Clarify rights for preclearance

  • March 26, 2024

Proposed regulations under the Preclearance Act would adapt port of entry authorities under the Immigration, Refugees and Protection Act to allow Canada Border Services Agency agents to make admissibility determinations within preclearance areas outside the Canadian border. In a letter, the Immigration Law Section of the Canadian Bar Association expresses concerns about the proposed regulations’ long-term impact on travellers, in particular permanent residents, who could be subject to compelled examinations in preclearance areas.

Many of the problems stem from flaws in the Agreement on Land, Marine and Air Transport Preclearance between the Government of Canada and the Government of the United States which is the basis for the Preclearance Act. The CBA Section pointed those out before and continues to believe they should be addressed.

The most salient issues in the treaty include denying permanent residents the unequivocal right of entry, denying asylum-seekers the right to make a refugee claim – a violation of Canada’s international obligations and Singh v. Canada Minister of Employment and Immigration -- returning refugee claimants to the United States without allowing them to initiate a claim in the preclearance area, an unprecedented lowering of the legal threshold for searches of personal digital devices, the lack of safeguards around solicitor-client privileged data in those devices, and a lack of conformity with the Canadian Charter of Rights and Freedoms.

On this last point, the CBA Section recommends that instead of assuming the Charter will apply to preclearance areas by inference, “the Act be amended to clearly state that the Charter is applicable and guarantee access to Judicial Review by the Federal Court.”

Permanent residents, refugee claimants

Section 48(4) of the Preclearance Act gives CBSA unprecedented authority to deny permanent residents clearance on grounds prescribed by the proposed regulations. “In our view there is no justification for this significant expansion of CBSA powers and consequent diminishment of the rights of permanent residents,” the CBA letter states. Permanent residents have the right to enter Canada upon showing that they hold that status. “This is a statutory right with no limitation on it.”

Expanding the powers of CBSA officers to conduct compelled examinations of permanent residents in preclearance areas “will have an adverse impact on the rights of permanent residents, who, when examined at conventional ports of entry, have the benefits of procedural safeguards of the IRPA, all substantive protections of the Charter, as well as oversight by the Federal Court,” the Section adds.

As currently drafted the proposed regulations forbid anyone from initiating a refugee claim at preclearance areas. “The CBA Section has grave concerns about the legality of this measure and perceives increased risks for travellers on their return to the US after attempting to file a claim.” At the very least regulations should require officers to note a claimant’s attempt to file a refugee claim in Global Case Management System and give them written confirmation of their attempt.

Given the serious consequences of withdrawing from preclearance or being turned over to US authorities – including possible incarceration or refoulement to a country where they may be in danger – the CBA Section suggests adding signs at preclearance areas to advise individuals that they cannot make a claim for asylum at a preclearance area. The signs should “be designed to be easy to read and understand, and give clear enough information for individuals to make informed decisions. It must be in a location that allows the individual to make the decision to not approach the preclearance area without risking being apprehended by either US or Canadian authorities.” In addition, clear and transparent information must be available on the website of Immigration, Refugees and Citizenship Canada and others, and be widely shared including on social media.

Finally, given their serious impact on the rights of travellers, the Section recommends the proposed regulations be sent to the Parliamentary Committee for consideration before they are finalized.