Last updated on April 8th, 2020
Last Updated on April 8, 2020 by Steven Meurrens
If a visitor, worker, or student loses their status in Canada 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.
Immigration, Refugees and Citizenship Canada Guidelines (the “Guidelines“) provide 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 – Edmonton 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. Pursuant to the Federal Court of Canada decision in Shekhtman v. Canada (Citizenship and Immigration), IRCC must show that it must actually sent the decision.
The Guidelines 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 lower 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** For the approval percentage I removed the withdrawn column as applications could be withdrawn for numerous reasons, and do not indicate the likeliness of approval or refusal.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.
Here are three examples of how the 90 day deadline works in practice.
1. Status has expired and no application for extension has been submitted – 90 days starts from the day after status has expired. Example – a person’s study permit is valid until 12 December 2016. There is no application received by that date. Day 1 of the restoration period starts on 13 December 2016 and the 90 day period expires on 13 March 2017.
2. Application made before expiry of status; case is refused. 90 days starts from the date after the refusal decision. Example – A study permit is valid until 12 December 2016. The application is received on 01 December 2016. The refusal decision is made on 26 January 2017. Day 1 of the restoraiton period starts 27 January 2017. The 90 day period expires on 26 April 2017.
3. Application made after expiry of status but within 90 days of loss of status, but did not include restoration fees nor request restoration. Application is refused. 90 days start from day after status has expired. Example – study permit is valid until 12 December 2016. Application received 23 December 2016, but not requesting restoraiton nor restoration fees included. Application refused on 10 January 2017, advise client of restoration. Day 1 of restoration period begins 13 December 2016; 90 day period expires 13 March 2017.
On April 8, 2020, IRCC clarified on its website that if an application is rejected due to incompleteness, there is no extension of the period of authorized stay (implied status). IRCC’s officers have been a bit inconsistent with the application of this, and it remains to be seen how an officer processing a restoration application will address scenarios where the officer who rejected an extension application states that an applicant could benefit from implied status.
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)