Study Permit Regulations to be Overhauled June 1, 2014

On February 12, 2014, the Government of Canada stated that it had made regulatory amendments to the Immigration and Refugee Protection Regulations (“IRPR”) which will take affect on June 1, 2014.  The changes will alter Canada’s international student landscape.

The new rules are being introduced because the Government of Canada has been concerned that some educational institutions have been taking advantage of international students.  (One of my biggest annoyances is meeting with international students who state that their private post-secondary schools misled them into thinking that they would be eligible for post-graduate work permits.)   The government has even suspected some educational institutes are little more than  “visa mills” whose primary purpose is to get students work permits.  As well, there has been an increasing tendency of internationals students using study permits as a means to enter Canada for purposes other than study, including employment, and, allegedly, criminal purposes. Canada’s reputable post-secondary institutions, which have to compete for the best and brightest international students, have been unamused with how some of the unscrupulous behaviour has impacted their ability to market.

The changes are:

Current regulations New regulations, as of June 1, 2014
Applicants must show that they intend to pursue studies in Canada when applying for a study permit. Applicants must enrol in and actively pursue their course of studies in Canada.  The failure of a study permit holder to do so could lead to removal from Canada. The Government of Canada has amended IRPR s. 228 so that inadmissibility reports based on international students not actively pursuing studies in Canada do not require a referral to the Immigration and Refugee Board.  Instead, an officer can directly issue an Exclusion Order.  There are several exceptions to this removal possibility, including study permit holders who possess study permits because they are the family members of foreign workers, the family members of students, or the dependants or principal applicants in certain permanent resident applications.Officers will be allowed to request study permit holders provide evidence of compliance either when there is reason to believe that study permit conditions are not being met or as part of a random assessment. Enforcement actions could include desk investigations undertaken by CIC or active investigations undertaken by CBSA.
Applicants may apply for a study permit to pursue studies at any educational institution in Canada. Study permits will only be issued to successful applicants who are pursuing studies at an educational institution that has been designated to receive international students.Outside of Quebec (which has its own rules beyond the scope of this blog post), a designated post-secondary learning institution is one of:- a learning institution that is administered by a federal department or agency; or

– if a province has entered into an agreement or arrangement with Citizenship and Immigration Canada in respect of designating post-secondary learning institutions, a post-secondary institution located in the province that is designated by the province.

If a province does not enter into an agreement with Citizenship and Immigration Canada, then immigration officers may still be authorized to issue study permits to foreign nationals where warranted if they are granted the necessary exemption on the basis of “public policy considerations as identified by the Minister under s. 25.2 of the Immigration and Refugee Protection Act.”  This presumably means that if a province does not enter into an agreement to designate schools then Citizenship and Immigration Canada will designate them in that province instead.

Individuals who wish to undertake courses or programs of study of six months or less will continue to be able to pursue studies at non-designated learning institutions as members of the visitor class.

Study permit holders pursuing studies at publicly-funded and certain privately-funded post-secondary institutions must apply for an Off-Campus Work Permit to be able to work up to 20 hours per week off-campus during the academic session and full-time during scheduled breaks.  Students could only apply after six months. Study permits will automatically authorize the holder to work off-campus for up to 20 hours per week during the academic session and full-time during scheduled breaks without the need to apply for a separate work permit. The study permit holder must be pursuing academic, vocational or professional training of six months or more that leads to a degree, diploma or certificate at a designated institution.  This is facilitated through the introduction of a new s. 186(v) of the IRPR. There is no more need for international students to study for six months before they can work off-campus.
Any international student can apply for a Co-Op Work Permit if a co-op placement is an integral element of their course of study. Only international students who are pursuing studies at a secondary school or at a designated institution may apply for a Co-Op Work Permit if a co-op placement is an essential part of their course of study.
Visitors may not apply for a study permit from within Canada Visitors may apply for a study permit from within Canada if they are at the pre-school, primary or secondary level, are on an academic exchange or a visiting student at a designated learning institution, or have completed a course or program of study that is a condition for acceptance at a designated learning institution.  This requires that the visitors actually be studying at the pre-school, primary, or secondary level: Chow v. Canada (Citizenship and Immigration)
International students who have completed their studies but hold valid study permits can remain legally in Canada until the expiration of their study permit. A study permit becomes invalid 90 days following the completion of studies unless the foreign national also possesses a valid work permit or another authorization to remain in Canada.
There are no references in existing regulations that clearly state that Registered Indians who are also foreign nationals are exempt from the requirement to obtain a study permit. Registered Indians who are also foreign nationals may study in Canada without a study permit as they have the right of entry into Canada.
Study permit holders are not authorized to work after the completion of their studies while awaiting approval of their Post-Graduation Work Permit Eligible international graduates will be authorized to work full-time after their studies are completed until a decision is made on their application for a Post-Graduation Work Permit.  They will not be required to apply for a work permit to do this.  A new IRPR s. 186(w) will automatically provide that such individuals can work without a work permit.

 

There new regulations contain numerous transitory provisions in order to minimize the impact on students who prior to June 1, 2014, obtain study permits at institutions which ultimately are not designated under the new rules.  Those foreign nationals whose applications for a study permit were received prior to the coming-into-force of the Regulations will not be required to be enrolled at a designated learning institution for the duration of their study permit, or in respect of its renewal, for the remainder of their study permit, or until the date that is three years after the new rules come into force, whichever is sooner.  Co-op work permit applicants whose application was received prior will also not be effected.

Designated and Non-Designated Schools

The new study permit regulations indirectly address the lack of provincial action to regulate private post-secondary institutions operating in Canada.  As noted in the Canada Gazette, provinces and territories are constitutionally responsible for education.  Provinces and territories actively regulate and have quality assurance mechanisms for public educational institutions and private degree-granting institutions.  However, provincial regulation of private non-degree granting institutions varies greatly.  According to the Gazette, Nova Scotia is currently the only province which regulates language schools.

By restricting the study permit program to designated schools, and by preventing language schools from having access to “integral portions of study work permits”, there is no question that many of these schools will close.  Indeed, the Government of Canada appears to anticipate this.  In a Cost / Benefits analysis of its new regulations, the Government of Canada wrote that one of the costs of its changes will be a loss of $357.3 million over 10 years in tuition in the non-designated educational sector. Interestingly, the Government of Canada anticipates that this will be offset by increased tuition revenue at designated post-secondary institutions of around $489.9 million.  With the Government of Canada cutting supply, and demand presumably remaining constant, it is likely that public post-secondary institutions will either raise rates, or increase the number of international students that they accept.

Cost, Benefit Base Year 2014 Year Five 2018 Final Year 2023 Total Annual Average
Cost Non-Designated Sector 21.9M 37.4M 30.5M 346.5M 34.7M
Benefit Designated Sector 4.6M 55.8M 45.8M 489.9M 49.0M

 

Perhaps not surprisingly, the changes have been met with fierce resistance from the private post-secondary education industry.  The Government of Canada writes in the Gazette that:

Regulatory changes to limit an international student’s authorization to work off campus and/or in a co-op/internship program to students studying at a designated educational institution in an academic, vocational or professional training program were strongly opposed by Languages Canada and the language school industry, as students at language schools do not meet these requirements. The industry has identified that because students attending language schools are unable to work, the industry would experience a number of impacts, the most significant of which is economic loss. CIC has seriously considered feedback received from this sector; however, access to the Canadian labour market by international students should be refocused to align with their eligibility to remain as potential immigrants once educational credentials have been completed. This is consistent with broader departmental efforts to support the selection of foreign nationals who will succeed in the Canadian economy.Students focused on language acquisition programs generally undertake short-term studies and are often not equipped with the language skills to make a meaningful contribution to Canada’s labour market, nor are they eligible to stay in Canada based on their language credentials. CIC wants to ensure that these students are clearly focused on completing their program of study during their short stay in Canada.

I am undecided on the above.  I have had many clients who attended a six month language training course and then obtained a six month work permit.  During their time on their respective work permits they obtained valuable employment with reputable companies (including banks, tech start-ups, and natural resources firms).  Of course, it also was somewhat obvious that the reason that these individuals attended language school in Canada was not to improve their English (their English was impeccable) but rather to gain entrance to the Canadian labour market.  Unless one views economics and jobs as a zero-sum endeavour, it is not clear though that their employment is bad for Canada. Furthermore, for genuine language students, immersing oneself in English by working in Canada is clearly beneficial for language studies.

Ultimately, however, it will be for the provinces to decide which schools are designated.  As noted in the Gazette:

Languages Canada and member schools requested that, given the lack of provincial regulatory frameworks for language training (with the exception of Nova Scotia), CIC consider exempting the language training sector from provincial designation until such time as provinces and territories can regulate this sector, or recognize the Languages Canada Quality Assurance Framework for the purpose of designating institutions at the federal level. The National Association of Career Colleges has asked that the definition of a designated learning institution include all provincially regulated career colleges, or, as a transitional measure, recognize colleges approved for the Canada Student Loans Program until provinces and territories can complete assessments of educational institutions against their respective designation criteria. Regulations have not been adjusted to accommodate these particular recommendations. Rather, to level the playing field, the Regulations eliminate the list of learning institutions that would be considered to be designated should a province or territory fail to enter into an agreement or arrangement with the Minister of CIC. This more adequately reflects the role that provinces and territories have agreed to play in support of these Regulations, given their jurisdiction over education.

It will be interesting to see the different provincial approaches to designating educational institutions.


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