ARCHIVED – Operational Bulletin 525 (Modified) – September 10, 2013

Changes in Appeal Rights to the Immigration Appeal Division as a Result of Bill C-43 – the Faster Removal of Foreign Criminals Act

Summary

This Operational Bulletin (OB) describes changes to subsection 64(2) of the Immigration and Refugee Protection Act (IRPA) which specifies the circumstances under which a foreign national, a sponsor or a permanent resident has no right of appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board.

Background

On June 19, 2013, Bill C-43, the Faster Removal of Foreign Criminals Act, received royal assent, amending the IRPA. While most of the provisions of the Bill will come into force at a later date, certain provisions are now in effect, including the amendments that relate to the circumstances under which a foreign national, a sponsor or a permanent resident has no right of appeal to the IAD.

Subsection 64(1) of the IRPA specifies the circumstances under which a foreign national, their sponsor or a permanent resident has no right to appeal to the IAD. If a foreign national or permanent resident is determined by an officer or the Immigration Division (ID) to be inadmissible on grounds of security, human or international rights violations, serious criminality or organized criminality, they do not have a right to appeal to the IAD.

Subsection 64(2) of the IRPA has been amended to set out that those with convictions punished in Canada by a term of imprisonment of at least six months in Canada or who are described in paragraph 36(1)(b) or (c) of the IRPA do not have the right to appeal their removal order to the IAD. Previously, the term of imprisonment was at least two years. The changes/additions to subsection 64(2) are highlighted in bold and the new legislative provisions read as follows:

64. (2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

If a Canadian citizen or permanent resident files an application to sponsor a foreign national as a member of the family class, and the application is refused after June 19, 2013, the sponsor may not appeal the refusal to the IAD if it was determined that the foreign national was inadmissible for serious criminality and was punished in Canada by a term of imprisonment of at least six months or was found described in paragraph 36(1)(b) or (c).

The amendments to appeal rights to the IAD do not affect access to existing provisions of the IRPA designed to address exceptional circumstances, such as humanitarian and compassionate considerations or temporary resident permits that an officer may exercise to overcome the inadmissibility.

Instructions

Citizenship and Immigration officers must pay special attention to these changes and determine whether or not a person has the right to appeal when issuing a family class refusal letter on the basis of serious criminality. (See ENF 19 – section 7.7 (PDF, 321.46KB) Loss of appeal rights for procedures on calculating the sentence imposed).

Given the changes to the rights of appeal that will impact the work of the Canada Border Services Agency hearings officers, CIC officers should pay close attention to the provisions in order to determine whether or not a person has the right to appeal before the IAD. This should be clearly communicated to the person concerned and identified in the file.

Transitional Provisions

Please note that there are two transitional provisions which apply to the changes in appeal rights: one for those who have applied to sponsor a relative in Canada and another for those who have been ordered deported.

• Sponsors of foreign nationals whose family class applications were refused before June 19, 2013 on the basis of serious criminality and were punished in Canada by a term of imprisonment of at least six months or were found described in paragraph 36(1)(b) or (c) have the right to appeal to the IAD until the time period for submitting the appeal expires.
• Persons who are subject to a report under subsection 44(2) of the IRPA on the basis of serious criminality and were punished in Canada by a term of imprisonment of at least six months or were found described in paragraph 36(1)(b) or (c) have the right to appeal their removal order to the IAD if the referral to the ID was signed by the Minister’s Delegate (MD) before June 19, 2013, regardless of the date the referral was sent to the ID. (For greater clarity, if a request for an admissibility hearing is sent after June 19, 2013 to the ID, including a referral signed before June 19, 2013, and the person had a right of appeal under subsection 63(3) before June 19, 2013, that person would maintain their right of appeal.)
• For persons whose referral to the ID for serious criminality was signed by the MD after June 19, 2013, the new definition of serious criminality as defined in subsection 64(2) will apply and they do not have the right to appeal.