Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note:Exception — application to Minister

• 42.1 (1) The Minister may, on application by a foreign national, declare that the matters referred to in section 34, paragraph 35(1)(b) and subsection 37(1) do not constitute inadmissibility in respect of the foreign national if they satisfy the Minister that it is not contrary to the national interest.

• Marginal note:Exception — Minister’s own initiative

  (2) The Minister may, on the Minister’s own initiative, declare that the matters referred to in section 34, paragraph 35(1)(b) and subsection 37(1) do not constitute inadmissibility in respect of a foreign national if the Minister is satisfied that it is not contrary to the national interest.

• Marginal note:Considerations

  (3) In determining whether to make a declaration, the Minister may only take into account national security and public safety considerations, but, in his or her analysis, is not limited to considering the danger that the foreign national presents to the public or the security of Canada.

Marginal note:Regulations

43 The regulations may provide for any matter relating to the application of this Division, may define, for the purposes of this Act, any of the terms used in this Division, and may include provisions respecting the circumstances in which a class of permanent residents or foreign nationals is exempted from any of the provisions of this Division.

DIVISION 5Loss of Status and Removal

Report on Inadmissibility

Marginal note:Preparation of report

• 44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.

• Marginal note:Referral or removal order

  (2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.

• Marginal note:Conditions

  (3) An officer or the Immigration Division may impose any conditions, including the payment of a deposit or the posting of a guarantee for compliance with the conditions, that the officer or the Division considers necessary on a permanent resident or a foreign national who is the subject of a report, an admissibility hearing or, being in Canada, a removal order.

• Marginal note:Conditions — inadmissibility on grounds of security

  (4) If a report on inadmissibility on grounds of security is referred to the Immigration Division and the permanent resident or the foreign national who is the subject of the report is not detained, an officer shall also impose the prescribed conditions on the person.

• Marginal note:Duration of conditions

  (5) The prescribed conditions imposed under subsection (4) cease to apply only when

  • (a) the person is detained;

  • (b) the report on inadmissibility on grounds of security is withdrawn;

  • (c) a final determination is made not to make a removal order against the person for inadmissibility on grounds of security;

  • (d) the Minister makes a declaration under subsection 42.1(1) or (2) in relation to the person; or

  • (e) a removal order is enforced against the person in accordance with the regulations.

Admissibility Hearing by the Immigration Division

Marginal note:Decision

45 The Immigration Division, at the conclusion of an admissibility hearing, shall make one of the following decisions:

• (a) recognize the right to enter Canada of a Canadian citizen within the meaning of the Citizenship Act, a person registered as an Indian under the Indian Act or a permanent resident;

• (b) grant permanent resident status or temporary resident status to a foreign national if it is satisfied that the foreign national meets the requirements of this Act;

• (c) authorize a permanent resident or a foreign national, with or without conditions, to enter Canada for further examination; or

• (d) make the applicable removal order against a foreign national who has not been authorized to enter Canada, if it is not satisfied that the foreign national is not inadmissible, or against a foreign national who has been authorized to enter Canada or a permanent resident, if it is satisfied that the foreign national or the permanent resident is inadmissible.

Loss of Status

Marginal note:Permanent resident

• 46 (1) A person loses permanent resident status

  • (a) when they become a Canadian citizen;

  • (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;

  • (c) when a removal order made against them comes into force;

  • (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);

  • (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or

  • (e) on approval by an officer of their application to renounce their permanent resident status.

• Marginal note:Effect of renunciation

  (1.1) A person who loses their permanent resident status under paragraph (1)(e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved.

• Marginal note:Effect of ceasing to be citizen

  (2) A person becomes a permanent resident if he or she ceases to be a citizen under

  • (a) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, other than in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force;

  • (b) subsection 10(1) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act; or

  • (c) subsection 10.1(3) of the Citizenship Act, other than in the circumstances set out in section 10.2 of that Act.

Marginal note:Temporary resident

47 A foreign national loses temporary resident status

• (a) at the end of the period for which they are authorized to remain in Canada;

• (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

• (c) on cancellation of their temporary resident permit.

Enforcement of Removal Orders

Marginal note:Enforceable removal order

• 48 (1) A removal order is enforceable if it has come into force and is not stayed.

• Marginal note:Effect

  (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and the order must be enforced as soon as possible.

Marginal note:In force

• 49 (1) A removal order comes into force on the latest of the following dates:

  • (a) the day the removal order is made, if there is no right to appeal;

  • (b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and

  • (c) the day of the final determination of the appeal, if an appeal is made.

• Marginal note:In force — claimants

  (2) Despite subsection (1), a removal order made with respect to a refugee protection claimant is conditional and comes into force on the latest of the following dates:

  • (a) the day the claim is determined to be ineligible only under paragraph 101(1)(e);

  • (b) in a case other than that set out in paragraph (a), seven days after the claim is determined to be ineligible;

  • (c) if the claim is rejected by the Refugee Protection Division, on the expiry of the time limit referred to in subsection 110(2.1) or, if an appeal is made, 15 days after notification by the Refugee Appeal Division that the claim is rejected;

  • (d) 15 days after notification that the claim is declared withdrawn or abandoned; and

  • (e) 15 days after proceedings are terminated as a result of notice under paragraph 104(1)(c) or (d).

Marginal note:Stay

50 A removal order is stayed

• (a) if a decision that was made in a judicial proceeding — at which the Minister shall be given the opportunity to make submissions — would be directly contravened by the enforcement of the removal order;

• (b) in the case of a foreign national sentenced to a term of imprisonment in Canada, until the sentence is completed;

• (c) for the duration of a stay imposed by the Immigration Appeal Division or any other court of competent jurisdiction;

• (d) for the duration of a stay under paragraph 114(1)(b); and

• (e) for the duration of a stay imposed by the Minister.

Marginal note:Void — permanent residence

51 A removal order that has not been enforced becomes void if the foreign national becomes a permanent resident.

Marginal note:No return without prescribed authorization

• 52 (1) If a removal order has been enforced, the foreign national shall not return to Canada, unless authorized by an officer or in other prescribed circumstances.

• Marginal note:Return to Canada

  (2) If a removal order for which there is no right of appeal has been enforced and is subsequently set aside in a judicial review, the foreign national is entitled to return to Canada at the expense of the Minister.

Regulations

Marginal note:Regulations

53 The regulations may provide for any matter relating to the application of this Division, and may include provisions respecting

• (a) conditions that may or must be imposed, varied, or cancelled, individually or by class, on permanent residents and foreign nationals;

• (a.1) the form and manner in which an application to renounce permanent resident status must be made and the conditions that must be met before such an application may be approved;

• (b) the circumstances in which a removal order shall be made or confirmed against a permanent resident or a foreign national;

• (c) the circumstances in which status may be restored;

• (d) the circumstances in which a removal order may be stayed, including a stay imposed by the Minister and a stay that is not expressly provided for by this Act;

• (e) the effect and enforcement of removal orders, including the consideration of factors in the determination of when enforcement is possible;

• (f) the effect of a record suspension under the Criminal Records Act on the status of permanent residents and foreign nationals and removal orders made against them; and

• (g) the financial obligations that may be imposed with respect to a removal order.

DIVISION 6Detention and Release

Marginal note:Immigration Division

54 The Immigration Division is the competent Division of the Board with respect to the review of reasons for detention under this Division.

Marginal note:Arrest and detention with warrant

• 55 (1) An officer may issue a warrant for the arrest and detention of a permanent resident or a foreign national who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, for an admissibility hearing, for removal from Canada or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2).

• Marginal note:Arrest and detention without warrant

  (2) An officer may, without a warrant, arrest and detain a foreign national, other than a protected person,

  • (a) who the officer has reasonable grounds to believe is inadmissible and is a danger to the public or is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); or

  • (b) if the officer is not satisfied of the identity of the foreign national in the course of any procedure under this Act.

• Marginal note:Detention on entry

  (3) A permanent resident or a foreign national may, on entry into Canada, be detained if an officer

  • (a) considers it necessary to do so in order for the examination to be completed; or

  • (b) has reasonable grounds to suspect that the permanent resident or the foreign national is inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, criminality, transborder criminality or organized criminality.

• Marginal note:Mandatory arrest and detention — designated foreign national

  (3.1) If a designation is made under subsection 20.1(1), an officer must

  • (a) detain, on their entry into Canada, a foreign national who, as a result of the designation, is a designated foreign national and who is 16 years of age or older on the day of the arrival that is the subject of the designation; or

  • (b) arrest and detain without a warrant — or issue a warrant for the arrest and detention of — a foreign national who, after their entry into Canada, becomes a designated foreign national as a result of the designation and who was 16 years of age or older on the day of the arrival that is the subject of the designation.

• Marginal note:Notice

  (4) If a permanent resident or a foreign national is taken into detention, an officer shall without delay give notice to the Immigration Division.