An update on Canada’s travel ban resulting from the COVID-19 outbreak

Introduction

On March 18, 2020, Prime Minister Trudeau announced that Canada and the United States had agreed to temporarily close the land ports of entry along the Canada-US border to non-essential travel, in order to limit the spread of the 2019 Novel Coronavirus (COVID-19). This announcement followed the implementation of Canada’s initial air travel ban, which occurred on March 18, 2020.

On March 20, 2020, the Governor General issued an Order in Council referred to as the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from the United States) (Canada-US Order), pursuant to Section 58 of the Quarantine Act. Although it clearly applies to the land ports of entry along the Canada-US border, the language of the Canada-US Order makes clear that it applies to all travel from the United States (including travel by air, land and water). The Canada-US Order became effective at 00:00:01 a.m. (i.e., 12:01 a.m.) Eastern Daylight Time on March 21, 2020, and will end at 00:00:01 a.m. (i.e., 12:01 a.m.) Eastern Daylight Time on April 21, 2020.

At the same time, the previous Order-in-Council, which established Canada’s air travel ban on March 18, 2020, was repealed and replaced with a new Order-in-Council referred to as the Minimizing the Risk of Exposure to COVID-19 in Canada Order (Prohibition of Entry into Canada from any country other than the United States) (International Order), pursuant to Section 58 of the Quarantine Act. It applies to all travel from any country other than the United States (including travel by air and water). The International Order became effective on March 22, 2020, and will end on June 30, 2020.

On March 20, 2020, Transport Canada also repealed is previous Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, and issued Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 2 (Interim Order No. 2), so that it would be more consistent with the Canada-US Order and the International Order. Interim Order No. 2 provides rules for the boarding of passengers on flights to Canada.

A detailed analysis of Canada’s current travel ban, based on the above orders, appears below.

Restrictions on Canada-US travel

Prohibition on non-essential travel

The Canada-US Order states that a foreign national (i.e., a person other than a Canadian citizen, Canadian permanent resident, or a stateless person) is prohibited from entering Canada from the United States unless he or she:

1. Is not entering for an optional or discretionary (i.e., non-essential) purpose, including tourism, recreation and entertainment; and
2. Has been only in the United States or Canada during the preceding 14-day period.

In other words, Canadian citizens and Canadian permanent residents are not prevented from returning to Canada. However, foreign nationals who wish to enter Canada for non-essential travel are now barred. Foreign nationals who wish to enter Canada for essential travel may still be admitted but, subject to the limited exceptions described below, they must also demonstrate that they have only been in the United States or Canada during the last 14 days.

Although their purpose for entry to Canada must still be essential, the following individuals are exempt from the requirement to have only been in the United States or Canada during the preceding 14 days:

1. A citizen of the United States;
2. A stateless habitual resident of the United States;
3. A mother, father or legal guardian within the meaning of the Immigration and Refugee Protection Regulations (IRPR) of a person who: (1) has not attained the age of 18 years, (2) is a citizen of the United States, and (3) who seeks to enter Canada for the purpose of making a claim for refugee protection; or
4. A person who: (1) has not attained the age of 18 years and is not accompanied by their mother, father or legal guardian within the meaning of the IRPR, (2) has neither a spouse nor a common-law partner within the meaning of the IRPR, and (3) has neither a mother or father, nor a legal guardian within the meaning of the IRPR in the United States.

So a United States citizen (but not a lawful permanent resident of the United States) who has been outside the United States or Canada within the last 14 days could still be admitted to Canada, as long as they are entering for essential travel.

Exemptions from the prohibition on non-essential travel

The Canada-US Order states that (in addition to Canadian citizens and Canadian permanent residents) the following individuals are exempt from the prohibition against non-essential travel (it incorporates, by reference, the list of exemptions described in the International Order):

1. An immediate family member of a Canadian citizen or of a permanent resident;
2. A person registered as an Indian under the Indian Act;
3. A person who is authorized, in writing, by a consular officer of the Government of Canada to enter Canada for the purpose of reuniting immediate family members;
4. A crew member as defined in the Canadian Aviation Regulations;
5. A member of a crew as defined in the IRPR;
6. An 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;
7. A person who enters Canada at the invitation of the Minister of Health for the purpose of assisting in the COVID-19 response;
8. A person who arrives by any means of a conveyance operated by the Canadian Forces or the Department of National Defence;
9. A member of the Canadian Forces or a visiting force, and the immediate family members of that member;
10. A protected person (i.e., a person who has received refugee status in Canada);
11. A French citizen who resides in Saint-Pierre-et-Miquelon and has been only in Saint-Pierre-et-Miquelon, the United States or Canada within the last 14 days;
12. A person or a class of persons who, in the opinion of Canada’s Chief Public Health Officer: (1) does not pose a risk of significant harm to public health, or (2) will provide an essential service while in Canada; and
13. A person whose presence in Canada, in the opinion of the Minister of Foreign Affairs, the Minister of Citizenship and Immigration, or the Minister of Public Safety and Emergency Preparedness, is in the national interest.

For the above purposes, the term “immediate family member” means:

1. The spouse or common-law partner of the person;
2. A dependent child of the person, or of the person’s spouse or common-law partner;
3. A dependent child of a dependent child of the person, or of the person’s spouse or common-law partner;
4. The parent or step-parent of the person, or of the person’s spouse or common-law partner; or
5. The guardian or tutor of the person.

In addition, according to a recent news release from Immigration, Refugees and Citizenship Canada (IRCC), foreign nationals who have already committed to working, studying or making Canada their home will be exempted from Canada’s travel restrictions. These exemptions include: 

1. Seasonal agricultural workers, fish/seafood workers, caregivers and all other temporary foreign workers;
2. International students who held a valid study permit, or had been approved for a study permit, when the travel restrictions took effect on March 18, 2020; and
3. Permanent resident applicants who had been approved for permanent residence before the travel restrictions were announced on March 16, 2020, but who had not yet travelled to Canada.

However, the news release states that individuals who fall under these exemptions should not try to travel to Canada yet. IRCC will announce when the exemptions are in place (likely this week).

Prohibition on travellers who exhibit symptoms of COVID-19

According to the Canada-US Order, a foreign national is prohibited from entering Canada from the United States if they exhibit the following signs and symptoms:

1. A fever and cough; or
2. A fever and breathing difficulties.

As it references foreign nationals only, this prohibition does not apply to Canadian citizens or Canadian permanent residents; this means that Canadian citizens and Canadian permanent residents who are symptomatic will still be admitted to Canada. The prohibition also does not apply to persons who are still permitted under the Canada-US Order to enter Canada from the United States, in order to make a refugee claim (see below).

Of course, it appears as though Canadian citizens, Canadian permanent residents, and permitted refugee claimants who are travelling to Canada by air instead of land will probably still be prevented from boarding. This is because Interim Order No. 2 requires all passengers (regardless of their citizenship or immigration status) to be denied boarding if they are symptomatic. This inconsistency will need to be reconciled.

Prohibition on refugee applicants

The Canada-US Order states that a foreign national is prohibited from entering Canada from the United States for the purpose of making a claim for refugee protection, with the exception of the following individuals:

1. A citizen of the United States;
2. A stateless habitual resident of the United States;
3. A mother, father, or legal guardian within the meaning of the Immigration and Refugee Protection Regulations (IRPR) of a person who: (1) has not attained the age of 18 years, (2) is a citizen of the United States, and (3) who seeks to enter Canada for the purpose of making a claim for refugee protection; or
4. A person who: (1) has not attained the age of 18 years and is not accompanied by their mother, father or legal guardian within the meaning of the IRPR, (2) has neither a spouse nor a common-law partner within the meaning of the IRPR, and (3) has neither a mother or father, nor a legal guardian within the meaning of the IRPR in the United States.

Most foreign nationals in the United States are already prohibited from making refugee claims at official ports of entry along the Canada-US border, as a result of the Canada-US Safe Third Country Agreement. However, as the Canada-US Safe Third Country Agreement does not apply to irregular border crossings, many foreign nationals were crossing the border into Canada between official ports of entry and making refugee claims upon their arrival.

As a result of the Canada-US Order, and subject to the limited exceptions mentioned above, any irregular border crossers attempting to enter Canada to make a refugee claim will now be returned to the United States, at least until the Canada-US Order expires.

Restrictions on international travel (other than the United States)

Prohibition on non-essential travel

The International Order states that a foreign national (i.e., a person other than a Canadian citizen or a Canadian permanent resident) is prohibited from entering Canada if they arrive from a foreign country other than the United States. This prohibition appears to apply whether or not their travel is considered essential, which makes the travel restrictions that apply to international travel stricter than those that apply to Canada-US travel. Of course, the International Order also provides a number of exemptions from the above prohibition. 

The list of exempt individuals is identical to the list that applies to travel from the United States (see above). However, the following exempt individuals will still be prohibited from entering Canada (from a country other than the United States) for an optional or discretionary (i.e., non-essential) purpose (including tourism, recreation and entertainment):

1. An immediate family member of a Canadian citizen or of a permanent resident;
2. A crew member as defined in the Canadian Aviation Regulations;
3. A member of a crew as defined in the IRPR;
4. An 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;
5. A French citizen who resides in Saint-Pierre-et-Miquelon and has been only in Saint-Pierre-et-Miquelon, the United States or Canada within the last 14 days; and
6. A person or a class of persons who, in the opinion of Canada’s Chief Public Health Officer does not pose a risk of significant harm to public health.

Prohibition on travellers who exhibit symptoms of COVID-19

The International Order states that exempt foreign nationals will still be prohibited from entering Canada (from a foreign country other than the United States) if they exhibit the following signs and symptoms:

1. A fever and cough; or
2. A fever and breathing difficulties.

The only exceptions are as follows:

1. A person registered as an Indian under the Indian Act; and
2. A protected person (i.e., a person who has received refugee status in Canada).

Although the International Order suggests that Canadian citizens and Canadian permanent residents will not be prevented from entering Canada even if they exhibit the above symptoms, they will probably still be prevented from boarding under Interim Order No. 2, which requires all passengers (regardless of their citizenship or immigration status) to be denied boarding if they are symptomatic. Also, despite the fact that registered Indians and protected persons (i.e., approved refugees) are exempt from this prohibition in the International Order, they are not exempt under Interim Order No. 2. As mentioned above, this inconsistency will need to be reconciled.

Conclusion

In conclusion, Canada’s current travel ban may be summarized as follows:

1. Except for essential travel (which still has not been clearly defined), foreign nationals are now prohibited from entering Canada from the United States. Most foreign nationals (but apparently not United States citizens) must also demonstrate that they have not been outside the US or Canada within the last 14 days. However, Canadian citizens, Canadian permanent residents, and certain exempted foreign nationals will not be subject to this prohibition when travelling from the United States to Canada.
2. Foreign nationals are prohibited from entering Canada from the United States if they exhibit: (1) a fever and cough, or (2) a fever and breathing difficulties. It does not refer to Canadian citizens or permanent residents, and it specifically exempts foreign nationals who are still permitted (under the Canada-US Order) to enter Canada in order to make a refugee claim. However, Interim Order No. 2 will probably still prevent these individuals from boarding a flight from the United States to Canada.
3. Irregular border crossers who are entering Canada in order to make a refugee claim will now be turned back to the United States, at least until the Canada-US Order expires.
4. Most foreign nationals are now prohibited from entering Canada from a foreign country other than the United States, whether or not their travel is considered essential. Certain exempt foreign nationals are still permitted to enter Canada from a foreign country other than the United States. However, some of these exempt foreign nationals will need to demonstrate that their travel is essential before they will be permitted to enter Canada. Canadian citizens and Canadian permanent residents are not subject to this prohibition.
5. Most exempt foreign nationals (other than registered Indians and previously approved refugees) will be prohibited from entering Canada from a foreign country other than the United States if they exhibit (1) a fever and cough, or (2) a fever and breathing difficulties. Although the International Order suggests that Canadian citizens, Canadian permanent residents, and the exempt foreign nationals mentioned above will be permitted to board a flight to Canada (from a foreign country other than the United States), they will probably still be prevented from boarding as a result of Interim Order No. 2.

For more information about this evolving topic, please contact Henry J. Chang of Dentons’ Immigration group.

This post was originally posted on dentons.com.