Friday, 27 July 2012

Temporary Residents and the Deportation Process

Filipiniana News  -  July 2012
Rhyme and Reason

Amidst the ongoing changes to Canada’s immigration laws and regulations in the past few years, many individuals have been adversely affected to the point of losing their status due to misinformation or even carelessness. 

Those who may have lost their status are understandably fearful of getting deported anytime soon and thrown on the next flight back to their home country.  However, misconceptions about the removal process abound such that fears are raised even among  temporary residents although they may actually still have valid status in Canada.  For instance, there are those here as visitors, workers or students whose initial permits have expired but whose extension applications are still pending, who fear that they may just be picked up by the authorities and detained since they could not show any proof of legal status.   Such fears are misplaced if the temporary resident has submitted an application to renew their temporary resident status before the expiry of their current status in Canada and a decision on the application is not yet received.   Provided all legal requisites are met, the temporary resident who has a pending renewal application will have the benefit of “implied status” under the Immigration and Refugee Protection Act (IRPA) and its regulations.   The implied status ends on the day that a decision is received on the renewal application, granting or refusing the extension requested.   It is only when the renewal application is refused, will the applicant technically lose temporary legal status in Canada and may be well-advised to leave the country as soon as possible so as not to prejudice any future applications to return to Canada.

There is also the option of applying for a restoration of status within 90 days of having lost temporary resident status if there are reasonable legal bases for requesting the restoration (e.g. justifiable reason for inability to request an extension prior to expiry of previous status, compelling reason to extend visit, a positive labour market opinion based on an existing job offer or continuing studies, etc.).   If the 90 days have passed, the option of seeking a restoration will not anymore be available but there may still be other options, depending on the circumstances.  

A person who has lost legal temporary status in Canada need not simply live in perpetual fear of being “picked up” by enforcement officers and thrown on the next plane out of Canada.  If there are compelling reasons or factors involved, it will be best to consult a trustworthy immigration advisor to discuss possible options to legalize one’s status. 

For instance, if there are genuine risks to one’s life if returned to one’s home country, there are applications that can be made to seek protection from any such harm.  These remedies however, should never be abused by agreeing to unscrupulous advice such as concocting stories to support one’s application for permanent resident status in Canada.   These unethical actions are not only morally and legally wrong, but also prejudice the many other genuine stories of people trying to escape various forms of persecution in their home countries.  If a genuine refugee is refused simply because the adjudicator has heard too many similar concocted stories, then a travesty of justice has been perpetrated against those truly deserving of Canada’s protection.

There are also cases where other compelling humanitarian and compassionate considerations exist (other than risk to one’s life) which could be raised in support of one’s application to remain in Canada.  These include factors such as strong establishment in Canada, best interests of children affected and other types of undue, undeserved and disproportionate hardship that would result from a refusal.

It used to be that a marriage or common-law relationship with a Canadian or permanent resident can almost guarantee a stay of removal and eventual grant of permanent residence to a foreign spouse who may have already lost status.  However,  the proliferation of bad faith marriages or so-called marriages of convenience have put even genuine relationships at a great disadvantage by also being refused in some cases.  Recently, the IRPA regulation defining “bad faith marriages” was amended to include non-genuine relationships or those which were primarily entered into for immigration purposes.  The old regulation was less strict in that the marriage would have to be both non-genuine and entered into primarily for immigration purposes to be considered a bad faith marriage.  Now, even if the marriage is genuine, but if it was perceived by an immigration officer to have been entered into primarily for immigration purposes, the sponsorship application can be refused and the removal against the out-of-status spouse may proceed. 

Once a removal order is issued against a temporary resident, there are administrative and judicial remedies that can be taken to stay the removal process.  However, these procedures and their effectiveness would depend on the specific circumstances in each case, as well as the favorable (or unfavorable) perspectives of the decision-makers. 

Thus, the removal process does not simply mean that once a person loses status in Canada, he or she is immediately arrested by the authorities, detained and thrown on the next flight to the home country.  There are various criteria, legal processes and principles involved which could result in varying treatments and outcomes.     

It must be noted as well, that even permanent residents may become the subject of removal orders.  However, that is already beyond the scope of this article. 

As always, the above are meant for legal information purposes only.  To obtain legal advice about your specific legal situation, it is best to consult a trusted immigration counsel.

The author is an immigration lawyer in Canada and may be reached at deanna@santoslaw.ca