Filipiniana News - March 2020
About a month ago, the coronavirus fears focused on the Chinese
based on the fact that the first reported cases originated from Wuhan,
China. Now, the disease referred to as
COVID-19 has been labeled a pandemic by the World Health Organization because
it has affected almost every nation on the planet.
The very rapid acceleration of COVID-19 cases worldwide has made
people realize that this is indeed an international problem and cannot be
blamed on a single country or ethnicity.
The ensuing lockdowns and travel restrictions imposed by various
countries in efforts to prevent further spread of the virus will no doubt have
a significant impact on immigration rules, in the near or distant future.
For those who might be trapped in Canada amidst the growing travel
restrictions by other countries, it might help to revisit the Canadian
immigration rules with respect to temporary residents.
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 have
inadvertently lost their status due to ignorance, misinformation or
carelessness. With COVID-19, we can add
public health and safety to the list.
Those who may have
lost their status are often 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.
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 may 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 or by agreeing to unscrupulous advice
such as concocting stories to support one’s application for extending one's
temporary residence or obtain permanent residency 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 similarly 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.
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, policies and principles that may come into
play and which could result in varying outcomes.
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 advisor.
The author is an immigration lawyer in Canada and may be
reached at deanna@santoslaw.ca or tel.
no. 416-901-8497.
Comments
Post a Comment