In 2020, over 400,000 international students at the post-secondary level in Canada will return to school. Many will want to stay and work in Canada after graduating. All will be subject to mandatory conditions of their stay as a student in Canada. It is important for all international students, and especially those who wish to one day work in or immigrate to Canada, to understand these conditions, as the consequence of failing to comply with one of the them is removal from Canada and a one year bar from returning.
The Law on Study Permit Compliance
Regulation 220.1(1) of Canada’s Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada must enroll at a post-secondary institution that accepts international students, also known as a designated learning institution, and remain enrolled at the designated learning institution until they complete their studies. As well, students must actively pursue their course or program of study.
Canadian immigration authorities typically interpret this legislative requirement as being that students must be enrolled full-time or part-time during each academic semester (excluding regularly scheduled breaks), that they must make progress towards completing their program’s courses and that they cannot take authorized leaves longer than 150 days from their program.
The Immigration, Refugees and Citizenship Canada website state that a leave will count as authorized if a school has authorized a leave from study due to medical reasons, pregnancy, a family emergency, death or serious illness of a family member, or any other type of leave that a school authorizes. A leave will also be authorized if a school has closed permanently, if a school is on strike, if someone has changed schools or if the student or their school has deferred their program start date if the student starts studying during the next semester and gets and updated letter of acceptance.Read more ›
Canada’s Immigration and Refugee Protection Act states that a foreign national may not work or study in Canada unless authorized to do so.
The Immigration and Refugee Protection Regulations define work as “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”
Wages and Commission
Wages includes salary or wages paid by an employer to an employee, remuneration or commission received for fulfilling a service contract, or any other situation where a foreign national receives payment for performing a service. It is clear that an individual who receives payment for services would be working under Canadian immigration law.
Activities that Compete Directly
The IRCC Guidelines states that for unpaid work officers must consider whether there is entry into the labour market. The two relevant factors that officers are to assess are:
- Will they be doing an activity that a Canadian or permanent resident should really have an opportunity to do?
- Will they be engaging in a business activity that is competitive in the marketplace?
The IRCC Guidelines further states that the following are examples of activities that constitute work.
- a foreign technician coming to repair a machine, or otherwise fulfill a contract, even when they will not be paid directly by the Canadian company for whom they are doing the work;
- self-employment, which could constitute a competitive economic activity such as opening a dry- cleaning shop or fast-food franchise. (A self-employed person may also be considered to be working if they receive a commission or payment for services);
- unpaid employment undertaken for the purpose of obtaining work experience,
American nationals wishing to visit Canada may be unable to do so if they have a criminal record which renders them inadmissible to Canada. In order to overcoem their inadmissibility, they need to either apply for criminal rehabilitation or a temporary resident permit (a “TRP”).
Section 24 of the IRPA provides that:
A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
The Immigration, Refugees and Citizenship Canada (“IRCC“) TRP guidelines (the “Guidelines”) provide officers with the following guidance on issuing TRPs:
Generally, individuals who do not meet the requirements of the Immigration and Refugee Protection Act (IRPA), or who are inadmissible under the IRPA, may be
- refused a permanent resident visa (PRV) or temporary resident visa (TRV) abroad
- refused an electronic travel authorization (eTA)
- reported inadmissible under section A44(1)
- allowed to withdraw their application to enter Canada at a port of entry (POE)
- refused processing within Canada
In some cases, however, an officer may issue a TRP to allow a person who is inadmissible, or who does not meet the requirements of the IRPA, to become a temporary resident (that is, to enter or remain in Canada) if it is justified in the circumstances.
TRPs allow officers to balance the objectives of the IRPA to meet Canada’s social, humanitarian and economic commitments, while maintaining the health and security of Canadians.
When A TRP May Be Issued
The IRCC Guidelines state that officers may issue a TRP when both of the following apply:
- The purpose of the individual to enter or remain in Canada is balanced when the objectives of the IRPA are considered;
Discretion is the freedom to decide what should be done in a given situation. In the criminal justice system, in 2014 the Supreme Court of Canada (the “SCC“) in R v. Anderson recognized that prosecutorial discretion “is a necessary part of a properly functioning criminal justice system.” Examples of prosecutorial discretion include the decision to repudiate a plea agreement, the decision to pursue a dangerous offender application, the decision to prefer a direct indictment, the decision to charge multiple offences, the decision to negotiate a plea, the decision to proceed summarily or by indictment, and the decision to initiate an appeal.
Applying the letter of the law to the practical, real‑life situations faced by police officers in performing their everyday duties requires that certain adjustments be made. Although these adjustments may sometimes appear to deviate from the letter of the law, they are crucial and are part of the very essence of the proper administration of the criminal justice system, or to use the words of s. 139(2), are perfectly consistent with the “course of justice”. The ability — indeed the duty — to use one’s judgment to adapt the process of law enforcement to individual circumstances and to the real‑life demands of justice is in fact the basis of police discretion
As the Supreme Court further wrote, “a system that attempted to eliminate discretion would be unworkably complex and rigid.”
However, in the immigration system, the Government of Canada, with the seeming approval of many Federal Court of Canada judges, has removed much of the discretion from Canada Border Services Agency (“CBSA“) officers in their administration of the Immigration and Refugee Protection Act (“IRPA“).Read more ›
Rule 43(1) of the Immigration Division Rules, SOR/2002-229 states:
Application to change the date or time of a hearing
43 (1) A party may make an application to the Division to change the date or time of a hearing.
(2) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) the nature and complexity of the matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the hearing was peremptory; and
(i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
Duty to appear at the hearing
(3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.
In Cabrera v Canada (Citizenship and Immigration), 2010 FC 709 the Federal Court found that the Immigration Division needs to consider all relevant factors. Justice Russell wrote:
Be that as it may, it seems to me that the ID was obliged to consider the Applicant’s adjournment request in accordance with section 43 of the Immigration Division Rules.Read more ›
On October 21, 2019 Canada will have its 43rd Parliamentary election. There are six main political parties running. The first is the Liberal Party of Canada, led by Prime Minister Justin Trudeau. The Liberals are generally regarded as a centrist party and have governed since October, 2015. The second is the Conservative Party of Canada, led by Andrew Scheer. The Conservatives are a centre-right party that previously governed Canada from 2006-2015 under Stephen Harper. The third is the New Democratic Party, a left-wing or progressive party, led by Jagmeet Singh. The fourth is the Green Party of Canada, led by Elizabeth May, a party that is typically known for its environmental platform, although it does have a detailed platform on all of the important issues facing Canada. The fifth is the Bloc Québécois, led by Yves Francois Blanchet. The Bloc is a Quebec nationalist party that only runs candidates in Quebec. Finally, there is the People’s Party of Canada, a recently formed right-wing party led by Maxime Bernier.
As of writing, polls suggest that Canada is likely heading to a minority government. This means that none of the political parties above will win enough seats to govern without the support of another party. Assuming that all of the above parties win seats, it is accordingly important to understand their policy preferences as any of them may have policy influence on the next government.
I note that there is a strong possibility that Jody Wilson-Raybould, an Independent Member of Parliament running in Vancouver – Granville could win her seat, and also possibly influence the next government. However, as far as I can tell she has not specified any positions on immigration policy, and so I have omitted her from this article.
The Liberal Party of Canada
In the 2015 election the Liberals ran on a bold immigration platform.Read more ›
Regulation 100(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 states:
For the purposes of subsection 12(2) of the Act, the self-employed persons class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1).
Becomming Economically Established
The IRCC Guidelines state the following about how officers should assess a person’s ability to become economically established in Canada.
- A self-employed applicant must demonstrate the intention and ability to create his/her own employment in Canada through cultural activities, athletics or the purchase and management of a farm.
- A person’s financial assets may be a measure of intent and ability to establish economically in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the work.
- Applicants must have sufficient funds to create an employment opportunity for themselves and support themselves and their family members. This includes the ability to be self-supporting until the self-employment has been created.
- A demonstrated ability to support themselves and their family through their talents could be a good indicator of their ability to continue to do so in Canada.
- It is intended that the Self-Employed Persons Class enrich Canadian culture and sports. In other words, when applicants meet the test of experience and there is a reasonable expectation they will be self-employed, the test of significant contribution becomes relative. For example, a music teacher destined to a small town can be considered significant at the local level. Likewise, a freelance journalist who contributes to a Canadian publication will meet the test.
- It is the intent of the Regulations that any farmer meeting the experience requirement,
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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