Last Updated on February 24, 2020 by Steven Meurrens
Regulation 215 of the Immigration and Refugee Protection Regulations states that:
215 (1) A foreign national may apply for a study permit after entering Canada if they
(a) hold a study permit;
(b) apply within the period beginning 90 days before the expiry of their authorization to engage in studies in Canada under subsection 30(2) of the Act, or paragraph 188(1)(a) of these Regulations, and ending 90 days after that expiry;
(c) hold a work permit;
(d) are subject to an unenforceable removal order;
(e) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;
(f) are a temporary resident who
(i) is studying at the preschool, primary or secondary level,
(ii) is a visiting or exchange student who is studying at a designated learning institution, or
(iii) has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or
(g) are in a situation described in section 207.
Regulation 215(f)(iii) has been the subject of judicial scrutinity.
The Immigration, Refugees and Citizenship Canada Guidelines state:
Prerequisite course or program of study in Canada before the main program of study
As of June 1, 2014, visitors in Canada who have completed a course or program of study that was previously identified as a prerequisite for their admission into a program of study at a DLI may also apply for a study permit from within Canada [R215(1)(f)(iii)] if they provide both
- a letter of acceptance received from a DLI before or after the completion of the prerequisite course that confirms the course is a prerequisite for admission to the main program
- proof of successful completion of the prerequisite course, such as a letter from the destination DLI explicitly confirming that the student has completed the prerequisite course or program of study or a notification of completion from the institution at which the prerequisite course was taken
Foreign nationals are not eligible to apply for a study permit from within Canada [R215(1)(f)(iii)] if they are either of the following:
- unable to provide a letter of acceptance issued by a DLI either before or after the prerequisite course that proves the course is a prerequisite for entry to the main program
- admitted to a program with a language requirement, but a specific language training course or program is not specified in the letter of acceptance as a prerequisite for entry to the main program (for example, wording such as “must provide proof of English proficiency” does not indicate the need for a prerequisite)
Students taking a prerequisite course or program of study may work on campus provided they meet all other eligibility requirements. They are not eligible to work off campus while completing their prerequisite. However, they are able to work off campus once they have completed their prerequisite and started their main program.
In Li v. Canada, 2020 FC 279, however, Madam Justice Fuhrer stated:
I have outlined already what I believe to be a shortcoming of that first point [i.e. the need to engage with other evidence provided by a study permit applicant if the LOA itself does not mention a prerequisite course or program of study]. I further note the inexplicable omission from the first point of the reference to “program of study” contained in IRPR s 215(1)(f)(iii). In addition, the reference to “entry to the main program” in the first and second points misses entirely that the wording of IRPR s 215(1)(f)(iii) is “enrolling at a designated learning institution”, as opposed to a program of the DLI. In fact, enrollment at a DLI is a constant requirement until a study permit holder completes their studies: IRPR s 220.1(1)(a). In other words, the wording “entry to the main program” is not consistent nor harmonious, in my view, with the text, context and purpose of the DLI enrollment provisions for study permit applicants, in particular IRPR ss 215(1)(f)(iii) and 220.1(1)(a): Vavilov, above at para 120; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, at para 42.
Regarding the bracketed example in the second point of what does not constitute a prerequisite, MITT does more than indicate “must provide proof of English proficiency”; instead MITT stipulates that international students must successfully finish one of a list of specifically identified pathway programs to meet MITT’s English Language requirement for admittance in a MITT technical program. I also do not accept the Minister’s submission that “most MITT students [i.e. Canadian students] presumably do not have to provide any proof of language proficiency to enroll.” First, there is no evidence in this proceeding to support such a presumption, especially in so far as enrollment at the DLI itself is concerned, as opposed to any particular course or program of study. Second, it is irrelevant in the context of international students or foreign nationals.
As such, applicants who wish to apply for a study permit from inside-Canada who have completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution, but who do not have a letter of acceptance that confirms this or who are not enrolling in a “main program of study” should consider this case.