COVID-19 Impact on Immigration and Travel Ban

March 24, 2020

COVID-19 Impact on Immigration and Travel Ban

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.

Essential Travel

  1. 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

Non-Essential

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:

  1. 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.

IRCC Resources:

Immigration
Refugee and Citizenship Canada has provided the following information as
guidance:

Please contact Field Law’s immigration team for any questions or assistance in working/travelling to Canada.

Orlagh O'Kelly

Orlagh O'Kelly

Orlagh is immigration lawyer who used to work for the Department of Justice advising on the implementation and enforcement of federal legislation. She has extensive experience advising and representing both government and private clients. As the lead of Field Law's Business Immigration practice, Orlagh offers strategic advice to employers and individuals to create cross-border business opportunities. Orlagh's clients have included government departments, law enforcement agencies, professional organizations, First Nations’ clients and private individuals. Orlagh provides strong representation to these clients, drawing on her experience before all levels of Court in Ontario, the Federal Court trial and appeal divisions, the Alberta Provincial Court (criminal), Alberta Court of Queen's Bench, the Tax Court and various tribunals, including the Canadian International Trade Tribunal.