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 21^st, 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.