Operational Bulletins 136 (Modified) – July 16, 2013

Procedures for Humanitarian and Compassionate Applications as a Result of Lifting the Temporary Suspension of Removals on Burundi, Liberia and Rwanda

Background

A temporary suspension of removal (TSR) halts removals to a country or a place where there is a generalized risk to the entire population, such as war, civil unrest or environmental disaster. As a result, individuals who are unsuccessful in their refugee claim or are inadmissible and who, under normal circumstances would be subject to removal, are allowed to temporarily stay in Canada. As per R230 of the Immigration and Refugee Protection Regulations (IRPR), the Minister of Public Safety has the authority to impose, maintain or lift a TSR. Individuals who are subject to a TSR may choose to return to their country voluntarily. This stay would not apply to individuals who are inadmissible for criminality and serious criminality, security, violating human or international rights, organized crime or a person referred to in Article 1F of the United Nations Convention Relating to the Status of Refugees.

Purpose

Effective July 23, 2009 the Minister of Public Safety has removed Burundi, Liberia and Rwanda from the TSR list. In response, Citizenship and Immigration Canada (CIC) is implementing measures for the nationals of these countries who are affected by the lifting of the TSR.

The purpose of this Operational Bulletin is to provide functional guidance on these measures with respect to the processing of applications for permanent residence (APR) on humanitarian and compassionate (H&C) grounds by nationals of these countries.

Administrative deferral of removal

If nationals of Burundi, Rwanda or Liberia meet the eligibility criteria described below, the Canada Border Services Agency (CBSA) has agreed to administratively defer removals for affected individuals who submit an APR on H&C grounds. The deferral will continue until a decision on the APR is rendered.

However, where a client has already submitted an application, but the receipt of the application has not yet been entered in the Field Operations Support System (FOSS), the client must be able to demonstrate proof of such application having been made (copy of H&C application and handling public monies (HPM) receipts) to be eligible for a deferral. Once proof is provided, CIC or CBSA officers should input a non-computer based (NCB) entry into FOSS to this effect (see NCB wording below).

Persons must meet all of the eligibility criteria below in order to be entitled to a deferral of their removal pending their H&C review, and CBSA may take action to effect the removal immediately. Other avenues of recourse, such as a pre-removal risk assessment (PRRA), may still apply.

Eligibility criteria for administrative deferral of removal

The client:

  • must be a national of Burundi, Liberia or Rwanda;
  • must have been residing in Canada on July 23, 2009;
  • must be the subject of a removal order, including conditional removal orders pursuant to A49(2) of the Immigration and Refugee Protection Act (IRPA);
  • must never have been found ineligible to have a refugee claim referred to the Immigration and Refugee Board (IRB) (A101);
  • must not be inadmissible on grounds of security (A34), human or international rights violations (A35), criminality or serious criminality (A36), or organized criminality (A37);
  • must not have been excluded by the IRB from refugee protection under Article 1F of the United Nations Convention Relating to the Status of Refugees;
  • must not have had criminal charges dropped by the Crown to effect a removal order;
  • must not have an outstanding immigration or criminal warrant; and
  • must have applied for permanent residence on H&C grounds in Canada no later than six months from July 23, 2009 (i.e. January 23, 2010) or for those who have made an application for refugee protection on or before July 23, 2009 no later than six months from the IRB negative decision. (see Note below) In this context, a negative decision from the IRB is the IRB’s first decision and does not include any avenues of recourse including judicial review before the Federal Court.

Note: Applications received within six months of the IRB negative decision, but on or after June 28, 2012, are subject to the 12-month H&C bar, unless the applicant meets either the medical or best interests of the child exception. For more information on the H&C bar and exceptions, see OB 440-B.

In addition:

  • for those in Quebec, they must be residing in Quebec on July 23, 2009 and continue to reside in Quebec at the time of the application and during the processing of the H&C application.

Other permanent resident categories

Where a client has submitted an APR on or before July 23, 2009 under an in-Canada class other than the H&C class (e.g. spouse/common-law partner; live-in caregiver; Canadian experience class or permit holder class), that application will continue. If that client meets the eligibility criteria as indicated above, they would qualify for these measures provided they submit an H&C application within six months of July 23, 2009.

H&C officer

H&C applications will be examined as per existing provisions in the Inland Processing manual (IP 5). This includes consideration of prolonged stays in Canada due to circumstances beyond the applicant’s control contributing to establishment and integration into Canadian society, the best interests of the child, as well as any other factors put forth by the applicant.

When a country has been subject to a TSR for a number of years (Burundi and Rwanda since 1994, Liberia since 2003), and the affected individuals’ H&C application is being processed after the TSR is lifted, it is reasonable to consider that the applicants’ continued presence in Canada may be due to circumstances beyond their control. In cases where the affected individuals’ prolonged stay in Canada as a result of the TSR has led to their establishment, a positive consideration may be warranted.

Applicants who have received a negative decision on a previous APR on H&C grounds will have the opportunity to re-apply and receive a deferral of removal under these measures, provided they meet the outlined criteria. Applicants should include all information, including that which would not have been considered on a previous application, in order to be fairly assessed.

PRRA officer – H&C with risk and PRRA

As per IP 5 standard operating procedure, inland CIC officers may refer H&C applications that contain an allegation of risk to life or security of the person to the PRRA unit when, after a cursory triage, the officer does not feel that a positive decision can be made on the non-risk factors alone. PRRA officers would then assess and make a decision based on both the risk and non-risk factors. This includes prolonged stays in Canada due to circumstances beyond the applicant’s control contributing to establishment, and the best interest of the child. The lifting of this temporary suspension of removal does not mean that the risks which are personal to the individual and which have been raised as hardships warranting a favourable H&C consideration no longer exist.

Persons whose H&C applications are rejected and are subject to an enforceable removal order will be eligible for the PRRA through the regular process. Removal of those who apply under the PRRA is stayed under R232. Attempts will be made to have a PRRA initiated to allow for the two applications to be assessed and decided concurrently.

Work permits

The administrative deferral of removals for individuals who meet the eligibility criteria means that these removal orders will, for all intents and purposes, not be enforced. These individuals may therefore apply for a work permit under R206(b).

Work permits may be issued before an H&C application is received. Provided the client submits their H&C application within the stated timeframes, work permits can be extended if necessary.

Individuals who do not make an H&C application but apply for a PRRA may also obtain work permits under R206(b) since a stay of removal is then in effect and the removal order is unenforceable.

Processing fees apply.

Study permits

Affected individuals are eligible for a study permit under R215(1)(d).

Study permits may be issued before an H&C application is received. Provided the client submits their H&C application within the stated timeframes, study permits can be extended if necessary.

Individuals who do not make an H&C application but apply for a PRRA may also obtain study permits under R215(1)(d) since a stay of removal is then in effect and the removal order is unenforceable.

Processing fees apply.

Joint procedures for eligible applicants residing in Quebec

  • CIC/CBSA will determine the applicant’s deferral eligibility and CIC will refer eligible applicants to the ministère de l’Immigration et des Communautés culturelles (MICC);
  • MICC will assess applicants based on establishment factors and further advise CIC of the assessment results;
  • CIC will examine applications for H&C consideration as per existing provisions in the IP 5 including the assessment by MICC;
  • CIC will notify MICC of its decision;
  • MICC will notify CIC of its decision whether a Certificat de sélection is issued. If the MICC refuses to issue a CSQ but CIC has found sufficient H&C grounds to grant an exemption, proof must be provided by the client that they will no longer reside in the province of Quebec in order to receive permanent residence; and
  • CIC will assess admissibility and render a final decision on all applications.

How to apply for H&C (including applicants in Quebec)

Applications, along with fee receipts, must be sent to CPC-Vegreville as per normal procedures. These applications must be postmarked no later than midnight January 23, 2010. For those individuals who filed a refugee claim on or before July 23, 2009 and who had not received an IRB decision by that date, an APR on H&C grounds must be submitted no later than six months from the first negative decision on their refugee claim from the IRB rendered after July 23, 2009 to be eligible for deferred removal.

Applicants who meet the eligibility criteria should specify the country of origin by clearly labeling their envelope with the words “TSR H&C application from [Burundi or Liberia or Rwanda].”

When an application is received

As the date of receipt of these applications is directly related to an applicant’s eligibility, CPC-Vegreville will open these applications within one month and create a line of business in the work in progress (WIP) screen. Applications will then be processed in the regular manner.

CPC-Vegreville is responsible for processing the applications (all APRs except H&C without sponsorship), therefore they will enter the NCB “General Information-12” and special program code (see below) into FOSS in those instances. The local CIC office will be responsible for doing so in cases that are referred directly to them or in those instances where it has not yet been done by CPC-Vegreville. It is important that this is done as soon as the client is determined to be eligible so that CBSA is aware the client meets the criteria for deferral.

NCB wording

Client is eligible for consideration under the measures implemented as a result of the lifting of the temporary suspension of removals on July 23, 2009.”

Coding

To allow the retrieval of statistics, the following special program codes must be used:

153 Burundi
154 Liberia
155 Rwanda

Counselling of clients

1. Removals postponed

Individuals from these affected countries who contact CIC or CBSA concerning the lifting of the TSR will be provided an update on their file and will be counselled that their removal is deferred if they are eligible (see eligibility criteria above).

Persons must meet all the eligibility criteria in order to be entitled to a deferral of their removal pending their H&C review. Where all the criteria are not met, CBSA may take action to effect removal immediately. Other avenues of recourse, such as a PRRA, may still apply.

2. When must individuals apply on H&C grounds?

Individuals must have applied for permanent residence on H&C grounds in Canada no later than six months from July 23, 2009 (i.e. midnight January 23, 2010) or, for those persons who have a refugee claim pending on or before July 23, 2009 and the claim is subsequently denied, they must have applied no later than six months from the IRB negative decision. In this context, a negative decision from the IRB is the IRB’s first decision and does not include any avenues of recourse, including judicial review before the Federal Court.

3. Where to send the H&C applications?

Applications and supporting documents should be mailed to CPC-Vegreville. The envelope should specify the country of origin and be clearly labeled with the words “TSR H&C application from [Burundi or Liberia or Rwanda].” Processing fees apply.

4. Work permits

Applicants may apply for a work permit immediately through CPC-Vegreville. Processing fees apply.

5. Study permits

Applicants may apply for a study permit immediately through CPC-Vegreville. Processing fees apply.

Date Modified: