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Guide to Applying for a Declaration of Relief Under Subsection 42.1(1) of the Immigration and Refugee Protection Act

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• What is an Application for a Declaration of Relief ("Ministerial relief")?
• How is a Ministerial relief application made?
• Does an applicant need a representative?
• What happens after a Ministerial relief application is submitted?
• What type of information should an applicant include in their submissions?
  • 1. Inadmissibility under IRPA paragraphs 34(1)(a), 34(1)(b), 34(1)(b.1), 34(1)(c), 34(1)(e), 37(1)(a), and/or 37(1)(b)
  • 2. Inadmissibility under IRPA paragraph 34(1)(d)
  • 3. Inadmissibility under IRPA paragraphs 34(1)(f) and/or 37(1)(a)
  • 4. Inadmissibility under IRPA paragraph 35(1)(b)
  • 5. All inadmissibilities
• How long does it take for a Ministerial relief decision to be rendered by the Minister?
• What happens with the applicant's status following a Ministerial relief decision?

What is an Application for a Declaration of Relief ("Ministerial relief")?

Pursuant to subsection 42.1(1) of the Immigration and Refugee Protection Act (IRPA) and related regulations, a foreign national can apply for a declaration of relief – commonly referred to as "Ministerial relief" (MR) – if they have been found to be inadmissible to Canada under section 34 (security), paragraph 35(1)(b) (human or international rights violations), and/or subsection 37(1) (organized criminality) of IRPA, resulting in a removal order being issued against them by the Immigration and Refugee Board and/or an application for temporary or permanent residence being refused by Immigration, Refugees and Citizenship Canada (IRCC) in Canada or overseas.

The Ministerial Relief Unit (MRU) of the Canada Border Services Agency (CBSA) receives and processes MR applications, including drafting recommendations to the Minister of Public Safety and Emergency Preparedness ("the Minister") on whether relief should be granted or denied. MR decisions, however, rest solely with the Minister and cannot be delegated to government officials. MR is a discretionary authority, intended to be exceptional, and it is not meant to review or re-determine an inadmissibility finding.

Foreign nationals who are inadmissible to Canada under IRPA paragraph 35(1)(a) for commission of, or complicity in, genocide, war crimes or crimes against humanity are precluded from applying for MR.

How is a Ministerial relief application made?

An application for MR must be made using the Application for a Declaration of Relief form (BSF766), available free of charge on the CBSA's external website. The information submitted in the application form and any attached documents must be provided in either English or French. Applicants are requested to indicate, on their application form, their preferred official language of correspondence; this is also the language in which the CBSA will draft its recommendation to the Minister.

Applications which do not meet eligibility criteria, or which do not provide the mandatory information laid out in the Immigration and Refugee Protection Regulations (IRPR), will be returned to the applicant unprocessed.

For foreign nationals who are outside of Canada, and who do not have a representative acting on their behalf in Canada, visa offices will, in most cases, continue to act as the liaison between the applicant and the CBSA MRU. While these individuals may submit MR applications and submissions either to the responsible visa office or to the CBSA MRU directly, visa offices will retain primary responsibility for disclosing draft recommendations to applicants and communicating the decisions made by the Minister.

Note that there may be instances where the CBSA MRU may contact an applicant directly. As per section 24.5 of the IRPR, the onus is on the applicant to notify the CBSA MRU without delay of any change in their address. Failure to respond to correspondence may result in an application being closed.

Does an applicant need a representative?

If an applicant chooses to retain a representative, a copy of a signed Use of a Representative form (IMM5476) available for free on the IRCC website must be provided to the MRU to authorize the selected representative to make submissions and receive information on behalf of the applicant. 

An applicant may only have one representative at a time. The CBSA MRU must be immediately notified of any change in the applicant's representation, including cancellation, or a change of address, by submitting a new, completed and signed Use of a Representative form. The CBSA is unable to communicate personal details to an individual who has not been authorized to act on behalf of the applicant. Any submissions or correspondence provided by an unauthorized individual in relation to an applicant will not be accepted or considered without a completed and duly signed Use of a Representative form. 

IRPA makes it an offence for any person who is not authorized under the Act to knowingly, directly or indirectly, represent or advise a person for consideration – or offer to do so – in connection with a proceeding or application under that Act. Consideration includes money or any other form of compensation or reward.

What happens after a Ministerial relief application is submitted?

Once received by the CBSA MRU and determined to be eligible and complete, the MR application will be placed in the inventory of cases and processed based on its year of receipt. The MRU will review the application and any written submissions and make a recommendation to the Minister as to whether relief should be granted or denied. The CBSA's recommendation will be disclosed to the applicant prior to it being forwarded to the Minister for decision. This step will provide the applicant with the opportunity to review the recommendation, respond to any concerns raised by the CBSA, and to present additional submissions, should they wish to do so.

The Minister may, upon review of the MR application and the CBSA's recommendation, declare that the matters referred to in the above-noted inadmissibility provisions of IRPA do not constitute inadmissibility if the applicant satisfies the Minister that, in their case, relief is not contrary to the national interest. MR is not an alternative form of humanitarian review. Section 42.1(3) of IRPA stipulates that, in determining whether to make a declaration of relief, the Minister may only take into account national security and public safety considerations, but his or her analysis is not limited to considering the danger that the applicant presents to the public or to the security of Canada. The burden of proof to demonstrate that relief is warranted rests with the applicant, and not with the Minister to demonstrate otherwise.

What type of information should an applicant include in their submissions?

The purpose of the MR application form (Application for a Declaration of Relief BSF766) is to present a specific set of information pertaining to the circumstances of the applicant's case, which may assist the Minister in the decision to grant or deny relief from an inadmissibility finding. The applicant may, however, submit any additional information they wish, with the goal of satisfying the Minister that relief, in their case, is not against the national interest.

Although the applicant is not restricted in terms of what type of information they may submit for consideration, this non-exhaustive list of examples may serve as a guide for the types of submissions that may be provided for Ministerial consideration. This list should not be interpreted as mandatory or prescriptive. Each application is assessed on its own merits and on the specific facts of the case.

1. Inadmissibility under IRPA paragraphs 34(1)(a), 34(1)(b), 34(1)(b.1), 34(1)(c), 34(1)(e), 37(1)(a), and/or 37(1)(b)

If the applicant's inadmissibility is related to engagement in and/or instigation of a particular act or acts, whether terrorism, violence that would or might endanger the lives or safety of persons in Canada, subversion, espionage, or organized criminality (including transnational crime), the applicant may wish to address the following factors, where applicable to their case:

• Describe in detail any circumstances where you directly or indirectly engaged in and/or instigated an act or acts of terrorism, violence, subversion, espionage, and/or organized or transnational crime.  Provide dates and places and be as specific as possible about the incident(s).
• When and for how long did you engage in/instigate these or other illicit acts, if applicable?
• Describe in detail all relevant events leading up to, during AND following your engagement in and/or instigation of a specific act or acts.
• Describe in detail your precise role, and, if applicable, your ongoing duties (include dates, locations, and the impact of your act or acts).
• Explain your rationale/reason(s) for becoming engaged in and/or instigating such act or acts, and, if you have since ceased your activities, describe the motivation(s) behind that decision.
• Did you report to anyone, and, if YES, to whom did you report with respect to your engagement in the act or acts (include your direct superiors' positions/titles within an organizational hierarchy, if applicable)? 
• What benefit(s) did you gain (financially, socially, through influence or power, or in any other way) from your engagement in/instigation of such activities? Provide concrete examples. 
• Describe in detail the nature of any continued or current activity related to the type of act or acts for which you were determined to be inadmissible to Canada.
• Avoid any gaps in your narrative timeline and enclose any documents available to support your claims.

2. Inadmissibility under IRPA paragraph 34(1)(d)

If the applicant's inadmissibility is related to being a danger to the security of Canada, the applicant may wish to address the following factors, where applicable to their case:

• Describe in detail the activities for which you were found to be inadmissible.
• What activities did you advocate, plan, advance, orchestrate, or commit? Be specific.
• When and for how long were you involved in these acts? Are you still involved in such acts or will you be involved in the future?
• Describe in detail all relevant events leading up to, during, AND following your advocating, planning, advancing, orchestrating, engaging in and/or instigating a specific act or acts that resulted in your inadmissibility.
• Describe in detail your precise duties and roles (include dates, locations, and the impact of your act or acts).
• Explain the rationale/reason(s) for your involvement in these acts, and, if you have since ceased your activities, describe the motivation(s) behind your decision to stop.
• Did you report to anyone, and if YES, to whom did you report during your participation in any activities? 
• What benefit(s) did you gain (financially, socially, through influence or power, or in any other way) from your engagement in such activities? Provide concrete examples. 
• Describe in detail the nature of any continued or current activity related to the type of act or acts for which you were determined to be inadmissible to Canada.
• Avoid any gaps in your narrative timeline and enclose any documents available to support your claims.

3. Inadmissibility under IRPA paragraphs 34(1)(f) and/or 37(1)(a)

If the applicant's inadmissibility is related to membership in a particular organization or group, the applicant may wish to address the following factors, where applicable to their case:

• When and for how long were you a member of the organization?
• Explain your reasons for becoming involved with, and remaining with, that organization.
• Were you aware, while serving the group, of its reliance on violent/terrorist/subversive/criminal/espionage-related/other methods and activities in order to accomplish its goals?       
• Explain in detail any circumstances where you participated in, or provided support for, the organization's involvement in such activities.
• Describe in detail your formal position(s) within the organization (if applicable), your precise duties and roles, as well as the activities in which you were involved on behalf of the organization of which you were/are a member (include dates, locations, and the impact of your activities).
• To whom did you report during your involvement with the organization (include your direct superiors' positions/titles within the organizational hierarchy)?  You may wish to provide a chart or diagram indicating your position within the group.
• Describe in detail the nature and extent of your authority or the influence that you exerted while serving the organization. Provide concrete examples.
• What benefit(s) did you gain (financially, socially, through influence or power, or in any other way) from your involvement with the organization? Provide concrete examples. 
• Describe in detail the nature of any continued or current activity related to your involvement with the organization. Or, if you have ended your involvement with the group, provide details of the circumstances of your disassociation.
• Explain your current perspective toward the organization you served, and toward its methods, goals and objectives.
• Avoid any gaps in your narrative timeline and enclose any documents available to support your claims.

4. Inadmissibility under IRPA paragraph 35(1)(b)

If the applicant's inadmissibility is related to being a senior official of a regime designated by the Government of Canada for having engaged in genocide, war crimes or crimes against humanity, the applicant may wish to address the following factors, where applicable to their case:

• When and for how long were you a senior official of a designated regime?
• Explain your reasons for becoming involved with, and remaining with, the regime.
• Were you aware, while serving the regime, of its reliance on violent methods or of the atrocities such as human or international rights violations committed by that government?      
• Explain in detail any circumstances where you participated in, or provided support for, the regime's involvement in any such activities.
• Describe in detail your position(s) (including the names of units, sections, divisions, branches, departments, etc.) and your precise duties and roles, as well as the activities in which you were involved on behalf of the designated government (include dates, locations, and the impact of your activities on departmental/governmental operations).
• To whom did you report during your involvement with the designated regime (include your direct superiors' positions/titles/ranks within the organizational/departmental/governmental hierarchy)? You may wish to provide a chart or diagram indicating your position(s) within the hierarchy.
• Describe in detail the nature and extent of your authority or the influence that you exerted while serving the regime as a senior official. Provide concrete examples.
• What benefit(s) did you gain (financially, socially, through influence or power, or in any other way) from your involvement with the regime? Provide concrete examples. 
• Describe in detail the nature of any continued or current activity related to your involvement with the regime. Or, if you have ended your involvement with the designated entity, provide details of the circumstances of your disassociation.
• Explain your current perspective toward the regime you served, and toward its methods, goals and objectives.
• Avoid any gaps in your narrative timeline and enclose any documents available to support your claims.

5. All inadmissibilities

All applicants may wish to address the following general considerations, where applicable:

• Describe circumstances where you used, planned or advocated the use of armed struggle, violence, and/or criminal acts to reach political, religious, social, organizational or personal objectives. Be specific (include dates, locations, the impact of your activities, etc.).
• Explain your current perspective toward relying on violent/terrorist/subversive/criminal/other methods or tactics to achieve organizational, political or personal goals.
• Address any circumstances where you were arrested and/or detained and/or jailed, and include dates (not limited to criminal activity, charges or convictions). Be specific.
• Address any circumstances where you have been charged with, convicted of, on trial for, or party to a crime or offence, or the subject of any criminal proceedings, in any country.
• According to IRPA, when assessing whether MR would be against the national interest, the Minister may only take into account national security and public safety considerations, but is not limited to considering the danger that the foreign national presents to the public or the security of Canada. You may wish to bring to the Minister's attention any personal factors, or mitigating or extenuating circumstances, related to the national interest that you believe may help to satisfy the Minister that relief is warranted.

How long does it take for a Ministerial relief decision to be rendered by the Minister?

As a non-delegable decision that must be made personally by the Minister, MR frequently requires an in-depth review of a voluminous amount of information and submissions, entails a comprehensive assessment of many factors, and involves input from relevant partners, as well as a review by senior officials. Given the complexity of the process, an exact timeline as to when an applicant may expect a decision to be rendered by the Minister cannot be predicted.

What happens with the applicant's status following a Ministerial relief decision?

A declaration of relief does not automatically confer status under IRPA.

If the Minister denies relief to an applicant, the applicant will not be relieved from their inadmissibility under the provision(s) of IRPA against which they sought a Ministerial declaration.

If the Minister is satisfied, following his or her assessment of the applicant's case, that it is not contrary to the national interest to overcome the applicant's inadmissibility, the Minister may make a declaration of relief. This will eliminate the inadmissibility as a barrier to obtaining an immigration visa or regularizing the applicant's status in Canada through IRCC, should they so wish, provided that no additional inadmissibilities against the applicant exist or are subsequently determined.