a Minister’s Delegate-issued removal order, evidence is assessed but the MD’s are acting on the arresting officer, other law enforcement/public authorities, and other interviewing inland enforcement officers to render their decision. They are carrying out the decision effectively “in-house” thus eliminating a real need for additional procedural fairness (opportunities to respond) or in many cases adequate opportunities to provide further evidence. Most clients have no counsel for MD-issued removal orders and counsel are often given limited ability to advocate in this setting.

Continuing a Recent Trend of No Justification

One of the problems as well is that the RIAS does not provide further justification on why the inadmissibility was chosen for s.228 and not s.229.

The RIAS merely repeats four times a state similar to this:

The Regulations provide the authority for the Minister of Public Safety or the Minister’s delegate to issue a removal order for non-compliance with the new conditions that require compliance with an order or regulation under the Quarantine Act or the Emergencies Act, once a person has been found to be inadmissible. 

The last inadmissibility added – in February 2014 (effective June 2014) for non-compliance and not actively pursuing studies (IRPA s.29(2) x. s.41(a) x IRPR s.220.1) also contained similar language in it’s RIAS.

The Regulations allow for issuance of a removal order by delegated officers in circumstances where students are not complying with new study permit conditions, rather than being referred to the Immigration Division of the Immigration and Refugee Board for a hearing.

In the international student context, this led to border officers removing international students for one-day trips to the United States during studies, poor grades, and until recently, as secondary admissibilities to inland admissibility investigations/matters (allegations of criminality, misrep, etc.).

I think a question needs to be legitimately asked about why two admissibilities both of which go against the usual R.228 black and white assessment (e.g. are expired permits – overstay, not holding required immigration document, failing to appear for examination, criminal conviction inside Canada as examples) are being put in the same box.

Given the limited application (at least documented) of the Quarantine Act as we explored last blog, should not an independent decision-maker who develops specific expertise to assess evidence be required? What happens if the allegation is not based solely on a conviction but actually on an issue such as the truthfulness of a disclosure or response (s. 15 -s.16 of the Quarantine Act). How would these proceed without witnesses and the type of evidentiary disclosure needed?

Remember when we frame this issue, we also look at the primary elements of procedural fairness as set out of by IRCC.

Unfortunately, if there is unfortunately a second wave or if the Quarantine Act becomes engaged increasingly for inadmissibility, I suspect that we will have quick removals and unfortunately little basis for stay of removals. For workers, it is likely that inadmissibility would also sever the employer/employee relationship removing the argument they likely had for significant harm. Students and Visitors will probably have similar difficulties establishing significant harm in most cases if their entry was for studies or family-based visits (which are already being scrutinized).

Ultimately, I believe we will probably get poorly justified removals that will require judicial reviews to sort out. However, unlike the actively pursuing studies provision of R.220.1 IRPR which the Federal Court has generally upheld in reported decisions, I think the Quarantine Act will be much more difficult to navigate. There are also holes around issues such as overbreadth and vagueness, and certainly procedural fairness issues, that will emerge in such litigation.

I am interested to see how this will all pan out. If you  have a case on the basis of this new inadmissibility, I am eager to hear from you:

wi**@ed******.ca

Take care and stay safe!