If a visitor, worker, or student loses their status in Canada, then they may apply to restore their status. Such applications are referred to as “restoration applications.” Section 182 of the Immigration and Refugee Protection Regulations provides that:
182. On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.
Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) further provides that if an applicant applies to extend their temporary resident status after their temporary resident status expires, but within the 90-day restoration period, then the Case Processing Centre – Vegreville will inform them that they must also apply for restoration of status. The applicant will be given 90 days from the date of notification to submit their restoration application. This is an important point to note, as many people mistakenly assume that the 90-day restoration period only starts when a person’s work permit, visitor record, or study permit expires. Rather, it is when their temporary resident status expires, which includes implied status.
The Manual also provides that restoration cannot be granted at Canadian ports of entry.
As can be seen in the tables below, the percentage of restoration applications approvals is loser than for people simply seeking to extend their status. This is not surprising.
|No Restoration Requested|
* This data is for the first three quarters of 2013.
** For the approval percentage I removed the withdrawn column as applications could be withdrawn for numerous reasons, and do not indicate the likeliness of approval or refusal.
Applicants must submit restoration applications within the specified period. The failure to do so will result in an application being refused. Indeed, if an application for restoration is submitted outside the 90-day period imposed by law, then the Courts have held that Citizenship and Immigration Canada must refuse the application (Novak v. Canada, 2004 and Avi Adroh v. Canada, 2012).The 90 Day Deadline
As well, unlike with many areas of immigration law, the 90-day period starts the day an applicant’s temporary resident status expires. It does not begin when the applicant receives CIC’s decision (Nzegwu v. Canada, 2010). As such, even if there is a 3-4 month delay by Citizenship and Immigration Canada in informing a foreign national about a loss of temporary resident status, the applicant cannot submit a restoration applicaiton because he or she is statute barred from doing so.
Working During Implied Status
Another myth that exists is that foreign nationals can work in Canada during the restoration period. This is not true. Regulation 182 provides that a foreign national can restore temporary resident status if the foreign national did not comply with a condition imposed under regulations 185(a), 185(b)(i) to (iii), or paragraph 185(c) of the Immigration and Refugee Protection Regulations. These sections state that:
185. An officer may impose, vary or cancel the following specific conditions on a temporary resident:
(a) the period authorized for their stay;
(b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of work,
(ii) the employer,
(iii) the location of the work,
(c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including
(i) the type of studies or course,
(ii) the educational institution,
(iii) the location of the studies, and
(iv) the times and periods of the studies;
Working without authorization is prohibited by regulation 183(1)(b) of the Regulations. As such, applicants cannot work during the restoration period. Indeed, if either the Canada Border Services Agency or Citizenship and Immigration Canada discovers the unauthorized work then the applicant will be issued an inadmissibility report and/or denied a work permit.
Generally speaking, it is rare that the Canada Border Services Agency will issue a removal order against someone who has applied for restoration of status. Where they have done so, a quick reading of the jurisprudence indicates that the Federal Court has sided with applicants in determining that this was unreasonable.
In Yu v. Canada, 2005 FC 1213, for example, an individual applied to restore his study permit one day after his status expired. During the period that Citizenship and Immigration Canada was processing his study permit extension application, the Canada Border Services Agency issued a removal order against the applicant. The removal order was made on the basis that the applicant had stayed in Canada beyond the period authorized by his stay. Justice Simpson, however, found this unreasonable, stating that:
It cannot be said that a temporary resident who has applied for restoration of his permit in a timely manner, as he is entitled to do so under the Regulations, has failed to comply with or breached the IRPA.
However, the Federal Court has ruled that a Minister’s delegate has a duty to consider eligibility to apply for restoration and/or that a restoration has been submitted when determining whether to issue an inadmissibility report. (Sui v. Canada, 2006)