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Further clues as to what "non-optional and non-discretionary travel" means



On April 29, Immigration, Refugee and Citizenship Canada (IRCC) updated its online Novel Coronavirus (COVID-19) – Program Delivery Instructions. The update includes an important clarification regarding a term that is at the heart of the travel restrictions imposed by the Canadian government to try and control the spread of COVID-19.


Two Orders in Council set the framework for the prohibitions to enter Canada in order to minimize the risk of expoure to COVID-19. One order relates to travel from the United States and the other one to travel from any country other than the United States. While the Orders frame the travel restrictions differently, as summarized below, both Orders limit travel that is of an "optional or discretionary purpose, such as tourism, recreation or entertainment".


What "non-optional" and "non-discretionary" travel actually means has been the subject of much debate among immigration practitioners. This definition has also been a source of significant grief to many foreign nationals who have been prevented from entering the country due to varied interpretations of these terms by port of entry officers from the Canada Border Services Agency (CBSA). What has made things more difficult is that in addition to this terminology found in the Orders in Council, CBSA officers have also been demanding that travellers demonstrate that their travel is essential. This is despite the fact that the requirement that travel be "essential" is not found in the government Orders.

There have been multiple discussions between IRCC and various stakeholders, including members of the Canadian Bar Association, on this issue. As such, the clarification made by IRCC on Wednesday and the examples offered in their guidelines regarding what these terms might mean are quite welcome. Clarifications were also provided in relation to what may constitute non-optional and non-discretionary travel within the context of the family reunification exemption to the travel restrictions found in the non-US Order.

Having read the latest installment of the Program Delivery Instructions, some questions do remain. Many of the examples provided could still be open to competing interpretations. Most importantly, we hope that CBSA officers will refer to these guidelines rather than continuing to apply the essential travel test.

IRCC's updated instructions regarding the travel restrictions can be found here. IRCC's interpretation of non-optional and non-discretionary travel can be found here. Important excerpts from these instructions have been reproduced below.

Restrictions overview [1]

Restrictions vary depending on from where the foreign national is departing. However, any COVID-19-symptomatic travellers will not be permitted to enter Canada.

Foreign nationals seeking to travel to Canada from any country other than the United States while the travel restrictions are in place need to satisfy government officials that

  • they are covered by an exemption in the Orders, and

  • they are travelling for a non-optional and non-discretionary purpose

Foreign nationals seeking to travel to Canada from the United States while the travel restrictions are in place need to satisfy government officials that

  • they are travelling for a non-optional and non-discretionary purpose

Foreign nationals seeking to travel to Canada from the United States while the travel restrictions are in place need to satisfy government officials that

  • they are travelling for a non-optional and non-discretionary purpose

[...]

Examples of travel for a non-optional or non-discretionary purpose

Broad definition

Travel for optional or discretionary purposes is broadly defined in the Orders as including (but not limited to) travel for the purposes of tourism, recreation and entertainment.

Some examples of discretionary or optional travel are

  • to visit family for a vacation

  • for the birth of a grandchild, nephew, niece, cousin, etc. (For the parent of a child, this may be considered non-discretionary travel; however, it will still require assessment.)

  • to spend time at a secondary residence (vacation home, hunting or fishing lodge, etc.). This includes entry for upkeep or maintenance purposes.

  • to attend the funeral of a family member (This purpose of travel would be improbable due to quarantine measures and limits to the number of attendees at funerals under provincial restrictions.)

Travel for the following purposes would be considered non-optional or non-discretionary:

  • economic services and supply chains

  • critical infrastructure support

  • health (immediate medical care), safety and security

  • supporting Indigenous communities

  • transiting through Canada for non-optional or non-discretionary purposes

  • studying in Canada if already approved for a study permit on or before March 18

  • tending to family matters for non-optional or non-discretionary purposes (such as bringing supplies to elderly parents or tending to sick family members) when there is no one else available in Canada to assist

  • any other activities that are deemed non-optional or non-discretionary by the Government of Canada or based on an officer’s assessment

Family reunification

Officers should be aware that family ties will not automatically qualify the foreign national for non-optional or non-discretionary travel. Family members will be required to show that they are not travelling for a discretionary or optional purpose such as a routine family visit.

Some examples of non-discretionary or non-optional travel for the purposes of family reunification are (not an exhaustive list)

  • to take up full-time residence in Canada (this applies to prospective permanent residents as well as temporary residents who are seeking entry to Canada to live with immediate family members)

  • to care for an ill family member or a family member who is unable to care for themselves when no other arrangements can be made (the 14-day quarantine for travellers will be factored into whether the travel is discretionary)

  • for foreign national immediate family member(s) (as per the definition in the Order in Council), to spend the pandemic period with their Canadian citizen family member so they can help to ensure each other’s health, safety and well-being (This section is specifically to allow for the reunification of family members where it would be beneficial to all parties, as the reunification of family members is a key point of the Order in Council. This allows for families to be together during this difficult time.)

  • shared custody agreement across borders, as this would be complying with a court order

[1] Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/travel-restrictions/non-optional-non-discretionary.html

Andrew Carvajal is a Toronto lawyer, partner and Head of Economic Immigration at Desloges Law Group. He specializes in immigration law, administrative law and professional discipline litigation.




Twitter: @CarvajalLaw

LinkedIn:linkedin.com/in/carvajalandrew

Email: acarvajal@desloges.ca



#COVID19, #travelban, #IRCC, #familyreunification

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© 2020 by Andrew Carvajal