Family Members of Canadians Can Now Travel to Canada: A Story About Untraditional Advocacy

June 2020

Last month, I chronicled the refusal of entry to Canada of the immediate family members of Canadian citizens and permanent residents. I am happy to report that immediate family members can now enter Canada, so long as they have no symptoms of COVID-19, have a 14-day quarantine plan in place, and can demonstrate that they intend to stay in Canada for at least 15 days. ‘Immediate family members’ include a spouse or common-law partner, a dependent child, and a parent.

Unfortunately, implementation of this new policy has not gone without incident. After the policy change, some border officials were prohibiting families from entering Canada together, stating that since the purpose of the policy was to ‘reunite’ families, the Canadian citizen or permanent resident family member had to already be in Canada. This twisted logic was countered by instructions published on the Immigration department’s website, which stated that you could be ‘travelling with or to be with’ a Canadian family member.

The new policy also does not extend to the immediate family members of temporary residents in Canada, such as students and workers. These family members must still show that their travel is non-optional and non-discretionary.

Further, the immediate family members must be authorized to travel to Canada; the exemption only applies if you have already a visa or an electronic travel authorization, if one is normally required for your country of citizenship.

The Orders in Council (for US travel and travel from other countries) were issued by the highest level of the Canadian government. How they came about is a story of untraditional advocacy.

 

Lawyers are trained in traditional forms of advocacy, both written and oral, which is conducted in courts and tribunals. But because immigration and refugee law are so politically driven, immigration lawyers must sometimes use untraditional means. The Supreme Court of Canada may be Canada’s highest court, but the court of public opinion often has more impact on immigration policy than litigation. This can mean helping your client take their plight to the media. Stories of fathers being prevented from attending the birth of their children did not play well with the Canadian public. Reporters pressed the issue in the Prime Minister’s daily media scrum. Canadian family members sent letters to their Members of Parliament. Less than a week before the policy change was made, CBC published details about the ‘secret instructions’ given to border officials directing them when to deny entry to family members. This sustained pressure eventually led to the policy change.

With travel restriction to be in place until at least July 21st, the policy change was a welcome development for many families. Living through a pandemic is difficult enough, without being separated from those you love the most.

Too Much Discretion at the Border? Canadian Border Officials Prohibiting Family Members of Canadians from Entering Canada

May 2020

On March 18, 2020, the Canadian government invoked the rarely used Quarantine Act, creating an Order-In-Council (OIC) prohibiting foreign nationals from travelling to Canada by air. Within days, two new OICs were brought in to replace the initial version, one for those entering from the USA, and the other for all other travelers. Barriers to entering Canada were extended to any mode of travel, not just by air. Since then, OICs have been repeatedly repealed and replaced with newer versions. It has been incredibly challenging to keep on top of all the changes.

The original OIC made an exception for the immediate family members of Canadian citizens and permanent residents. However, subsequent OICs restricted the exception further. Travelers, even if immediate family members, cannot be entering Canada for an ‘optional or discretionary purpose, such as tourism, recreation or entertainment’.

Immigration to Canada is controlled by Immigration, Refugees and Citizenship Canada (IRCC), which implements the Immigration and Refugee Protection Act (IRPA) and Regulations. Canada’s borders are controlled by the Canada Border Services Agency (CBSA), who administers IRPA on behalf of IRCC concerning the entry of temporary residents and immigrants. CBSA follows IRCC guidelines concerning IRPA.

However, the OICs prohibiting entry to Canada were made under the Quarantine Act, not under IRPA. CBSA was not obligated to follow program delivery instructions set out by IRCC concerning the OICs.

In late April, IRCC published the following guidance concerning immediate family members:

…for foreign national immediate family member(s) (as per the definition in the Order in Council), to spend the pandemic period with their Canadian citizen family member so they can help to ensure each other’s health, safety and well-being (This section is specifically to allow for the reunification of family members where it would be beneficial to all parties, as the reunification of family members is a key point of the Order in Council. This allows for families to be together during this difficult time.)

Despite IRCC’s opinion, CBSA border officials have denied entry to many spouses of Canadians, including one of my clients who agreed to be interviewed by the CBC. The foreign national spouse and his pregnant Canadian wife wished to travel to Canada for fear of having to go to a hospital in the USA’s hardest hit COVID-19 region. They had arranged to quarantine in an apartment in her parents’ home in Ottawa.

Not only did CBSA prevent him from entering Canada, they also threated to give him an ‘exclusion order’ barring him from returning to Canada for one year if he tried to return to the border while travel restrictions were still in place. The reason given was that his travel to Canada was not ‘essential’.

The word ‘essential’ is not used in any version of the OICs. However, CBSA circulated instructions to all its border officials that any ‘non-essential’ travel was to be barred. CBSA refused to make these instructions public. It was only when a traveller appealed to the Federal Court that the instructions were released.

In the instructions, both caring for a pregnant family member and coming to Canada to attend the birth of one’s child ‘may be non-discretionary’. It is left to the individual border official to decide in the circumstance. In my client’s case, even though the border official could have let the couple in, that was not the decision that was made. It was also not the decision made in another heart wrenching case of a man who missed the birth of his son.

When specifically asked about my client’s denial of entry into Canada, Deputy Prime Minister, Chrystia Freeland was deferential to the border official, stating, ‘For our border agents I think we also have to remember that this is a unique situation…’. Prime Minister Justin Trudeau further stated that ‘This is a difficult situation. But every step of the way, we need to do what is necessary right now to keep Canadians safe’.

Unlike for police agencies in Canada, there is no independent oversight body which reviews the actions of CBSA border officials. Recent documents obtained by CBC detailed many abuses by officials, including harassment, use of inappropriate sexual language, and excessive force. Border officials act with almost impunity. The only way to challenge the decision of a border official is to ask the Federal Court to review the decision. If the Federal Court finds the decision ‘unreasonable’ a second border official will be asked to review the request for admittance to Canada. Sometimes a second or even third trip to the Federal Court is required before a positive decision is reached.

The Canadian Bar Association and others are calling on IRCC and CBSA to ensure their policies and instructions reflect the purpose of the Quarantine Act; to restrict the entry of those travelers who may contribute to a further spread of COVID-19 in Canada. Further, these policies must provide situational examples which are publicly available. Finally, the policies must be consistently followed by decision-makers at visa posts and ports-of-entries. May I also suggest that a father who has attended the birth of his child oversee drafting those policies.

Imagining a World without Borders In the Midst of a Global Pandemic

April 2020

This summer, I am scheduled to deliver a workshop at the Blue Skies Music Festival. I was so excited when my application was accepted. Workshop presenters are given a coveted camping pass. Unfortunately, like all summer events, the festival may have to cancel depending on whether the COVID-19 pandemic diminishes.

The title for my workshop is to be ‘Imagine a World Without Borders’. I plan to discuss how the artificial creation of international borders has impacted individuals, families, and communities. The topic was inspired by heart wrenching stories from clients separated from their family members, from the advocacy work of No One is Illegal, and through my own work with the private sponsorship of refugees through the Refugee Sponsorship Support Program.

With increased international travel, globalization of supply chains, and the ability to communicate with ease from people all over the planet through the internet, it seemed as if we were moving closer to a world in which international borders were becoming less meaningful. COVID-19 has changed all of that. Currently, the Canadian government is limiting entry of foreign nationals. Exemptions are in place for a limited few, including holders of study permits, certain temporary foreign workers, and accompanying immediate family members of Canadian citizens and permanent residents.

Canadian citizens and permanent residents are also impacted by travel restrictions. The government began with an interim order that stated anyone showing symptoms of the virus could be denied boarding a flight to Canada. Then, the government invoked the Quarantine Act, requiring anyone entering Canada to self-isolate for 14 days after arrival, whether or not they were exhibiting symptoms.

To the furor of refugee advocates, the Canadian government abandoned a plan to quarantine refugee claimants upon arrival, and instead stated that refugees arriving from the US would be denied entry. The US has announced that it will send these refugees back to their countries of origin. Apparently, governments feel justified in ignoring their international obligations to protect refugees from persecution.

And yet, we have discovered just how dependent we are on migrants who travel from their homes seasonally to work on farms and in food processing. It is not just Canada that is feeling the pinch, but any country which relies on migrant labour. Canada is making it easier, not harder, for employers to bring in foreign workers for these industries.

In Canada, we are seeing not just international travel restrictions, but also the loss of the ability to travel to other provinces. There are several bridges to Quebec only minutes from my office; all have checkpoints manned by police prohibiting non-essential travel.

When a vaccine is available, how with the world look? Will we have become more insular, or will the retreat of the public health threat and lifting of travel restrictions create a desire to move to a more universal society? If you’re having trouble imaging how this could be a possibility, listen to this Ted Talk. Or come to my workshop. I’m scheduled for Saturday at 10:30am.

 

R.I.P. to the Handshake?

March 2020

I recently learned that the handshake is thought to originate in Medieval Europe. I’ve read slightly contradictory accounts of how it evolved.  My favourite version is that knights would shake the hand of others in an attempt to loosen any hidden weapons. Another source I found stated that it was a symbol of peace, showing that neither person was carrying a weapon.

More Angst about the Parent and Grandparent Sponsorship Program - Is It Time to Expand the Concept of 'Family'?

January 2020

Well, January 1st came and went without the re-opening of the parent and grandparent sponsorship program. First, on December 16th, the government announced that details of the 2020 program would be ‘available soon’. Then, on December 30th, the government sent out a second announcement that opening of the program would be ‘postponed’. Further information will be available by April 1, 2020.