Filipiniana News - July
2011
Rhyme and
Reason
In the past few
weeks, there were news reports to the effect that the Canada Border Services
Agency (CBSA) is allegedly intensifying efforts to weed out so-called
“illegals” in an attempt to remove them from Canada as quickly as
possible.
Misunderstandings
and misconceptions about the removal process have raised fears among many
temporary residents in Canada, whether they still have valid status in Canada
or not. Some of those who are here as
visitors, workers or students whose initial permits have expired but whose
extension applications are still pending, fear that they may just be picked 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.
Only when the
renewal application is refused, will the applicant technically lose temporary
legal status in Canada and will be well-advised to leave the country as soon as
possible so as not to prejudice any future applications to return to Canada.
For those who have
lost their temporary legal status in Canada and were unable to submit an
application for a renewal, there is still the option of applying for a restoration
of status within 90 days of having lost temporary status and there is a
reasonable legal basis for requesting the restoration (i.e. compelling reason
to extend visit, a positive labour market opinion based on an existing job
offer or continuing studies). 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, due to the proliferation of bad
faith marriages or so-called marriages of convenience, even genuine relationships
are put at a great disadvantage and refused in many 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 can proceed.
Once a removal
order is issued by the CBSA, there are administrative and judicial remedies
that can be taken to stay the removal process.
It is important to note however, that 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.
As always, the
above are meant for legal information purposes only and not intended to provide
specific legal advice. If you are faced
with an imminent prospect of removal from Canada, it will be best to discuss
your legal options, the factors, implications and costs involved, with a
trusted immigration legal advisor.
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