By Andrew Rogerson LLB (Hons) TEP
Temporary residents in Canada are foreign nationals who enter and remain in Canada for a set period of time on the strength of a Canadian visa as a visitor, international student or foreign worker. Given that such visas are temporary in nature, each visa is valid only until a specified expiry date; after which the foreign national is expected to leave to Canada. However, a soon expiring or even expired visa is not a reason for a foreign national to begin packing their suitcases just yet. There are a number of options available to individuals to extend their stay in Canada on both a temporary and permanent basis even after they have run out of legal status to remain in Canada.
If a temporary resident has applied to extend their period of authorized stay in Canada before it has ended, the period of their stay in Canada is extended until a decision is made on their application pursuant to subsection 183(5) of the Immigration and Refugee Protection Regulations (IRPR). Thus, even if an individual is days away from the expiry of their work or study permit, they will still be able to obtain implied status so long as their extension application is received before the official expiry date on their permit is reached.
Once on implied status, a temporary resident who has applied for a renewal of their work or study permit has a right to continue working or studying under the same conditions until a final decision is made on their renewal application. However, to maintain their implied status it is imperative that a temporary resident remain in Canada throughout the processing of their renewal application. Implied status will be lost immediately upon exiting Canada.
Restoration of Status
Where a foreign worker, international student or visitor has failed to apply for an extension of their status prior to the expiry of their current status document and have subsequently lost their temporary resident status in Canada, they may be eligible for a restoration. Section 182 of the IRPR provides that temporary resident status can be restored where it is established that a visitor, worker or student meets the initial requirements for their stay and have not failed to comply with the specified conditions. A restoration of status is only available within ninety (90) days of the expiry date of the individual’s Canadian status document and the individual must have only failed to comply with one or more of the following conditions:
- The individual lost status because they remained in Canada longer than the period authorized for their stay (but not longer than 90 days);
- The individual was not required to obtain a work permit to work in Canada, but changed employers, type of work, or location of work without applying to change these conditions if they were specified on the visitor record;
- The individual changed the type of studies, educational institution, location of studies, or times and periods of studies without applying to change these conditions on their study permit if they were specified on the study permit; or
- The individual continues to meet the initial requirements for their stay and have not failed to comply with any other conditions imposed.
Thus, if an individual lost their status in Canada less than 90 days ago, failed to comply with one or more of the above conditions, but still met the initial requirements of their stay, a restoration of status may be a viable option for them.
However, it is important to note that restoration of status is an option that is only available from inside Canada. Once an individual has left Canada, they will need to apply for a new temporary visa. For example, if an international student loses status in Canada due to the expiry of their study permit and subsequently leaves Canada to visit family, they will not be eligible for a restoration even if the ninety (90) days had not elapsed since the expiry of their study permit.
In-land Humanitarian & Compassionate Grounds
Subsection 25(1) of the Immigration and Refugee Protection Act allows visa officers the flexibility to grant exemptions on Humanitarian and Compassionate (H&C) grounds to foreign nationals to overcome the following:
- The need to apply for a permanent residence visa from abroad;
- To overcome class eligibility requirements; or even
H&C applications are assessed through a two stage process. At the first stage, the application is assessed on a number of factors, which include such things as establishment in Canada, best interest of children affected by the H&C application, factors in the applicant’s country of origin, health considerations, family violence, consequences of separating a family and inability to leave Canada.
At the second stage of the process, the applicant must meet all of the requirements for a grant of permanent residence pursuant to section 68 of the IRPR. An immigration lawyer should be consulted to discuss the necessary requirements for a positive decision on the permanent residence stage of the application.
However, if a removal order has already been made against a foreign national, the submitting of an application on H&C grounds will not suspend the enforcement of their removal from Canada. A removal order will only be stayed where it is found that a stay would be justified by H&C considerations as per section 233 of the IRPR, even where permanent resident status has not been granted.
Temporary Resident Permit
Generally, temporary resident permits (TRP) may be issued if it is determined that an applicant’s need to enter or remain in Canada is compelling and sufficient to overcome any risk the applicant may pose to Canadians. Thus, the risk to Canadians or Canadian society must be minimal and the need for the applicant’s presence in Canada must outweigh any risk.
There are some instances where an In-land H&C application has been refused but the granting of a TRP may still be appropriate. For example:
- if a family member of the applicant who was included in the permanent residence application cannot be granted permanent residence due to an inadmissibility, a TRP may be issued to that individual while permanent residence is granted to the principal applicant and to the other accompanying family members;
- where a visa officer does not believe that there are sufficient grounds to grant an exemption under H&C grounds but believes that the applicant should be allowed to remain in Canada temporarily (i.e. to apply for a criminal pardon); or
- a TRP may still be issued where a request for an exemption to overcome an inadmissibility has been refused.
In-land Spousal Sponsorship
Although the IRPR currently requires applicants in the spousal sponsorship category to have temporary legal status in Canada, special policy allows for a waiver of this requirement where the applicant’s only inadmissiability is for “lack of status”. Thus, where an individual has run out of status in Canada, has a spouse or common law partner who is a Canadian citizen or permanent resident and is inadmissiable for no other reason than lack of status, an in-land spousal sponsorship application could be a means to remain in Canada permanently. While there are a number of factors that are considered in the processing of spousal sponsorship applications, it is crucial that the applicant pass both medical and criminal screening and that the sponsor is able to financially support the applicant.
Reapply from Outside Canada
Where none of the options listed above apply to an individual’s particular situation, they may have no choice but to leave Canada and reapply for a temporary resident or permanent residence visa from abroad.
How We Can Help?
At Rogerson Law Corporation, we offer personalized immigration service and legal solutions that are tailored to the specific life situations of our clients. If you are a temporary resident who has run out of status in Canada and you would like to remain in the country, our lawyers can alleviate your concerns and help you determine which course of action best suits your particular immigration needs.