1 Introduction

I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
II. Immigration Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. The Management of Immigration and Citizenship Programs . . . . . .
IV. Sources of Immigration, Refugee, and Citizenship Law . . . . . . . . . . .
A. The Immigration and Refugee Protection Act
4
7
8
11

and Regulations: Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

B. Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. The Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
D. The Citizenship Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
V. Interpretation Tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
A. Immigration Regulations and Ministerial Instructions . . . . . . 18
B. Citizenship Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
C. Policy Instruments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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4   Part I The Fundamentals of Immigration and Refugee Law

I. Introduction
Canada is a country with a highly developed social support system, a diverse popula-
tion, and incredible natural resources. As a result, it is a highly attractive destination
for people from around the world.
Over the past decade, Canada has granted permanent resident status to approxi-
mately 300,000 to 340,000 people per year and anticipates granting permanent resi-
dent status to approximately 475,000 people in 2024.1
What has now become undeniable is the reality that a globalized economy goes
beyond the exchange of goods, technologies, and services across international bor-
ders; it can be illustrated by the rise in the movement of people—individuals with
specific technical skills, financial assets ready to be invested, and various cultural
backgrounds to add to Canada’s social fabric. It is also anticipated that the movement
of so many people will assist with getting access to untapped markets throughout
the world.
Canada, with its long history of managed immigration, is probably one of the most
successful modern economies that is taking advantage of the potential in foreign
human capital. Aided by a reputation for a high standard of living, cities that are rec-
ognized to be some of the best urban areas to live in the world, and an international
reputation for its tolerant approach to newcomers,2 Canada is perceived as a destina-
tion of choice for those seeking new opportunities for themselves and their families.3
While the overall total number of immigrants to Canada has increased over the
last 40 years, its composition has also changed in a significant manner. Whereas the
reunification of family members was seen as a cornerstone of Canadian immigration
policy in the mid-1980s, young economic migrants now represent the major category.4

1 Immigration, Refugees and Citizenship Canada (IRCC), “Immigration, Refugees and Citizen-
ship Canada Departmental Plan 2022 – 2023” (last modified 3 March 2022), online: Govern-
ment of Canada <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/
publications-manuals/departmental-plan­-2022-2023/departmental-plan.html>; IRCC, “2022
Annual Report to Parliament on Immigration” (last modified 8 November 2022), online: Gov-
ernment of Canada <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/
publications-manuals/annual-report-parliament-immigration-2022.html>.
2 Organisation for Economic Co-operation and Development (OECD), Society at a Glance, 2011:
OECD Social Indicators (Paris: OECD, 2011) at 98, online (pdf ): <https://www.oecd-ilibrary​
.org/docserver/soc_glance-2011-en.pdf?expires=1679343145&id=id&accname=guest&check
sum=FA8B529CA19BD17A9A8290F9CC6160D7>.
3 OECD, “How Do OECD Countries Compare in Their Attractiveness for Talented Migrants?”
Migration and Policy Debates, No 19 (Paris: OECD, 2019), online (pdf ): <https://www.oecd​
.org/els/mig/migration-policy-debates-19.pdf>. See also Amelia Cheatham, “What Is Cana-
da’s Immigration Policy?” (last updated 7 March 2023), online: Council on Foreign Relations
<https://www.cfr.org/backgrounder/what-canadas-immigration-policy>.
4 In 1985, 41 percent of newcomers were in the family class category, while 31 percent were in
the economic category.

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 Chapter 1 Introduction  5

Immigration has moved from a simple demographic tool to an important component

of the country’s economic engine.
In addition to an increase in numbers, the immigration process itself has become
extremely complex. The roles and responsibilities of the provinces and territories,
which were negligible in the early 1990s, have now become a significant part of the
immigration equation. For example, now the targets for annual immigration levels are
determined after lengthy discussions between federal authorities and provincial and
territorial authorities.
The advent of community-driven immigration programs further adds to the
already complex immigration landscape. The Yukon Community Pilot, the Rural and
Northern Immigration Pilot, and the Morden [Manitoba] Community Driven Immi-
gration Initiative each have their own eligibility requirements and were specifically
designed to attract economic immigrants to communities outside of the larger metro-
politan cities.
The criteria and definitions found within the various categories can, in some
instances, appear complicated and are often subject to interpretation. The number of
cases argued in front of the courts based on a divergent understanding of the legisla-
tion demonstrates how intricate the rules have become.
Two programs that best exemplify this complexity is the Express Entry (EE)
process and Provincial Nominee Program (PNP), which encourage individuals to
“work” toward permanent resident status in Canada. The government has made a
clear shift toward encouraging individuals to “earn” permanent resident status in
Canada.
Historically, as a subset of the economic migrant class, the Business Immigration
Program comprised three main categories: entrepreneur, self-employed, and investor.
At present, only the self-employed category is operational at the federal level, but
many provinces have an entrepreneur category.
While the Immigration Act 5 of 1976 enshrined Canada’s commitment to members
of the family class and the fulfillment of Canada’s international obligations (i.e., refu-
gees), the overall objectives of the legislation were achieved for the first time through
the monitoring of Canada’s annual immigration levels. This also meant that the gov-
ernment could finally use immigration as a way to respond to Canada’s economic needs
(i.e., to increase levels of immigration in certain categories and reduce it in others).
Amendments to the Immigration Act in 1983 and 1986 saw the introduction of the
entrepreneur and investor categories, respectively. Individuals in both of these cat-
egories would be selected on the basis of their business experience, but those applying
through the investor category would be required only to invest a significant amount of
capital for a fixed period of time, without the requirement to actively manage a busi-
ness in Canada. Investors wanted a “management-free” approach to their investment,

5 SC 1976-77, c 52, s 1.

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6   Part I The Fundamentals of Immigration and Refugee Law

unlike those in the entrepreneur category, who would receive permanent resident
status on the condition that they establish a viable business venture in Canada after
immigrating.
In June 2002, the Immigration and Refugee Protection Act6 came into effect and
replaced the Immigration Act of 1976. The new legislation was introduced in the
spring/summer of 2001, prior to the horrific events of September 11, but came into
effect in June 2002. The new legislation aimed to close up the “holes” in the immi-
gration system by providing specific definitions that outlined what was being included
in the new legislation while attempting to balance Canada’s economic needs with its
humanitarian and compassionate reputation.
In addition, a reading of the objectives of the IRPA reveals that the economic
benefits of immigration and the support it provides to the development of a strong
economy had become a cornerstone of Canadian immigration policy.7 Important
amendments were made to the definitions of independent applicants and criteria per-
taining to the business category. Moreover, the provinces and territories began to play
larger, more enticing roles to boost immigration and support their local economies.
The creation of ministerial instructions (MIs) has challenged the way Canadian
immigration practitioners perceive, interpret, and apply the law and policy. The IRPA
granted the minister of immigration, refugees, and citizenship the authority to cre-
ate MIs,8 which had to be followed despite not having been vetted and approved by
Parliament. The MIs were more than policy, but less than law.
The first set of MIs was issued in November 2008, and ever since, this mechanism
has significantly changed the way immigration files are selected and processed. The
MIs allow the minister to unilaterally alter the processing of immigration files.
What has not changed over the years is the complexity of the legislative and regu-
latory language; definitions and requirements are increasingly complex, particularly
to the uninitiated. Although Immigration, Refugees and Citizenship Canada (IRCC;
formerly known as Citizenship and Immigration Canada [CIC]) offers the vast ma-
jority of the information online for free, specific information can be challenging to
locate and is often a “patchwork” of several documents.9 In addition to the IRPA and
its regulations, there are manuals, instruction guides, policy papers, bilateral agree-
ments, MIs, online Q&As, and operational bulletins, all of which are aimed at guiding

6 SC 2001, c 27 [IRPA].
7 See IRPA, s 3.
8 IRPA, s 14.1.
9 For example, there used to be a Foreign Worker Manual—FW 1 (which had everything in
one PDF document), but now there are multiple website pages, operational bulletins, MIs,
and program delivery instructions. Therefore, an applicant should review all these sources
to ensure they qualify. See IRCC, “Operational Instructions and Guidelines” (last modified
7 October 2022), online: Government of Canada <https://www.canada.ca/en/immigration​
-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html>.

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 Chapter 1 Introduction  7

officers in their decision-making. Making these documents publicly available has the
added benefit of assisting practitioners and self-representing prospective immigrants
to Canada in understanding the decision-making process.
Consideration should also be given to the pertinent body of case law that exists.
The Federal Court, the Federal Court of Appeal, and the Supreme Court of Canada
have also rendered decisions that have affected immigration processes and the inter-
pretation of the legislation.
All of the above-noted information should be considered in light of the fact that ir-
respective of the immigration category or stream under which a person has submitted
an application, the onus is always on the person applying (“the applicant”) to clearly
demonstrate that they meet all of the requirements. This is a critical factor, as all too
often individuals do not provide enough of the required documentation to clearly
demonstrate that they meet all of the necessary elements of the immigration category
under which they have applied and, thus, are refused.

II. Immigration Overview

Generally, an individual’s status in Canada falls into one of four categories: temporary
resident, permanent resident, Convention refugee/protected person, or citizen. Each
status possesses its own set of laws, policies, and procedures.
The various immigration processes are divided into two broad categories: tem-
porary resident status and permanent resident status.
Briefly, temporary resident status may be granted to a foreign national who would
like to visit, work, or study in Canada for a limited time. In comparison, a foreign
national who wishes to remain in Canada permanently must submit an application
for permanent resident status through one of the numerous immigration process-
ing streams, such as EE, a PNP, refugee/humanitarian classes, or the family class.
Once the application has been approved by IRCC, the foreign national is then granted
permanent resident status and may live in Canada indefinitely.
It is important to note that a foreign national must, while in Canada, maintain valid
temporary resident status, even if their application requesting permanent resident
status is being processed by IRCC.
To gain admission to Canada as a temporary resident, a foreign national must sub-
mit an application to IRCC for processing unless they are from a visa-exempt country.
A foreign national who is a citizen of a visa-exempt country can submit a request for
entry at the border, although there are exceptions to this general rule (see Chapter 4,
Temporary Resident Status: Introduction, Visitors, and Temporary Resident Permits).
Foreign nationals who arrive at the border without the proper authorizations in
hand may be removed immediately from Canada or may be required to appear before
the Immigration and Refugee Board of Canada (IRB; see Chapter 14, Immigration
Hearings and Detention) unless they arrive in search of protection and make a refugee
claim (see Chapter 11, Refugees and Protected Persons).

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8   Part I The Fundamentals of Immigration and Refugee Law

Navigating through the temporary resident process can be extraordinarily difficult,

especially with the establishment of the Electronic Travel Authorization requirement,
biometric data collection, the use of visa application centres, and changes effected
by MIs.
The permanent resident process has also become quite complex. For example,
Canada’s EE system is an online administrative process that allows the government
of Canada to manage and invite foreign nationals to proceed through the immigration
process. Through this channel, foreign nationals are required to submit an online
profile and are awarded “points” for meeting the various criteria. The government
will then invite applicants who have the requisite number of points to proceed to the
application phase.
An argument can be made that this administrative process changes the legal
requirements for obtaining permanent resident status through one of IRCC’s pro-
grams (Canadian Experience Class, Federal Skilled Worker Program, etc.), because
a foreign national is prohibited from submitting an application unless they have first
been selected through the EE system.
The rights of permanent residents to enter and remain in Canada are determined
solely by the IRPA and the Immigration and Refugee Protection Regulations.10 The legis-
lation provides that, under certain conditions, a permanent resident may lose that
status and be forced to leave Canada (see Chapter 6, Permanent Resident Status:
Introduction and Residency Requirements).
Once a permanent resident has accumulated enough physical presence in Canada,
they may submit an application for Canadian citizenship. Historically, Canadian cit-
izenship was irrevocable; however, it is possible—in very limited circumstances—for
an individual to lose Canadian citizenship (see Chapter 10, Citizenship).11
This book examines the laws, case law, policies, and processes involved in obtain-
ing the various types of status in Canada and provides guidance on how to success-
fully manoeuvre through the system.

III. The Management of Immigration

and Citizenship Programs
Canada’s immigration management scheme is created by the IRPA, which was passed
into law in 2001 and came into force on June 28, 2002, replacing the Immigration Act
of 1976. Although the minister of immigration, refugees, and citizenship is responsible

10 SOR/2002-227 [IRPR].
11 Since May 2015, the Strengthening Canadian Citizenship Act, SC 2014, c 22 has permitted cit-
izenship to be revoked. It was partially repealed by the Liberal government. In June 2017, Bill
C-6 received royal assent and this provision was amended to ensure that the Federal Court
became the decision-maker in citizenship revocation cases, unless the applicant requests that
the minister render the decision.

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 Chapter 1 Introduction  9

for the overall administration of the Act, two other ministers have significant respon-
sibilities under the IRPA: the minister of public safety (the PS minister)12 and the
minister of employment and social development (the ESDC minister).
The PS minister is responsible for the administration of the following:13
• examinations at ports of entry;
• the enforcement of the IRPA, including arrest, detention, and removal;
• the establishment of policies respecting the enforcement of the IRPA and inad-
missibility on grounds of security, organized criminality, or violating human or
international rights; and
• declarations referred to in section 42.1 (known as “ministerial relief”).
These goals are achieved through the Canada Border Services Agency (CBSA), which
was created in 2003;14 the president of the CBSA reports directly to the PS minister.
The ESDC minister is responsible for making regulations that pertain to the
following:15
• conditions that may be imposed on individuals by class, employers, and/or edu-
cational institutions in respect of permanent residents and foreign nationals;
• the power to inspect and verify employer compliance; and
• the consequences of non-compliance or contravention by an employer.
Service Canada is the section of Employment and Social Development Canada
that is responsible for the delivery and review of employer approvals and compliance.
Understanding the division and delegation of responsibilities under the IRPA is
essential to the practice of immigration law. It is important to ensure that the appro-
priate government official does in fact have the authority to render a determination
given in a case, or the decision can be overturned. In the Instrument of Designation
and Delegation,16 the minister clearly outlines the authority associated with various
sections of the IRPA and the government official or office responsible for each sec-
tion. The CBSA document “Designation and Delegation by the Minister of Public

12 IRPA, s 4; public safety was previously administered by a single minister of public safety and
emergency preparedness, but the role was split in October 2021. See Matt Horwood, “Split-
ting Public Safety, Emergency Preparedness Post a Sign Future Disasters Are ‘Top of Mind’
for Feds,” Hill Times (9 November 2021), online: <https://www.hilltimes.com/2021/11/09/
splitting-public-safety-emergency-preparedness-post-a-sign-future-disasters-are-top-of-mind​
-for-feds/327610>.
13 IRPA, s 4(2).
14 Canada Border Services Agency Act, SC 2005, c 38 (assented to 3 November 2005).
15 IRPA, ss 32(d.1)-(d.4).
16 IRCC, Instrument of Designation and Delegation: Immigration and Refugee Protection Act and
Regulations (Ottawa: IRCC, 2021), online (pdf ): Government of Canada <https://www.canada​
.ca/content/dam/ircc/migration/ircc/english/resources/manuals/il/il3-eng.pdf>.

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10   Part I The Fundamentals of Immigration and Refugee Law

Safety and Emergency Preparedness Under the Immigration and Refugee Protection
Act and the Immigration and Refugee Protection Regulations”17 outlines the CBSA
officer or office authorized to perform the various duties and functions.
Canada’s immigration program is managed by several government departments
that work together to achieve the goals and objectives of the legislation. In compari-
son, Canada’s citizenship program is managed solely by the minister through IRCC.
As mentioned, with immigration and citizenship law, a variety of government
departments and officials enter the process at different stages. Therefore, it is im-
portant to ensure that officers render decisions within the scope of their authority and
that applicant files are processed efficiently in accordance with the law.
To effectively manage Canada’s immigration processes, IRCC implemented the
Global Case Management System (GCMS). The GCMS is an “integrated and world-
wide [computer] system used internally to process applications for citizenship and
immigration services.”18
Prior to the existence of the GCMS system, the various departments had com-
pletely separate computer systems; interestingly, IRCC had two separate systems: the
Computer Assisted Immigration Processing System (CAIPS) and the Field Opera-
tional Support System (FOSS). CAIPS was the computer system that visa offices
outside Canada would use to manage immigration applications, and FOSS was the
operational support system used within Canada.
By combining the two computer systems into one global system and allowing other
departments access, IRCC has advised that it improved program integrity, increased
overall efficiency, and offered better service delivery.19 For example, the GCMS
allows for the verification of biometric data at the border, tracks the travel patterns of
foreign nationals, allows officers to cross-reference the data from historical applica-
tions, and can trigger examinations into potential abuses.

17 (Last modified 24 January 2018), online: Government of Canada <https://www.cbsa-asfc.gc​

.ca/agency-agence/actreg-loireg/delegation/irpa-lipr-2016-07-eng.html>. See also CBSA,
“Amendments to the Delegation of the Powers, Duties, and Functions of the President of
the CBSA and Designation of Officers Under the Customs Act” (last modified 8 May 2021),
online: Government of Canada <https://www.cbsa-asfc.gc.ca/agency-agence/actreg-loireg/
delegation/custom_douane2021-04-27-eng.html>.
18 “Privacy Impact Assessment Summary—Global Case Management System (GCMS)—Phase
II” (last modified 10 February 2012) at para 1, online: Government of Canada <https://www​
.canada.ca/en/immigration-refugees-citizenship/corporate/transparency/access-information​
-privacy/privacy-impact-assessment/global-case-management-system-2.html>.
19 “Status Report on Major Crown/Transformational Projects” (last modified 8 November
2012), online: Government of Canada <https://www.canada.ca/en/immigration-refugees​
-citizenship/corporate/publications-manuals/departmental-performance-reports/2012/
section-8.html>.

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 Chapter 1 Introduction  11

Technological advancements will continue to affect the management of Canada’s

immigration processes and will continue to be an organizational priority for IRCC, as
stated in the developmental plan for IRCC for 2022 – 23.20
In line with this approach, the government introduced and passed Bill C-21, An Act
to Amend the Customs Act,21 which permits the CBSA to collect personal biographic
data on individuals who are departing Canada and authorizes the disclosure of the
information to other government departments and partners.

IV. Sources of Immigration, Refugee,

and Citizenship Law
Immigration in Canada is governed by both domestic law and international law.
Domestic law governing immigration includes the Constitution (which includes the
Canadian Charter of Rights and Freedoms22), the Canadian Bill of Rights,23 federal and
provincial statutes and regulations, and case law. The primary sources of immigration
law are the federal IRPA, the IRPR under that statute, and case law interpreting the
statute and regulations. The federal – provincial agreements that govern immigration
to a particular province are also considered domestic law. The Citizenship Act24 is an-
other important federal statute, as it sets out the procedures for obtaining Canadian
citizenship.
International law includes multinational treaties and conventions. Canada has
signed and ratified a number of international agreements that affect our immigration
rules—for example, the 1951 United Nations Convention Relating to the Status of Refu-
gees25 and the accompanying 1967 Protocol Relating to the Status of Refugees,26 as well
as the Convention on Protection of Children and Co-operation in Respect of Intercountry

20 IRCC, “Immigration, Refugees and Citizenship Canada, Departmental Plan, 2022 – 2023”
(last modified 20 June 2023), online: Government of Canada <https://www.canada.ca/en/
immigration-refugees-citizenship/corporate/publications-manuals/departmental-plan-2022​
-2023/departmental-plan.html>.
21 CBSA, News Release, “Royal Assent of Bill C-21 Strengthens Border Management” (14 De-
cember 2018), online: Government of Canada <https://www.canada.ca/en/border-services​
-agency/news/2018/12/royal-assent-of-bill-c-21-strengthens-border-management.html>.
22 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter].
23 SC 1960, c 44.
24 RSC 1985, c C-29.
25 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954), online (pdf ): United Nations
<https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.23_
convention%20refugees.pdf>.
26 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967), online (pdf ): United
Nations <https://www.ohchr.org/Documents/ProfessionalInterest/protocolrefugees.pdf>.

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12   Part I The Fundamentals of Immigration and Refugee Law

Adoption.27 By ratifying and implementing these agreements, Canada has committed

to structuring our domestic law in a manner that is consistent with the legislative
models in other like-minded countries.
Some of these treaties are multilateral, involving many countries. Others relate to a
few specific countries—for example, the Canada – United States – Mexico Agreement
(CUSMA; formerly known as NAFTA), which contains specific provisions to facili-
tate temporary business entry among Canada, the United States, and Mexico.
Section 7 of the IRPA grants the minister of immigration, refugees, and citizenship
Canada the power to enter into agreements with other countries or with certain inter-
national organizations. These agreements must be approved by the federal Cabinet
(they are tabled in the House of Commons before ratification) and must be imple-
mented in a manner that is consistent with the purposes of the IRPA.

A. The Immigration and Refugee Protection Act

and Regulations: Overview
The IRPA came into force on June 28, 2002, replacing the Immigration Act of 1976. It
introduced new provisions designed to increase national security and public safety,
balanced with provisions intended to make it simpler for admissible persons to enter
Canada.
The IRPA provides a framework for the operation of Canada’s immigration and
refugee systems, setting out general rules and principles, rights and obligations of
permanent and temporary residents and protected persons, and key enforcement
provisions. The IRPR provide the details needed for its implementation and oper-
ation. The IRPA and IRPR change relatively frequently, and legal professionals are
encouraged to regularly review the IRCC website (<https://www.canada.ca/en/
immigration-refugees-citizenship.html>), the Justice Laws website (<https://laws​
.justice.gc.ca/eng>), and the Canada Gazette website (<www.gazette.gc.ca>) for the
most up-to-date information.

1. IRPA Objectives
The IRPA sets out separate objectives for the provisions regarding immigrants and
the provisions regarding refugees. The objectives offer important guidance to immi-
gration officers, the IRB, and the courts with respect to how the statute should be
applied and interpreted.

27 29 May 1993, 1870 UNTS 167 (entered into force 1 May 1995), online (pdf ): United Nations
<https://assets.hcch.net/docs/77e12f23-d3dc-4851-8f0b-050f71a16947.pdf>.

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 Chapter 1 Introduction  13

With respect to immigration, the objectives of the IRPA, set out in section 3(1),
can be summarized as follows:
• to maximize the social, cultural, and economic benefits of immigration;
• to enrich and strengthen the social and cultural fabric of Canadian society while
respecting the federal, bilingual, and multicultural character of Canada;
• to support and assist the development of minority official language commun-
ities in Canada;
• to support the development of a strong and prosperous Canadian economy in
which the benefits of immigration are shared across all regions of Canada;
• to reunite families in Canada;
• to integrate permanent residents into Canada, while recognizing mutual obliga-
tions for new immigrants and Canadian society;
• to support consistent standards and prompt processing;
• to facilitate the entry of visitors, students, and temporary workers for purposes
such as trade, commerce, tourism, international understanding, and cultural,
educational, and scientific activities;
• to protect the health and safety of Canadians and maintain the security of Cana-
dian society;
• to promote international justice and security by fostering respect for human
rights and by denying access to Canadian territory to persons who are criminals
or who pose security risks; and
• to cooperate with the provinces to better recognize the foreign credentials of
permanent residents.
With respect to refugees, the objectives of the IRPA, set out in section 3(2), can
be summarized as follows:
• to recognize that the priority of the IRPA is to save lives and protect displaced
and persecuted persons;
• to fulfill Canada’s international legal obligations with respect to refugees and
affirm its commitment to international efforts to assist with resettlement;
• to grant fair consideration to those who come to Canada claiming persecution;
• to offer a safe haven to persons with a well-founded fear of persecution based
on race, religion, nationality, political opinion, or membership in a particular
social group, as well as persons at risk of torture or cruel and unusual treatment
or punishment;
• to establish fair and efficient procedures that will maintain the integrity of the
Canadian refugee protection system, while upholding Canada’s respect for the
human rights and fundamental freedoms of all human beings;
• to support the self-sufficiency and the social and economic well-being of refu-
gees by facilitating reunification with their family members in Canada;

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14   Part I The Fundamentals of Immigration and Refugee Law

• to protect the health and safety of Canadians and maintain the security of Cana-
dian society; and
• to promote international justice and security by denying access to Canadian
territory to persons, including refugee claimants, who are security risks or ser-
ious criminals.
The IRPA also contains a provision (s 3(3)) that directs all decision-makers to
interpret and apply the IRPA in a manner that:

(a) furthers the domestic and international interests of Canada;

(b) promotes accountability and transparency by enhancing public awareness of immi-
gration and refugee programs;
(c) facilitates cooperation between the Government of Canada, provincial governments,
foreign states, international organizations, and non-governmental organizations;
(d) ensures that decisions taken under this Act are consistent with the Canadian
­Charter of Rights and Freedoms, including its principles of equality and freedom from
­discrimination and the equality of English and French as the official languages of
Canada;
(e) supports the commitment of the Government of Canada to enhance the vitality of
the English and French linguistic minority communities in Canada; and
(f ) complies with international human rights instruments to which Canada is a
signatory.

2. The Immigration and Refugee Board

The structure and mandate of the IRB—a federal administrative tribunal—are cre-
ated by the IRPA. The IRB has four divisions: the Immigration Division, the Immi-
gration Appeal Division, the Refugee Protection Division, and the Refugee Appeal
Division. Within these divisions, members perform the following functions: hold
admissibility hearings to determine whether individuals may enter or remain in
Canada, hold detention reviews, hear and decide appeals on immigration matters
(such as sponsorship refusals, removal orders of permanent residents, and alleged
breaches of the permanent resident residency obligation), and decide refugee claims
made by individuals in Canada. The IRB’s decisions are usually subject to judicial
review by the Federal Court of Canada.

B. Policy
Immigration policies are an important source of guidance and direction. How the
law is applied in practice often evolves in response to government policy, especially
where the law leaves room for discretion in administrative decision-making. Immigra-
tion policies can also have a wide range of objectives, such as promoting fairness and
determining the areas to which the government should give priority.

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 Chapter 1 Introduction  15

IRCC publishes most immigration policies on its website in the form of operational
bulletins and program delivery instructions, the web-friendly format that outlines
operational guidance.

C. The Constitution
The Constitution Act, 1867 28 (formerly the British North America Act, 1867 29) is a
major part of Canada’s Constitution and formally created a federal dominion. It out-
lines the structure and defines the functions of the government of Canada, the House
of Commons, the Senate, and the justice system. It also sets out the division of pow-
ers between two levels of government—federal and provincial/territorial.
Interestingly, Canada’s Constitution and its original and defining source of law,
the British North America Act, 1867 and its amendments (statutes of the Parliament of
the United Kingdom), provided the framework for Canada’s democracy. However, it
permitted only the United Kingdom to make certain constitutional amendments. It
was not until the Canada Act, 1982,30 a British statute, that this changed and Canada’s
Parliament and legislatures were given the power to amend the Constitution with-
out any involvement of the British Parliament. The Canada Act, 1982 allowed for the
patriation of Canada’s Constitution, and Schedule B of the Canada Act, 1982 included
the text of the Constitution Act, 1982 in both English and French. A truly Canadian
constitution was created with the Constitution Act, 1982, which contains the Charter.

1. Section 95: Concurrent Powers of Legislation

With respect to agriculture and immigration, the Constitution Act, 1867 makes a spe-
cial provision for the division of powers. With respect to immigration, section 95
states the following:

In each Province the Legislature may make Laws in relation to Agriculture in the Prov-
ince, and to Immigration into the Province; and it is hereby declared that the Parliament
of Canada may from Time to Time make Laws in relation to Agriculture in all or any
of the Provinces, and to Immigration into all or any of the Provinces; and any Law of
the Legislature of a Province relative to Agriculture or to Immigration shall have effect
in and for the Province as long and as far only as it is not repugnant to any Act of the
Parliament of Canada.

Therefore, a province may make laws in relation to the immigration of people into the
province, provided that those laws are not inconsistent or in conflict with any federal
law. In the area of immigration, the two levels of government hold concurrent powers

28 30 & 31 Vict, c 3 (UK).

29 SS 1867, c 3.
30 1982, c 11.

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16   Part I The Fundamentals of Immigration and Refugee Law

of legislation. If there is a conflict between validly enacted federal and provincial legis-
lation, however, it is the federal legislation that prevails.
The IRPA includes various examples of provisions relating to the provinces and
to the sharing of power between federal and provincial levels of government with re-
spect to immigration:
• Section 3(1)(c) refers to the objective “to support the development of a strong
and prosperous Canadian economy, in which the benefits of immigration are
shared across all regions of Canada.”
• Section 3(1)(j) refers to the Act’s objective “to work in cooperation with the
provinces to secure better recognition of the foreign credentials of permanent
residents and their more rapid integration into society.”
• Section 8(1) states that the federal minister of immigration, refugees, and cit-
izenship “may enter into an agreement with the government of any province for
the purposes of this Act. The Minister must publish, once a year, a list of the
federal – provincial agreements that are in force.”
• Section 10(1) states that the minister “may consult with the governments of
the provinces on immigration and refugee protection policies and programs, in
order to facilitate cooperation and to take into consideration the effects that the
implementation of this Act may have on the provinces.”

a. Immigration Agreements
Section 8 of the IRPA provides that the minister, with the approval of the Cabinet,
may enter into agreements with the provinces and territories. Each province has one
or more such agreements in place, tailored to meet its specific economic, social, and
labour market needs and priorities. These agreements facilitate the exchange of infor-
mation between the federal government and the provinces during the development of
immigration programs and policies. For example, the Canada – Ontario Immigration
Agreement, first signed in 2005, provided that the federal government would transfer
$920 million to Ontario over five years to assist with the integration of new immigrants,
including language training. Some federal – provincial agreements are comprehensive
and provide details on a wide range of immigration matters. The memorandum of
understanding or immigration agreements that the federal government now has in
place with British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec,
Nova Scotia, Prince Edward Island, and Yukon are comprehensive in this way.
However, there are usually other, more detailed agreements31 that cover specific
subjects—for example, French-speaking immigrants or details pertaining to the

31 See e.g. the various Ontario – federal agreements and memorandums of understanding in
place at <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/
policies-operational-instructions-agreements/agreements/federal-provincial-territorial/
ontario.html>.

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 Chapter 1 Introduction  17

PNP,32 which are relevant to British Columbia, Alberta, Saskatchewan, Manitoba,

Ontario, New Brunswick, Prince Edward Island, Newfoundland and Labrador, the
Northwest Territories, Nova Scotia, and Yukon. The PNP allows a province or ter-
ritory to nominate people as immigrants if it believes that they will contribute to the
economic growth of the province or territory. Discussion of these provincial pro-
grams, each of which has its own criteria, is beyond the scope of this book.33
IRCC’s Annual Report to Parliament on Immigration is generally a good source to
check for information about current federal – provincial agreements. Counsel who
are interested in a specific federal – provincial agreement or immigration program are
advised to search that province’s website for specific information or to go to the IRCC
website and read the department’s latest annual report (<https://www.canada.ca/
en/immigration-refugees-citizenship/corporate/publications-manuals/annual-report​
-parliament-immigration-2022.html>).

b. Canada – Québec Accord

Canada and Quebec have had immigration agreements since 1971, the most recent
being the 1991 Canada – Québec Accord.34 From Quebec’s perspective, two objectives
are particularly important. Objective 2 states that, among other things, the Accord
strives to maintain “the preservation of Québec’s demographic importance within
Canada and the integration of immigrants to that province in a manner that respects
the distinct identity of Québec.” Objective 4 states that “Québec has the rights and
responsibilities set out in this Accord with respect to the number of immigrants des-
tined to Québec and the selection, reception and integration of those immigrants.”
Under the Accord, Quebec has the sole responsibility for the selection of perma-
nent residents who wish to settle in that province. This is unlike any other federal –
provincial immigration agreement. Immigrants who are destined for Quebec must
first apply to the province for approval. Individuals who are successfully selected
by Quebec are then referred to IRCC, whose officers review the file for inadmissi-
bility and ensure that the applicants continue to meet the necessary provincial cri-
teria throughout the federal aspect of processing up until the time of becoming a

32 Each province or territory calls the program by a different name. For the purpose of this book,
the various provincial and territorial programs will be generically referred to as a PNP, unless
otherwise indicated.
33 For more information, see IRCC, “Provincial Nominee Program: Who Can Apply” (last
modified 24 November 2022), online: Government of Canada <https://www.canada.ca/en/
immigration-refugees-citizenship/services/immigrate-canada/provincial-nominees/eligibility​
.html>.
34 IRCC, “Canada – Québec Accord Relating to Immigration and Temporary Admission of
Aliens” (5 February 1991), online: Government of Canada <http://www.cic.gc.ca/english/
department/laws-policy/agreements/quebec/can-que.asp>.

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18   Part I The Fundamentals of Immigration and Refugee Law

permanent resident. (The grounds of inadmissibility are discussed in Chapter 3,

Admissibility.)
The federal government remains responsible for setting annual targets for the
admission of all immigrants and visitors and for the administrative function of pro-
cessing applications and physical admission to Canada at ports of entry. Quebec may
impose additional selection criteria for immigrants to Quebec and is responsible for
integrating immigrants into the community.

2. The Canadian Charter of Rights and Freedoms

The Charter was designed to accomplish one of the most important constitutional
functions: to express the fundamental values and principles of our society. Canada
prides itself on being a free and democratic society that protects the welfare of its
members. The Charter reflects that objective and provides a mechanism to balance
individual freedoms with the need to protect society’s more vulnerable members.

D. The Citizenship Act

All the provisions of the current Citizenship Act came into full force and effect by
2018. The changes to this legislation have made it easier for a permanent resident
of Canada to obtain Canadian citizenship. Under the new legislation, applicants can
meet the “residency” requirement by being physically present in Canada for three
years within the five years prior to the date of application instead of the previously
required physical presence for four years out of five. Evidence of compliance with
income tax provisions continues to be a requirement; however, the applicant is no
longer required to demonstrate an intention to reside in Canada after citizenship has
been granted. Historically, all citizens share the same rights and privileges, such as the
right to vote and hold office, and all share the same obligations and duties. However,
Canadian citizenship can be revoked from individuals who have committed certain
acts against the state (e.g., terrorism or espionage) or who have obtained citizenship
fraudulently.
The Citizenship Act permits multiple citizenships, allowing Canadians to be cit-
izens of other countries as well as of Canada.
With a few exceptions, such as the children of diplomats, all persons born in
Canada are Canadian citizens (jus soli). In some instances, a child who is born out-
side Canada and who has at least one Canadian parent could also be a Canadian cit-
izen (jus sanguinis), depending on how the parent obtained their citizenship.

V. Interpretation Tools
A. Immigration Regulations and Ministerial Instructions
Regulations and MIs under the IRPA must be published in the Canada Gazette along
with a regulatory impact analysis statement. These explanatory notes are helpful in

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 Chapter 1 Introduction  19

determining how the regulations or instructions are to be applied, and they generally
cover points such as the following:
• description of the regulation, including its purpose and function;
• alternatives to the regulation that were considered;
• benefits and costs to the public of the regulation;
• consultations that took place with interested parties and the public in the draft-
ing of the regulation; and
• compliance and enforcement issues.
There are numerous regulations under the IRPA, covering a variety of subject
areas. The largest is the IRPR, which consists of 21 parts and provides detailed guid-
ance regarding the application of the IRPA, including definitions of family relation-
ships, the criteria for applying to the various permanent and temporary resident
programs, definitions of classes of refugees, and procedures for detentions, release,
removals, and appeals.
Other regulations include the following:
• Immigration Division Rules;35
• Refugee Protection Division Rules;36
• Refugee Appeal Division Rules;37
• Immigration Appeal Division Rules;38
• Federal Courts Citizenship, Immigration and Refugee Protection Rules;39 and
• Protection of Passenger Information Regulations.40

B. Citizenship Regulations
Similar to the regulations described above, the Citizenship Regulations41 clarify some
of the details for processing citizenship applications. For example, they provide spe-
cific criteria pertaining to adoptions, renunciation, revocation, and language. They
also provide information about the oath of citizenship, the procedures for citizenship
ceremonies, and the fees for becoming a citizen.

35 SOR/2002-229.
36 SOR/2012-256.
37 SOR/2012-257.
38 SOR/2002-230.
39 SOR/93-22.
40 SOR/2005-346.
41 SOR/93-246.

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20   Part I The Fundamentals of Immigration and Refugee Law

C. Policy Instruments
As noted above, policy fills in the gaps in a statute or its regulations and is intended
to promote consistency, fairness, and transparency. Most policy develops and evolves
over time on an informal basis and is influenced by Federal Court decisions.

1. IRCC Policy Instruments

IRCC uses a variety of policy instruments. Consider the following:
1. Operational manuals and program delivery instructions. IRCC publishes opera-
tional manuals and website instructions to assist applicants and to guide the
activities of immigration and citizenship officers.
Note that IRCC is no longer updating the manuals; instead, the department
has made the program delivery instructions available online, in a modernized
format.
2. Operational bulletins (OBs). Operational bulletins are issued to deliver im-
portant practical instructions to officers and staff. The minister may issue a
number of OBs each month, so it is advisable to check these regularly to see
whether the processing of a given application will be affected. Both current and
archived OBs can be found on the Publications and Manuals page on the IRCC
website.
It is important to keep in mind that although these policy instruments are im-
portant, they are merely policy and do not have the force of law. In case of a diver-
gence in the two, the law always prevails over policy.

2. Immigration and Refugee Board: Tribunal

Rules and Policy Instruments
The IRB rules are generally binding, like any other regulations. The rules are au-
thorized by section 161(1) of the IRPA and include rules of procedure for each of its
divisions:
• Immigration Appeal Division Rules,42
• Immigration Division Rules,43
• Refugee Protection Division Rules,44 and
• Refugee Appeal Division Rules.45

42 SOR/2002-230.
43 SOR/2002-229.
44 SOR/2012-256.
45 SOR/2012-257.

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 Chapter 1 Introduction  21

Consider the following policy instruments of the IRB:

1. Chairperson’s guidelines. The chairperson’s guidelines are authorized by sec-
tion 159(1)(h) of the IRPA to provide guiding principles for resolving cases and
to further the government’s strategic objectives. The chairperson of the IRB is
permitted to make guidelines, identify decisions as important precedents, and
assist members of the IRB in carrying out their duties. Decision-makers are not
required to follow the chairperson’s guidelines but are required to justify cases
of non-compliance. The following guidelines46 existed as of March 2023:
• Guideline 1: Civilian Non-Combatants Fearing Persecution in Civil War
Situations;
• Guideline 2: Detention;
• Guideline 3: Child Refugee Claimants—Procedural and Evidentiary
Issues;
• Guideline 4: Women Refugee Claimants Fearing Gender-Related
Persecution;
• Guideline 6: Scheduling and Changing the Date or Time of a Proceeding;
• Guideline 7: Concerning Preparation and Conduct of a Hearing in the
Refugee Protection Division;
• Guideline 8: Concerning Procedures with Respect to Vulnerable Persons
Appearing Before the Immigration and Refugee Board of Canada; and
• Guideline 9: Proceedings Before the IRB Involving Sexual Orientation
and Gender Identity and Expression.
2. Jurisprudential guides. The jurisprudential guides47 are authorized by section
159(1)(h) of the IRPA. Their purpose is to facilitate consistency in decision-
making in similar cases. A jurisprudential guide reiterates the reasoning of the
IRB in a specific decision so that it can be applied in similar cases. The juris-
prudential guides are not mandatory, but decision-makers are required to justify
non-compliance with the guides in cases with similar facts.
3. Persuasive decisions. Persuasive decisions48 are decisions identified by the dep-
uty chairperson or director general, as the case may be, as being valuable and
well-reasoned determinations. Decision-makers are encouraged to follow the
same reasoning in their own decisions to ensure consistency. However, unlike

46 See IRB, “Chairperson’s Guidelines” (last modified 15 September 2022), online: Government
of Canada <https://irb.gc.ca/en/legal-policy/policies/Pages/chairperson-guideline.aspx>.
Note that Guideline 5 was revoked.
47 See IRB, “Jurisprudential Guides” (last modified 28 July 2022), online: Government of Canada
<https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/jurisprudential-guides.aspx>.
48 See IRB, “Decisions” (last modified 16 March 2023), online: Government of Canada <https://
irb-cisr.gc.ca/en/decisions/Pages/index.aspx>.

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22   Part I The Fundamentals of Immigration and Refugee Law

with the jurisprudential guides, decision-makers are not required to justify their
choice to not follow a persuasive decision.
4. Policies. Policies49 are formal statements that provide operational guidance and
outline administrative processes. The following are three examples of policies:
• Policy on the Use of Social Media by Authorized Individuals at the Immi-
gration and Refugee Board of Canada (May 2016);
• Policy on Disclosing Information Regarding the Conduct of Authorized
Representatives to Regulatory Bodies (November 2021); and
• Reasons Review Policy (updated September 2021).
5. Chairperson’s instructions. Chairperson’s instructions provide formal direc-
tion to IRB staff with respect to their roles and responsibilities. These instruc-
tions are narrow in scope and seek to preserve the independence of the various
boards.50

49 See IRB, “Policies” (last modified 9 December 2022), online: Government of Canada <https://
irb-cisr.gc.ca/en/legal-policy/policies/Pages/policies.aspx>.
50 See IRB, “Chairperson’s Instructions” (last modified 21 September 2021), online: Government
of Canada <https://irb-cisr.gc.ca/en/legal-policy/policies/Pages/chairperson-instructions​
.aspx>.

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