Increase in 44(1) at the border?

[deadinside]

Am I right to assume that the number of 44(1) reports issued at the border have increased after the US election? (also evidenced by the number of reports on this forum).

Is this due to changing political scenario in US and Canada? Both swinging to right in recent years?

Given this, is the probability of being reported for not meeting RO still at 50% or is it virtually guaranteed at 99%?

 

[canuck78]

Am I right to assume that the number of 44(1) reports issued at the border have increased after the US election? (also evidenced by the number of reports on this forum).

Is this due to changing political scenario in US and Canada? Both swinging to right in recent years?

Given this, is the probability of being reported for not meeting RO still at 50% or is it virtually guaranteed at 99%?

More likely due to Canada cracking down on immigration in general. Doubt it is close to 50%. Only safe thing to do is to meet RO which is already very lenient.

 

[deadinside]

Doubt it is close to 50%.

Do you mean to say it's probably less than 50%?

 

[dpenabill]

At the risk of excessive belaboring . . . main thing is to recognize that the probability of being subject to a 44(1) Report varies considerably from PR to PR, depending on numerous factors which influence the probability of inadmissibility proceedings.

Am I right to assume that the number of 44(1) reports issued at the border have increased after the US election? (also evidenced by the number of reports on this forum).

Is this due to changing political scenario in US and Canada? Both swinging to right in recent years?

Given this, is the probability of being reported for not meeting RO still at 50% or is it virtually guaranteed at 99%?

Assuming facts rarely illuminates much.

Even though anecdotal reports in forums like this can be informative and useful, and in some respects indicate changing trends, it is hardly a statistically reliable source.

It is not likely that the U.S. election has had any significant effect on the level of scrutiny given returning PRs or the extent of RO enforcement by border officials.

In contrast, shifts in how the Canadian public views immigration, which tends to correlate to shifting political views in Canada, could be a factor, perhaps even a significant factor in the level of scrutiny and RO enforcement.

Shifts in U.S. views may influence Canadians (it is sad to acknowledge) but Canada can and often does go its own way. Note the wave of anti-immigrant views in the U.S. a decade ago, leading to the first election of Trump and then his draconian efforts to shut down the largely Hispanic immigration at the U.S. southern border and virtually all Muslim immigration in 2017, which was around the same period of time that Canadians rejected both the Harper conservative government and the official opposition party at the time, the NDP, in favour of a Liberal government promising a far more open and lenient approach to immigration. In that election Harper's tough and in many ways harsh changes to immigration and citizenship law was among the main issues, Trudeau promising to repeal many of the more severe provisions adopted under Harper. That is, while the U.S. was moving toward a far more conservative approach to immigration matters, Canada was going in the other direction.

At the moment, the recently elected (yet to take office) U.S. president has been doing a lot of sword rattling aimed at Canada and part of the agenda appears to be an effort to bully Canada into getting tougher on immigration. It is too soon for this to have a measurable impact.



Note Distinguishing Preparation of 44(1) Report versus Being Issued a Removal Order:

The real indicator of RO enforcement is the number of returning PRs issued a Removal Order at the PoE, or in some cases, where there is not another qualified officer available to review the 44(1) Report while the PR is still being examined at the PoE, issued a Removal Order a little later following an interview (often by telephone) with the PR).

It is readily apparent that many times a returning PR in breach of the RO has a 44(1) Report prepared but that is set aside by the officer reviewing it, and it appears that in these cases the PR is not given a copy of the Report or even made aware there was a 44(1) Report prepared.

The vast majority of reports about 44(1) Reports at the PoE come from two sources:

-- IAD decisions describing the procedures leading to an appeal by a PR who was issued a Removal Order​

-- anecdotal reports from PRs who were either issued a Removal Order or who had a 44(1) Report prepared against them that was not reviewed at the PoE (to be reviewed later)​

Reports about PRs being waived through the PoE despite being in breach of the RO come from those same sources. In the IAD decisions this is seen in cases in which discussion about the RO compliance calculation reveals the PR had come and gone and come again multiple times while in RO breach, and then finally issued a Removal Order.

We are still seeing scores and scores of PRs in breach who have returned to Canada while in RO breach and not even questioned much about RO compliance, and many more asked some questions, some given cautions or admonitions, but waived through. Leading to . . .


Nature and Scope of PoE RO Enforcement; Probability of Inadmissibility Proceedings for PRs In Breach of RO:

We have NO idea what the probability is that border officials will prepare a 44(1) Report for Inadmissibility when a returning PR is in breach of the RO. (We can identify factors which will increase or decrease the probability for particular PRs in certain circumstances . . . noting, for example, the bigger the breach of the RO, the greater the probability border officials will prepare a Report.)

We have NO idea what percentage of returning PRs in breach of the RO are subject to inadmissibility proceedings at the PoE. I do not know, not close, but my guess is that it is way, way less than 50%.

It would be a mistake to equate the percentage (assuming it could be known) with the probability of enforcement. That is, if for example 39% of PRs in RO breach have a 44(1) Report prepared against them, that does not mean the probability of being subject to a 44(1) Report is 39%.

The probability of having a Report prepared depends on the specific circumstances in the individual PR's situation.

At the least, at the very least, there is a huge difference in the probability of a Report for a PR who does not have a valid PR card compared to a PR also in breach who has a valid PR card. Even if they are both in breach by the exact same amount.

There is a huge difference in the probability of a Report for a PR in RO breach who has previously been waived into Canada and is now well settled here, who is returning to Canada after a short trip outside Canada, compared to a PR in RO breach who is just returning to Canada after a lengthy absence.

The probability of being Reported is considerably less for a PR driving across the border in her own car that is registered in Ontario (or another province) compared to a PR arriving at the PoE in a taxi or on a bus.

The probability of a PR who is in breach of the RO by a week and who is returning to Canada, to where the PR has an established home where his family lives, and a full time job here, after a weekend in the States, is probably very low. Perhaps as low as 99% odds of no Report.

In contrast, a PR who has been outside Canada for more than three years since their last time in Canada, probably has rather high odds of being subject to a Report, albeit even for such PRs the odds will vary considerably relative to other factors, such as whether they have a valid PR card.

So far, notwithstanding some recent policy and practices changes at IRCC which will result in limitations and restrictions on immigration, there is little indication that CBSA or IRCC are increasing the level of scrutiny employed in RO enforcement.

General Trend in Scope of RO Enforcement:

There are no reliable statistics (at least none readily available without engaging in extensive research including some ATI requests) from which we can quantify the extent to which RO enforcement is changing, trending toward more strict enforcement.

That said, facilitated largely by advancing technology, changes resulting in increased record capturing, improved record access, and enhanced record analysis (including utilization of what many refer to as AI), it is clear that border officials have far more information about returning PRs available at their fingertips . . . and the machines are likely "catching" more cases now than a few years ago, and much more likely to be "catching" more cases going forward. The technology might actually compel more strict RO enforcement, flagging PRs in breach who might have slid under the radar in the past.

 

[canuck78]

Do you mean to say it's probably less than 50%?

Based on anectodal reports it has been. Whether that will continue who knows. A period of enforcement may also change the impression that it is easy to reenter Canada even when you are not in compliance. Many are not in compliance without H&C reasons because they are aware that most are not reported. Based on purely anecdotal reports there seems to have been more enforcement recently. Likely also due to Covid likely no longer being a reason for not meeting RO.

 

[deadinside]

Thanks, that's very informative.

If we narrow down the scope of this question to only PRs who have not met RO and also have an expired PR card, what would you say is the probability of being reported? Will it be 99%?

For sake if this discussion, I'm assuming the PR has a PR card that expired 1-3 years back and has only spent a few months in canada. I think the number of cases like these are substantial.

 

[Ponga]

Thanks, that's very informative.

If we narrow down the scope of this question to only PRs who have not met RO and also have an expired PR card, what would you say is the probability of being reported? Will it be 99%?

For sake if this discussion, I'm assuming the PR has a PR card that expired 1-3 years back and has only spent a few months in canada. I think the number of cases like these are substantial.

No one can say with any degree of certainty, how high the percentage is...but we can all `assume' it to depend on the mood of the CBSA officer that the PR encounters when presenting themselves at Primary Inspection.

 

[canuck78]

No one can say with any degree of certainty, how high the percentage is...but we can all `assume' it to depend on the mood of the CBSA officer that the PR encounters when presenting themselves at Primary Inspection.

Also depends on directives from gvt about whether they should enforce or show leniency.

 

[Ponga]

Also depends on directives from gvt about whether they should enforce or show leniency.

Good point!

 

[Bornlucky]

Also depends on directives from gvt about whether they should enforce or show leniency.

Hi,

The officers have discretion to write a 44 report. It is written in the Act that they, "may prepare a report."

So - directives - how do you direct the use of discretion?

What direction supersedes an Act of Parliament?

 

[Copingwithlife]

Good point!

I’ve worked for the Government where compliance comes into the picture for things .
People don’t realize that internally a directive can come down from HQ stating xxxxxxx moving forward these are the parameters we shall go by . Or there will be zero tolerance for non compliance.
I’ve seen both .

These directives of course are NEVER published externally.


I can see with the Conservatives coming into power that compliance will more than likely be enforced
They were much more rules in forced versus the gong show today

Look at the rules for immigration/refugee when Harper was in power versus now for example

https://www.canada.ca/en/news/archive/2012/02/harper-government-introduces-protecting-canada-immigration-system-act.html

 

[Copingwithlife]

Hi,

The officers have discretion to write a 44 report. It is written in the Act that they, "may prepare a report."

So - directives - how do you direct the use of discretion?

What direction supersedes an Act of Parliament?

Example
There’s penalties and interest that apply to income tax if one should fail to be compliant in their tax obligations

One can file a request to get relief on these penalties
And it’s up to an officer whether they’ll at there discretion give relief aka modify or cancel said penalties

Depends upon the reason . Akin to whether someone who fails to make RO , will they be given relief or discretion by the officer ?
Depends upon the reason
Is it frivolous? Backed up by evidence ?

The covid reason is frivolous. Popping out a kid in the USA , is frivolous. But gotta get that USA citizenship for the kid - frivolous
Employment in the States , frivolous.

Taking care of someone terminally ill ?
Be prepared to back up your claim
That’s not frivolous

 

[Bornlucky]

Example
There’s penalties and interest that apply to income tax if one should fail to be compliant in their tax obligations

One can file a request to get relief on these penalties
And it’s up to an officer whether they’ll at there discretion give relief aka modify or cancel said penalties

Depends upon the reason . Akin to whether someone who fails to make RO , will they be given relief or discretion by the officer ?
Depends upon the reason
Is it frivolous? Backed up by evidence ?

The covid reason is frivolous. Popping out a kid in the USA , is frivolous. But gotta get that USA citizenship for the kid - frivolous
Employment in the States , frivolous.

Taking care of someone terminally ill ?
Be prepared to back up your claim
That’s not frivolous

Hello,

I don't know what this is - are you explaining discretion to me?

I asked of the original post, what sort of external direction can supersede the legislated authority of the individual decision-maker?

The reason the question remains unanswered is, you cannot direct the use of another decision-maker's legislated authority.

Canuck78 said,

"Also depends on directives from gvt about whether they should enforce or show leniency."

I asked,

The officers have discretion to write a 44 report. It is written in the Act that they, "may prepare a report."

So - directives - how do you direct the use of discretion?

What direction supersedes an Act of Parliament?

Your response

Where in your post do I find the answer this very simple question?

An expert says that a directive can be issued for a discretionary decision based upon a legislative authority:

"about whether they should enforce or show leniency"

I understand - and you must too - the pecking order for any Federal legal authority is/was/will forever be:

1. Legislation
2. Regulations
3. Policy
4. my aunt's to-do list

So, what will Canuck78 envision to support her statement that enforcement can be directed over a legislated discretionary authority?

If you believe that you have answered that - I don't understand it.

Is it a memo that over-rides the legislation - some regulation or policy?

 

[armoured]

Hello,

I don't know what this is - are you explaining discretion to me?

I asked of the original post, what sort of external direction can supersede the legislated authority of the individual decision-maker?

The reason the question remains unanswered is, you cannot direct the use of another decision-maker's legislated authority.

Canuck78 said,

"Also depends on directives from gvt about whether they should enforce or show leniency."

I asked,

The officers have discretion to write a 44 report. It is written in the Act that they, "may prepare a report."

So - directives - how do you direct the use of discretion?

What direction supersedes an Act of Parliament?

Your response

Where in your post do I find the answer this very simple question?

An expert says that a directive can be issued for a discretionary decision based upon a legislative authority:

"about whether they should enforce or show leniency"

I understand - and you must too - the pecking order for any Federal legal authority is/was/will forever be:

1. Legislation
2. Regulations
3. Policy
4. my aunt's to-do list

So, what will Canuck78 envision to support her statement that enforcement can be directed over a legislated discretionary authority?

If you believe that you have answered that - I don't understand it.

Is it a memo that over-rides the legislation - some regulation or policy?

You seem to want it explained to you how the civil service functions, but don't wish to listen to those with some knowledge of it.

There's no surprises in the above. Government via legislation and regulations empowers certain officers to use their discretion, within the limit of the law. The government or 'ministry' of the day (with majority in parliament) deploys that discretion through officers who get instructions from the 'ministry' via the ministers responsible. Those directions for how to run things day to day via the civil service will never (well hardly ever, because scandal-generative) say to do anything contrary to the law, but can give guidance (frameworks, emphasis) on how policy is to be enacted in exercise of that discretion.

The fact this comes (however indirectly) from 'the Minister' is seen in the process, where a 'Minister's delegate' must sign off on the 44(1) reports.

Roughly that guidance might suggest that officers be very strict / extremely strict / strict but don't clog the system up with reports that will be overturned later, or - the least strict level - our priorities are [elsewhere] so be strict only to extent it doesn't detract from important stuff. Rather typical for all governments would be for initial instructions to say something at the extremes of this spectrum (eg 'zero tolerance') and the unintended consequences (eg extremely long waiting times for decisions, high legal expenses to govt) to become apparent after six months or so, and the course corrections to that initial guidance to avoid saying explicitly 'that other memo was moronic rubbish that's caused huge problems, pls ignore until further notice while we figure out how things work' but everyone can read between the lines.

Does any of the above mean that the officer's discretion does not exist? Nope. They have discretion, which they may exercise (as long as lawful), and they would probably never be punished for marginal cases and certainly not straightforward ones. But if their bosses (the minister and minions) are not happy with their exercise of their judgment, their career advancement may be, ahem, limited, and in extreme cases, dismissed. (Note dismissed usually not just due to disagreements over decisions but demonstrably incompetent i.e. at odds with any reasonable exercise of that judgment - or corruption, etc.; I'd hazard a guess that very few dismissals are due directly to disagreements over judgment in decisions such as this but rather serious problems elsewhere in one's record).

 

[dpenabill]

The officers have discretion to write a 44 report. It is written in the Act that they, "may prepare a report."

So - directives - how do you direct the use of discretion?

What direction supersedes an Act of Parliament?

As @Copingwithlife tried to illustrate, government agencies commonly formulate and direct the criteria government officials are to employ in exercising the discretion they are allowed by law. Even if this limits the scope of discretion and restricts the reasons for decisions being made (like a CBSA officer deciding whether to prepare a 44(1) Report when examining a returning PR), that is usually, almost always (but not always), not only a reasonable and lawful exercise of the respective Minister's delegated authority, but in many regards that is what the law mandates, that the respective government agency or department formulate the rules or criteria for its officers to employ in making decisions, to include some rules which are mandatory (if for example there are H&C considerations for which a PR should be allowed to keep PR status despite a breach of the RO, the CBSA officer reviewing the 44(1) Report must decide to set the Report aside) but many of which are guidelines for what officers can consider in the exercise of their discretion.

That is, most such guidelines, instructions, rules, or other directives the Minister gives are valid and the officers in that agency or department are required to follow them. Directing how officers should exercise their discretion does not, not usually, supersede the statutory law.

If the direction or instruction given does supersede the governing statutory law (that happens, not a lot, but it does happen), that can be challenged by a proper party with a right to appeal or at least standing to seek leave to appeal in regards to a particular matter. BUT government agencies and departments make a very concerted effort to formulate and direct the exercise of discretion within what the law requires, aiming to fulfill the law's purposes.

Example: Operational Manual ENF 5 Writing 44(1) Reports

The preparation of 44(1) Reports generally, and in regards to PRs in particular, 44(1) Reports for Inadmissibility based on a breach of the PR Residency Obligation, is a very good example. There is an entire operational manual intended to provide "functional direction and guidance on writing a report under subsection 44(1) of the Immigration and Refugee Protection Act (IRPA)." This is ENF 5 Writing 44(1) Reports, and this operational manual includes a chapter specific to writing these reports against PRs. A PDF of this manual can be obtained here: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html

For purposes of this discussion, Chapter 8 in that manual also looms large. This is the chapter prescribing "Considerations before writing an A44(1) Report -- Scope of officer discretion" and it states:

The fact that an officer has the discretionary power to decide whether or not to write an A44(1) report does not mean that the officer can disregard the fact that someone is, or may be, inadmissible.​

​

Rather, discretion under A44(1) means that officers and MDs have some flexibility in managing cases where the person is inadmissible . . .​

A lot of the rest of that manual, in addition to numerous Federal Court decisions, address how officers are to exercise their discretion.

But @Copingwithlife also referred to a very big part of how agencies and departments also direct the exercise of discretion by officers and other officials within those agencies and departments: internal instructions and directives which are confidential, not revealed publicly, typically kept behind the investigatory methods or means curtain. We rarely get access to such information unless there is a significant leak. Some time ago, for example, there was a stunning leak of the File Requirements Checklist for processing citizenship applications, which included a full list of the criteria being used to decide who would get a Residency Questionnaire. Since the Harper government pulled a huge portion of internal instructions and operational practices behind the confidentiality curtain, more than a decade ago, IRCC and CBSA has been blocking a lot of its internal instructions from public access.

So there is a lot we do not know about the criteria being used, or how it is used, but there is no doubt that the respective Ministers of IRCC and Public Safety have adopted rules and practices their officers are required to follow in making decisions, including discretionary decisions.

So, what will Canuck78 envision to support her statement that enforcement can be directed over a legislated discretionary authority?

I will not try to speak for @canuck78 but there is nothing in what @canuck78 posted that suggests directives contrary to the governing legislation, but rather appropriately made reference to the fact that under a Minister's administration, CBSA and IRCC formulate and adopt directives guiding and instructing officers in regards to what to consider and how to consider it when making decisions, including decisions involving an exercise of discretion, and otherwise structuring the scope of the officers discretion. To a large extent, that is what bureaucracies do, one part figuring out and administering how things are to work (including how to apply the governing law), and the other part implementing that.

Beyond all that . . . the discretion allowed government decision makers is almost never absolute discretion but is almost always structured by internal policies, rules, and guidelines or instructions, within the framework prescribed by law (the applicable statutes and regulations, and court rulings). In particular, border officers are limited in what they can consider in making a decision whether or not to prepare a 44(1) Report. Unfortunately much of that is confidential.