Canada and the United States extend travel restrictions along the Canada-US border

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Introduction

The Government of Canada has imposed travel restrictions on foreign nationals who are travelling to Canada from other countries. However, the previous Order-in-Council (Previous Order), which established travel restrictions for foreign nationals travelling to Canada from the United States, was set to expire on April 20, 2020. 

On April 18, 2020, Prime Minister Trudeau announced that the United States and Canada had reached an agreement to extend their existing travel restrictions for an additional 30 days. Two days later, the Governor General issued a new Order-in-Council (New Order), which formally extended these travel restrictions until May 21, 2020.

A summary of the current travel restrictions, which apply to foreign nationals travelling to Canada from the United States, is provided below.

Entry for optional or discretionary purposes prohibited

As in the Previous Order, the New Order states that a foreign national (i.e., a person other than a Canadian citizen, Canadian permanent resident, or a stateless person) is prohibited from entering Canada from the United States if they seek to enter for an optional or discretionary purpose, including tourism, recreation and entertainment.

The phrase “optional or discretionary purpose” is still not defined. However, the Canada Border Services Agency has been interpreting it as an “essential travel” standard. Notwithstanding this fact, an essential travel standard appears to be much stricter than the standard contemplated by both the New Order and Previous Order. 

No requirement to have been in the United States or Canada during the preceding 14 days

The Previous Order prohibited foreign nationals from entering Canada if they had been outside the United States or Canada during the preceding 14 days. However, this language no longer appears in the New Order. 

Entry prohibited if unable to self-quarantine

The New Order now states that a foreign national is prohibited from entering Canada from the United States if, based on the purpose of entry and the length of their stay, they are unable to comply with the mandatory obligation to self-quarantine for 14 days after arrival. The only recognized exception is for persons who are permitted under the New Order to enter Canada from the United States, in order to make a refugee claim.

Prohibition on refugee applicants

The Previous Order stated that a foreign national was prohibited from entering Canada from the United States, for the purpose of making a refugee claim, except for the following individuals:

  1. A citizen of the United States;
  2. A stateless habitual resident of the United States; and
  3. A person who: (1) has not attained the age of 18 years and is not accompanied by their mother, father or legal guardian within the meaning of the Immigration and Refugee Protection Regulations (IRPR), (2) has neither a spouse nor a common-law partner within the meaning of the IRPR, and (3) has neither a mother or father, nor a legal guardian within the meaning of the IRPR in the United States.

The above exemptions continue to appear in the New Order. 

The Previous Order contained an exemption for a mother, father, or legal guardian of a person who: (1) has not attained the age of 18 years, (2) is a citizen of the United States, and (3) who seeks to enter Canada for the purpose of making a claim for refugee protection. However, this exemption no longer appears in the New Order.

The New Order also provides additional exemptions for the following individuals:

  1. A person who seeks to enter Canada at a land port of entry designated by the Minister of Public Safety and Emergency Preparedness under Section 26 of the IRPR and is: (i) a person referred to in Sections 159.2, 159.5 or 159.6 of the IRPR; or (ii) a citizen of the United States; or
  2. A person whose presence in Canada is determined by the Minister of Public Safety and Emergency Preparedness, or the Minister of Citizenship and Immigration to be in the national or public interest, while recognizing the paramount public health interests of Canada and Canadians. 

Most foreign nationals in the United States were already prohibited from making refugee claims at official ports of entry along the Canada-US border, as a result of the Canada-US Safe Third Country Agreement (STCA). However, as the STCA does not apply to irregular border crossings, many foreign nationals were crossing the border into Canada between official ports of entry and making refugee claims upon their arrival. 

The Previous Order effectively prohibited irregular border crossers from entering Canada in order to make a refugee claim; this continues under the New Order. However, it now recognizes certain regulatory exceptions to the STCA (i.e., stateless persons, foreign nationals with certain family members in Canada, unaccompanied minors, and persons who have been charged or convicted of an offence punishable by the death penalty), which were not mentioned in the Previous Order. 

Non-application to certain persons

As in the Previous Order, the New Order states that it does not apply to:

  1. A person registered as an Indian under the Indian Act;
  2. A person who, as determined by the Chief Public Health Officer, does not pose a risk of significant harm to public health; or
  3. A protected person within the meaning of Subsection 95(2) of the Immigration and Refugee Protection Act (i.e., a person who has received refugee protection, and whose claim or application has not been subsequently rejected).

As a result, these individuals are exempt from the above travel restrictions (in addition to Canadian citizens, permanent residents and stateless persons).

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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