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Ravi Jain

Immigration bar seeks clarification as Canada tightens border controls on foreign nationals

Wednesday, March 18, 2020 @ 10:43 AM | By Cristin Schmitz

Last Updated: Wednesday, March 18, 2020 @ 11:53 AM

With Canada deciding to tighten its border controls for the second time this week, the immigration bar is asking Ottawa for some clarification of the federal government’s new COVID-19 travel restrictions.

Ravi Jain of Toronto’s Green and Spiegel, chair of the Canadian Bar Association’s (CBA) national immigration law section, told The Lawyer’s Daily he spoke with Citizenship and Immigration department officials by conference call March 16 after Prime Minister Justin Trudeau announced new air travel restrictions affecting foreigners and Canadians abroad. 

Ravi Jain, Green and Spiegel

The initial series of border measures announced March 16 were aimed at containing the spread of COVID-19 in Canada, including by banning, as of noon EDT March 18, air travel into Canada of foreign nationals, excepting Americans, Canadian permanent residents, travellers transiting Canada to a third country, immediate family members of Canadian citizens, diplomats and aircrews. At press time, Trudeau announced that Canada and the U.S. have agreed to the “collaborative and reciprocal” measure of temporarily restricting all “non-essential” travel across the Canada-U.S. border for such reasons as recreation and tourism. However he said “essential travel” will be permitted to continue — including to ensure that supply chains are not disrupted, and to preserve the availability of fuel, food and life-saving measures.

“It is a massive shift,” Jain said of the travel restrictions announced March 16.

He noted many clients of the citizenship and immigration bar are affected.

“There are people who right now [are abroad and] … may have been approved for [Canadian] permanent residence … and we’re advising against travel at this time, even though they would become a permanent resident if they were able to come here,” Jain said March 17.

One issue for which the immigration bar is seeking clarification is what happens to foreign students and foreign workers on visas who have left Canada for a March break holiday or a visit home, in light of the March 16 ban on entry by air travel of most foreign nationals, except Americans.

“How do they get in?” Jain queried. “Right now they can’t, apparently, unless they’re coming in through a land border. So those who have gone overseas for a short time, we’re concerned about them and how to advise them.”

Jain said immigration lawyers are also concerned about Canadian citizens and permanent residents travelling by air with parents or elderly grandparents who are foreign nationals, because it’s not clear that those family members come within the definition of family members who can enter Canada. Jain said officials indicated that the exemption for the family category referred to the March 16 air travel restrictions refers to the statutory definition of dependants, which includes spouses, common law partners, conjugal partners and children under 22. “So we’re seeking clarification on parents and grandparents because they sponsorable, but they’re not ‘dependants,’ ” Jain explained.

The CBA has also sought clarification on what happens to would-be refugee claimants who come over the land border with the U.S. “We don’t have the answer on some points, so I’m waiting to see what they say about that,” Jain said.

“We also asked about people who are coming in from the U.S. who are intending to become permanent residents. We know that they can travel to Canada [at press time March 18], but we don’t know if [the government] is going to land them. And we also understand that there are lots of people here who are eligible. They qualify, and they’ve been told they qualify for immigration and are in Canada — those folks will have telephone landings, so their landing process will not be in person, it will be by phone.”

Jain, a certified citizenship and immigration law specialist, said Canada has done telephone landings before experimentally. “So we’re confident that will work.”

Jain noted that while officials helpfully addressed a number of questions, to the best of their ability, they did so with the proviso that nothing was written in stone, beyond the information the government set out in its formal announcement March 16. “Immigration is complex, and there’s always so many exceptions, so we’re now working through the details,” Jain advised.

Prime Minister Justin Trudeau

“They’ve already clarified that people aren’t going to be penalized in terms of processing of applications and missing deadlines, that kind of stuff,” he noted. “They’ve been very flexible on that, which is very nice.”

Speaking personally, Jain said he views many of the travel restrictions announced by the Trudeau government March 16 as “very sensible.”

“They understand that a lot of the [COVID-19] cases have come in from people who are coming from abroad.”

But he also called the government’s initial decision that the air travel ban and border restrictions would not apply to Americans “a pretty big loophole.”

“I personally have a sense that there is some danger from the U.S. — I don’t think people are getting tested [there] in the same way, and they don’t have the same health care system we do, “ he remarked.

Meanwhile, the air travel ban imposed on foreign nationals entering the country that was announced March 16, was widely misinterpreted here and abroad as Canada “closing its borders” — a phrase repeated by Trudeau as recently as March 17.

Yet Jain noted that as of March 17, “at [Canada’s] land border right now you can come in as long as you have the visa, or you’re a green card holder, or an American citizen.” (There will be new restrictions, however, as a result of the government’s March 18 announcement of a ban on non-essential Canada-U.S. cross-border travel.)

“It’s definitely more nuanced than [wholesale border closures] and there’s good reason for that,” he noted. “I think [the government is] sensitive to the messaging and there’s a political side to this,” he observed. “Obviously politicians want to reassure the public, and they want to be seen as acting boldly and protecting Canadians. And a lot of Canadians are fearful about people bringing [COVID-19] into the country.”

Bill Blair, minister of Public Safety and Emergency Preparedness

Speaking to reporters in Ottawa about the new COVID-19 border and travel measures March 17, Bill Blair, the minister of Public Safety and Emergency Preparedness, said would-be refugee claimants who cross into Canada from the U.S. at irregular border crossings are immediately being taken into custody by the RCMP and “screened thoroughly” by customs border officials.

“This process takes about 24 hours and they are now also being screened for any evidence of symptoms and questioned about … where they have been,” he advised. “Under normal circumstances, when this process is concluded, and as they go into our processes of determining their eligibility for refugee status, they are moved to temporary shelter, usually in Montreal,” he explained. “But because of the need for the 14 days’ self-isolation, we are now making separate arrangements for those individuals to be placed in appropriate shelter in order to accommodate the requirement for the period of isolation.” Blair said the government is doing this “because we believe it is necessary, and in the best interest of keeping all Canadians healthy and safe.”

Blair stressed that all Canadians abroad have a right to return to Canada. “Canadians will always be allowed to return to Canada,” he noted. “And if a Canadian who returns is exhibiting symptoms when they present themselves at a land border or port of entry, they will immediately be referred to the Public Health Agency of Canada quarantine officer for examination. But they will of course be allowed into the country.”

Transport Minister Marc Garneau emphasized, however, that any air passenger with COVID-19 symptoms, regardless of nationality, will not be allowed to board a flight to Canada. “Also every traveller will need to remain in self-isolation for 14 days if they come to Canada, whether it is by plane, or through the land border, and regardless of their nationality. These measures are robust and unprecedented. We are assessing this situation on an hourly basis, and taking action, as appropriate, to protect Canadians.”

Blair said there are now more border officers present at all major ports of entry to Canada to carry out public health screening and “outreach.”

“Officers are on the lookout for any traveller who looks sick or who reports that they are feeling symptoms and they will refer all suspected cases to public health authorities,” he advised. “These measures have not only come into effect for air travellers, but have also been implemented for land, rail and ferry travellers. Instructional handouts are being provided to all travellers arriving in Canada. The handout advises them to self-isolate at home for 14 days, to monitor themselves for symptoms and to contact public health authorities should they develop symptoms.”

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