Filipiniana News - October 2016
Rhyme and
Reason
Temporary Residents and the Removal Process
Legal temporary
residents in Canada consist of those who
have valid status as students, workers or visitors. Due to the ever changing state of Canada’s
immigration laws and regulations, they are often the most negatively affected
to the point of losing their status due to plain ignorance, misinformation or
even carelessness.
Those who may have
lost their status are understandably fearful of being removed anytime soon and
thrown on the next flight back to their home country. However, misconceptions about the removal
process abound and are misleading even temporary residents who may still have
valid status in Canada.
For instance,
there are those who are here as
visitors, workers or students whose initial permits may 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 fear is premature 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
lose temporary resident 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 impact assessment based on an existing job offer, continuing studies, pending PR application,
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.
It must be noted
however, that unlike the period of "implied status," the temporary resident is already without
valid status during the 90-day restoration period. Therefore, although the restoration option
is still available, so is the possibility of being subject to enforcement
proceedings for non-compliance with IRPA and its regulations.
That said, a
person who had lost legal temporary status in Canada need not simply live
in 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.
If there is a
genuine risk to one’s life if returned to one’s home country, there are
applications that can be made to seek protection from such harm provided they
meet applicable criteria. 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 activities are
not only morally and legally wrong, but also prejudice the many other
applicants who are really 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 for being found to be a “bad faith marriage” (defined as either
non-genuine relationships or those which were primarily entered into for
immigration purposes).
Once a removal
order is issued against a temporary resident, there are administrative and
judicial remedies that can be pursued 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 information purposes only and not as specific legal
advice. To seek legal advice about your
particular situation, please consult a trusted immigration legal practitioner.
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