Application & Document Considerations

Description

The Immigration and Refugee Protection Act provides that foreign nationals are under the obligation to obtain certain required documents before entering Canada. These regulations address mandatory requirements respecting applications.

Purpose of these provisions

The purpose of these provisions is to establish which documents foreign nationals require before seeking to enter Canada. The regulations in this part also specify the requirements that must be met in order for an application to be considered, such as the type of form to be used in making an application, the required information to be submitted on such a form, including any supporting documentation necessary, and the place where an application is to be filed.

What the regulations do

The application and documentation provisions prescribe:

• the circumstances in which visas are required to enter Canada;
• the circumstances in which foreign nationals are exempt from requiring temporary resident visas;
• the circumstances in which a study or work permit is required before entering Canada;
• the form, content, mandatory information required and place where an application can be made; and
• general rules regarding the form in which documents are required to be presented when the Act or the Regulations so specify.

What has changed

Except for some differences in terminology, the legislative regime surrounding the requirement for foreign nationals to obtain visas prior to entry is essentially unchanged.

Subsection 11(1) of the Immigration and Refugee Protection Act requires a foreign national to apply for a visa before entering Canada where the need for such a visa is prescribed by the Regulations. The authority to make such regulations is contained in subsection 14(1) of the Act.

The Immigration and Refugee Protection Regulations (IRP Regulations) specify that a foreign national may not enter Canada to remain on a temporary basis without first obtaining a “temporary resident” visa. This term replaces the term “visitor” visa, which is used throughout the 1978 Act and Regulations.

Exemptions from this requirement are also prescribed in the IRP Regulations. These include:

• foreign nationals exempted on the basis of their nationality, residency or the purpose of their visit, in Part 8, Division 4, of the Immigration and Refugee Protection Regulations;
• foreign nationals holding a temporary resident permit; and
• foreign nationals authorized to re-enter Canada by the Act or the Regulations.

The visa exemption provisions have been restructured and placed within the body of the regulations but they contain no changes in substance from the visitor visa exemptions in Schedule II of the Immigration Regulations, 1978 as that Schedule read on December 5, 2001.

Under the current Act, requirements concerning the making of applications were not regulated and were frequently the source of litigation. These regulations are new and provide a regulatory basis for the perfected application principle by establishing the mandatory requirements that need to be met for applications to be considered as having been submitted.

These requirements deal with:

• the form, content and documents that should be provided;
• the mandatory requirements that should be provided to deter-mine the identity of the applicant, the members of the family that may be included or considered under the application, the purpose of the application and a declaration attesting to the veracity of the information given; and
• the place where applications for visas, sponsorship applications, in-Canada applications for permanent resident status and applications for permanent resident cards, are to be made.

Alternatives

An alternative to having regulations on applications would have been to leave these as administrative guidelines. This is less transparent and may result in inconsistent application of the principles established by these rules.

Benefits and Costs

Benefits

These provisions clearly define for applicants what is required for their applications to be considered.

Fewer resources will be required to process applications since those who do not meet the required standards will not be processed.

These regulations are expected to improve the quality of service provided to applicants who submit the necessary information at the outset.

Clearly articulated requirements for visas and permits maintain the integrity of the immigration program.

Costs

There is no significant cost envisaged for the implementation of these provisions as they codify in regulation what is best practice.

Consultation Consultations

Throughout the process of developing Bill C-11 and the Regulations, he Department of Citizenship and Immigration has undertaken extensive consultations with stakeholders, immigration and refugee advocacy groups, business and labour organizations, public agencies, ethnic and religious organizations, special interest groups and practitioners.

The concept and the mandatory requirements introduced by these provisions were raised in the Department’s discussions with stakeholders groups such as the Canadian Bar Association and immigration practitioner groups.

Further consultations on these matters will take place as a result of the pre-publication process.

Compliance and Enforcement

The existence of regulatory provisions specifying that the mandatory requirements of an application will result in increases in self-compliance. Should an application not meet these requirements, it will be returned to the applicant without being processed.

Failure to provide the necessary documentation in its required form may result in a refusal of the application.

Foreign nationals will be refused entry, and may be removed, if they require visas and permits to enter Canada but have not obtained such documentation in advance.

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