Canadian Refugee Procedure/20.1-20.2 - Designated Foreign Nationals

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IRPA Sections 20.1-20.2[edit | edit source]

Sections 20.1-20.2 of the Immigration and Refugee Protection Act read:

Designation — human smuggling or other irregular arrival
20.1 (1) The Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a group of persons if he or she
(a) is of the opinion that examinations of the persons in the group, particularly for the purpose of establishing identity or determining inadmissibility — and any investigations concerning persons in the group — cannot be conducted in a timely manner; or
(b) has reasonable grounds to suspect that, in relation to the arrival in Canada of the group, there has been, or will be, a contravention of subsection 117(1) for profit, or for the benefit of, at the direction of or in association with a criminal organization or terrorist group.

Effect of designation
(2) When a designation is made under subsection (1), a foreign national — other than a foreign national referred to in section 19 — who is part of the group whose arrival is the subject of the designation becomes a designated foreign national unless, on arrival, they hold the visa or other document required under the regulations and, on examination, the officer is satisfied that they are not inadmissible.

Statutory Instruments Act
(3) An order made under subsection (1) is not a statutory instrument for the purposes of the Statutory Instruments Act. However, it must be published in the Canada Gazette.

Application for permanent residence — restriction
20.2 (1) A designated foreign national may not apply to become a permanent resident
(a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which they become a designated foreign national.

Suspension of application for permanent residence
(2) The processing of an application for permanent residence of a foreign national who, after the application is made, becomes a designated foreign national is suspended
(a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made;
(b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or
(c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national.

Refusal to consider application
(3) The officer may refuse to consider an application for permanent residence if
(a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or section 58.1 or any requirement imposed on them under section 98.1; and
(b) less than 12 months have passed since the end of the applicable period referred to in subsection (1) or (2).

"Designated Foreign National" is a term defined in section 2 of the IRPA[edit | edit source]

Section 2 of the IRPA, the Act's definitions section, provides that "designated foreign national has the meaning assigned by subsection 20.1(2). (étranger désigné)". See: Canadian Refugee Procedure/Definitions, objectives, and application of the IRPA#IRPA Section 2.

An "irregular arrival" is the arrival of a group of persons who meet the conditions specified[edit | edit source]

Section 20.1(1) of the Act provides that the Minister may, by order, having regard to the public interest, designate as an irregular arrival the arrival in Canada of a "group" of persons. A "group" is left undefined and has generally been considered 2 or more persons. Professor Jennifer Bond writes that "It is significant to note that the Bill does not define the term “group,” meaning that any claimant who does not arrive alone may be susceptible to being declared a designated foreign national."[1]

The Designated Foreign Nationals regime was established pursuant to the Protecting Canada’s Immigration System Act in 2012[edit | edit source]

The PCISA reforms established a regime for what are termed Designated Foreign Nationals.[2] DFNs, as defined in the Act, are groups of two or more refugee claimants suspected by the Minister of Public Safety 'irregular arrival' with the aid of smugglers.[3] The implications of being so designated include that DFNs will be automatically detained until their refugee claim is determined if they are sixteen years of age or older.[4] This built on the way that mandatory detention had already been utilized in Canada after the arrival of Tamil refugees aboard the MV Ocean Lady and MV Sun Sea in 2010.[5] Furthermore, even if their claim is accepted, DFNs are unable to apply for permanent residence status for five years,[4]as well as being unable to obtain a travel document and unable to sponsor family members.[3] For more context to this legislation, see: Canadian Refugee Procedure/History of refugee procedure in Canada#Refugee reform in 2010 and 2012.

References[edit | edit source]

  1. Bond, Jennifer. "Failure to Report: The Manifestly Unconstitutional Nature of the Human Smugglers Act." Osgoode Hall Law Journal 51.2 (2014) : 377-425, <http://digitalcommons.osgoode.yorku.ca/ohlj/vol51/iss2/1>, page 393.
  2. Shauna Labman, Crossing Law’s Border: Canada’s Refugee Resettlement Program, 2019, UBC Press: Vancouver, page 51.
  3. a b Audrey Macklin & Joshua Blum, Country Fiche: Canada, ASILE: Global Asylum Governance and the European Union's Role, January 2021, <https://www.asileproject.eu/wp-content/uploads/2021/03/Country-Fiche_CANADA_Final_Pub.pdf> (Accessed April 2, 2021), page 8.
  4. a b George Melnyk and Christina Parker, Finding Refuge in Canada: Narratives of Dislocation, February 2021, Athabasca University Press, ISBN 9781771993029, page 12.
  5. Harsha Walia, Border & Rule, Winnipeg: Fernwood Publishing, 2021, ISBN: 9781773634524, page 102.