Immigration and Refugee Protection Regulations

Marginal note: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 and any removal order made shall be

  • (a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the Act on grounds of serious criminality or criminality, a deportation order;

  • (b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;

  • (b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;

  • (c) if the foreign national is inadmissible under section 41 of the Act on grounds of

    • (i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act, an exclusion order,

    • (ii) failing to obtain the authorization of an officer required by subsection 52(1) of the Act, a deportation order,

    • (iii) failing to establish that they hold the visa or other document as required under section 20 of the Act, an exclusion order,

    • (iv) failing to leave Canada by the end of the period authorized for their stay as required by subsection 29(2) of the Act, an exclusion order,

    • (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,

    • (vi) failing to comply with the requirement under subsection 20(1.1) of the Act to not seek to enter or remain in Canada as a temporary resident while being the subject of a declaration made under subsection 22.1(1) of the Act, an exclusion order, or

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

  • (d) subject to paragraph (e), if the foreign national is inadmissible under section 42 of the Act on grounds of an inadmissible family member, the same removal order as was made in respect of the inadmissible family member;

  • (e) if the foreign national is inadmissible on grounds of an inadmissible family member in accordance with paragraph 42(2)(a) of the Act, a deportation order; and

  • (f) if the foreign national is inadmissible under paragraph 35(1)(d) or (e) of the Act on grounds of violating human or international rights, a deportation order.

• Marginal note:Direct back

  (1.1) For the purposes of subsection 44(2) of the Act, and subject to subsection (4), if a foreign national is the subject of a report and the following circumstances apply, the report shall not be referred to the Immigration Division and the removal order made shall be an exclusion order:

  • (a) an officer directed the foreign national to return temporarily to the United States under section 41; and

  • (b) the foreign national is inadmissible under paragraph 41(a) of the Act for failing to establish that they will leave Canada by the end of the period authorized for their stay.

• Marginal note:Subsection 44(2) of the Act — permanent residents

  (2) For the purposes of subsection 44(2) of the Act, if a removal order is made against a permanent resident who fails to comply with the residency obligation under section 28 of the Act, the order shall be a departure order.

• Marginal note:Eligible claim for refugee protection

  (3) If a claim for refugee protection is made and the claim has been determined to be eligible to be referred to the Refugee Protection Division or no determination has been made, a departure order is the applicable removal order in the circumstances set out in any of subparagraphs (1)(c)(i) and (iii) to (v).

• Marginal note:Reports in respect of certain foreign nationals

  (4) For the purposes of subsections (1) and (1.1), a report in respect of a foreign national does not include a report in respect of a foreign national who

  • (a) is under 18 years of age and not accompanied by a parent or an adult legally responsible for them; or

  • (b) is unable, in the opinion of the Minister, to appreciate the nature of the proceedings and is not accompanied by a parent or an adult legally responsible for them.