As I previously reported, on June 28, 2016, Prime Minister Justin Trudeau formally announced that the Temporary Resident Visa (“TRV”) requirement for citizens of Mexico travelling to Canada would be eliminated as of December 1, 2016.  Mexican citizens may now enter Canada without first obtaining a TRV from a Canadian embassy or consulate.

This new visa exemption reverses the Government of Canada’s prior decision to impose TRV requirements on Mexican citizens, which became effective on July 14, 2009.  At the time, Citizenship and Immigration Canada (now known as Immigration, Refugees, and Citizenship Canada) indicated that Mexican refugee cases had almost tripled since 2005, making it the number one source country for refugee claims. In 2008, more than 9,400 claims filed in Canada came from Mexican nationals, representing 25% of all claims received.  Of the Mexican claims reviewed and finalized in 2008 by the Immigration and Refugee Board, an independent administrative tribunal, only 11% were accepted.

Some critics have alleged that Canada will experience a significant increase in Mexican refugee claims now that the TRV requirement has been lifted.  Although some increase in such claims is likely to occur, it may not be as significant as they believe.  This is because Mexican citizens (in fact, all foreign nationals except United States citizens) who wish to enter Canada as temporary residents must now obtain an Electronic Travel Authorization (“eTA”) prior to travelling to Canada by air; this requirement has been in effect since November 9, 2016.

Foreign nationals who apply for an eTA online are required to answer many of the same questions that would be asked in a TRV application; this is intended to prevent high risk applicants from entering Canada without a visa.  For example, foreign nationals who have insufficient ties to their home country, who have violated their status in Canada (or any other country), or who have criminal records are unlikely to receive an eTA.  Foreign nationals who cannot obtain an eTA will not be allowed to board their flight to Canada.

Although the eTA requirement applies only to travel by air, it is generally not possible to make a refugee claim at a land port of entry.  This is because, according to the Canada-U.S. Safe Third Country Agreement, which became effective on December 29, 2004, most refugee claimants are required to request refugee protection in the first safe country in which they arrive.  Therefore, a Mexican citizen who initially enters the United States will not be permitted to make a Canadian refugee claim at the Canada-U.S. border.

Hopefully, the new visa exemption for citizens of Mexico will facilitate legitimate travel to Canada without causing a significant increase in frivolous refugee claims.  However, due to both the eTA requirement and the Canada-U.S. Safe Third Country Agreement, it appears likely that this will occur.

As previously mentioned, on April 1, 2015, Citizenship and Immigration Canada published regulations implementing its Electronic Travel Authorization (“eTA”) program.  The eTA program was modeled after the U.S. Electronic System for Travel Authorization, which is a mandatory registration required for foreign travelers who wish to enter the United States under the Visa Waiver Program.  Once implemented, it will require most visa-exempt foreign nationals who travel to Canada without a temporary resident visa (“TRV”) to obtain an eTA.

Under the eTA program, applicants will pay a $7.00 CAD processing fee electronically in connection with their online eTA application.  Once issued, an eTA will be valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever comes first.  The regulations also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible or if the foreign national becomes subject to a declaration made by the Minister under the Immigration and Refugee Protection Act.

The regulations initially required eTAs to be mandatory as of March 15, 2016.  Fortunately, the new Liberal Government has decided to delay the enforcement of the eTA requirement until Fall 2016 (no exact date end date has been announced) by implementing a “leniency period.”

During the leniency period, visa-exempt foreign nationals who do not have an eTA will still be permitted to enter Canada as long as they have appropriate travel documents, such as a valid passport.  Nevertheless, visa-exempt foreign nationals are encouraged to obtain an eTA as soon as possible.

Of course, even after the leniency period has ended, not everyone will require an eTA.  For example, United States citizens are exempt from the eTA requirement.  Also, as the eTA requirement is intended to apply to visa-exempt applicants, a foreign national who already holds a TRV is also not required to obtain an eTA.  In addition, in order to reduce the duplication of information to be provided by visa-exempt foreign nationals, if a visa-exempt applicant applies for a work permit or study permit, they will not need to also obtain an eTA.  A complete list of eTA exemptions appears in my previous article.

On January 12, 2014, I previously reported that Citizenship and Immigration Canada (“CIC”) had published a Notice of Intent in the Canada Gazette. This Notice of Intent indicated CIC’s intention to introduce an Electronic Travel Authorization (“eTA”) Program in Canada.

The eTA program is a result of the Canada-United States Perimeter Security and Economic Competitiveness Action Plan (the “Action Plan”).  The Action Plan requires Canada and the United States to establish a common approach to screening visa-exempt foreign nationals, in order to identify threats before they arrive in the North American perimeter.  The eTA Program will be similar to the Electronic System for Travel Authorization (“ESTA”) Program, which currently applies to foreign nationals who enter the United States under the Visa Waiver Program.

On April 1, 2015, CIC published regulations (the “eTA Regulations”) in the Canada Gazette.  These eTA Regulations will come into force at 12:00 p.m. Eastern time, on August 1, 2015.

At that time, the online application will be available and eTA processing will begin.  However, in order to minimize impacts on the travelling public, travelers will be exempted from the eTA requirement until March 15, 2016.  In other words, CIC will begin accepting online eTA applications on August 1, 2015, but travelers will not actually be barred from entering Canada until March 15, 2016.

The normal procedure to apply for an eTA will be through the online application form.  However, persons with physical or mental disabilities will be allowed to submit an application by another means that is made available for that purpose, such as a paper application form.

As the eTA Program is only intended to apply to visa-exempt applicants, a foreign national who holds a temporary resident visa is not required to also obtain an eTA.  Further, in order to reduce the duplication of information to be provided by visa-exempt foreign nationals, the eTA Regulations consider a visa-exempt foreign national’s application for a work permit or a study permit to constitute an application for an eTA.   As a result, visa-exempt applicants who apply for a work permit or study permit will not need to obtain an eTA.

Applicants will pay a $7.00 CAD processing fee electronically in connection with their online eTA application.  In circumstances where another application process is used, the fee will be paid when they submit their application.  Visa-exempt foreign national who are applying for a work permit or study permit will be exempted from this fee.

An eTA will be valid for five years from the day on which it is issued or until the applicant’s passport or travel document expires, whichever comes first.  The eTA Regulations also provide an officer with the ability to cancel an eTA that was issued to a foreign national if the officer determines that the foreign national is inadmissible or if the foreign national became subject to a declaration made by the Minister under the Immigration and Refugee Protection Act.

According to the new R7.1(3), the following individuals will be exempt from the requirement to obtain an eTA before applying for admission to Canada:

• Her Majesty in right of Canada and any member of the Royal Family
• A national of the United States;
• A foreign national referred to in R190(2)(a) [a foreign national who holds hold a passport that contains a diplomatic acceptance, a consular acceptance or an official acceptance issued by the Chief of Protocol for the Department of Foreign Affairs and International Trade on behalf of the Government of Canada and are a properly 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];
• A foreign national seeking to enter and remain in Canada solely: (i) as a member of a crew of a means of transportation that may be used for transportation by air or to become a member of such a crew, or (ii) to transit through Canada after working, or to work, as a member of a crew of a means of transportation that may be used for transportation by air, if they possess a ticket for departure from Canada within 24 hours after their arrival in Canada;
• A citizen of France who is a resident of St. Pierre and Miquelon who seeks to enter Canada directly from St. Pierre and Miquelon; and
• A foreign national referred to in R190(3)(b) [a foreign national who seeks to transit through Canada as a passenger on a flight stopping in Canada for the sole purpose of refuelling and: (i) they are in possession of the documents required in order to enter the United States and their flight is bound for that country, or (ii) they were lawfully admitted to the United States and their flight originated in that country], R190(3)(b.1) [a foreign national who seeks to transit through Canada as a passenger on a flight that, owing to an emergency or other unforeseen circumstances, makes an unscheduled stop in Canada], R190(3)(c) [a foreign national who seeks to transit through Canada as a passenger on a flight if the foreign national: (i) is transported by a commercial transporter and there is a memorandum of understanding in effect between the Minister and the commercial transporter concerning the transit of passengers through Canada without a Canadian visa, (ii) holds a passport or travel document that was issued by the country of which the foreign national is a citizen or national and that country is listed in the memorandum of understanding, and (iii) is in possession of any visa required to enter the country of destination], R190(3)(d) [a foreign national who seeks to carry out official duties as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, unless they have been designated under that Act as a civilian component of those armed forces], R190(3)(f) [a foreign national who seeks to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they: (i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and; (ii) return to Canada by the end of the period initially authorized for their stay or any extension to it], R190(3)(g) [a foreign national who seeks to conduct inspections of the flight operation procedures or cabin safety of a commercial air carrier operating international flights, if they are a civil aviation inspector of a national aeronautical authority and possess valid documentation to that effect], or 190(3)(h) [a foreign national who seeks to participate as an accredited representative or as an adviser to an aviation accident or incident investigation conducted under the Canadian Transportation Accident Investigation and Safety Board Act, if they possess valid documentation to that effect].

This final list of eTA exemptions differs from the proposed list initially contained in the Notice of Intent as follows:

• A new temporary resident visa exemption [R190(3)(b.1)] and corresponding eTA exemption has been added for foreign nationals who arrive on-board flights that stop in Canada unexpectedly owing to an emergency or other unforeseen circumstances.
• A new eTA exemption has been added for foreign nationals transiting through Canada under Government of Canada transit programs (i.e. the Transit Without Visa Program and the China Transit Program) and who are currently visa-exempt under R190(3)(c).

In response to stakeholder requests to leverage the eTA to liberalize visa requirements, the eTA Regulations also eliminate the requirement that nationals from Lithuania or Poland obtain a temporary resident visa if they do not hold a machine-readable passport that contains a contactless integrated circuit chip.  As a result, Lithuania and Poland have now been added to the list of visa-exempt countries that appear in R190(1)(a); they will instead be subject to eTA requirements.

The eTA Regulations also eliminate R190(3)(e), which provided a visa-exemption to foreign nationals seeking to enter Canada from the United States for a U.S. immigrant visa interview, if they could establish that they would be re-admitted to the United States.