Gavin Howe
Canada's laws on illegal immigration are governed by the Immigration and Refugee Protection Act (IRPA), which outlines the rules and procedures associated with immigrants in Canada. While illegal entry is not an offence in Canada's Criminal Code, the IRPA gives the Canada Border Services Agency (CBSA) the authority to detain permanent residents and foreign nationals if they violate the Act. Canada has also recently proposed a new immigration bill, the Strong Borders Act, which seeks to curb organised crime and restrict asylum applications.
| Characteristics | Values |
|---|---|
| Definition of illegal immigration | Entering or remaining in Canada in a manner contrary to the Immigration and Refugee Protection Act and its associated regulations. |
| Legal status of illegal entry | Not an offence in Canada's Criminal Code, but Immigration and Refugee Protection Regulations require those who do not enter at a port of entry to check in "without delay" at a border point. |
| Terminology | "Irregular" or "illegal" are disputed terms; refugee organizations and some political parties prefer "irregular," while the Conservative Party uses "illegal." The Royal Canadian Mounted Police uses the term "interceptions." |
| Population estimates | No accurate figures exist, but estimates range from 20,000 to 500,000 undocumented immigrants in Canada. |
| Rights and access to services | Undocumented immigrants have limited access to healthcare, education, social services, and legal rights. |
| Temporary Resident Permits | Individuals may be granted temporary access to Canada with a Temporary Resident Permit if they do not pose a threat. These permits cost $200 each and are valid for one day to three years. |
| Recent policy changes | The proposed Strong Borders Act aims to curb illegal immigration and enhance border security, but critics argue it may breach civil liberties. |
| Regularization initiatives | IRCC is exploring options to regularize undocumented immigrants who have contributed to Canadian communities, such as the Temporary Public Policy for Out-of-Status Construction Workers in the Greater Toronto and Hamilton Area (GTA). |
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What You'll Learn
Temporary Resident Permits
In Canada, individuals who are otherwise inadmissible may be issued a Temporary Resident Permit (TRP) if they have a justified reason to travel to the country. The need to enter or stay in Canada must outweigh any health or security risks to Canadian society, as determined by an immigration or border services officer. The permit is typically issued for the length of the visit, ranging from one day to three years. During this time, individuals can gather the legal documents required for deportation.
The application process for a TRP can be complex and requires a comprehensive review of an individual's criminal history. Applicants must submit a completed application form, addressing every arrest in their past, and pay the required fee. The application must demonstrate a persuasive narrative justifying the need to travel to Canada and be supported by relevant documentation. The processing time for TRP applications can vary, typically taking up to four months but potentially longer depending on staffing and demand.
It is important to note that a Temporary Resident Permit can be cancelled by an officer at any time. The permit is no longer valid once an individual leaves Canada unless they have specific authorization to re-enter. Additionally, there is no guarantee that a TRP will be issued, and applicants must demonstrate that their visit is justified, even for minor reasons for inadmissibility.
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Criminal Code and Refugee Convention
Canada is a signatory to the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, which forbids the imposition of penalties on refugees who may have entered Canada in contravention of its national laws in order to seek protection. This only applies to claimants while their case is being processed and to those formally recognised as refugees.
Article 31 of the UN Refugee Convention states that receiving countries may not penalise refugees for how they enter a country, as long as they present themselves "without delay" to authorities and show "good cause" for their presence. This is reflected in Canada's Immigration and Refugee Protection Act (IRPA), which does not consider illegal entry as an offence in its Criminal Code. However, the IRPA stipulates that anyone who does not enter at a port of entry must check in "without delay" at a border point.
The IRPA outlines the rulings, laws, and procedures associated with immigrants in Canada. It grants officers of the Canada Border Services Agency (CBSA) the authority to detain permanent residents and foreign nationals if they have violated the Act's rulings. The Act also includes provisions for the protection of refugees, incorporating the protection grounds of the Geneva Convention and the Convention Against Torture, as well as addressing risk to life or of cruel and unusual treatment or punishment.
In terms of refugee status, Canada recognises the definition provided by the UN Refugee Convention. A refugee is someone who is outside their country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
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Immigration and Refugee Protection Act
Illegal immigration to Canada refers to non-Canadian citizens entering or remaining in Canada in a manner that contradicts the Immigration and Refugee Protection Act (IRPA) and its associated regulations. The IRPA is an Act of the Parliament of Canada, which came into force on 28 June 2002, replacing the Immigration Act, 1976 as the primary federal legislation regulating immigration to Canada. The IRPA is administered by Immigration, Refugees and Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA).
The IRPA establishes a high-level framework outlining the goals and guidelines set by the Canadian government regarding immigration by foreign residents. It provides CBSA officers with the authority to detain permanent residents and foreign nationals if they violate the Act's rulings. The Act also specifies that anyone who does not enter at a port of entry must check in "without delay" at a border point.
The IRPA is accompanied by the "Immigration and Refugee Protection Regulations" (IRPR), which outline how the provisions of the IRPA are to be applied. The IRPA has faced controversy due to the government's failure to implement a component establishing a Refugee Appeal Division as part of Canada's immigration system.
Canada has also proposed a sweeping immigration and security bill, the Strong Borders Act, which aims to curb organised crime, illegal drugs, and weapons, while boosting the integrity of its immigration system. This bill includes provisions that would give police more power to monitor Canada's border with the US and restrict asylum applications.
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Safe Third Country Agreement
Illegal immigration to Canada is defined as the act of a non-Canadian citizen or non-permanent resident entering or remaining in Canada in a manner contrary to the Immigration and Refugee Protection Act and its associated regulations. This includes individuals who entered Canada on a travel visa but overstayed their permitted time, as well as those who entered without presenting themselves at a port of entry.
The Safe Third Country Agreement (STCA) is a key part of Canada's immigration laws and has been in effect since December 2004. Under this agreement, Canada and the US mutually recognise each other as safe countries for refugees and close their borders to most refugee claimants at the US-Canada border. This means that refugees are expected to make their asylum claims in the first country they reach between the US and Canada. The STCA effectively prevents refugees from making a claim in Canada if they have already reached the US, and vice versa.
The STCA has been the subject of much controversy and legal challenges. The Canadian Council for Refugees (CCR) and other organisations have opposed the agreement, arguing that the US is not a safe country for all refugees. In 2020, the Federal Court of Canada invalidated the STCA, finding that it violated the Canadian Charter of Rights and Freedoms. This decision was later overturned on appeal, and the Supreme Court of Canada is now considering the case.
In March 2023, the STCA was expanded to apply to the entire land border between the US and Canada, including inland waterways. This expansion closed a loophole that had allowed asylum seekers to cross the border within 14 days of their arrival in the first country. The expansion of the STCA has been criticised as dangerous for asylum seekers, as it may force them to attempt crossings in more remote and dangerous locations.
While the STCA applies to most refugee claimants, there are some exceptions. For example, claimants with family members in Canada or unaccompanied minors whose parents are not in either the US or Canada may be exempt from the agreement.
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Undocumented migrants and access to services
In Canada, undocumented migrants are individuals who have no authorization to reside or work in the country. The majority become undocumented by falling out of status when they cannot meet eligibility criteria for existing immigration programs after lawfully entering Canada and overstaying their authorized period of stay. A small portion of undocumented migrants are those who have unlawfully entered, or were trafficked or smuggled into Canada. There are no accurate figures representing the number of undocumented immigrants in Canada, but estimates range between 20,000 and 500,000 people.
Undocumented migrants in Canada face limited access to health care, education, social services, and legal rights. They often experience weaker health and social outcomes due to their lack of rights and access to services, and are vulnerable to employer abuse and exploitation due to informal work agreements that make accessing labor protections difficult. Marginalization associated with a lack of status further increases their vulnerability to exploitation.
Canada's Immigration, Refugees and Citizenship Canada (IRCC) has committed to implementing an initiative to regularize those without immigration status who have been contributing to Canadian communities. This includes reviewing previous regularization programs in Canada, pathways in other countries, and academic research, as well as meeting with stakeholders to obtain their perspectives. One current program is the Temporary Public Policy for Out-of-Status Construction Workers in the Greater Toronto and Hamilton Area (GTA), which recognizes the economic contributions of workers in the construction industry and addresses vulnerabilities associated with their lack of status.
In addition, Canada has introduced temporary resident permits that allow individuals who do not pose an obvious threat to Canadians to temporarily reside in the country while their legal documents are gathered for deportation. These permits can be issued by the Canada Border Services Agency (CBSA) or a border services officer and provide legal residency for a period ranging from one day to three years.
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Frequently asked questions
An illegal immigrant in Canada is someone who is not a Canadian citizen or permanent resident and has entered or remained in Canada in a manner contrary to the Immigration and Refugee Protection Act and its associated regulations. This includes those who entered Canada on a travel visa but stayed beyond the permitted time, as well as those who entered without presenting themselves at a port of entry.
Canada's laws on illegal immigration are governed by the Immigration and Refugee Protection Act (IRPA), established in 2003. The IRPA outlines the rules, laws, and procedures associated with immigrants in Canada. It grants the Canada Border Services Agency (CBSA) the authority to detain permanent residents and foreign nationals who violate the Act. While illegal entry is not an offence in Canada's Criminal Code, the IRPA requires those who do not enter at a port of entry to check in "without delay" at a border point.
Canada's proposed Strong Borders Act aims to curb organised crime, control the flow of illegal drugs and weapons, and boost the integrity of the country's immigration system. It includes provisions to expand the authority of the police, the Canadian Coast Guard, and Canada Post to monitor the US-Canada border, conduct security patrols, and open mail. The Act also seeks to restrict asylum applications and impose deadlines for filing claims.
Undocumented migrants in Canada face challenges in accessing public services and are at risk of exploitation. They are not legally permitted to work but do have the right to enrol their children in school under Section 49.1 of Canada's Education Act. There is limited accurate data on the number of undocumented immigrants in Canada, and the country has historically allowed temporary access to those who do not pose a threat.
