Permanent Residence Application Process (18:V)
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 10, 2020.|
Immigrant applicants can be broken down into three general categories (these categories are extremely broad): (i.) Economic Class applicants, (ii.) Family Class applicants, and (iii.) humanitarian or refugee applicants. There are several subclasses or subcategories within each of these general headings. All applicants and their dependent family members are subject to medical, criminal, and security checks. These are referred to as “statutory requirements” in the legislation.
Amendments to the Act that came into force June 18th, 2008 give the Minister authority to establish an order of priority for incoming applications (s 87.3), and relieve CIC from the obligation to process all applications to a full decision (s 11). For example, priority processing amongst Family Class applications is given to spouses and dependent children; these are commenced immediately upon receipt. See the Operational Manuals for details.
NOTE: It is important to inform IRCC about any changes in the application, such as a birth or adoption of a child, marriage or divorce, death of an applicant or dependent.
A. Economic Class Applicants
Foreign nationals who apply under one of the economic classes must prove that they will become financially established in Canada. This general requirement is reflected through a series of criteria. There are three general sub-classes within the economic class: the skilled worker class, investor class and the self-employed class. Please note that there are Provincial Nominee Programs in operation throughout Canada, including British Columbia. Under these programs, the province nominates an immigrant for Federal screening (see s. 87 of the IRP Regulations). Nomination by a province provides strong evidence of an applicant’s ability to become economically established in Canada as required by IRPA s. 12(2). A detailed discussion of these programs is beyond the scope of this Manual.
NOTE: IRCC implemented an online screening and selection process for persons who wish to be considered for permanent resident status in Canada under the Economic Classes of Federal Skilled Worker, Canadian Experience Class, and Federal Skilled Trades Class. This process is called Express Entry (“EE”).
EE is a system whereby applicants create an online profile (there is no paper process for creating an EE profile) that assigns points according to “Human Capital Factors” and “Skill Transferability Factors” under a “Comprehensive Ranking System”. An applicant can obtain a maximum score of 600 points based on these factors in combination, and a possible extra 600 points by obtaining a special EE-related Provincial Nomination (see Provincial Nominee Programs) or an LMIA (see Workers). These factors and selection criteria were established through Ministerial Instructions, and can be reviewed in detail on the IRCC website.
Once the person has created an active EE profile, they may be selected for an Invitation to Apply (“ITA”) for permanent resident status under one of the three aforementioned Classes of permanent residence. They will be issued an ITA if their profile score equals or exceeds the score chosen by IRCC at a particular selection pass. Consequently, potential immigrants do not know if they are able to apply for permanent resident status until they receive an ITA. In other words, there is no guarantee the potential immigrant will receive an ITA.
Upon receiving an ITA, the applicant has 60 days to submit the application for permanent resident status. The application is made entirely online, without written forms, and requires scans of all relevant documents. The applicant will not know exactly what documents are required until they actually receive the ITA, and the documents required may change according to other evidence provided as part of the application. The online submission is often referred to as the “e-APR”.
Once the e-APR is submitted, they will be contacted by IRCC with instructions on where to send original documents that may be required (such as original police clearances).
NOTE: During the COVID19 pandemic, a potential immigrant who received an ITA has up to 90 days to submit an application for permanent resident status. The increase from 60 days to 90 days is temporary. Please see the IRCC website for more details.
1. Federal Skilled Worker Class (Express Entry Required)
The Federal Skilled Worker Program (“FSW”) selects immigrants based on their ability to succeed economically in Canada. After meeting the threshold criteria set out in s. 75 of the IRP Regulations, foreign nationals who apply under the skilled worker class are assessed on a point system designed to evaluate their ability to become successfully established in Canada. Applicants are given points on the following criteria: education, language, experience, age, adaptability, and arranged employment. The point structure is set out in the IRP Regulations in ss. 78 to 83. For information on how points are allocated, refer to www.cic.gc.ca/english/immigrate/skilled/apply-factors.asp.
For complete information of the Federal Skilled Worker Program, please refer to: http://www.cic.gc.ca/english/immigrate/skilled/index.asp
2. Canadian Experience Class (Express Entry Required)
This class is designed to recognize the value of having experience in Canada, and the positive impact this experience is likely to have on a newcomer’s prospects of success in Canada. Applicants under this class must be able to demonstrate the following things:
1) At least one year of full time skilled work experience in Canada, in the last 3 years, in an occupation under NOC type O, A or B (managerial, professional or technical occupations). The work experience must be gained by working in Canada legally and it does not include work experience gained while on a study permit. Full time work experience is defined as at least 30 hours per week. Further, the skilled work experience can be made up of work in more than one skilled job, but any hours beyond 30 during that week are surplus and are not counted; and
2) The applicant must show a minimum proficiency in either English or French, through providing a test result report from the TEF, IELTS or CELPIP testing systems.
3.Federal Skilled Trades Class (Express Entry Required)
This class is meant to facilitate the permanent residence of skilled tradespersons in Canada. In order to be eligible for the Federal Skilled Trades Program (“FSTP”), an applicant must
a) Plan to live outside the province of Quebec;
b) Meet the required levels in English or French for each language ability (CLB 5 for speaking, and listening, and CLB 4 for reading, writing);
c) Have at least two years of full-time (30 hours per week) work experience (or an equal amount of part-time work experience) in a skilled trade within the five years before applying;
d) Meet the job requirements for their predominant skilled trade as set out in the National Occupational Classification (“NOC”), (except for needing a certificate of qualification), and
- a. Have an offer of full-time employment for a total period of at least one year (up to 2 employers can commit to offer employment, but all offers of employment must be associated with an LMIA).
- b. A certificate of qualification in their predominant skilled trade issued by a Canadian provincial or territorial authority (such as a Red Seal).
e) Have sufficient fund for the applicant and the applicant’s family to settle in Canada. This requirement is waived if the applicant is working in Canada legally and has a valid job offer from an employer in Canada.
See the IRCC website for more information.
4. Provincial Nominee Programs
All provinces, including British Columbia, have their own selection systems and criteria for new immigrants. Applicants who apply under these classes must still comply with the statutory requirements under the federal legislation (see s. 87 of the IRP Regulations). Section 87(3) permits the federal immigration officer to substitute his/her own evaluation of the applicant’s ability to become economically established in Canada for that of the nominating province. B.C.’s Provincial Nominee Program (“BCPNP”) has its own categories, which can be different from the federal requirements.
After you are nominated for permanent residence by the BC PNP, both you and your employer must tell the BC PNP about any employment changes by emailing PNPPostNom@gov.bc.ca. This includes a promotion, lay-off, termination or a potential new job with a new employer. Please note that failing to inform BC PNP of a change in your employment status could lead to the withdrawal of your nomination. It could also lead to questions from IRCC when they process your application. All post-nomination requests, including requests for work permit support letters, change of employers, and re-nominations, must now be emailed to PNPPostNom@gov.bc.ca.
On 01 February 2017, the BC Provincial Immigration Programs Act and Regulations came into effect. This legislation provides a framework for the operation of the BCPNP, including direction concerning what factors can serve as the basis for a nomination, how fees are set, provides investigatory powers to the Director of the PNP, and allows for an appeal process for refused nominations. Clinicians assisting with PNP applications should familiarize themselves with the “interpretive guidelines” provided on the BCPNP site.
Where a BCPNP applicant is refused their application for a nomination certificate, the ability to appeal the decision is provided within their BCPNP online profile, and so it is important for the applicant to log into their profile as soon as possible upon receiving a refusal. They must pay a fee of $200, and provide submissions and evidence as part of the appeal process.
NOTE: A BCPNP nomination can be cancelled after being issued, and this cancellation does not receive consideration under the appeal process. Instead the nominee is given basic procedural fairness protections in the form of an opportunity to be heard before the nomination is cancelled. There is no appeal to the cancellation decision and so it is important to make the best case possible at that time.
The BCPNP program is currently using an online registration and selection process similar to that of Express Entry (see the NOTE in Section V. A. “Economic Class Applicants”). Enrolment in the program is free. Once an applicant has enrolled in the program they wait to be issued an invitation to apply for a provincial nomination. No time estimate for waiting periods can be provided as they vary and depend on the strength of the application. Consolidated guides with all the details necessary to assist with a BCPNP application can be found under: http://www.welcombc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program/Documents. For more information about BC’s programs generally, see: http://www.welcomebc.ca/pnp.
5. Atlantic Immigration Pilot Program
The Atlantic Immigration Pilot is an economic immigration program aiming at fulfilling the need of labour in Atlantic Canada. Skilled foreign workers and international students who want to work and live in New Brunswick, Nova Scotia, Prince Edward Island, or Newfoundland and Labrador may apply for permanent residence through this program.
To participate in this program, an applicant must satisfy the requirements for an international graduate, a high-skilled worker or an intermediate-skilled worker. Also, they must receive a job offer from a designated employer in Atlantic Canada. However, if an applicant receives a job offer from an employer who is not designated yet, they may ask the employer to consider being designated.
For more detailed information about this program, please visit the IRCC website.
6. Yukon Community Immigration Pilot Program
The Yukon Community Pilot (“YCP”) is a new stream of the Yukon Nominee Program that will allow more flexibility for nominees working in specific Yukon communities. YCP was launched in early 2020 and it will run for three years.
The YCP will provide nominees with a work permit for a specific community, rather than a specific employer, and allow them to work for several employers in the same community, while the permanent resident application is being processed.
To participate in this program, an applicant must meet the general requirements for a work permit and receive two to three eligible job offers from the same participating Yukon community of this program and have a signed letter of support from the Government of Yukon.
For more detailed information about this program, please visit the IRCC website.
7. Rural and Northern Immigration Pilot Program
The Rural and Northern Immigration Pilot is a community-driven Program. It provides an opportunity for skilled foreign workers to gain permanent residence by working and living in a participating community. Applicants must meet both IRCC eligibility requirements and the community-specific requirements. Further, applicants need to have a community recommendation to apply for permanent residence. Participating communities in British Columbia include Vernon and West Kootenay (Trail, Castlegar, Rossland, Nelson).
For more detailed information about this program, please visit the IRCC website.
NOTE: Due to the scope of this chapter, we are not able to provide an overview of all of the economic programs. For other economic programs not listed above, please see the IRCC website.
8. Self-Employed Persons Class
This category is designed for individuals who have the intention and ability to be self-employed in Canada in cultural activities or athletics. While it is not explicitly stated on the IRCC website, applicants with exceptional skills, such as Olympic athletes, world-renowned artists and/or musicians, etc. are more likely to be successful under this class. It is not necessary that the applicant actually be self-employed before coming to Canada, so long as he or she has participated at a “world-class” level in their field of endeavor for at least 2 years. However, persons not actually participating at a “world-class” level may still be successful if they can demonstrate they were self-employed in Category 5 of the Canadian National Occupational Classification (“NOC”) (occupations in art, culture, recreation, and sport) for at least 2 years before coming to Canada, and that they are likely to become economically established in Canada.
Please refer to IRP Regulations Part 6 Division 2 (ss. 100 and 101), and to the IRCC website.
9. Investor Class
The Investor Program and the Federal Entrepreneur Program has been closed since July 1st 2012.
IRCC has a Start-Up Visa Program under the Business Immigration Program, which is geared at attracting experienced business people to Canada who will support the development of a strong and prosperous Canadian economy. Individuals are advised to check the IRCC website for the latest information.
NOTE: To learn about the Start-Up Visa Program, please visit the IRCC website.
B. Caregiver Program
There are two options for caregiver to come to Canada to become a permanent resident or work temporarily: 1) Home Child Care Provider Pilot; and 2) Home Support Worker Pilot. As of June 18, 2019, an individual may be able to apply for permanent residence through one of the above programs if they meet the eligibility requirements and have a job offer to work in one of these occupations.
Under the Home Child Care Provider Pilot and Home Support Worker Pilot, caregivers will receive a work permit if they have a job offer in Canada and meet the standard criteria for economic immigration programs. Please note an LMIA is not required. A caregiver can apply for permanent residency after two years of Canadian work experience.
These new pilot programs will also benefit from:
- Occupation specific work permits rather than employer specific permits. This will allow a caregiver to change employers if needed; and
- The caregivers’ immediate family members will be eligible for open work permits and/or study permits.
Please see Chapter 9: Employment Law for further information on caregivers or the IRCC website.
You may also contact the Migrant Workers Centre for more information:
|Migrant Worker’s Centre (formerly WCDWA)|
|302-119 W Pender Street||Telephone: (604) 669-4482|
|Vancouver, B.C. V6B 1S5||Fax: (604) 669-6456|
|Website: http://www.wcdwa.ca||E-mail: firstname.lastname@example.org|
C. Humanitarian and Compassionate Applications
Section 25(1) of the Immigration and Refugee Protection Act (IRPA) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent residence, or for an exemption from a requirement of the IRPA, based on humanitarian and compassionate (“H&C”) considerations.
Humanitarian and compassionate (“H&C”) applications are generally applied for from within Canadaunder section 25(1) of the IRPA, but they can also be applied for from abroad.
This is a highly discretionary category, and generally only exceptional circumstances will result in an H&C exception. The Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61 established a broad and comprehensive assessment of all the applicants’ circumstances in a H&C application. The former test, which considers whether the foreign national would face “undue, undeserved, or disproportionate hardship” if they were forced to return to their country of habitual residence or citizenship, does not create three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). Accordingly, officers should not look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of "unusual and undeserved or disproportionate hardship" in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.
Factors to be looked at include level of establishment of the person in Canada, family ties in Canada, the best interests of any children involved, and what could happen if the request is not granted. There are other rules applicable to the application, please review the IRCC website for more information.
NOTE: In 2010, s 25 of the IRPA was amended, such that “... the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin.
Subsection 25(1.3) applies only to H&C applications made in Canada. Personal risks faced by the claimant that are relevant to a Convention refugee determination can no longer be considered in deciding an H&C application. However, “hardship” must still be considered—see IRPA s. 25(1.3). Thus, discrimination in the foreign national’s country of origin that does not constitute persecution may still properly be considered by the Minister in determining whether the foreign national would experience undue, undeserved or disproportionate hardship.
NOTE: Refugee claimants are prohibited from having concurrent H&C applications. Those who have had their claim denied will be subject to a 1-year bar on submission of an H&C application. There are some exceptions to the bar. The bar does not apply if:
- you have children under 18 who would be adversely affected if you were removed from Canada, or
- you have proof that you or one of your dependents suffers from a life-threatening medical condition that cannot be treated in your home country.
Unlike applications made under a Pre-Removal Risk Assessment, a person who applies under H&C considerations may be removed from Canada before the decision on the application is made.
D. Family Class Applicants
Foreign nationals can be “sponsored” under the Family Class by a Canadian citizen or permanent resident. Please see the IRP Regulations, Part 7.
Foreign nationals must declare any of their non accompanying family members (i.e. dependent children, spouses, and parents) in their initial application if they wish, at some point to sponsor these individuals themselves. An individual generally cannot sponsor a family member if if they failed to declare that family member in their application for permanent residence. However, a pilot project has been launched from September 9, 2019 to September 9, 2021 which will allow certain newcomers who failed to declare their family members to sponsor undeclared immediate family members. Consult the IRCC website for the latest details on this pilot project, which presently applies only to individuals who became permanent residents under the Convention refugee and Family Classes and who are applying to sponsor undeclared family members.
The sponsor must meet certain eligibility requirements. For example, the sponsor must be at least 18 years old, must reside primarily in Canada, must not be bankrupt or receiving provincial welfare benefits, must not be in default of a previous immigration undertaking, etc. (see ss. 130 - 137 of the IRP Regulations for the requirements).
The requirement to reside in Canada only applies to permanent resident applications. Canadian citizen sponsors may reside outside of Canada when they submit the sponsorship, but must demonstrate their intention to return to Canada when the sponsored person becomes a permanent resident (see IRP Regulations 130(2)).
In some circumstances, the sponsor must prove he or she earns a specific amount of money, depending on his or her family size and the city he or she is living in. The definition of “minimum necessary income” can be found in s.2 of the IRP Regulations. This is also known as the “low-income cut-off” figure (“LICO”). Generally speaking, the LICO does not apply to sponsors who are just sponsoring their spouse or children (IRP Regulations s. 133(4)).
2. Members of the Family Class
The family class is the group of family members that can be sponsored to immigrate to Canada. Family members who are not included in IRP Regulation s. 117(1) cannot be sponsored. Below is a list of members of the family class: a) Spouse, common-law partner or conjugal partner, b) Dependent child, c) Parents or grandparents, d) Brother, sister, niece, nephew, or grandchild who is an orphaned child under 22 and is not a spouse or common-law partner, or e) Relative of any age if the sponsor does not have an aunt, uncle, or family member from the list above who he or she could sponsor or who is already a Canadian citizen, registered Indian, or permanent resident. This is known as the “lonely Canadian” provision. A dependent child is defined as a child, both biological and adopted, of the sponsor or sponsor’s spouse who is below the age of 22. Exceptions can be made for children who are above the age of 22 but are substantially dependent on their parent due to a mental or physical condition (IRPA s. 1).
NOTE: There is a new requirement that sponsors meet an increased income level for sponsoring parents or grandparents.
NOTE: A major issue that arises in many spousal sponsorship applications is whether the marriage is genuine. Under IRP Regulations, s. 4, a foreign national will not be considered a spouse if the marriage is not genuine or was entered into primarily for the purposes of acquiring any status or privilege under the Act. Applicants must prove that their marriage is valid, both in Canada, and in the country in which it took place (IRP Regulations, s. 2). While an arranged marriage is not inherently less credible, prior acquaintance to the marriage can pose some evidentiary challenges.
To sponsor a family class member, a potential sponsor must fill out an application to sponsor, and the relative being sponsored must fill out an application for permanent residence. The sponsor must also provide a signed undertaking with the federal government that he or she will support the prospective immigrant and accompanying dependents, if necessary, for three years if the applicant is a spouse or conjugal/common-law partner, or ten years for most other categories of applicants (see IRP Regulations, Part 7, Division 3). If an application for sponsorship under the Family Class is refused, the sponsor may (in most cases) appeal the refusal to the Immigration Appeal Division.
E. “In-Canada” Spouses, Common-law Partners, and their dependents (Spouse or Common-Law Partner in Canada Class)
The statutory “in-Canada” family class sponsorship provisions are outlined under ss. 123 - 125 of the IRP Regulations. The requirements from the sponsor are generally the same, but the Class of persons able to be sponsored through this route is limited to spouses, common-law partners, and the children or grandchildren of those persons. The entire application is processed inside Canada, and the applicants are generally landed at an IRCC office in Canada. It is important to note that, aside from the question of the genuineness of the relationship, in-Canada applications are only successful if the sponsored person resides in Canada with the sponsor.
Out of status spouses in Canada – Public Policy
A Canadian citizen or permanent resident can sponsor a spouse regardless of the spouse’s status in Canada under a special public policy directive relating to out-of-status applicants. After the sponsored spouse (applicant) receives first stage approval of their application (that is, approval in principle), they are entitled to an Open Work Permit under IRP Regulations s. 207. This means the applicant is entitled to work in Canada in any capacity; in other words, unlike most temporary foreign workers, this work permit is not tied to a particular form of employment with a particular employer.
NOTE: An applicant will generally be granted a sixty (60) day period in which IRCC should determine whether the relationship is genuine if the applicant is out of status and there is a removal order. If it is determined that the relationship is genuine then the removal order will be stayed.
It is important to understand that foreign nationals without status can apply under this class only if the foreign national:
a) Has overstayed a visa, visitor record, work permit or study permit, b) Has worked or studied in Canada without authorization under the IRPA, c) Has entered Canada without the required visa or other document required under the IRP Regulations and/or, d) Has entered Canada without a valid passport or travel document (provided valid documents are acquired by the time IRCC seeks to grant permanent resident status).
Consequently, foreign nationals who are inadmissible to Canada, entered Canada without permission after having been deported, and foreign nationals who have misrepresented themselves are not permitted to apply under this class. Always look to the most recent version of this policy.
NOTE: Under “in-Canada” classes, there is no appeal to the Immigration Appeal Division of a failed sponsorship. The only redress is to file a new application, file an overseas family class application, or if possible, to file for judicial review of the refusal.
NOTE: IRCC will issue spousal open work permits to certain spouse or common-law partner in Canada class applicants at the initial stage of processing. Please note the spousal open work permit is a pilot program that has been extended to July 31, 2020. We are still waiting for confirmation from IRCC on whether or not the spousal open work permit pilot will be further extended.
F. Convention Refugees (the Process)
The Refugee Protection Division (“RPD”) assesses foreign nationals who apply for Convention refugee protection or “protected persons” status.
The definition of a Convention refugee is found at s 96 of the IRPA. Generally, the person must:
- a) Have a well-founded fear of persecution,
- b) The fear must be objective and subjective,
- c) The fear must be linked to a Convention ground (i.e. race, nationality, religion, political opinion or membership in a particular social group),
- d) There must be no Internal Flight Alternative, i.e. a place in the country of feared persecution where the person can reasonably live safely,
- e) There must be no state involvement or state complicity, and
- f) The state must be unable or unwilling to protect.
If a person has more than one place of citizenship, they must have exhausted options in both of their countries of citizenship (see Canada v Ward  2 SCR 689). This is not an exhaustive list; refer directly to the IRPA, ss. 95 to 111.
The IRB Chairperson has issued special interpretation guidelines for determining Convention refugee claims of women refugees. Individuals should review these “Gender Guidelines” when assisting women refugee claimants. The Gender Guidelines can be found on the IRB’s website, www.irb-cisr.gc.ca, under the heading “Legal and Policy References.”
NOTE: A “person in need of protection” has a different definition, outlined under s 97 of the IRPA. Review the Convention Refugee and Protected Persons classes in the IRPA carefully if dealing with such a case. The Refugee Protection Division has the jurisdiction to consider both ss. 96 and 97 of the IRPA.
Significant changes to the refugee determination process have been implemented over the last several years by the Balanced Refugee Reform Act, SC 2010, c 8 (BRRA), and, the Protecting Canada’s Immigration System Act, SC 2012, c 17.
- People who make a refugee claim at an office in Canada must submit their completed Basis of Claim form (“BOC”) during their eligibility interview. Those who make a refugee claim at a port-of-entry must submit their BOC to the IRB no later than 15 days after referral of their claim to the IRB.
- Hearings at the independent Immigration and Refugee Board of Canada (“IRB”) will be conducted by public servant decision-makers rather than people appointed by the Governor in Council (“GIC”)
In general, refugee claimants have an initial intake interview with an officer, followed by a hearing with a public servant. Due to the increased volume of claims, the RPD has moved to a “first-in, first out” model where claims are heard in the order they are referred. If the claimant fails, they will have 15 days to make an appeal to the Refugee Appeal Division (“RAD”). Claimants whose claims are decided by the IRB to be “manifestly unfounded” or have “no credible basis,” designated foreign nationals, and those falling under an exception to the Safe Third Country agreement have no right of appeal to RAD but may be able to file for Judicial Review in the Federal Court.
Please note that the timelines for BOC, Hearings, Document Disclosure and Postponement Requests are different for Inland claimants and Port-of-Entry claimants.
Any person midway through the application process should consult the IRCC website for the latest information.
A foreign national generally requests Convention refugee protection at the Port-of-Entry upon arrival, i.e. at the airport, land border or sea border. However, if a foreign national wishes to make a Convention refugee claim after being admitted into Canada, the person should go to the Immigration, Refugees and Citizenship Office at 1148 Hornby Street, Vancouver, British Columbia and enter a claim for protection. The first step is the eligibility interview.
Once a foreign national makes a claim for protection, an immigration officer will interview him or her and determine if the person is eligible to make a claim. There are several classes of ineligible people listed at s. 101 of the IRPA. For example, if a foreign national has previously made a Convention refugee claim in Canada, and the claim was accepted, refused, withdrawn or abandoned, that person is “ineligible” to make another claim. If a foreign national is determined “ineligible,” the process stops.
At the eligibility interview, the interviewing immigration officer will obtain the detailed reasons why the foreign national fears persecution. A foreign national should be prepared to accurately outline the details of his or her account of events leading to the claim for protection.
Important changes to the eligibility rules for refugee claimants were introduced in 2019. Anyone who has made a refugee claim previously in a country with which Canada has an information-sharing agreement (US, UK, Australia, and New Zealand) are now ineligible to make a refugee claim in Canada. Instead, these individuals will receive only a Pre-Removal Risk Assessment (“PRRA”). We recommend that claimants in this situation consult with a lawyer as soon as possible to understand their options.
3. Basis of Claim Form (“BOC”)
Once a foreign national is determined to be eligible to submit a Convention refugee claim, the foreign national will be given a Conditional Departure Order. This is a removal order that only comes into effect if the person loses the claim for protection. The foreign national is now a Convention refugee claimant. The claimant will have 15 days to file the BOC. This is the most important obligation on a Convention refugee claimant, apart from attending their hearing.
Claimants will require help in preparing their BOC. In the BOC, a claimant must outline the precise reason(s) for their well-founded fear of persecution. This includes a narrative outlining the dates, incidents of persecution, why they are afraid, etc. The BOC should include facts that support the claimant’s fear, and that address the requirements set out in the IRPA. For example, the BOC should address why the claimant has no internal flight alternative, how the state is involved or complicit in the persecution, etc. This account of events will form the basis of the request for protection at the hearing.
4. Refugee Hearing
The Convention refugee claimant will be scheduled for an oral hearing to assess their claim. This hearing is not open to the public. The Presiding Member will question the claimant regarding the BOC. The Minister may also intervene in the hearing and a Hearings Officer may question the claimant if they allege the claimant should be excluded from refugee protection under IRPA s. 98 or if they have concerns about the claimant’s credibility.
Note that if the claimant wishes to rely on documents, he or she must file or serve those documents not less than 10 days before the hearing. If the Minister intervenes, they must also be served within the same time frame. If there are documents in other languages, they must be translated (Rule 28).
Claimants may represent themselves at the hearing or be represented by counsel. Representation by counsel is always preferable. Interpreters are provided if required. Claimants may request that a family member or friend be present at the hearing for emotional support.
NOTE: Claimants (and their counsel) must be very familiar with the content of their BOC before the hearing. Claimants must be prepared to elaborate on the details outlined in the BOC. A decision maker may interpret inconsistencies with the facts as stated in the BOC as weakening the claimant’s credibility.
5. Refugee Appeal Division
The Refugee Appeal Division (“RAD”) considers appeals against decisions of the Refugee Protection Division (“RPD”) to allow or reject claims for refugee protection. In most cases there will be no hearing, as the RAD will base its decision on the documents provided by the parties involved and the RPD record.
a) Appealing the RPD’s decision to the RAD
For appeals of a decision of the RPD to the RAD, the following information may be helpful:
- There are only 15 days to file a Notice of Appeal after receiving the written reasons for the decision from the RPD,
- After a claimant receives the written reasons from the RPD decision, the claimant has 30 days to file an Appellant's Record,
For a detailed compilation of necessary steps and information for a claimant’s appeal, please refer to the Appellant’s Guide and Kit.
b) Responding to the Minister’s Appeal of the RPD’s Decision
The Minister can appeal the RPD’s decision to accept a claimant’s refugee claim subject to the following exceptions:
a) The claimant is a designated foreign national,
b) The claimant made their claim at a land border with the United States and the claim was referred to the RPD as an exception to the Safe Third Country Agreement, and/or
c) The claimant’s claim was referred to the RPD before the relevant provisions of the new system came into force.
When responding to the Minister’s appeal of their RPD decision to the RAD, the following should be considered:
1. A claimant will know the Minister is appealing the RPD decision when the Minister gives the claimant and the RAD a document called a ‘notice of appeal’. The Minister has 15 days after they have received the RPD’s written decision to take this action.
2. The Minister will then give the claimant any supporting documents that they will be submitting as evidence. The Minister has 30 days after receiving the RPD’s written reasons to take this action.
3. After this is done, the claimant will have to submit a “Notice of Intent to Respond” and provide the Minister and the RAD with a copy, no later than 15 days after the claimant receives the supporting document from the Minister.
For a detailed compilation of all necessary components when responding to an appeal, please refer to the Respondent’s Guide.
G. Pre-Removal Risk Assessment (“PRRA”)
A PRRA is a risk assessment application before removal of a foreign national from Canada. With some exceptions and some restrictions (see ss. 112(2) and 112(3) of the IRPA), every person who is being removed from Canada can submit a paper application describing why they would suffer persecution or danger in the country of destination if returned to that country. The risk(s) are assessed under ss. 96 and 97 of the IRPA. However, very few applications succeed under the PRRA process.
NOTE: Under the IRPA those claimants who have a failed or abandoned refugee claim will generally be ineligible to make a PRRA claim for 12 months after the judicial review decision.
Once a claimant has received a removal order and has been given notification, he or she has 15 days to apply for a PRRA and another 15 days to make submissions and include documentary evidence. If the person is a failed Convention refugee claimant, the evidence supporting the PRRA must be new or must have not reasonably been available on the date of the hearing; in other words, only “new evidence” is considered.
Once a person has applied for a PRRA, the person cannot be removed from Canada until a decision is made regarding their case. This is called a “stay of removal”.
A person who has been given notice of removal can apply for the PRRA later than the 15-day deadline. However, that person could be removed from Canada before the decision is made (i.e. no stay of removal is issued).
A person who loses the PRRA will be removed. The only redress to a PRRA refusal is to apply for leave and appeal to the Federal Court. The deadline to apply for leave to the Federal Court is 15 days. In such cases, the claimant should contact a lawyer immediately.
2. Status Conferred
If the PRRA is granted, the person will receive the same protection as a Convention refugee. The person will be considered a “protected person” and can apply for permanent resident status from within Canada.
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