Last updated on October 25th, 2019
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. However, pursuant to the Federal Court decision in Shekhtman v. Canada (Citizenship and Immigration), IRCC does have to show that they sent the decision.
Finally, it is important to note that students cannot study during the restoration period, nor can foreign workers work.
The Same Class as Before
Federal Court jurisprudence is somehwat mixed on whether people need to restore to the class (visitor, student, worker) that they were previously in.
For example, as the Federal Court noted in Udobong v. Canada (Citizenship and Immigration), an intention by someone restoring to visitor status to study would justify the refusal.
In Abubacker v Canada (Citizenship and Immigration), 2016 FC 1112, the Federal Court accepted that “meets the initial requirements of their stay” means meeting the initial requirements of the temporary resident status that the individual wishes to have restored, regardless of which status was previously held. In that case, the applicant’s student status had expired but the applicant applied to be restored with a post-graduation work permit. The Federal Court stated: “the phrase “meets the initial requirements for their stay” in subsection 182(1) of the IRPR can be interpreted so that a student in the applicant’s situation whose study permit has expired and who needs a PGWP is required to show that he or she meets the requirements for a PGWP and not those for a study permit.”
In Stanislavsky v Canada (Minister of Citizenship and Immigration), 2003 FC 835 the Court stated:
A person seeking a temporary resident permit must have the intention of staying in Canada for a temporary purpose and an officer must be satisfied that such person will leave Canada upon the expiry of status. In this case, the Officer did not refuse the Applicants’ application for restoration of temporary status on the basis that they would not be in Canada for a temporary purpose. On the contrary, the Officer denied the application because the Applicants’ stay in Canada would be for a “long” temporary purpose, that is, while awaiting a decision on their application for permanent residence. The extended delay in this regard was attributed to the long processing time in Vegreville, Alberta relative to inland sponsorship applications.
In my opinion, the fact that the Applicants had submitted an inland sponsorship application was relevant to their intention to remain in Canada for a temporary purpose, that is for the duration of the processing of their landing applications. Granted, this was a new and different temporary purpose from their original temporary purpose when they entered Canada as visitors in July 2000. However, the current statutory and regulatory scheme does not say that a person’s initial temporary purpose must remain constant and unchanged. The only requirement is the existence of a “temporary purpose” and in the present case, I find that the Officer did not address his mind to this question in relation to the prevailing personal circumstances of the Applicants. That is a reversible error.
A review of the record in this case suggests that the Officer improperly limited his consideration of the Applicants’ application for reinstatement of status to the length of time required for the Respondent’s employees to deal with processing of the inland sponsorship application without addressing the existence or otherwise of a current “temporary purpose” for the Applicants’ stay in Canada. Accordingly, this application for judicial review is allowed and the matter remitted to a different officer for redetermination. There is no question for certification arising.
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.