There are many ways that people who come to Canada legally can suddenly find themselves inside Canada without valid status. Some may simply forget to submit applications to extend their status prior to the end of the period of their authorized stay. Others may submit their extension applications on time only to have Immigration, Refugees and Citizenship Canada (“IRCC”) later refuse or reject their applications for being incomplete, leaving them without status in Canada.
While Canadian immigration law provides such foreign nationals with some options to regain valid temporary resident status in Canada, it is important that people understand the risks associated with each.
Leaving Canada and Re-Entering
The first, and arguably the riskiest, way that a foreign national can regain legal status in Canada is to exit Canada and re-enter. Anyone who does this will need to satisfy the Canada Border Services Agency (“CBSA”) that they will leave Canada by the end of their authorized stay, which can sometimes be tricky if the person has previous overstayed. As well, if the foreign national wants to work or study, then they will need to demonstrate to CBSA that they are eligible to do so.
Restoration of Status
For many, exiting Canada and re-entering is simply too risky or too expensive if they do not have a US visa. Luckily, Canada’s Immigration and Refugee Protection Regulations provide that if a visitor, worker, or student loses their status in Canada, then they can apply to restore their status if they do so within 90 days of their status expiring.
Restoration applications must be submitted either online or by mail to IRCC. Restoration applications cannot be submitted while entering Canada at a Canadian port of entry.
It is vital that foreign nationals submit their restoration applications within the 90 day period after their temporary resident status expires. The failure to do so will automatically result in the restoration application being refused.
For those who lose status because IRCC refused their temporary residence extension application, the 90 day window to apply for restoration starts on the date that IRCC refuses the extension application, rather than when the foreign national’s work or study permit expired. The 90 day window does not start on the day that the applicant receives the decision. Although this may seem very unfair to those who lose time due to postage delays, the Federal Court has held that this rule even applies where there is a 90 day delay between IRCC refusing an application and the applicant receiving the decision.
Finally, it is important to note that students cannot study during the restoration period, nor can foreign workers work.
Removal and Restoration
Many people are under the mistaken assumption that the 90 day restoration window provides a grace period from removal. This is not the case, as highlighted by a July 2016 Federal Court decision called Ouedraogo v. Canada. There, the court explicitly determined that removal and restoration can operate in parallel, and that there was nothing prohibiting the CBSA from removing people during the 90 day restoration window if they had not yet applied for restoration.
The issue of whether CBSA can remove people from Canada after they have applied for restoration is more contentious. Practically speaking, once a restoration application is submitted, it is very rare for CBSA to issue a removal order against a foreign national despite them being in Canada without status. Where they have done so, the Federal Court has typically quashed the removal order and declared it invalid. As the Federal Court noted in the case of Yu v. Canada, “ it cannot generally be said that a temporary resident who has applied for the restoration of a permit in a timely manner has failed to comply with immigration legislation.”
In any event, people who wish to apply for restoration of status need to do so with the understanding that at any point during the 90 day window to apply for restoration, or even possibly when their restoration is in process, the possibility exists that they can still be removed from Canada.
Temporary Resident Permits
It is difficult for people who have remained in Canada for more than 90 days beyond the expiry of their temporary resident permits and visas to regain legal status. Such individuals may apply for permanent residence either by being sponsored by a Canadian through the Spouse or Common-Law Partner in Canada Class, or by submitting an application for permanent residence on humanitarian & compassionate grounds.
It is even more difficult to regain temporary resident status. In very narrow circumstances, such individuals may apply for a Temporary Resident Permit. However, the situation must be exceptional, and simply remaining in Canada for more than 90 days beyond the expiry of temporary resident status will not automatically lead to such a permit being granted.
Of course, the best option is to simply not lose temporary resident status in the first place. As such, it is important to keep track of when permits expire, to ensure that extension applications are complete, and to proactively move towards being eligible for any extensions. The most common reason why people fall out of status is because they start the process too late.