Filipiniana News - April 2018
Legal temporary
residents of Canada are those who have valid status as students, workers or
visitors. With the ever changing state
of Canada’s immigration laws and regulations, many temporary residents may
inadvertently lose their status due to ignorance, misinformation or even
carelessness.
Those who 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.
There are those
who initially came to Canada as visitors, workers or students whose initial
permits may have expired but whose extension applications are still
pending. Some of them 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 has not been 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.
If the renewal application is refused, the applicant loses temporary
resident status in Canada on the day that the refusal letter was received. It is at this point that the person may be
well-advised to leave the country as soon as possible to avoid going through
enforcement proceedings and/or not to prejudice any future applications to
return to Canada.
However, there is
also the option of applying for a restoration of status within 90 days of
having lost temporary resident status provided that certain legal criteria are
met. These criteria include the reasons
for the loss of status and any other type of immigration violation
committed. In some cases, the
restoration is granted as a matter of course, but in others, this can be
subject to a certain level of discretion after assessing factors such as the
reason for inability to request an extension prior to expiry of previous
status, 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.
For instance, 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 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 hardship that may 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 counsel.
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