In 2018, Canada’s parliament enacted Bill C-21, ‘An Act to Amend the Customs Act’. This legislation provided that, among other matters, Canada’s immigration authorities would have the legal right to collect exit data for travelers departing Canada. This was previously not done. [For the purposes of this article, we are including in ‘Canada’s immigration authorities’ both the Canada Border Services Agency (CBSA) which deals primarily with enforcement, and Immigration, Refugees and Citizenship Canada (IRCC) which deals with substantive immigration processing.]
It is expected that by June 20, 2021, all aspects of the legislation will be implemented. As such, CBSA/IRCC will be able to compile complete records of travelers’ histories for both entry into, and exit out of, Canada.
The implementation of the law will have implications in various facets of immigration considerations.
Among other potential issues:
- Permanent Residence Residency Obligation Calculations:
- Subject to certain exceptions (e.g. outside Canada accompanying a Canadian citizen spouse), Permanent Residents must typically be physically present in Canada for every 2 out of 5 years running, to maintain their status. To date, there have been situations where verifying this information has been a concern, but now IRCC will need to rely only on its own records to be able to confirm (or ‘unconfirm’) time spent in Canada.
- Citizenship Residency Obligation Calculations:
- Similarly, the ability to seek citizenship has various requirements, including the need for residency in Canada for 3 out of the last 5 years. The government will be able to track physical presence for the purposes of meeting citizenship requirements.
- Overstays:
- CBSA will be able to ascertain if someone has failed to exit Canada when he/she was supposed to, and who would therefore potentially be out of status. (This could then lead to enforcement action.)
- Recaptured Time Calculations for Work Permit Holders subject to Cap:
- Certain work permit categories have ‘caps’ as to how long such work permits can be valid (including renewals). For instance, a specialized knowledge intra-company transfer work permit has a 5-year total cap (again, including renewals). However, the law allows such work permit holders to ‘recapture’ time that they are not actually in Canada during the currency of the work permit. So, if such an intra-company transferee has been in Canada for only 4 out of the allowable 5 years, he/she may be able to recapture the 1 year not used, and extend his/her work permit for another year. IRCC will be able to confirm claims by foreign workers who wish to rely on their absences from Canada in this regard.
- Validation of Information/Misrepresentation Allegations:
- Any discrepancy between government records and a person’s statements about time in Canada (as may be necessary for any of the issues otherwise noted), may lead to an assertion of misrepresentation.
- [Other Non-Immigration Consequences]
- (Though beyond the scope of this article, there could be tax implications as well relating to tax residency requirements – which are different than immigration/citizenship residency requirements.)
- Immediate Consequences For Violations:
- Given the knowledge available to the authorities, outgoing travelers, rather than simply departing as they would have previously, may be ‘pulled aside’ and actually issued some form of removal order (e.g. exclusion, deportation, depending on the reason), so that future attempts to enter may be restricted.
The full impact of the implementation of the exit controls will not be known until the system is fully functional, however, the above reflect some issues/concerns that those dealing with the Canadian immigration system must face, and for which those who access the system should be wary.
The information in this article is for general purposes only, and not intended as legal advice for any particular situation.