The Power of Perspectives

The Canadian Bar Association

Kim Covert

Flagpoling pilot project unlawful, says Immigration Section

December 14 2017 14 December 2017

 

A controversial Immigration Department pilot program that the CBA has argued should be stopped is instead being expanded, much to the dismay of the Immigration Law Section.

The Section wrote to Immigration, Refugee and Citizenship Canada in July stating that its members had heard troubling accounts from foreign nationals trying to use the pilot project to renew or confirm status and seek re-entry into Canada. The Section offered up a more collaborative approach to addressing excessive wait times at ports of entry.

Upon hearing that the pilot project had been extended to two points of entry in Quebec, the Section wrote to the Ministers of Public Safety and Immigration in November to reiterate the need for a different approach.

“It is the CBA Section’s view that the pilot project is unlawful, and will undoubtedly be challenged in court,” the Section said in its latest letter. “We urge the federal government to cancel it.”

The Section notes that many foreign nationals who are in Canada legally as temporary residents make use of the Immigration and Refugee Protection Regulations to leave Canada and immediately re-enter the country – known as flagpoling – to apply for a work permit or confirm landing after being issued a permanent resident visa. The pilot project, which limits flagpoling to Tuesdays, Wednesdays and Thursdays at ports of entry in Southern Ontario, was set up in an effort to reduce the high weekend volumes and excessive immigration wait times there.

The Section empathizes with the goal of the pilot project, but notes that many foreign nationals have legitimate reasons for flagpoling on the weekends – they might otherwise have to take time off work, or take children out of school. If an officer decides to defer an examination at a port of entry, the applicant is readmitted to Canada with no status until the examination can be resumed, which can affect an applicant’s ability to work or study here, as well as their health insurance coverage.

Moreover, the Section reports that the pilot project is not creating the desired results.

“While attending at non-peak times should mean that applicants receive faster processing, this has not generally been the case,” the Section writes. “In fact, our members report that foreign nationals are not being processed or are still subject to lengthy waits at non-peak times on Tuesday, Wednesday and Thursday (the days designated for processing) in the Southern Ontario Region. There are also reports of officers at other POEs outside of those designated in the Pilot Project refusing to process applications.”

This latter report is particularly troubling, the Section says.

“The practice of refusing to process applications of genuine temporary residents seeking entry and the refusal to land applicants is unlawful and not in the public interest. We urge you to direct CBSA officers to perform their duties in accordance with the law, and ensure funds allocated to CBSA for immigration operations are used for this purpose.”

The Section makes a number of recommendations to IRCC or CBSA, including:

  • Take immediate steps to shorten processing times at CPC Vegreville, which have grown since the pilot project was implemented;
  • Allow foreign nationals to travel outside Canada and return while their application for extension or variance is pending without jeopardizing their status;
  • Continue to give temporary residents other options for landing in Canada that would decrease the need for flagpole landings;
  • Consider using an alternative online option to schedule landing appointments;
  • Open inland offices in major urban centres to deal with in-person applications;
  • Develop teams of CBSA officers with advanced knowledge of Canadian immigration law;
  • Develop a communication plan to educate the public about peak and non-peak processing times.

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