Learning moments – IRCC’s authority to make policy announcements and enact public policy
January 6, 2021
Hello fellow practitioners! This week’s question deals with the scope of IRCC’s authority to make policy announcements and enact public policy.
QUESTION
I never thought that an approved PR applicant would be able to become a PR after the Confirmation of Permanent Residence expired. But the Covid-19 pandemic has had the IRCC make many policy announcements that make me wonder:
- What enables the IRCC to make discretionary policy announcements?
- How much discretionary power does the IRCC have? Or, what is the scope of IRCC’s discretionary power?
- Can the situations or scenarios for which IRCC may use its discretionary power be categorized?”
ANSWER
The Immigration and Refugee Protection Act (“IRPA”) and the Immigration and Refugee Protection Regulations (“IRPR”) contain various provisions, which grant the Minster a broad scope of authority to enact public policy that is consistent with its goals and legislative mandate. The enabling authority provisions start at s. 4 of IRPA, and are what give the Minister the authority to administer the Act. The goals or objectives of IRPA are set out within the Act itself, and are divided within 2 classes broadly speaking: (a) “immigration objectives” and “refugee objectives”.
In terms of the “immigration objectives,” s. 3(1) of IRPA[1] sets out what these objectives are. Some of the objectives include thins like: strengthening the Canadian economy, promoting family reunification, and enriching the Canadian cultural fabric. There are 12 specific objectives in total which are set out the provision.
In terms of the “refugee objectives,” s. 3(2) of IRPA[2] sets out what these objectives are. As might be expected, these objectives are more humanitarian in nature, and include things like: offering protection to displaced persons, fulfilling Canada’s international legal obligations, and to promote international justice. There are 8 specific objectives in total which are set out the provision.
In addition to setting out its policy objectives within ss. 3(1) and 3(2), IRPA also contains various specific provisions, which grant the Minster broad scope of authority to enact public policy that is consistent with its goals and legislative mandate as set out in the “objectives” portion of the Act. Whenever IPRA mentions “public policy considerations” in connection with a specific provision, this is a signal that the Parliament is giving the Minister broad authority to enact public policy in connection with the matter at issue in the provision.
Consider as an example s. 25.2(1) of IPRA. The provision gives the Minister broad authority to grant permanent residence status to any foreign national who is otherwise inadmissible, or does not meet the requirements of the Act, so long as the Minster is of the opinion that it is “justified by public policy considerations.” Section 25.2(1) provides as follows in this regard:
25.2 (1) The Minister may, in examining the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act, grant that person permanent resident status or an exemption from any applicable criteria or obligations of this Act if the foreign national complies with any conditions imposed by the Minister and the Minister is of the opinion that it is justified by public policy considerations.[3]
I am sure you can imagine based on this provision just how wide-ranging the Minister’s authority is to enact public policy with respect to the requirements for permanent residence. In fact, the Minister just recently used its scope of authority under s. 25.2 of IPRA to enact public policy (in the form of Ministerial Instructions) to grant permanent residence to refugee claimants working in the healthcare sector during the COVID-19 pandemic.
The Ministerial Instructions on this issue specifically mention s. 25.2 as being the underlying provision granting authority. As stated in the Ministerial Instructions:
As such, I hereby establish that, pursuant to my authority under section 25.2 of the Immigration and Refugee Protection Act (the Act), there are sufficient public policy considerations that justify the granting of permanent residence to foreign nationals who meet the eligibility criteria and conditions listed below.[4]
While the Minister’s authority to enact public policy in furtherance of IRPA’s legislative objectives is broad, it is important to bear in mind that the Minister’s authority is constrained by IRPA and IRPR. In other words, the Minister cannot enact by public policy anything that is prohibited by IRPA or the IRPR. Furthermore, while the Minister can set public policy, it is not binding as law. The only binding sources of authority are IPRA, IRPR, and the Ministerial Instructions (which are issued pursuant to the aforementioned two authorities).
Furthermore, while it is clear from IPRA that the Minister has wide latitude to enact public policy in the form of Ministerial Instructions in various domains, one might ask, what gives IRCC officers the authority to carry out the Minister’s bidding? After all, IRCC officers are simply delegates of the Minister acting on its behalf. The answer to this question lies in s. 6 of IRPA[5], which provides as follows on this issue:
6
(1) The Minister may designate any persons or class of persons as officers to carry out any purpose of any provision of this Act, and shall specify the powers and duties of the officers so designated.
(2) Anything that may be done by the Minister under this Act may be done by a person that the Minister authorizes in writing, without proof of the authenticity of the authorization.
(3) Despite subsection (2), the Minister may not delegate the power conferred by subsection 20.1(1), section 22.1 or subsection 42.1(1) or (2) or 77(1).
Pursuant to s. 6 of IRPA, the Minister has delegated most of its authority under IPRA to IRCC officers via the Instrument of Designation and Delegation.[6] The only powers that cannot be delegated by the Minister are those conferred by s. 20.1(1) (i.e. the designation of human smuggling or other irregular arrivals), s. 22.1 (i.e. the declaration that foreign nationals cannot become temporary residents), s. 42.1(1) & (2) (i.e. the declaration that those found to be involved with security violations, human rights violations, terrorism, organized criminality…etc. are not inadmissible), and s. 77(1) (i.e. referring a certificate of inadmissibility to the Federal Court for those found inadmissible for security violations, human rights violations, terrorism, organized criminality…etc.).
[1] Immigration and Refugee Protection Act, S.C. 2001 c. 27 at s. 3(1), online: <https://laws-lois.justice.gc.ca/eng/acts/i-2.5/page-1.html>
[2] Ibid at s. 3(2).
[3] Ibid at s. 25.2(1).
[4] IRCC, Public Policies – Temporary public policy to facilitate the granting of permanent residence for certain refugee claimants working in the health care sector during the COVID-19 pandemic (December 9, 2020) online: <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/permanent-residence-healthcare-pandemic-canada.htmll>
[5] IPRA supra note 1, at s. 6
[6] IRCC, IL3 – Designation of Officers and Delegation of Authority (June 25, 2019) online: <https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/legislation.html>