Less than a month ago, we wrote about business travellers who had their phones arbitrarily searched at the border. Two weeks ago, we wrote about travel insurance for those looking to travel for business or even (gasp) pleasure.
Now, travellers themselves (never mind their phones) could be detained at the port of entry, fined, and – where they fail to comply – even imprisoned under the Quarantine Act and commentators believe the use of these extreme measures could be “justified” under section 1 of the Charter.
Borders have been closed to all but essential travel. Here is a highlight of the travel bans (current as of March 23) issued under the Quarantine Act:
- Travel ban other than US: March 18, 2020, air travel from most countries was severely restricted, prohibiting entry of all foreign nationals who are not arriving from the United States (see: Order in Council, 162, repealing Order in Council 157 on March 22, 2020).
- Travel ban from the US: March 21, 2020 at 12 am, the Canadian-US Border was closed to all but a few by Order in Council, 161 to remain in effect until April 21, 2020 (for now).
What do the legislated restrictions mean for travellers and would-be immigrants? Put simply, the travel ban applies unless travel is considered essential and/or falls under one of the exemptions outlined below.
- Canadians and permanent residents: People trying to get home are essential travellers. However, they may have a hard time finding a flight and, if looking for government assistance to do the same, they are encouraged to register online.
- Business: There is no prohibition on essential commerce and trade. It would appear “business travel” will continue as usual at the border from the Immigration Refugee and Immigration Canada’s (“IRCC”) Special Measures, which currently provide: “All essential and business travel will continue unimpeded. Both governments recognize the importance of preserving vital supply chains between our two countries to ensure that food, fuel and life-saving medicines continue to reach people on both sides of the border.”
- Work: At present, there is little guidance on what would be considered essential work versus non-essential work for travel purposes, other than the obvious (truck drivers and health care workers).
- Government sanctioned travel: Exemptions exist for Ministerial discretion and other government mandated purposes, for example: i) foreign nationals travelling at the invitation of the Canadian government for a purpose related to the containment of COVID-19 are exempt; ii) diplomats and family members; iii) foreign national, or group of foreign nationals, whose entry would be in the “national interest”, as determined by the Minister of Foreign Affairs, the Minister of Immigration, Refugees and Citizenship, the Minister of Public Safety; and iv) members of the Canadian military, visiting forces and their family members. Further, the Chief Public Health officer may allow case or class specific exemptions under subsection 6(1) of the Public Health Agency of Canada Act.
- Close family members of citizens or permanent residents are exempt from the travel ban, including those authorized, in writing, by a consular officer of the Government of Canada to enter Canada for the purpose of reuniting immediate family members. On March 22, the definition of “immediate family member” was expanded to include “common-law partners” and even the “tutor” of a Canadian or permanent resident. The application of this exemption remains untested. Consider these categories: parents who have applied as refugees abroad and are awaiting a determination; spouses who have ongoing sponsorship applications (yet to be approved permanent residence contrary to those outlined in 7 below); and, of course, the long list of family members who require a visitor’s visa to even enter Canada.
- Certain classes of persons: Registered Indians under the Indian Act, refugees under subsection 95(2) of the Immigration Refugee Protection Act, air crew as well as transiting passengers in some circumstances are also exempt from the travel ban.
- International students who held a valid study permit, or had been approved for a study permit, when the travel restrictions took effect on March 18, 2020. This does not include forward looking study permits.
- Approved permanent resident applicants who had been approved for permanent residence before the travel restrictions were announced on March 16, 2020, but who had not yet travelled to Canada
With a dizzying list of exemptions, the determination of non-essential and essential ultimately continues to be subject to substantial discretion. That being said, there are categories which are undoubtedly non-essential:
- Showing symptoms:First, we know that all those exhibiting symptoms will not be permitted to board planes to Canada. This appears to be less stringent at the US- Canada border where only “foreign nationals” will be prohibited entry where they show either a i) fever and cough or ii) fever and breathing difficulties (Order in Council 161, s. 2). If at a land border, CBSA officers have wide powers under the Quarantine Act, which travellers can expect will be used. The travel ban on most symptomatic travellers appears to then be subject to an even further broad discretion of operators to deny entry to air travellers, regardless of citizenship, under the Aeronautics Act.
- Discretionary and Optional travel: Second, any travel for pleasure is clearly non-essential. Holidays are off. But family visits, too, seem less clear. At the Canada-US border, non-essential travel includes those entering for an optional or discretionary purpose, including tourism, recreation and entertainment; and those who have been in the US or Canada during the period of 14 days before the day on which they seek to enter Canada. However, even the 14 day criteria are subject to their own exceptions, including US citizens. One might query whether this would include “discretionary” or “optional” business travel as well.
Temporary Foreign Workers Expected to be Exempt
This category remains uncertain. It is expected that many, if not all, temporary foreign workers will be exempt from the travel ban. In a news release, the government of Canada stated that foreign nationals would be exempt from travel restrictions where they have “already committed to working” in Canada. The list of examples includes: “seasonal agricultural workers, fish/seafood workers, caregivers and all other temporary foreign workers”.
However, the “Special Measures” maintain that all temporary foreign workers will be exempt from travel restrictions but that workers should wait until these measures are implemented to travel:
“… all temporary foreign workers will be able to travel to Canada by air or land. They will be exempt from the air travel restrictions announced on March 16, 2020, as well as border restrictions. Those affected by these exemptions should not try to travel to Canada immediately. We will announce when the exemptions are in place, which we anticipate will be early during the week of March 22, 2020.”
Some indication of what these new measures look like include waiving the two-week advertising requirement for Labour Market Impact Assessments for some foreign workers.
IRCC accepting and processing most applications
Many applicants are worried their applications will be paused or thrown out. We have no indication of this happening. While many immigration officials are now working remotely (including reports of some visa officers being repatriated), applications will continue to be processed but possibly at slower speeds. Immigration officials are expected to focus their efforts on the exemptions outlined above and in the coming days.
Some Updates for IRCC Applications of note:
- No expediting: No applications are being expedited at this time (i.e. work permit extensions, variations to work permit locations (to include remote work) work permits for students, etc.).
- Delays: Some visa application centres are closed until further notice, which may cause delays in processing;
- Leniency on documentation: No application in progress will be closed or refused due to lack of documentation (for example, if it is impossible to obtain a police certificate, medical record, transcript, certified documents, etc.)
- Deadlines: Biometrics deadlines are automatically extended to 90 days. An additional 90 days will be granted to temporary residents who need to submit documents for their files to continue to process We recommend keeping IRCC informed via the Web Portal of any submissions, or lack thereof due to social-distancing.
- Citizenship/Permanent residence on pause: All citizenship tests and ceremonies are currently cancelled until further notice. Permanent resident landing appointments have been cancelled. However IRCC is looking at alternatives to in-person appointments.
- Hearings: Federal Court, Immigration Refugee Board and Immigration Appeal Division are all closed except to urgent matters.
- Deportations: have been indefinitely postponed, as we successfully advocated.
Immigration Refugee and Citizenship Canada has provided the following information as guidance:
- IRCC, Updated Program Delivery Instructions: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus.html
- IRCC, Special Measures: https://www.canada.ca/en/immigration-refugees-citizenship/services/coronavirus-special-measures.html
Please contact Field Law’s immigration team for any questions or assistance in working/travelling to Canada.