Canadian Immigration Update – New Electronic Travel Authorization Regulations Released, in force as of August 1, 2015

What is the eTA?

On April 22, 2015, the Government of Canada published a new version of the regulatory amendments that will require most air travellers to Canada to obtain an Electronic Travel Authorization (“eTA”). The eTA has been developed pursuant to the 2011 “Beyond the Border Action Plan” between Canada and the United States. The regulatory amendments will come into force on August 1, 2015, but travellers will not be required to hold a valid eTA until the end of the “enrolment period” on March 15, 2016. Between those two dates, applicants will be able to submit eTA applications in advance to ensure compliance ahead of time. After March 15, 2016, the eTA will become mandatory for all air travellers, unless one of the regulatory exemptions applies. The exemptions are outlined in more detail below, but the two most significant are U.S. citizens and travellers who require a temporary resident visa (“TRV”) will not be required to apply for an eTA. For most travellers the eTA will simply mean an additional online process and a small additional fee before booking a flight to Canada. However, for applicants who may be inadmissible for such reasons as health, criminality, or previous non-compliance with Canadian immigration requirements, an eTA refusal may present a major obstacle. Such foreign nationals may need to seek special permission to enter Canada with a Temporary Resident Permit, or potentially, travel to Canada by land where an eTA is not required.[1]

What will the process be?

A $7.00 processing fee will be required as part of the eTA application, which will be lodged through an electronic system administered by the Government. Paper applications are only available to applicants who are unable to lodge an electronic application due to physical or mental disability. The eTA will be an electronic document issued to the traveller, often within minutes after submission of the online application according to the Regulatory Impact Analysis Statement (“RIAS”) that accompanied the amendments. Applications which require further review are to be dealt with within 72 hours, by which time Citizenship and Immigration Canada is to contact the applicant with an approval, refusal, request for more information, or more vaguely, “to inform the client that their application has been sent for further assessment.” Once issued, an eTA will be valid for a period of five years, or terminate on the earliest day of any the following: passport expiry; cancellation of the eTA (e.g. if a new inadmissibility arises); or issuance of new eTA to the applicant.

Printed paper documents will not be issued as part of the eTA process, and notably, notification of an eTA approval or refusal will not be provided to air carriers. Rather, the Government is developing a separate system to be administered by the Canada Border Services Agency (“CBSA”), called the Interactive Advance Passenger Information (“IAPI”). The IAPI will allow CBSA to communicate a board/no-board message to air carriers based on automated checks against Government databases.  It is unclear if the systems will be a perfect match in terms of their requirements. If not, this raises the question of what will happen if a traveller has proof of a valid eTA in hand, yet the IAPI issues a conflicting “no-board” message to an air carrier? It is also unclear whether travellers will be able to access their own information held within the IAPI (other than by making an application through the formal and lengthy Access to Information Act process). It is hoped that further details about the IAPI will be released later in 2015 to assist travellers to prepare.

Who is exempt from the eTA?

Reviewing in detail who will be exempt from the eTA, the amendments list the following persons:

  • Foreign nationals subject to the TRV requirement
  • U.S. nationals
  • British Royal Family
  • Accredited diplomats
  • Flight crew and others employed in the aviation / aeronautical industry
  • French citizens who are resident in Saint-Pierre and Miquelon
  • Visiting armed forces
  • Foreign nationals with valid temporary status in Canada who are seeking re-entry after a visit solely to the U.S. or Saint-Pierre and Miquelon
  • Passengers on an air carrier that is re-fuelling in Canada, in some circumstances

Note that the amendments also exempt applicants for work or study permits who would otherwise be required to obtain an eTA, since their admissibility can be canvassed as part of their temporary residence application.

It is not clear from the amendments whether the exemption applies only to work and study permit applicants who obtain approvals before travelling to Canada, or port of entry applicants are also exempt from the eTA on this basis.

What information will be requested by the eTA application?

The following data has been designated as “required information” per the regulatory amendments:

(a) the applicant’s name;

(b) the applicant’s date and place of birth;

(c) the applicant’s gender;

(d) the applicant’s address;

(e) the applicant’s nationality;

(f) the number of the applicant’s passport or other travel document, together with its date of issue and its expiry date and the country or the authority that issued it;

(g) if the applicant is an applicant referred to in any of paragraphs 10(2)(c.1) to (c.4), the information required under that paragraph; [authorized representative information]

(h) if the applicant is making the application by means of the electronic system referred to in subsection (1), the applicant’s email address; and

(i) a declaration that the information provided in the application is complete and accurate.

Many will recall that the eTA system was initially proposed in draft regulatory amendments on June 21, 2014. Then and now, the Government’s stated purpose in establishing the eTA is to increase its capacity to pre-screen travellers to Canada who are exempted from the temporary resident visa requirement and who therefore would not be subjected to admissibility requirements prior to arriving at ports of entry. The Government studied well established pre-screening systems in such countries as the U.S. and Australia while developing the eTA.

Yet a closer look at the April 22 amendments leads to a number of unanswered questions. How will admissibility screening occur when the list of questions posed to eTA applicants does not ask questions about the applicant’s health, arrest history, or background? Will those questions be added into the eTA application system as it is developed? Even if admissibility questions are asked, how will the Government verify the responses in time to issue an instantaneous approval? Will the ever more robust information sharing processes between countries assist in the process? Or will all individuals who are flagged upon initial review by the eTA system be required to provide additional documentation, such as police clearances or medical exam results? Again, it is hoped that more information will be released in short order to assist individuals who plan to travel to Canada after March 15, 2016.

Please note that the above information does not constitute legal advice. Questions relating to the content of the article may be directed to Meera Thakrar 

[1] These are potential solutions to a refused eTA, not yet verified as available after the April 22, 2015 amendments. As outlined, the Government has not released details about how particular inadmissibility concerns can be addressed by the applicant.