A revised update on Canada’s travel restrictions due to the COVID-19 outbreak

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Introduction

We previously discussed the restrictions that Canada has imposed on international travellers (Travel Restrictions), in order to limit the spread of the 2019 Novel Coronavirus (COVID-19). Since that time, there have been several additional developments:

  1. The Government of Canada has repealed and reissued its two Orders-in-Council relating to the Travel Restrictions. 
  2. Transport Canada has repealed and reissued its initial Interim Order, which applies to the boarding of individuals travelling to Canada by air. 
  3. Immigration, Refugees and Citizenship Canada (IRCC) has issued Program Delivery Instructions (PDIs), which further clarify how the Travel Restrictions will be applied; and
  4. The Minister of Citizenship and Immigration has issued Ministerial Instructions, which restrict/suspend certain immigration processing for a period of 21 days.

These additional developments are discussed below.

Travel to Canada from any country other than the United States

On March 26, 2020, the Governor General issued an Order-in-Council referred to as the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from any Country other than the United States) (Revised International Order). The previous Order-in-Council, which addressed travel to Canada from countries other than the United States (Initial International Order), was repealed.

As in the Initial International Order, the Revised International Order applies only to foreign nationals, so it does not apply to Canadian citizens or permanent residents. However, it now specifically states that the Revised International Order does not apply to the following individuals:

  1. A person registered as an Indian under the Indian Act; and
  2. A protected person (i.e., a person who has received refugee status in Canada).

As in the Initial International Order, the Revised International Order generally prohibits foreign nationals from entering Canada from a foreign country other than the United States. However, it also provides a list of individuals who are exempt from this prohibition. The following exemptions previously appeared in the Initial International Order and continue to appear in the Revised International Order:

  1. An immediate family member (the definition of this term is the same as in the Initial International Order) of a Canadian citizen or of a permanent resident;
  2. A person who is authorized, in writing, by a consular officer of the Government of Canada to enter Canada for the purpose of reuniting immediate family members;
  3. A crew member as defined in the Canadian Aviation Regulations;
  4. A member of a crew as defined in the Immigration and Refugee Protection Regulations (IRPR);
  5. An accredited diplomat, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies, or of any international organization of which Canada is a member;
  6. A person who enters Canada at the invitation of the Minister of Health for the purpose of assisting in the COVID-19 response;
  7. A person who arrives by any means of a conveyance operated by the Canadian Forces or the Department of National Defence;
  8. A member of the Canadian Forces or a visiting force, and the immediate family members of that member;
  9. A French citizen who resides in Saint-Pierre-et-Miquelon and has been only in Saint-Pierre-et-Miquelon, the United States or Canada within the last 14 days;
  10. A person or a class of persons who, in the opinion of Canada’s Chief Public Health Officer: (1) does not pose a risk of significant harm to public health, or (2) will provide an essential service while in Canada; and
  11. A person whose presence in Canada, in the opinion of the Minister of Foreign Affairs, the Minister of Citizenship and Immigration, or the Minister of Public Safety and Emergency Preparedness, is in the national interest.

Registered Indians and protected persons no longer appear on the list, since they are no longer subject to the Revised International Order. However, the following individuals have now been added:

  1. A person who is authorized, in writing, by an officer designated under Subsection 6(1) of the Immigration and Refugee Protection Act (IRPA) to enter Canada for the purpose of reuniting immediate family members (the Initial International Order referred only to consular officers);
  2. The holder of a valid work permit or a study permit;
  3. A person whose application for a work permit was approved under IRPA and who has received written notice of the approval, but who has not yet been issued the permit;
  4. A person whose application for a study permit was approved under IRPA, and who received written notice of the approval before noon, Eastern Daylight Time on March 18, 2020, but who has not yet been issued the permit;
  5. A person permitted to work in Canada as a student in a health field under Paragraph 186(p) of the IRPR;
  6. A person permitted to work in Canada as a provider of emergency services under Paragraph 186(t) of the IRPR.
  7. A licensed health care professional with proof of employment in Canada;
  8. A person who seeks to enter Canada for the purpose of delivering, maintaining, or repairing medically-necessary equipment or devices;
  9. A person who seeks to enter Canada for the purpose of making medical deliveries of cells, blood and blood products, tissues, organs or other body parts, that are required for patient care in Canada during or within a reasonable period of time after the expiry of the Revised International Order;
  10. A person whose application for permanent residence was approved under IRPA, and who received written notice of the approval before noon, Eastern Daylight Time on March 18, 2020, but who has not yet become a permanent resident; or
  11. A worker in the marine transportation sector who is essential for the movement of goods by vessel, as defined in Section 2 of the Canada Shipping Act, 2001, and who seeks to enter Canada for the purpose of performing their duties in that sector.

Under the Initial International Order, the requirement that proposed travel not be optional or discretionary (such as tourism, recreation, or entertainment) applied to some, but not all, of the above individuals. The Revised International Order now states that all of the above individuals must seek entry to Canada for a purpose that is not optional or discretionary.

The Revised International Order will remain in effect until June 30, 2020, the same expiration date as the Initial International Order.

Travel to Canada from the United States

On March 26, 2020, the Governor General issued an Order-in-Council referred to as the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) (Revised Canada-US Order). The previous Order-in-Council, which addressed travel to Canada from the United States (Initial Canada-US Order), was repealed.

The Revised Canada-US Order contains only minor revisions, which do not substantially alter the travel restrictions imposed by the Initial Canada-US Order:

  1. As in the case of the Initial Canada-US Order, the Revised Canada-US Order does not apply to Canadian citizens, permanent residents, registered Indians, persons determined by the Chief Public Health Officer not to pose a risk of significant harm to public health, or protected persons.
  2. The Revised Canada-US Order continues to prohibit foreign nationals from entering Canada from the United States for an optional or discretionary purpose. Unlike the Revised International Order, there is no list of specifically exempt individuals. However, an exempt individual listed in the Revised International Order should be deemed not to be entering Canada for an optional or discretionary purpose if they travel to Canada from the United States.
  3. The Revised Canada-US Order continues to prohibit foreign nationals from entering Canada if they have been outside Canada and the United States within the preceding 14 days. It also continues to list individuals who are exempt from this prohibition (but not from the prohibition against optional or discretionary travel). As it incorporates by reference the list of individuals exempt from the general prohibition on travel contained in the Revised International Order, the additional individuals now appearing on that list (see above) will also be exempt from this requirement. 
  4. The Revised Canada-US Order continues to prohibit most foreign nationals from entering Canada from the United States, for the purposes of making a refugee claim.
  5. The Revised Canada-US Order continues to prohibit foreign nationals from entering Canada from the United States if they exhibit the symptoms of COVID-19. This prohibition still does not apply to individuals who are permitted to enter Canada for the purposes of making a refugee claim. It also does not apply to Canadian citizens, permanent residents, registered Indians, persons determined by the Chief Public Health Officer not to pose a risk of significant harm to public health, or protected persons.

The Revised Canada-US Order will remain in effect until April 21, 2020, the same expiration date as the Initial Canada-US Order.

Transport Canada’s Interim Order relating to air travel

Transport Canada’s latest order is Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 5 (Interim Order No. 5). Interim Order No. 5 differs from Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 3 (Interim Order No. 3) as follows:

  1. It clarifies that the order applies to private operators of aircraft (i.e., private jets) as well as commercial air carriers.
  2. It clarifies that a private operator or air carrier is prohibited from boarding a foreign national on a flight from the United States to Canada if they are a competent adult who does not confirm, or who refuses to confirm, that they have read the Canada-US Order, and, to the best of their knowledge, they are not prohibited from entering Canada. It also clarifies that a foreign national must not provide a confirmation that they know to be false or misleading. 
  3. It clarifies that a private operator or air carrier must observe whether any person boarding the flight is exhibiting symptoms of COVID-19.

IRCC’s PDIs

IRCC has now issued PDIs relating to the Travel Restrictions. These PDIs provide further details regarding how exemptions to the Travel Restrictions will be applied. The IRCC guidance relating to some of the more frequently encountered exemptions is discussed below. 

Immediate family members of Canadian citizens and permanent residents

The PDIs state that a foreign national, who is an immediate family member of a Canadian citizen or permanent resident, is exempt from the travel restrictions and permitted to travel to Canada if they have the required travel documents. Interestingly, the PDIs make no reference to any requirement that the immediate family members be entering Canada for a reason that is not discretionary or optional. Both the Revised International Order and Revised Canada-US Order clearly state that the purpose for entry must not be optional or discretionary 

IRCC has informally confirmed that, in general, coming to Canada to establish residence is not an optional or discretionary purpose, where the foreign national is subject to an exemption from the travel restrictions (e.g., workers, students, immediate family members of Canadian citizens or permanent residents, etc.). This interpretation appears to be consistent with PDIs.

Notwithstanding IRCC’s PDIs and its informal statements, the Canada Border Services Agency (CBSA) is apparently turning away immediate family members of Canadian citizens and permanent residents, if their intention is not to establish their residence in Canada. If they merely intend to stay until the COVID-19 outbreak has ended, CBSA is taking the position that this is an optional or discretionary purpose.

Temporary foreign workers

The PDIs confirm that certain foreign nationals who are authorized to travel to Canada to work are exempt from the Travel Restrictions. However, the language used in the PDIs creates some uncertainty. 

The PDIs confirm that the exemption includes temporary workers who were already established in Canada or who had made arrangements to come to Canada for work before the Travel Restrictions were implemented. However, they also state that the exemption includes new workers who are coming to Canada in order to be employed in critical industries, such as agriculture, food processing, health, transportation and emergency services. 

This language suggests that new work permit applicants who apply after the implementation of the Travel Restrictions will only be exempt if they are coming to Canada to work in critical industries (i.e., essential services). In addition, IRCC also states on another page of its website that all temporary foreign workers are exempt from travel restrictions and can travel to Canada by air or land if they are coming for an essential purpose.

The above guidance suggests that temporary foreign workers are subject to an “essential service” test. However, such a requirement is inconsistent with the language of the Revised International Order and the Revised Canada-US Order. The Orders-in-Council require only that the foreign national’s purpose for travel to Canada not be optional or discretionary; this is a much lower threshold than an essential service test.

IRCC has informally confirmed that there is no “essential service” test for temporary foreign workers. It has also informally confirmed that holders of work permits or letters of introduction are normally coming to Canada for work, which is not an optional or discretionary purpose.

Therefore, the mere fact that the foreign national is entering Canada in order to establish residence as a temporary foreign worker should be sufficient to establish that their purpose is not optional or discretionary. This is consistent with the PDIs, which state that temporary foreign workers can self-identify to airlines at the point of boarding that they are exempt under this provision by presenting:

  1. A valid work permit; or
  2. A letter of introduction from IRCC.

Although the PDIs do not specifically address this scenario, United States citizens and visa-exempt foreign nationals in possession of valid Electronic Travel Authorization (eTA) should still be permitted to apply for a work permit at the time of entry, at least when entering Canada from the United States. Although the Revised International Order only exempts existing work permit holders and individuals whose work permit applications have already been approved, the Revised Canada-US Order only requires the purpose for entry to not be optional or discretionary. 

Since entering Canada for work should not be considered optional or discretionary, it should still be possible for a visa-exempt work permit applicant to apply at the time of entry, at least when travelling from the United States. Even Interim Order No. 5, which governs air travel, requires only that a foreign national entering Canada from the United States to confirm that he or she: 

  1. Has read the Revised Canada-US Order; and 
  2. Does not believe that he or she is prohibited from entering Canada.

In other words, a foreign national who has not already been approved for a work permit, who is travelling to Canada from the United States, should still be permitted to board a flight to Canada. He or she can then apply for the work permit at the time of arrival. This is confirmed in IRCC’s PDIs for temporary residence, which state that foreign nationals will not be able to apply for a work permit at the port of entry, unless entering from the United States and allowed to do so under the Revised Canada-US Order.

Notwithstanding IRCC’s PDIs and its informal statements, some CBSA officers still appear to be applying an “essential services” test to temporary foreign workers who are seeking entry to Canada. This can occur even in cases where the foreign national received his or her work permit or letter of introduction before the Travel Restrictions were implemented. As mentioned above, the application of an “essential travel” test appears to be inconsistent with the Revised International Order and the Revised Canada-US Order. 

Permit-exempt work

The PDIs confirm that the Revised International Order also includes a number of scenarios where the foreign national is not required to obtain a work permit:

  1. Providers of emergency services, including medical services, for the protection or preservation of life or property (includes firefighters);
  2. Students in a health field, including as a medical elective or clinical clerk at a medical teaching institution in Canada, for the primary purpose of acquiring training, if they have written approval from the body that regulates that field; and
  3. Foreign nationals seeking to enter and remain in Canada solely to become a member of a crew of a means of transportation, including a vessel engaged in international transportation.

Again, although these exemptions from the Travel Restrictions are not specifically listed in the Revised Canada-US Order, an exempt individual listed in the Revised International Order should be deemed not to be entering Canada for an optional or discretionary purpose if they travel to Canada from the United States. 

The PDIs state that these foreign nationals can self-identify to airlines at the point of boarding that they are exempt under this provision by presenting alternative documentation. This will generally include a letter of invitation from a relevant organization in Canada (federal, provincial or municipal government entity for emergency services providers, teaching institutions for medical students, or shipping agents for persons joining vessels).

International students

The PDIs confirm that foreign nationals who held a valid Canadian study permit, or who were issued a letter of invitation dated on or before March 18, 2020, are exempt from the Travel Restrictions. The PDIs justify the exemption by explaining that these international students were already enrolled at a Designated Learning Institution (DLI) in Canada, or had been accepted by a DLI and made arrangements to come to Canada to study, before the Travel Restrictions were put in place. 

Unfortunately, the reference to a “letter of invitation” is confusing because when a DLI accepts a student, it typically issues a “letter of acceptance,” not a letter of invitation. In addition, when a consular post approves a study permit application, it issues a “letter of introduction,” not a letter of invitation. 

It seems likely that the PDIs intended to refer to a letter of introduction. This is because they go on to state that foreign nationals can self-identify to airlines at the point of boarding that they are exempt under this provision by presenting

  1. A valid study permit; or
  2. A letter of introduction from IRCC dated on or before March 18, 2020.

In any event, new study permit applications are not being processed at this time since only applicants, who were approved prior to March 19, 2020, are considered exempt from the Travel Restrictions.

Transiting Passengers

Although neither the Revised International Order nor the Revised Canada-US Order refers to an exemption for transiting Passengers, Interim Order No. 5 specifically exempts a foreign national in transit through Canada to another country. The PDIs further clarify that the airport of arrival into Canada must have the facilities to permit the foreign national to connect to their destination without having to present themselves for examination to enter Canada.

Ministerial Instructions restricting/suspending certain immigration processing

On April 9, 2020, the Minister of Citizenship and Immigration issued Ministerial Instructions, which restrict/suspend certain immigration processing for a period of 21 days (until April 30, 2020). Specifically, the Ministerial Instructions state the following:

  1. All applications for a Temporary Resident Visa (TRV), a work permit, or a study permit submitted by persons who are outside Canada at the time of application must be submitted using electronic means (i.e., an online application).
  2. TRV applications for visitors that were received before April 9, 2020 (but are still pending), and those received on or after April 9, 2020, will not be processed while the Ministerial Instructions are in force, unless they pertain to foreign nationals who are exempt from the Travel Restrictions. All other applications will be retained for processing once the Ministerial Instructions are no longer in effect.
  3. Any eTA applications that require processing by any means other than the electronic automated system will not be processed while the Ministerial Instructions are in effect, unless they pertain to foreign nationals who are exempt from the Travel Restrictions.

None of these measures appear to prohibit individuals who are exempt from the Travel Restrictions from applying for their TRVs or work permits abroad.

That said, IRCC has announced that Visa Application Centres, which collect biometrics (for TRV, work permit, and study permit applicants), are temporarily closed due to the COVID-19 outbreak. In addition, any applicants who are required to undergo a medical exam with an approved panel physician will be unable to do so since most (if not all) panel physicians are not currently performing medical examinations due to the COVID-19 outbreak.

The inability to give biometrics or to undergo a medical examination effectively prevents many foreign nationals from applying for a new TRV or work permit during the COVID-19 outbreak, even if they are exempt from the Travel Restrictions. Of course, visa-exempt foreign nationals who are travelling to Canada from the United States (and who do not require a medical examination) should still be able to apply for a work permit at the time of arrival. Canadian airports and ports of entry are capable of collecting biometrics at the time of the foreign national’s arrival in Canada.

Other considerations

Even if a foreign national is exempt from the Travel Restrictions, they will still be under a mandatory obligation to self-isolate for a period of 14 days once they have arrived in Canada, subject to limited exceptions (which involve the provision of essential services). A more detailed analysis of this mandatory obligation to self-isolate appears here.

IRCC has also confirmed that work permit applicants who are currently outside Canada must confirm that their employer is not subject to mandatory closure of non-essential businesses and that they will be able to start their employment after the 14-day self-isolation period before making any travel arrangements. Workers should not proceed to Canada if their employer is no longer offering them a job. CBSA officers may ask if the offer of employment is still active or if the employer is still operating. If not, CBSA may refuse the work permit as the foreign national no longer meets the applicable eligibility requirements.

Conclusion

Navigating Canada’s Travel Restrictions can be a challenging task. This is due, in part, to inconsistent interpretations that are currently being applied by the relevant agencies. Nevertheless, it is still possible for many foreign nationals to enter Canada while the Travel Restrictions are in effect.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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