Mandatory Consideration of the Best Interests of the Child in Immigration Detention (SOR/2019-213)

Policy effect

Amended IRPR Section 248 and added Section 248.1 to explicitly require immigration officers and Immigration Division members to evaluate the best interests of directly affected children (under age 18) when making decisions regarding detention or release, codifying specific factors including physical, emotional, and psychological well-being, and healthcare/educational needs.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

… is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e): (f) the best interests of a directly affected child who is under 18 years of age. 2 The Regulations are amended by adding the following after section 248: Best interests of the child 248.1 (1) For the purpose of paragraph 248(f) and for the application, in respect of children who are under 18 years of age, of the principle affirmed in section 60 of the Act, that a minor child shall be detained only as a measure of last resort, the following factors must be considered when determining the best interests of the child: (a) the child’s physical, emotional and psychological well-being; (b) the child’s healthcare and educational needs; (c) the importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability; (d) the care, protection and safety needs of the child; and (e) the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity. Degree of dependence (2) For the purpose of paragraph 248(f), the level of dependency of the child on the person for whom there are grounds to detain shall also be considered when determining the best interests of the child. Coming into Force 3 These Regulations come into force on the day on which they are registered. REGULATORY IMPACT ANALYSIS STATEMENT (This statement is not part of the Regulations.) Issues The Immigration and Refugee Protection Act (IRPA) includes provisions specifying that the best interests of the minor child must be considered in any decision related … that affects a child. This will standardize the process, while still allowing decision makers to consider additional factors that may be pertinent. Description The amendments to the IRPR are as follows: 1. Section 248 has been amended by adding a new paragraph, specifying the best interests of a child directly affected by an immigration detention or release decision of another person, at the end of the existing list of factors: (f) the best interests of a directly affected child who is under 18 years of age. 2. Section 248.1 has been added after section 248. Subsection (1) of this new section provides the following non-exhaustive list of factors that CBSA officers and ID members must consider when determining a child’s best interests with respect to detention and release, regardless of whether the child is detained or housed: the child’s physical, emotional and psychological well-being; the child’s healthcare and educational needs; the importance of maintaining relationships and the stability of the family environment, and the possible effect on the child of disrupting those relationships or that stability; the care, protection and safety needs of the child; and the child’s views and preferences, provided the child is capable of forming their own views or expressing their preferences, taking into consideration the child’s age and maturity. The list should not be considered exhaustive; other factors could also be considered. Subsection (2), stipulating that the level of dependence of the child on the person for whom there are grounds to detain, has been added as a consideration. The scope of these amendments is limited to best interests considerations only as they apply to immigration detention and release decisions. “One-for-One” Rule The “One-for-One” Rule does not apply …

Review method

Two separate automated exact-claim source reviews

Other Canada changes operative in 2019

• 2019-03-04Interim Pathway for Caregivers Public Policy
• 2019-03-28Order Extending the Decision-Making Role of Citizenship Judges (SOR/2019-82)
• 2019-05-10Order Repealing Designated Countries of Origin Orders Under the IRPA
• 2019-06-03Regulations Amending the Immigration and Refugee Protection Regulations (Electronic Administration) (SOR/2019-174)
• 2019-06-10Direct Removal Orders for Human/International Rights Violations (SOR/2019-200)
• 2019-06-17Clarification of Health Inadmissibility Excessive Demand Exemptions for Family Members
• 2019-06-18Home Support Worker permanent-residence pilot opened
• 2019-06-21Budget Implementation Act, 2019, No. 1
• 2019-07-08Public Policy to Reinstate an Interim Pathway for Caregivers
• 2019-09-01Rural and Northern Community Immigration pilot class created
• 2019-09-09Public Policy Facilitating Immigration of Certain Sponsored Foreign Nationals Excluded under Paragraph 117(9)(d) or 125(1)(d)