On 15 October 2026 Canada’s Federal Court, answering a request from the government, directed that every application for judicial review that refers to the new bars on refugee claims in sections 101(1)(b.1) and 101(1)(b.2) of the Immigration and Refugee Protection Act will presumptively join one group of specially managed cases, held in abeyance while a small number of test cases are decided. An application is left out if the applicant’s record has been filed and neither the application nor the memorandum challenges the constitutionality of the bars. The bars were enacted by Bill C-12, the Strengthening Canada’s Immigration System and Borders Act, which became law on 26 March 2026. A person who entered Canada after 24 June 2020 and claims protection more than a year after entering, counting from the first entry after that date, or who crossed the land border from the United States between official ports of entry and claims after fourteen days, can no longer have the claim heard by the Immigration and Refugee Board. What remains is a pre-removal risk assessment by an immigration officer, decided on the papers unless the minister considers a hearing necessary.
- 20 August 2026. Chief Justice Diner ordered that all current and future applications challenging the constitutionality of the two provisions “shall continue as specially managed proceedings” and placed them “in abeyance, with all timelines being suspended”. Applicants may ask that their names be withheld.
- 28 August 2026. Associate Judge Shannon designated five lead cases and set out the method: the court will proceed “to a hearing on a small number of ‘test’ or ‘representative’ cases”, whose judgments, “by operation of horizontal stare decisis”, will address the issues common to the rest. Proposals were due on 1 October, alternatives on 15 October and responses on 30 October.
- 1 October 2026. Counsel for the applicants in the lead cases proposed five groups of common legal issues and ten representative cases.
- 15 October 2026. The direction on which cases belong in the group, given in answer to the government’s request after letters from the government and from counsel in one lead case. The court made no finding on whether applications that do not expressly challenge the provisions need to be amended.
Sources: Federal Court, Constitutional Challenges to the Immigration and Refugee Protection Act (C-12 applications), with the Special Order of 20 August, the Order of 28 August, the proposal of 1 October and the Direction of 15 October 2026 · Immigration and Refugee Protection Act, section 101
What the new bars say
The one-year bar, as it now stands in the Act:
Immigration and Refugee Protection Act, section 101(1). “A claim is ineligible to be referred to the Refugee Protection Division if … (b.1) the claimant entered Canada after June 24, 2020 and made the claim more than one year after the day of their entry”.
Under section 101(1.1), for a person who has entered Canada more than once since 24 June 2020, the year “begins on the day after the day of their first entry.” The second bar, in paragraph (b.2), applies to a claimant who entered at a place along the land border with the United States, including the waters along or across it, that is not a port of entry, and who “made the claim after the end of the time limit referred to in subsection 159.4(1.1) of the Immigration and Refugee Protection Regulations”. That time limit is fourteen days. A person who crosses between ports of entry and claims within fourteen days falls instead under the Safe Third Country Agreement with the United States and, unless an exception applies, is returned there (Immigration and Refugee Protection Regulations, section 159.4(1.1)). CBC News has reported that the new rules apply to claims made on or after 3 June 2025.
A person found ineligible may apply for a pre-removal risk assessment. The Act provides that in that assessment “a hearing may be held if the Minister, on the basis of prescribed factors, is of the opinion that a hearing is required” (section 113(b)). The prescribed factors are whether there is evidence “that raises a serious issue of the applicant’s credibility”, whether it is “central to the decision”, and whether, if accepted, it “would justify allowing the application for protection” (Immigration and Refugee Protection Regulations, section 167).
For most applicants the officer decides on the basis of sections 96 to 98 of the Act, the provisions that define a Convention refugee and a person in need of protection, including a person who would face a danger of torture (section 113(c)). A decision to allow the application has “the effect of conferring refugee protection” (section 114(1)(a)), and the person becomes a protected person (section 95). Under the regulations, a removal order “is stayed” from the time the person is told that he or she may apply until, among other events, “the application for protection is rejected” (section 232). The Board itself does not hear every claim in person: The Globe and Mail reported in April that claims there are assessed “either with a hearing or through a paper-only ‘file review’ process”.
What the government says
The government’s position is that the risk assessment protects everyone the bars affect. In a statement to CBC News in May, Immigration, Refugees and Citizenship Canada said: “This well-established process assesses each person’s circumstances and ensures Canada does not remove individuals to a country where they would face serious harm.” Asked by CBC Toronto about the change, the department replied:
Mary Rose Sabater, spokesperson for Immigration, Refugees and Citizenship Canada, to CBC Toronto, May 2026. “safeguards remain firmly in place” … “This process ensures that no one is removed to a country where they would face risks such as persecution, torture, or risk to life.”
Before the bill passed, the immigration minister, Lena Metlege Diab, told the Senate committee on social affairs: “The pre-removal risk assessment, the PRRA, has been there for decades. We will enhance it. It works.” Where it is clear on the documents that a person needs protection, she said, the assessment would approve the claim “right away”. The department’s senior legal counsel, Joanie Roy-Caswell, told the committee that the Supreme Court had not held that every refugee claim requires an oral hearing, only those in which “a credibility issue is at stake”, as The Canadian Press reported it. The minister also told members of Parliament, The Globe and Mail reported, that the assessment, like a hearing before the Board, would look at the risks of return and could allow claimants to remain in Canada.
The department began writing to people who might be affected the day after the bill became law. “Now that Bill C-12 has become law, we are in the process of sending procedural fairness letters to individuals who could be impacted,” a spokesperson for the minister told The Globe and Mail; “As of January 31, 2026, this number was estimated to reach approximately 30,000 individuals.” In May the government consented to the request that the court manage the first 39 challenges together.
The lawyers bringing the challenges see the assessment differently. “Our concern is that eliminating the right to a day in court, which is a basic feature of our democratic system, and relegating protection claims to a paper review by an immigration officer doesn’t make sense because of the high stakes of these decisions,” Maureen Silcoff, one of the lawyers for the applicants, told CBC Radio.
What the challenge argues
The proposal of 1 October sets out the questions the applicants want decided. The first group concerns every person caught by the one-year bar, and its second question reads:
Lead-case proposal on common legal issues, 1 October 2026, Issue One, question 2. “Whether the combined effect of ss. 101(1)(b.1) and 113(b) of the IRPA and s. 167 of the Immigration and Refugee Protection Regulations (“IRPR”) is inconsistent with the requirements of procedural fundamental justice in s. 7 of the Charter and is not saved by s.1 of the Charter because it deprives access to a full and fair process for adjudication of a person’s claim for Convention Refugee status, including a mandatory oral hearing, to ensure compliance with Canada’s obligations to protect claimants against refoulement or return to torture or cruel and unusual treatment.”
The same group asks whether the bar and the first-entry rule are “arbitrary, disproportionate, and overbroad”, contrary to section 7 of the Charter of Rights and Freedoms, and whether the combined effect of the bar, the hearing provision and the regulation on hearings is incompatible with section 2(e) of the Canadian Bill of Rights. A second group asks whether the bar discriminates, contrary to section 15 of the Charter, against “women, LGBTQ, religious converts, minors or youth, mentally or physically disabled or members of other protected groups”. The third and fourth raise the same questions for the fourteen-day bar at the land border. The fifth concerns people from countries to which Canada has suspended removals, who, the proposal says, are left “in a state of legal limbo for protracted periods of time”.
The ten proposed representative cases are posted without names or file numbers. They describe claimants who fear persecution for their gender identity, their conversion from Islam to Christianity, their political activity and intimate partner violence. One concerns a mother and child who crossed into Canada from the United States between ports of entry and claimed more than fourteen days later; the proposal says they were prevented from claiming asylum in the United States, physically by their smugglers and legally by a recent ruling of the Board of Immigration Appeals that a social group defined only by sex, or by sex and nationality, does not qualify.
Canada’s obligations against return
Canada ratified the Convention against Torture on 24 June 1987 and acceded to the Refugee Convention on 4 June 1969. Article 3 of the Convention against Torture forbids returning anyone to a state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. In Canadian law, section 115(1) of the Act protects people already recognized as protected persons, or as refugees by another country to which they may be returned:
Immigration and Refugee Protection Act, section 115(1). “A protected person or a person who is recognized as a Convention refugee by another country to which the person may be returned shall not be removed from Canada to a country where they would be at risk of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion or at risk of torture or cruel and unusual treatment or punishment.”
A person caught by the bars reaches that protection through the risk assessment: if it is allowed, he or she becomes a protected person, and while an application made in time is pending, the removal order is stayed.
On the Safe Third Country Agreement, the United Nations Committee against Torture, reviewing Canada in 2018, noted the delegation’s statement “that Canada believes that the United States remains a safe country for asylum claimants to seek and obtain protection when they meet the definition of a refugee”, and asked Canada to “consider undertaking an assessment of the impact of the Safe Third Country Agreement on potential asylum seekers arriving from the United States who currently fear deportation”. It asked about the agreement again in the list of issues it sent Canada in January 2022. In 2023 the Supreme Court of Canada held, in the words of its own summary, that the regulations designating the United States as a safe third country “do not infringe refugee claimants’ rights to liberty and security of the person”, because the Act contains safety valves through which, the Court said, “claimants can be exempted from return”. It sent the claim under the Charter’s equality guarantee back to the Federal Court.
The Federal Court has not yet ruled on any of the constitutional questions about the new bars. Its orders so far concern only how the cases will be heard.
What is still being investigated, as of 8 November 2026
Which representative cases and common issues the court will designate after the responses due on 30 October, and when they will be heard. The court’s page lists nothing after the direction of 15 October.
How many applications are in the group. CBC reported 39 in May, and that the parties had told the court that as many as 28,000 claims could be reviewed under the new law. The court has not published a figure.
How many people found ineligible have received a decision on a pre-removal risk assessment, how many were given an oral hearing, and how many have been removed. The Coalition has found no published figures.
Whether a person whose risk assessment is refused can be removed while his or her constitutional challenge is held in abeyance. The stay under the regulations ends when the assessment is rejected, and the Special Order suspends the court’s timelines without mentioning removal. Amnesty International told the Senate committee in February that an application to the Federal Court carries “no automatic stay of removal”.
The government’s letter of 29 September 2026 and counsel’s letter of 2 October 2026, to which the direction of 15 October responds. Neither is posted.
The Federal Court’s decision on the equality claim against the Safe Third Country Agreement that the Supreme Court sent back in 2023. The court’s decisions database could not be reached in a way that respected its access rules.
Sources: Federal Court, C-12 applications · Immigration and Refugee Protection Act, sections 95 to 98, 101, 113, 114 and 115 · Immigration and Refugee Protection Regulations, sections 159.4, 167 and 232 · CBC News, 14 May 2026 · CBC Toronto, 24 May 2026 · The Globe and Mail, 1 April 2026 · The Canadian Press, 12 February 2026 · Supreme Court of Canada, Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17, case in brief · Committee against Torture, CAT/C/CAN/CO/7, paragraphs 32 and 33 · CAT/C/CAN/QPR/8 · United Nations Treaty Collection, Convention against Torture · Refugee Convention