Studying without a Study Permit

Foreign nationals are required to obtain a study permit for engaging in academic, professional, vocational or other education or training that is more than six months in duration at a designated learning institution (“DLI“) in Canada.

So what does this mean, and who doesn’t need a study permit?

The  Immigration and Refugee Protection Act (the “Act“) provides that every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

The Immigration and Refugee Protection Regulations (“IRPR“) further provide that a foreign national does not need a study permit to study in the following circumstances:

(a) if they are a family member or a member of the private staff of a foreign representative who is properly accredited by the Department of Foreign Affairs and International Trade and who is in Canada to carry out official duties as a diplomatic agent, consular officer, representative or official of a country other than Canada, of the United Nations or any of its agencies or of any international organization of which Canada is a member;

(b) as a member of the armed forces of a country that is a designated state for the purposes of the Visiting Forces Act, including a person who has been designated as a civilian component of those armed forces;

(c) if the duration of their course or program of studies is six months or less and will be completed within the period for their stay authorized upon entry into Canada; or

(d) if they are an Indian.

Short-Term Courses 

There is alot of confusion regarding whether people can complete short-term courses in Canada without a study permit.  The Immigration, Refugees and Citizenship Canada website states that foreign nationals may enter Canada or remain in Canada without a study permit to attend a course or program of study of six months’ duration or less.  This, however, does not provide the whole story. As noted above, IRPR also requires that the course or program of studies be completed within the period authorized to the foreign national upon entry to Canada.

In Zhang v. Canada (Citizenship and Immigration), 2016 FC 964, a Chinese national arrived in Canada on a visitor visa on August 23, 2014. The period authorized for her stay was six months, or February 23, 2015. In January 16, 2015, Ms. Zhang applied for and obtained an extension of her visa until August 30, 2015.

On January 5, 2015, Ms. Zhang began a 3 month ESL course.

In a subsequent application, IRCC determined that Ms. Zhang had studied without authorization, and the Federal Court agreed.  Her lawyer argued that this was unfair, especially since the IRCC website stated:

You can study in Canada without a study permit if: the duration of your course of program of study is six months or less and you will complete your course or studies within the time you are allowed to stay in Canada. [My emphasis]

However, Justice Bell disagreed, and stated:

I cannot accept Ms. Zhang’s contention regarding the interpretation of paragraph 188(1)(c) of the IRPR. Indeed, the Officer’s conclusions cannot be based upon information found on websites. He or she is required to interpret the Act and the IRPR. The words “upon entry into Canada” as found in paragraph 188(1)(c) are unambiguous. It is common ground that words in a statute are to be given their plain meaning unless the context requires otherwise: see, Ruth Sullivan, Statutory Interpretation, 2d ed (Toronto: Irwin Law, 2007) at 49-50. Upon entry into Canada Ms. Zhang was authorized to remain until February 23, 2015. I find it reasonable to conclude that that is the date by which she was required to complete any study, pursuant to paragraph 188(1)(c), for which she did not have a study permit. Even if I were to hold the view that the Officer was incorrect in his interpretation of the relevant provisions, he or she must be afforded deference when interpreting his or her home statute. Reasonableness, not correctness, is the standard of review to be applied.

 


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.


Environmental Overview – Nairobi

The following is a summary of the Environmental Overview of the immigration functions at the Canadian High Commission in Naiorbi (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2013-2014 planning exercise, and is current as of January 2013.

Areas in blockquote are direct passages from the Environmental Overview.

Environment

The Canadian High Commission in Nairobi (“CIC Nairobi”) provides visa services to residents of Kenya, Burundi, Congo, Comoros, Djibouti, Eritrea, Ethiopia, French Southern Territories, Madagascar, Mauritius, Mayotte, Reunion, Rwanda, Seychelles, Somalia, South Sudan, Tanzania, and Uganda.

Many visa applicants, including senior government officials from many of the countries within Nairobi’s jurisdiction, are inadmissible for activities ranging from genocide to subversion, a factor which continues to be a bilateral irritant for Canada in the region.

There are 13 Canada Based Staff, 2 Designated Immigration Officers, 3 Immigration Program Officers, 2 Locally Engaged 06, 22 Locally Engaged 05, 4 Locally engaged 04, and 9 locally Engaged 03 working at CIC Nairobi.

With the advent of e-applications, Nairobi is now starting to benefit from the assistance of QRC in the promotion on Temporary Resident applications. However, given that bandwidth speed continues to be slow, processing e-applications currently takes significantly longer than the paper equivalent.

55,000 old applications are slated for shredding.  An additional 11,000 were to be shipped in March.

Permanent Resident Program

Category

2012 Visas Issued 2013 Visa Targets

Federal Skilled Worker

966

498

Quebec Skilled Worker

1300

1251

Provincial / Territorial Nominees

175

193

The average processing time for the above applications was between 12-18 months.

Category

2012 Visas Issued 2013 Visa Targets

Priority Family Class

1407

1514

Parents / Grant Parents

501

44

DR2

745

783

The average processing time for the Priority Family Class applications was 29 months.  It was 50 months for parents and grandparents.

In 2012, Nairobi noticed a trend of cyclical FC1 sponsorship within our Ethiopian caseload, as a majority of the current sponsors had themselves landed as spouses. These applications require closer scrutiny through interviews.

CIC-Nairobi receives dozens of R117(9)(d) cases a year. Most are approved on best interests of the child, and take 12 to 24 months to process.

Category 2012 Visas Issued

2013 Visa Targets

Government Assisted Refugee

741

1525

Government Assisted Refugee (Quebec)

102

317

Privately Sponsored Refugee

1392

2043

Average processing times for Government Assisted Refugees in 2012 was 35 months.

Some delays appear beyond CIC’s control.

Eritrea is still inaccessible to Nairobi officers due to visa issues, leading to difficulty accessing PR applicants for interview. In addition, new legislation in Eritrea has outlawed private medical practice and the poor quality of x-rays leads to repeat exams with inconclusive results, thereby delaying the processing on a number of cases.

A requirement for officers to have Hazardous Environment Training led to the cancellation of a scheduled refugee interview trip to Kinshasa in March 2012, and has complicated the scheduling of subsequent trips for interviews of all categories of PR applicants.

Nairobi provides itinerant PR services by undertaking regular interview trips (mainly FC, DR2 and refugees) to countries in the area of accreditation. Countries such as Somalia, Eritrea, South Sudan and the islands off the coast of the East Africa are not often visited, either for reasons of security, inaccessibility or because the low number of interviews does not justify area travel.

There are also specific issues related to refugees.

Restricted access to clients and inability to process some caseloads due to the inability to obtain visas to Eritrea, travel restrictions for security reasons for Hargeisa and Dadaab Refugee Camp and medical examination quality issues in Eritrea. Nairobi has a stagnant inventory of up to 900 individuals that the refugee team has been unable to process for several years. This is having a significant impact on the length of both the GAR and PSR processing times.

Fraud is common in both programs, mainly related to family composition and identity . Many of the PSR applicants are not registered with the UNCHR or the relevant national authority. This raises questions of identity, family composition and credibility of the refugee claim. PSR applications tend to be incomplete and identity documents are largely unreliable.

Supervision: The unit manager is expected to spend some of her time processing applications but the reality is otherwise. Considering the challenges of managing an inventory in 15 different locations, permanent staff and TD officers, liaison work with partners such as the UNHCR, 10M, HIAS, RP, clients, sponsors and NHQ, the complexity of operations in the region, the unit manager spends 90% of her time on management duties alone.

Area travel/workload: Almost 100% of applicants are interviewed by an immigration officer except for OYW cases. Area travel is constant; a minimum of one week out of three is needed to meet targets and reduce processing times (7 cases per day/average) Challenges include travel to distant and remote areas, long distance between client locations, basic facilities and accommodation, long travel and work hours, risk of compassion fatigue and being away from their families. Area trips often involve week-end travel, overnight flights, poor living and dietary conditions in the camps and threats to personal security. Assessments by Mission Security are required prior to most trips.

Temporary Resident Program

Category

Service Standard

Actual Processing Time

Visitors

5 days (VAC/e-apps), 15 days (other)

11

Students

90 days (VAC/e-apps), 120 days (other)

69 days

Work

90 days (VAC/e-apps), 120 days (other)

140 days

CIC-Nairobi processed 13,104 Temporary Resident Visa applications in 2012.  The acceptance rate was 52%.  CIC-Nairobi does not interview applicants.

A fast track system is in place to maximize client services and to alleviate issues with last minute applications and officials travelling at short notice. Urgent, sensitive, high profile, H&C and diplomatic applications are identified through advance notification (heads up/visa referrals) by other sections of the mission or our Client Service Unit. These are brought to the Unit supervisor for immediate review and appropriate action. This system has been working extremely well, and most applications are processed within a few hours. Referral procedures have been revised and have been distributed to HOMs and OGD program managers in Nairobi’s territory.

Challenges:

The size of our region demands the shipment of applications by bag or by commercial courier, which increases processing time. To address this, Nairobi uses phone and e-mail as the preferred means of communication. Nairobi has also partnered with VFS to provide VAC services in Nairobi and in Kampala. The VAC rollout in 2013/2014 will see the provision of VAC services in three additional countries in Nairobi’s territory.

Fraud is pervasive in the region, particularly in the caseloads from Congo-Brazza and Congo-Kinshasa, Uganda, Ethiopia, Kenya and Tanzania. Refusal rates remain high. Verification is problematic. Fraudulent documents are easily obtained in most countries in the region, corruption is common, and the large geographic area makes in-person verifications very difficult.

Threats against Canadian security via the TR movement have not been evident though care is taken given the local presence of organizations of concern (such as AI-Shabaab). Somalia provides a low influx of applications as we do not recognize their travel document (passport). Somalis can only be accepted to travel to CDA through a Temporary Resident Permit- TRP and Single Journey Travel Document.

2013 Initiatives

Temporary Resident Electronic applications are now received in GCMS/Nairobi since December 2012. Although the numbers received to date are manageable and e-apps processing reduces the need for manual entry of information in the system, it has already had an impact on TRU’s operations since its introduction. Currently, processing an e-app in GCMS takes significantly longer (20 minutes compared to 5 for physical file application).

Implementation of a new VAC contract and the implementation of biometric service is planned in Nairobi’s area of accreditation. It is anticipated that biometrics will impact the number of applications received from the DRC, as there are no plans for a VAC office or biometric collection facilities in that country. As a result, Congolese citizens will have to travel to Nairobi or the nearest VAC (Kampala, Uganda) to provide biometrics. A similar situation a ies to the other nationals in our territory for whom biometric information is mandatory.


Sign at Canadian Embassy in Beijing Shows Impact of PAFSO Strike

A reader sent me a digital photograph of a sign allegedly posted at the Canadian Embassy in Beijing.  As the PAFSO job action continues, the implications for prospective international students is become quite serious.  I can’t even guess on how post-secondary institutions are preparing and mitigating.

China Door Sign re Strike


Study Permit Restrictions to Take Affect January 1, 2014

The Government of Canada has introduced amendments to the Immigration and Refugee Protection Regulations which will restrict which schools are eligible to have international students study at them.  Effective January 1, 2014, the issuance of study permits will be limited to international students attending designated learning institutions.

Currently, most provinces and territories have a mix of public educational institutions, private degree-granting institutions, and private non-degree-granting career colleges.  The latter are subject to varying degrees of regulations, and private language schools are generally not regulated at all.  Previously, any of these institutions could host international students on study permits.  Under the new regulations, however, only students attending designated institutions can receive study permits.

Designated institutions include:

  •  a learning institution that is administered by a federal department or agency;
  • if a province has entered into an agreement with Citizenship and Immigration Canada in respect of learning institutions that host international students, a learning institution in Canada that is designated by that province under the agreement; and
  • if a province has not entered into an agreement with Citizenship and Immigration Canada in respect of learning institutions that host international students, then any of the following:
    • a public post-secondary learning institution in Canada that is recognized by the province,
    • in the case of Quebec, a private post-secondary learning institution in Quebec that operates under the same rules and regulations as public post-secondary learning institutions in Quebec,
    • a private post-secondary learning institution in Canada that is recognized by the province and that is authorized by the province to confer degrees, but only in the case where the foreign national in question is enrolled in a program of study that leads to a degree as authorized by the province,
    • a learning institution within a public school board or district that is funded by and accountable to the province, or
    • an independent or private learning institution in Canada that delivers provincial curricula.

The government anticipates that, once implemented, the proposed amendments are expected to result in a loss of $517.8-million in tuition.  (Interestingly, they also anticipate an increase in tuition of $488.6-million at designated institutions.  It is not clear where this increase in students would come from, unless designated institutions across the country massively increase seat space to foreign students.)

The implication on the British Columbia economy, where there are an estimated 500 private schools, could be severe.  I simply do not believe that all of these schools will close.  More likely, I predict that the federal Conservative move is likely to put wind to the sails of the BC New Democratic Party’s efforts to re-regulate the province’s private non-degree-granting institutions, something they have been clamouring for for years.

Other recently announced changes to Canada’s study permit program include:

  • limiting the issuance of study permits to students attending designated learning institutions except in the case of visitors who wish to undertake courses or programs of study of six months or less for which a study permit is not required;
  • establishing new study permit conditions requiring all students to enrol in and actively pursue a course or program of study after arrival in Canada;
  • providing exemptions to protected persons, refugee claimants and certain family members from the proposed conditions on study permit holders;
  • allowing the issuance of removal orders in circumstances where students are not complying with their study permit conditions;
  • authorizing temporary residents already in Canada to apply for a study permit from within Canada if they are studying at the preschool, primary or secondary level, or have completed a course or program of study that is a condition for acceptance at a designated learning institution;
  • limiting access to international student work permit programs to eligible study permit holders attending a designated educational learning institution; and
  • authorizing international students attending designated institutions to work part-time during their studies provided they hold a valid study permit and are enrolled full-time in an academic, vocational, or professional training program of a duration of at least six months.