Enf 6 Form PDF Details

The ENF 6 form, a critical component of Canada's immigration framework, serves as a comprehensive guide for reviewing reports under subsection A44(2). This document outlines the procedures, policies, and legal considerations that must be adhered to when assessing individuals' admissibility to Canada. It underscores the importance of procedural fairness and sets forth specific protocols for dealing with minors or individuals unable to understand the nature of the proceedings. With sections devoted to interpreting the Immigration and Refugee Protection Act (IRPA) and its regulations, the ENF 6 lays down the foundation for addressing cases of inadmissibility, emphasizing the roles of the Minister’s Delegate in the review process. It includes detailed procedures for evidentiary requirements, the burden of proof, and the standard of proof, along with the duty of the involved parties to provide necessary information. The scope of discretion available to the Minister’s Delegate is carefully outlined, highlighting the limited options and the prioritization of cases involving security, human or international rights violations, serious criminality, and organized criminality. Additionally, the form offers guidance on handling personal circumstances, considerations for protected persons, and Charter rights. New amendments and updates ensure the form reflects the current legislative environment, enhancing clarity, ensuring the consistent application of IRPA provisions, and acknowledging recent court decisions. Furthermore, the document addresses specific procedures for issuing removal orders, considerations for temporary resident permits, and processes for claims of refugee protection, making it an indispensable tool for navigating the complexities of Canada's immigration law.

QuestionAnswer
Form NameEnf 6 Form
Form Length60 pages
Fillable?No
Fillable fields0
Avg. time to fill out15 min
Other namesenf, cbsa, a44 1, 2014

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ENF 6

Review of reports under subsection A44(2)

ENF 6 Review of reports under subsection 44(2)

Contents

1 What this chapter is about

6

2 Program objectives

6

3 The Act and Regulations

6

5 Definitions

11

6 Departmental policy

12

6.1

Procedural fairness

12

6.2

Procedures for persons less than 18 years old or persons unable to appreciate the nature

of the proceedings

13

6.3

Official languages

14

6.4

Interpreters

14

6.5

Counsel

14

7 Procedure: Review of the A44(1) report by the Minister’s Delegate

15

7.1

Transmission of an A44(1) report to the Minister’s Delegate

15

7.2

Reviewing the A44(1) report

16

7.3

Procedure: Evidentiary requirements

17

7.4

Burden of proof

17

7.5

Standard of Proof

18

7.6

Duty to provide information

19

8 Scope of Discretion of the Minister’s Delegate

20

8.1

Minister’s Delegate Options— Limited discretion of the MD at A44(2)

20

8.2

Priority Cases: Inadmissibility under A34, A35, A36 and A37 of the IRPA

22

8.3

Personal circumstances

22

8.4

Special considerations for protected persons

22

9 Charter considerations

23

10 Cases where the MD has jurisdiction to issue a removal order

25

10.1

Procedural fairness considerations

25

10.2 Types of administrative removal orders

25

10.3

Permanent residents and their residency obligation— R228(2)

26

10.4

Removal order for refugee claimants— R228(3)

27

10.5

Dual intent

28

10.6

Restoration of status

29

10.7

Procedure: Reviewing A44(1) reports when a Minister’s Delegate is not on site

31

10.8

Procedure: Issuing removal orders to persons in absentia

31

10.9

A44(1) reports for inadmissible family members

34

10.10 Procedure: Removal orders following vacation or cessation of refugee/protected person

status by RPD

35

11 Temporary resident permits (TRPs)

35

12

Allowing withdrawal of application to enter Canada/ Allowed to leave (Port of entry cases) .37

13

Procedure: Handling possible claims for refugee protection

37

14

Persons claiming to be Canadian citizens or registered Indians under the Indian Act

38

15

Cases where the jurisdiction to issue a removal order rests with the Immigration Division ..

39

15.1

A44(1) reports concerning foreign nationals

39

15.2

A44(1) reports concerning permanent residents of Canada

39

15.3

Loss of appeal right cases

40

15.4

Considerations for ‘long-term permanent residents’

41

15.5

A44(1) reports for criminality cases

41

15.6

Preparation of warning letter

42

16

Adjourning Proceedings

43

 

 

 

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ENF 6 Review of reports under subsection 44(2)

17

Procedure: Entry for the purpose of further examination or an admissibility hearing (Port of

 

 

entry officers)

43

18

Imposition of Conditions following the A44(1) report for A34: Mandatory circumstances

44

19

Procedure: Directing persons back to the United States under R41

45

20

Appeals and Judicial Review— Removal Order

46

20.1 Appeals to the Immigration Appeal Division

46

20.2 Right to file an application for leave and judicial review— Where no statutory right of

 

appeal exists

47

21

Reports with multiple allegations

48

22

Entering MD decisions into GCMS

48

24

Offences under the Youth Criminal Justice Act

48

Appendix A: Noteworthy provisions of the IRPA

50

Appendix B: Table: Immigration and Refugee Protection Act (IRPA) Inadmissible Classes

52

Appendix C: Sample Warning letter

55

Appendix D: Steps for in-person A44(2) proceeding where MD has jurisdiction to issue a

 

 

removal order

56

Appendix E: Case Law on the Scope of Discretion under A44

58

Appendix I:

Sample letter—

IAD appeal acknowledgement letter

59

Appendix J:

Sample letter—

Judicial Review Acknowledgement letter

60

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Updates to chapter

Listing by date:

2020-02-12

Substantive and minor changes, as well as clarifications, have been provided throughout the chapter.

New content has been added to reflect legislative and regulatory amendments and to ensure consistent application of IRPA provisions as clarified through new court decisions.

Sections have been re-written for clarity and/or moved and re-organized for more logical flow of information.

Section 3.1: Amended to include several new or updated forms.

Section 9: New section added to provide guidance on Charter considerations.

Section 10.9: Content added to reflect amendments to IRPA provisions regarding inadmissible family members under section A42.

Section 10.10: Content added to reflect new inadmissibility section A40.1 Cessation of refugee

protection: under R228(1)(b.1) the MD has the authority to issue removal orders to foreign nationals who are found inadmissible under A40.1(1) on a final determination by the RPD under A108(2) that the refugee protection of the foreign national has ceased.

Section 18: New section added to reflect changes to IRPA and IRPR requiring that decision- makers impose prescribed conditions on security (A34) inadmissibility cases.

Date: 2007-04-12

Section 5.1: Substantial changes were made throughout that section.

Section 5.7: Minor changes were made to the first paragraph. As well, two paragraphs were added.

Section 7: The entire section was re-written.

Section 9: Minor changes were made.

Section 19.2: The section on non-criminal cases involving permanent residents was re- written.

Section 20.1: The entire section was re-written.

2005-10-31

Changes were made to reflect the transition from CIC to the CBSA. The term “delegated officer” was replaced with “Minister’s delegate” throughout text; references to “departmental policy” were eliminated; references to CIC and CBSA officers and to the C&I Minister and the PSEP Minister were made where appropriate, as were other minor changes.

Appendix A was removed since no countries are listed under A102(1);

Appendix B, C & D were renamed A, B & C;

Other minor changes to correct mistakes or relating to terminology were also made.

2004-08-11

ENF 6 - Review of Reports under A44(1) has been updated to reflect an amendment to paragraph R228. The amendment prescribes that inadmissibility reports with respect to unaccompanied minors and persons unable to appreciate the nature of proceedings who

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are unaccompanied must be referred to the Immigration Division if the Minister's delegate determines that a removal order should be sought.

2004-01-26

The title for section 23 of chapter ENF 6 in French has been amended and now reads as follows:

Statut de citoyenneté/Citoyens canadiens qui présentent une demande d'asile 2003-09-02

A minor change was made to section 3.8 and section 24 of ENF 6.

2003-06-19

Changes to section 3.3 and the addition of section 24 relate to the procedures to follow when issuing administrative removal orders on grounds of misrepresentation pursuant to R228(1)(b).

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1 What this chapter is about

This chapter provides guidance to Canada Border Services Agency (CBSA) and Immigration, Refugees and Citizenship Canada (IRCC) officials performing the function of the Minister’s Delegate (MD) and exercising their authority to review reports prepared under A44(1) of the Immigration and Refugee Protection Act (IRPA).

2 Program objectives

The objectives of Canadian immigration legislation with regard to the inadmissibility provisions are:

to protect the health and safety of Canadians and to maintain the security of Canadian society;

to promote international justice and security by fostering respect for human rights and denying access to Canadian territory to persons, including refugee claimants, who are criminals or security risks.

3 The Act and Regulations

Under A44(1), an officer may prepare and transmit a report if that officer is of the opinion that a permanent resident or foreign national in Canada is inadmissible. Under A44(2), all A44(1) reports must be referred to the MD to determine the accuracy and validity of the report and to decide whether to:

issue a removal order, where the MD has jurisdiction to do so; or

refer the matter to the Immigration Division (ID) of the Immigration and Refugee Board (IRB) for an admissibility hearing.

The IRPA provides authority both to members of the ID and to the MD to issue removal orders, depending on the type of allegation contained in the A44(1) report, and pursuant to the authority prescribed in the IRPA and the Immigration and Refugee Protection Regulations (IRPR) .

In order to streamline the enforcement process in cases involving straightforward allegations, and to maintain the principle that the MD may make determinations in cases where there is little need to weigh evidence, the scheme of the Act and Regulations empowers the MD to issue removal orders under the circumstances prescribed in R228. Generally speaking, the more discretion and analysis required in assessing the allegation, the more likely the jurisdiction rests with a member of the ID.

It is important to note that where the MD is authorized to make removal orders under R228, this authority applies at both ports of entry and at inland offices.

The following table includes some of the most relevant provisions that may apply during the A44(2) process. Some of the authorities listed below pertain specifically to CBSA Border Services Officers (BSOs) at the port of entry or IRCC officers assessing applications; others are more relevant to CBSA Inland Enforcement Officers (IOEs).

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Table 1: Sections of the IRPA and the IRPR applying to determinations under A44(2)

Provision

Act and

Regulations

 

 

 

Delegation of powers

A6(2)

 

 

Permanent Resident

A21(1)

 

 

Temporary resident dual intent

A22

 

 

 

 

Entry to complete examination or hearing

A23

 

 

 

 

Residency obligation

A28

 

 

Security

A34

Human or international rights violations

A35

Serious criminality

A36(1)

Criminality

A36(2)

Organized criminality

A37

Health grounds

A38

Financial reasons

A39

Misrepresentation

A40

Cessation of refugee protection

A40.1

Non-compliance with the IRPA or IRPA— foreign national

A41(a)

Non-compliance with IRPA or IRPR— permanent resident

A41(b)

Inadmissible family member

A42

 

 

Preparation of report

A44(1)

 

 

 

 

Referral or removal order

A44(2)

 

 

Imposition of Conditions

A44(3)

 

 

Mandatory imposition of conditions— inadmissibility on grounds of

A44(4),(5)

security

 

 

 

Applicable removal order- Immigration Division

A45(d)

 

 

 

 

No return without prescribed authorization

A52(1)

 

 

Right of appeal to Immigration Appeal Division (IAD)

A63

 

 

Loss of appeal rights

A64

 

 

Application for judicial review

A72(1)

 

 

Protected person

A95

 

 

Referral to Refugee Protection Division

A100(1)

 

 

Suspension of consideration of eligibility of claim

A100(2)

 

 

 

 

Deemed referral to Refugee Protection Division

A100(3)

 

 

Ineligibility to refer refugee claim

A101

 

 

Cessation of refugee protection

A108

 

 

Vacation of refugee protection

A109

 

 

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Non-refoulement— protected person

A115(1)

 

 

Ministerial Opinion for protected person

A115(2)

 

 

Rehabilitation

R18, R18.1

 

 

Direct back to the United States

R41(b)

 

 

 

 

Withdrawing application/Allow to leave

R42

 

 

Conditions A23

R43(1)

 

 

Applicable removal order— Minister

R228

 

Criminality (foreign nationals)

R228(1)(a)

R228(1)(b)

Misrepresentation (vacation of refugee/protected person status)

R228(1)(b.1)

Misrepresentation (cessation of refugee protection)

R228(1)(c)

Failure to comply

R228(1)(d)(e)

Inadmissible family members

R228(2)

Permanent residents and their residency obligation

R228(3)

Eligible claim for refugee protection

 

Unaccompanied minors

R228(4)(a)

R228(4)(b)

Persons unable to appreciate the nature of proceedings

 

 

 

Applicable removal order— Immigration Division (ID)

R229

 

 

For further information regarding the division of jurisdiction to issue removal orders, see

Appendix B, ‘Table: Immigration and Refugee Protection Act (IRPA) Inadmissible Classes’

3.1 Forms

The following table includes some common forms used in the 44(2) process. This is a non- exhaustive list and some may only apply to officers carrying out the administration of IRPA at the port of entry.

Table 2: Forms

Form title

Form

number

 

 

 

Referral under subsection 44(2) of the Immigration and Refugee Protection

BSF506

Act for an admissibility hearing

 

 

 

Denial of Authorization to Return to Canada Pursuant to Subsection 52(1) of

IMM 1202B

the Immigration and Refugee Protection Act

 

 

 

Authorization to Return to Canada Pursuant to Section 52(1) of the

IMM 1203B

Immigration and Refugee Protection Act

 

 

 

Departure Order

IMM 5238B

 

 

Exclusion Order

IMM 1214B

 

 

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Deportation Order

BSF581

 

 

Notice to Appear for a Proceeding under Subsection 44(2)

IMM 1234B

BSF504

 

 

 

Notice to client – No Admissibility Hearing

BSF513

 

 

 

 

Subsection A44(1) Highlights – Port of Entry Cases

BSF516

 

 

Subsection 44(1) and A55 Highlights – Inland Cases

IMM 5084B

 

 

Request for Admissibility Hearing/Detention Review Pursuant to the

BSF524

Immigration Division Rules

 

 

 

Entry for Further Examination or Admissibility Hearing

BSF536

 

 

Direction to Leave Canada

BSF503

 

 

Direction to return to the United States

BSF505

 

 

Notification to the Refugee Protection Division and the Refugee Appeal

BSF528

Division and the Person Concerned by an Immigration Officer Pursuant to

 

Subsection 103(1) of the Immigration and Refugee Protection Act of the

 

Suspension of Consideration of Claim

 

Notification to the Refugee Protection Division and the Person Concerned by BSF527 an Officer Pursuant to Paragraph 103(2) of the Immigration and Refugee Protection Act

 

Notification to the Person Concerned by an Immigration Officer Pursuant to

 

BSF529

 

Paragraph 104(1)(A), (B), (C), OR (D) of the Immigration and Refugee

 

 

 

 

Protection Act & Notification to the Refugee Protection Division pursuant to

 

 

 

 

Paragraph 104(1) of the same Act

 

 

 

 

 

 

 

 

 

Acknowledgement of Conditions

 

IMM1262*

 

 

 

 

 

 

 

BSF 821**

 

 

 

 

 

 

 

Acknowledgement of Conditions for IRPA Section 34 Cases

 

BSF798

 

 

 

 

 

 

 

 

 

 

 

Notes to File

*currently available in GCMS

** currently available only in CBSA Atlas

BSF788

4 Instruments and delegations

A4 sets out which Minister is responsible for the administration of the IRPA. The Minister of Citizenship and Immigration [also known as Immigration, Refugees and Citizenship Canada (IRCC)] and the Minister of Public Safety and Emergency Preparedness (PS) are jointly responsible for the administration and enforcement of the IRPA, however there are some differences. The IRCC Minister is responsible for the overall administration of the IRPA, unless

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otherwise specified. The Minister of PS has the primary responsibility for the administration of the IRPA as it relates to the following:

port of entry examinations;

policy lead relating to enforcement of the IRPA including arrest, detention and removal;

establishment of policies respecting the enforcement of the IRPA and inadmissibility under A34/35/37; and

declarations referred to under A42.1 (Ministerial Relief provision)

Pursuant to A6(1), the responsible Minister has the authority to designate specific persons or classes of persons to carry out any purpose of any provision of the IRPA with respect to their individual mandates as described in A4, and to specify the powers and duties of the officers so designated. In addition, A6(2) authorizes that anything that may be done by the Minister under the Act and Regulations may be done by a person that the Minister authorizes in writing. This is referred to as delegation of authority.

A designated authority refers to the position that has been given the legal authority by the Minister to carry out the delegated function.

Each Minister who has responsibilities under the IRPA has written an instrument of delegation and designation that is periodically updated. The Delegation of Authority and Designations of Officers (D & D) instruments stipulate who has the authority to perform specific immigration- related functions. CBSA and IRCC personnel are designated by position to perform all delegated or designated authorities, including those associated with A44(1)/A44(2) functions. It is to be noted that the IRPA D & D instruments have a hierarchical link which means only the lowest level of authority is included in the D & D instruments as every position above this one (with a direct hierarchical link) has the same authority to perform specific immigration-related functions.

CBSA and IRCC officials acting in the capacity of the MD in A44(2) proceedings should always review both the CBSA and the IRCC D & D instruments as they have authorities delegated and designated under both instruments, which can be found on the IL 3- Designation of Officers and Delegation of Authority.

The authority to review A44(1) reports has been designated to certain CBSA and IRCC officials. It is important to note that while IRCC officers have been designated the authority to review reports for most inadmissibility sections, A44(1) reports for inadmissibility under A34 (security grounds), A35 (grounds of violating human or international rights) and A37 (grounds of organized criminality) may only be prepared and reviewed by CBSA.

All reports written by CBSA or IRCC officers will be reviewed by the MD who has been delegated the authority under the D & D instruments. If the MD is of the opinion that the report is well-founded, the MD will make the appropriate decision based on the evidence and determine whether to:

issue a removal order, if the allegation is within the MD’s authority pursuant to R228; or

refer the report to the ID pursuant to the R229.

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