Implied Status – What It is, and What Changed Recently

(The following is a reproduction of an article of mine which appeared in The Canadian Immigrant.)

Implied status is perhaps one of the most misunderstood concepts of Canada’s immigration system.  Many mistakenly question its legality.  Others fail to appreciate its unique requirements, and abruptly find themselves without status.   Recent procedural changes and court decisions in Canada have only added to the confusion.

Implied Status

Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status.  In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Citizenship and Immigration Canada (“CIC”) makes a decision on his extension application.

Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during CIC’s processing of the extension application.  Considering that as of writing visitor, worker, and student extension applications took CIC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant.

In order to take advantage of implied status, the IRPR requires that an applicant file the extension application before his current immigration document expires.  Even submitting an extension application one day too late will mean that a foreign national cannot benefit from implied status.  The consequences of this are often quite serious.

As well, an applicant will lose the benefits of implied status if he leaves Canada while CIC processes his extension application.

Some Recent Developments

While the above may be common knowledge to many readers (and judging from some of the e-mails that I receive in response to my articles in The Canadian Immigrant, many of you are quite well versed in Canadian immigration law), there were recently some significant procedural and court decisions which have received little attention.

The procedural change is that CIC has announced that Inside-Canada Spousal Sponsorship applications can no longer be sent to CPC-Vegreville, but instead must be sent to CPC-Mississauga.  This led many people, including agents at the CIC Call Center, to mistakenly believe that applicants could no longer benefit from implied status during the processing of their Inside-Canada Spousal Sponsorship.

This is not the case.  Work permit extension applications can continue to be included in Inside-Canada Spousal Sponsorship applications, where they will be processed to conclusion.  The result is that Inside-Canada Spousal Sponsorship applicants can benefit from implied status during the processing of their permanent resident applications.

The federal court decision pertains to CIC’s policy of returning incomplete applications without putting them into processing, and in effect treating the incomplete application as if they never existed.  In the implied status context, CIC’s habit of doing so meant that people who applied to extend their status prior to their immigration documents expiring were deemed to have never submitted applications.  They thus never had implied status and remain, worked, and/or studied in Canada without authorization.  Due to processing delays, by the time CIC returned the incomplete application, many were out of status for months.

Justice Roy in Campana Campana v. Canada (Citizenship and Immigration Canada), however, found that this practice was contrary to the law, and that nothing in the IRPR provides that an incomplete application is a non-existent application.

It remains to be seen whether CIC will amend its policies or whether the Government of Canada will simply amend the IRPR.  However, for the time breathing, applicants can breathe a little easier

Conclusion

As the above should hopefully indicate, implied status is a very complicated area of Canadian immigration law.  It is constantly evolving.  However, it is perfectly legal, is not an abuse, and it is unbelievably important that it be done right.


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