How IRCC, CBSA Determines “Essential Travel” Due To COVID-19 Restrictions

With the U.S.-Canada border closed to non-essential travel, IRCC and CBSA officers need the same guidelines and interpretation of COVID-19 Restrictions.

Canada’s federal government agents charged with implementing Canada-U.S. border restrictions put in place on account of coronavirus pandemic need to be on the same page in their interpretation of the new rules and guidelines.

Guidance from Immigration, Refugees and Citizenship Canada (Canada’s immigration authority) on who can cross the border varies or differ in practice from the interpretation of Canada Border Services Agency officials.

The result is that travellers are arriving at the border expecting to be able to cross based on IRCC rules, but finding themselves turned away by agents of the CBSA applying a more stern interpretation.

In some other cases, people are arriving at the border presenting situations that are not featured under any guidance, leaving their cases open to CBSA decision.

The problem is a result of the disorder being caused by the speed at which the COVID-19 crisis has overwhelmed Canada and the world.

Restrictions have been put in place with little or no time to plan and decide on details that officials would usually give themselves weeks or months to consider.

Under the cloud of COVID-19, these decisions have had to be hatched out quickly, and officials are filling in the details as situations unfold.

On March 18, Canada Prime Minister Justin Trudeau shut down the Canada-U.S. border to all non-essential travel. At the time, he classified ‘non-essential’ as people wishing to cross for tourism and recreation.

The same day, Trudeau’s deputy prime minister, Chrystia Freeland, said in a tweet that ‘trade and essential travels across the border will continue unhampered’.

“Our supply chains ensure that fuel, food and life-saving medicines get to people on both sides of the border,” Freeland uttered. “Canadians and Americans also cross the border every day to do essential service.”

IRCC officials have since rolled out guidance on what represents non-essential travel. Examples of the types of discretionary and optional travel not allowed include:

  • To visit family for a vacation.
  • For the birth of a nephew, niece, cousin or a grandchild, etc.
  • To spend time at a secondary residence (vacation home, fishing or hunting lodge, etc.). This includes entry for maintenance purposes.
  • To take part in the funeral of a family member (This purpose of travel would be unlikely due to quarantine measures and reduction to the number of attendees at funerals under provincial restrictions.)

Despite this guidance, work permit and visa holders are arriving at the border to be told their travel is considered discretionary and optional, by CBSA officials.

Certain instances, such as valid work permit holders who have lost their jobs, are not featured in the advice. Such candidates are seeing the tourism and recreation definition of non-essential travel and expecting to be able to be allowed through the border, only to find themselves turned back.

Meanwhile, among the IRCC’s  scenarios of non-discretionary and non-optional reasons for travel is a catch-all final clause that leaves a large area of interpretation down to CBSA officials: “Any other activities that are considered non-discretionary or non-optional by the federal government of Canada or based on an officer’s assessment.”

Despite this large area of interpretation, there exists no guidance or interpretations from the CBSA on how its officers will make the assessments.

Until that guidance is rolled out, or the IRCC and CBSA are able to combine their interpretations of COVID-19 pandemic-related orders released under the Quarantine Act, an element of trial and error enters the situations at the Canada-U.S. border.

The coronavirus pandemic has left a huge swathe of people who were planning to travel to Canada mired in uncertainty. International students, Temporary foreign workers, plus skilled workers and family class immigration candidates at every stage of the process have seen their futures bundled up in doubt.

These set of candidates are searching for clear interpretation from the government on how Canada will come out from the crisis.

The latest numbers, released on Wednesday, May 13 show Canadian permanent resident arrivals in Canada dropped twenty-six (26) per cent in March compared to February.

Immigration Minister Marco Mendicino has reiterated that newcomers will continue to be welcomed in post-pandemic Canada, but the government says it plans to be ‘very, very careful’ with reopening borders, meaning the uncertainty among immigration candidates looking likely to continue.

The scenarios from CBSA’s list have been sorted into the following five groups: family, workers, students, business, and other travellers.

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