Category Archives: Canadian Immigration Law Blog

Understanding the Six-Month Ban on Work Permits and Study Permits

In today’s bit of a fun exercise for people who like to dork out on these things, let’s take a look at the six-month on work permits and study permits – what the Regulations (IRPR) say, what the IRCC website says, and try and make sense of all of this fun stuff. I have tried to interlace [somewhat witty] commentary in between the analysis.

TL;DR – I feel sorry for those who have to work with this on a daily basis.

[1] Work Permits

The relevant Regulation is R200(3)(e)(i-iv) of the Immigration and Refugee Protection Regulations. 

Exceptions

(3) An officer shall not issue a work permit to a foreign national if

 

  • (e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless

    • (i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,

    • (ii) the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);

    • (iii) section 206 applies to them; or

    • (iv) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act;

We know that the six-month period from the end of the unauthorized work/study and failure to comply with a condition becomes relevant [more on this later]

We also know that there are exceptions for those on ‘No other means of support’ permits  – refugee claims and those those subject to an unenforceable removal order. We also know that there are exceptions for subsection 24(1) of IRPA – Temporary Resident Permit holders.

There seems to be some tension on the face with the mention of a condition in (e), (e)(i), but the use of conditions [plural] in (ii).

Let’s then dive back into subsection (ii) – a section I looked at back in 2016.

I’ve bolded the out clauses and underlined a couple of interesting sub sections.

Specific conditions

 An officer may impose, vary or cancel the following specific conditions on a temporary resident:

  • (a) the period authorized for their stay;

  • (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i) the type of work,

    • (ii) the employer,

    • (iii) the location of the work,

    • (iv) the times and periods of the work, and

    • (v) in the case of a member of a crew, the period within which they must join the means of transportation;

  • (c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

    • (i) the type of studies or course,

    • (ii) the educational institution,

    • (iii) the location of the studies, and

    • (iv) the times and periods of the studies;

  • (d) the area within which they are permitted to travel or are prohibited from travelling in Canada; and

  • (e) the times and places at which they must report for

    • (i) medical examination, surveillance or treatment, or

    • (ii) the presentation of evidence of compliance with applicable conditions.

 

(B) The Website

Unauthorized work or study

There are several factors that could be applied under paragraph R200(3)(e). Only 1 of the following factors [R200(3)(e)(i) to (iv)] needs to apply for the officer to refuse the work permit.

We see from the website interpretation that they are going to harp on the fact any violation could constitute a six-month bar.

(i) Unauthorized work or study and 6 months not elapsed

As per subparagraph R200(3)(e)(i), the officer should not issue a work permit if either of the following applies:

  • the foreign national worked or studied in Canada even though they never held a previous work or study permit, nor were they authorized to work [R196]
  • the foreign national worked or studied in Canada under authorization but did not comply with the imposed conditions [R200(3)(e)(ii)]

The officer may issue a work permit as long as 6 months have passed since the foreign national stopped their unauthorized work or study.

…….

(ii) Failed to comply with more than 1 imposed condition

As per subparagraph R200(3)(e)(ii), if the foreign national has failed to comply with a condition of a previous permit or authorization, unless the study or work was unauthorized only because the foreign national did not comply with conditions imposed under paragraph R185(a)subparagraphs R185(b)(i) to (iii) or paragraph R185(c). Paragraphs R185(d) and (e) are not included in these exemptions.

If the foreign national did not comply with only 1 imposed condition, a work permit can be issued as long as they have applied for restoration of their temporary resident status.

However, if the foreign national did not comply withmore than 1 imposed condition, they may not be issued a work permit under paragraph R200(3)(e).

Example

A temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and continued working beyond July 15 without applying for a new work permit.

If the foreign national otherwise meets eligibility and admissibility requirements, they could be issued a new work permit without waiting for 6 months to elapse.

However, if the temporary worker was authorized to work for employer A as a waiter until July 15, 2017, and on August 15, 2017, they began working for employer B as a waiter, their work is considered “unauthorized” and they must wait for 6 months to pass since the day the work for employer A stopped before a work permit can be issued.

Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/foreign-workers/prohibitions.html#unauthorized

My statutory interpretation differs from IRCC’s in that I still see R.200(3)(e)(ii) as standing for any combination of those conditions not being enough to find one subject to the six-month bar. I don’t see how the lack of plurality in the 200(3)(e) language does any more than suggest the violation of 1 condition is enough for the six-month bar. I don’t see any impetus for this 2 or more imposed condition violations create a six-month bar.  That being said, this policy as it is currently written  will mostly capture workers who for example have overstayed plus a second violation. Given the open work permits and study permits involved, it is hard to come up with a scenario that captures international students.

However, it is clear from the language of those two exception sections that there are a lot that are not caught.

Which moves met to my next point of….

[2] Post-Graduate Work Permit

If it is determined that the student has not met the conditions of their study permit, they may be banned from applying for a post-graduation work permit for 6 months from the date they stopped their unauthorized study or work, per subparagraph R200(3)(e)(i).

An RCIC colleague sent me this gem of a response from Immreps.

Immreps Response dated 06 March 2019

Response: Examples of conditions that students may violate could be working without authorization (e.g. continue to work after they completed their studies but before applying for a PGWP) or not actively pursuing their studies.

I do think this is right.

Students who work when not authorized – for example between knowledge of completed studies and when they applying for a PGWP appear to be captured under R.185(b)(iv) IRPR [no exception].

However there can certainly be some grey read in on another provision. Does actively pursuing studies fall under s.185(c)(iv) IRPR [exception granted]  or s.185(e)(ii) IRPR [no exception]. In my mind it likely falls under a separate section s..222(1) IRPR but would that create overbroad consequences?

I do have a question about why this is not currently available on IRCC’s website in plain letter wording setting this out. I think all Immreps responses should be accessible publicly and/or immediately incorporated to updated instruction to lessen any confusion.

[3] Study Permit

The six-month study permit bar (or ‘failure to comply with conditions’) is similarly worded and not worth repeating in full but worth looking at in terms of what IRCC’s website has to say.

The Regs:

Failure to comply with conditions

 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

  • (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;

  • (b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or

  • (c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.

IRCC’s website:

Six-month ban [R221]

The first step in processing an application is to determine the admissibility with regard to section R221.

A FOSS or GCMS check will provide a case history. If the applicant is not described in R221 and there is no inadmissibility then proceed with assessing their documentation.

If the applicant has lost their status while in Canada (see section 47 of the Immigration and Refugee Protection Act for loss of status), determine whether the “six-month ban” on the issuance of a study permit applies.

Side note from the Immigration and Refugee Protection Act. 

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

If the applicant has engaged in unauthorized work or study in Canada or has failed to comply with a condition of a permit, officers cannot issue a study permit unless a period of six months has elapsed since the applicant ceased engaging in the unauthorized work or study, or since the applicant failed to comply with a condition that was imposed on them. See section R185 for details on the conditions that may be imposed on a temporary resident.

However, it is to be noted that there is no requirement to wait for the passing of six months prior to the issuance of a study permit if the unauthorized work or study in which the applicant engaged was unauthorized because of non-compliance with any of the following conditions [R221(b)]:

  • period authorized for their stay [R185(a)];
  • type of work permitted to engage in, or prohibited from engaging in, in Canada [R185(b)(i)];
  • the employer for whom they were permitted to work or for whom they were prohibited to work [R185(b)(ii)];
  • the location of the work [R185(b)(iii)];
  • the type of studies or course[R185(c)(i)];
  • the educational institution[R185(c)(ii)];
  • the location of the studies [R185(c)(iii)];
  • the times and periods of the studies [R185(c)(iv)].

Not the easy to miss formatting issue as they did not have a separate heading but put the actual application of the six-month ban as a bullet point (per below).

  • The six-month ban does apply to the issuance of a study permit when the work or study was unauthorized because the applicant did not comply with the following conditions imposed :
  • the times and periods of the work [R185(b)(iv)];
  • in the case of a member of a crew, the period within which they had to join the means of transportation [R185(b)(v)];
  • area within which they were permitted to travel or prohibited from travelling in Canada [R185(d)];
  • times and places at which they must have reported for medical examination, surveillance or treatment, or the presentation of evidence of compliance with applicable conditions related to medical requirements [R185(e)(i) and R185(e)(ii)].

If the “six-month ban” applies on the issuance of a study permit and six months have not elapsed, officers should refuse the application and proceed as follows:

At an overseas visa office

Officers should advise the applicant of the date when the six-month ban ends in order for the applicant to be eligible for a study permit.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application and the applicant is not inadmissible.

At a port of entry

Advise the applicant of the date when the six-month ban is due to end in order for the applicant to be eligible to apply for a study permit.

The applicant may become the subject of a report alleging that they are inadmissible pursuant to section A41.

If six months have elapsed, or if the applicant has failed to comply with one or more conditions imposed on them, other than the ones leading to a six-month ban, then officers may issue a study permit to the applicant, provided the applicant meets all the requirements for the issuance of a study permit at the time of the application.

What will be very interesting to see is how something like the ‘actively pursuing studies’ requirement is assessed with respect to a six-month bar. From my understanding is not cured simply by leaving Canada if re-entry is sought as a student and there were period of the authorized study that occurred during a period the study permit was held in Canada. This raises a question for those individuals who are now ‘activelY-pursuing studies’ (per. R.220.1 IRPR but previously did not). Some further clarification from IRCC will be helpful here.

At an inland office

The lapse of six months would not apply in the case of inland applications because the applicants would first have to get their status restored prior to being issued a study permit.

I understand in circumstances where a study permit holder has stayed beyond their authorized stay and how a student who was not authorized to study and loses status would have to restore themselves to get their status back. However, I am still not convinced we have figured out how this interacts with the ‘actively pursuing studies requirement.’ Someone who is caught still has a valid study permit and would not require restoration but would still need to do a study permit extension if their study permit was approved. Would they be subject to the bar or just refusal/and the possibility of a non-compliance finding? Questions remain. It also seems somewhat inconsistent with the ability to apply the six-month bar to the obtaining of a post-graduate work permit (usually an extension) but not to a study permit extension.

Source: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/assessing-application.html 

Conclusion

I hope you enjoyed this piece. We dove quite deep into the wording of the six-month bar. I expressed some concern over IRCC’s that violation of more than one imposed condition could render the six-month bar active on the basis of their interpretation of ‘a condition.’ I looked at the purported six-month bar for PGWPs and how the non-coverage of ‘actively pursuing studies’ as an exempt category would become increasingly relevant. Finally, I looked at the study permit six-month bar and highlighted how the difference of instruction may be incompatible and again create grey areas around non-enumerated exceptions to the six-month bar.

Is it Possible to Go From a Failed Refugee Claimant to an Economic Immigrant? (REVISED)

I revised this post on 6 August 2019. Thanks to fellow colleague Tess Acton for pointing out R. 209 (the work permit parallel to R.222). I’ve worked with this provision before. It goes to show that (a) don’t rush a blog before the long weekend; and (2) read and reread and fall on your sword. Thanks for the assist Tess!

With the increase of refugee claimants to Canada, there will naturally be an increase in failed refugee claimants. The pathway for remedy for failed refugee claimants, as advertised by IRCC,  includes at various stages (and subject to various bars) applying for an appeal to the Refugee Appeal Division, Judicial Review, a Pre-Removal Risk Assessment, and an Application for Permanent Residence on Humanitarian and Compassionate Grounds.

Increasingly, a question I have been receiving is why is there not an economic pathway available? Many refugees are working on work permits with employers. These employers may have indicated that they wish to support them. Why are these pathways not feasible if a refugee claim is to be abandoned or lost.

I want to try and breakdown the operation of this in a manner that refugee claimants can understand. I have definitely heard of at least a few agents abroad who advise clients that this is possible and feasible, so I want to show why this is so difficult with as much reference to plain letter wording and the regulations as possible.

That being said, as my analysis will over there are several sections of the Immigration and Refugee Protection Act (“IRPA”), Immigration and Refugee Protections Regulations (“IRPR”), Ministerial Instructions and Provincial Nomination Program program guidelines that make this a non-straight forward exercise. It is also an interesting exercise in statutory interpretation of which I won’t fully engage on but have alluded to.

 Refugee Claimants are Subject to Conditional Removal Orders until Their Claim is Accepted – but What About their Possibly Pre-Existing Temporary Status?

A refugee claimant is subject to a conditional removal order per s.49(2) IRPA. The ability to work while awaiting the refugee determination system falls under the category ‘no other means of support’ per R.206(1)(a) of the IRPR. This is the permit that is now applied for alongside the making of a refugee claim.

It is important to note that refugee claimants are also caught under R. 202 IRPR which indicates that the work permit issued to them under R.206 does not confer on them, in itself, temporary resident status.

R.202 IRPR states:

A foreign national who is issued a work permit under section 206 or paragraph 207(c) or (d) does not, by reason only of being issued a work permit, become a temporary resident.

This seems to suggest that those who hold an R.206 IRPR work permit are not by the issuance of that work permit itself granted temporary resident status – which makes sense. What about if they held a permit prior to making their claim?

From this, I had an interesting premise… what if someone came into Canada on a three-year work permit and one day one claimed refugee status inland. Would their work permit still be valid? Would they be still be considered temporary residents under IRPA?

This question came up after a presentation where I examined the context of students. Because for students, there is a clear regulation R.222(1)(c) IRPR that allow one’s study permit to remain valid even through a refugee determination process because of the emphasis on enforceable removal order for which the conditional departure issued to refugees is not. Regulation 222 of IRPR states:

Invalidity

 (1) A study permit becomes invalid upon the first to occur of the following days:

(a) the day that is 90 days after the day on which the permit holder completes their studies,

(b) the day on which a removal order made against the permit holder becomes enforceable, or

(c) the day on which the permit expires.

That is not to say that the student who holds the study permit while making a refugee claim still has temporary status but we know at the very least that the study permit is not invalidated as a result.

There is a parallel section (R.209) which also confirms that a work permit is not invalidated until a removal order is enforceable.

Given this I moved to R. 183 and R.184 of IRPR which places conditions on all temporary residents.

Reading IRPR alone, one would be misled to think that the making of a refugee claim does not end one’s authorized stay as a temporary resident. Indeed no cross reference is made to IRPA at all in this section nor ties the permit to the issuance of a removal order.

R.184 states:

  • Authorized period ends

    (4) The period authorized for a temporary resident’s stay ends on the earliest of

    • (a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

    • (b) the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;

    • (b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;

    • (c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63;

    • (c.1) in the case of a person who is required by section 10.01 of the Act to provide their biometric information, the day on which the period of 10 years following the latest day on which the person provided their biometric information under section 10.01 of the Act ends; or

    • (d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

  • Marginal note:Extension of period authorized for stay

    (5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

    • (a) the day on which a decision is made, if the application is refused; or

    • (b) the end of the new period authorized for their stay, if the application is allowed.

From this I gathered only that leaving Canada and the expiry of a permit, or the second permit would end an authorized stay of a valid temporary resident.

However, the important provision often missed in this analysis is s.47 of IRPA which specifies when a temporary resident’s status is lost. s. 47 states:

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

As you can see, s.47(b) does not appear to be captured in IRPR. It also leads to the follow-up question – what is ‘a determination.‘ We assume it is not a first level s.44 IRPA report issued by an Immigration Officer/CBSA Officer but is it when the Minister’s Delegate confirms the report and issues the applicable removal order. The inclusion of Immigration Division suggests that this is the proper interpretation. However – the wording does not say ‘final determination.’ It leaves room for statutory interpretation, particularly where a refugee’s removal order is conditional.

What happens in the case of refugees with previous status prior to making their claim? If the refugee never had status in Canada they may have never had authorization but what about the student or worker who came in with a permit and that permit is never invalidated. Is that permit still valid but their temporary resident status lost? This appears not readily reconcilable.

However, as I will look at below – moving now to eligibility for economic immigration – there may be some major implications for this area of grey.

Express Entry Requires Work to Be Authorized and that a Foreign National Had Temporary Resident Status During Work Experience in Order to Count for Points

Continuing on the premise of a failed refugee claimant – what happens if they wish to try and rely on work done in Canada.

Would time on an R. 206 work permit count? If not, as a standalone, what if the work permit was still technically valid (if such an argument could be made)?

Let’s take a look at the 2018 Ministerial Instructions for Express Entry.

Subsections 15(7) and subsections 17(8) of the MI’s talk about eligibility for Canadian Work Experience to count for CRS scores. Pulling just ss. 15(7) [as the language is identical], the section states:

Express Entry – Canadian Work Experience Requirements

Work Experience Requirements

(7) For the purposes of this section,

  • (a) a period of employment during which the foreign national was engaged in full-time study is not to be included in calculating a period of work experience;
  • (b) a period of self-employment or unauthorized work is not to be included in calculating a period of work experience;
  • (c) the foreign national must have had temporary resident status during their period of work experience and any period of full-time study or training; and
  • (d) the full-time equivalent for part-time work experience is 30 hours of work per week.

We know that holding a work permit authorizes the work but the key question remains – did the foreign national have temporary resident status during work and study. This creates a dual problem. Not only must the work have been while holding temporary resident status but also the study in order for the work to count. This draws in the question again of whether someone can hold a valid permit (study permit/work permit) but by virtue of making a claim and being subject to a conditional departure order – lose temporary resident status.

Provincial Nomination Program – B.C. and Ontario

Another common option for economic migrants is the provincial nomination program. I wanted to take a look at two provinces (BC and Ontario) but I do hope to replicate this look into other nomination programs.

The BC PNP is much clearer on refugee claimants and failed refugee claimants. They state in their program guide.

The BC PNP will not nominate you if you:

– are prohibited from entering Canada
– are in Canada and are out of status
– if your status has expired, and you cannot demonstrate you have applied for restoration of status within the 90-day eligibility period, you will be considered out of status
– are working in Canada without authorization
– have an unresolved refugee claim in Canada
– are under a removal order in or outside of Canada

Under this broad wording a refugee claimant and a failed refugee claimant would be excluded from applying for nomination under the BC PNP.

With respect to the eligibility of past work experience there are no specific indicators of whether certain work experience in Canada will count. There is only another reminder of the requirement to be authorized and in status:

Please note that your application will not be approved if you are in Canada and do not have valid immigration status, or if you are working without authorization.

This seems to suggest that at least the work performed (if on a R.206 IRPR refugee work permit) could support the required work experience requirement for BC PNP. However, as discussed the unresolved/under a removal order would make that not possible to do from inside Canada.

Moving on now to Ontario and their PNP. Ontario states the following in their program guide:

2.6 Legal Status in Canada (if applicable)
If you are residing in Canada, you must have legal status in Canada at the time of application submission and you should maintain it until the time of nomination.

Legal status means that you are authorized to enter and remain in Canada as a temporary resident for a specific period of time, either as a visitor, worker or student.

You may apply to the OINP if you are in ‘implied status’ at the time of your OINP application submission. ‘Implied status’ means that you submitted an application to IRCC to renew/extend your temporary status document (i.e. visitor record, work permit, study permit) before its expiry date. You can remain in Canada and continue to work or study under the same conditions as your existing permit until a decision is made on the pending application.

IMPORTANT: NOTE ON REFUGEE CLAIMANTS
Refugee claimants with a pending application to remain in Canada are not eligible to apply to the OINP. Refugee claimants will need to resolve their refugee claim before applying to the OINP.
For more information related to refugee claimants, please visit IRCC’s website.

As to the definition of whether the work experience is eligible or not. Under the Canadian Experience Class section of the Human Capital Priorities Guide it is written:

You must have had legal status in Canada while you were working in Canada.

Technically speaking, a failed refugee claimant while holding a refugee work permit and subject to a conditional departure order would have had legal status at that time (per Ontario PNP’s definition) if the A47 ‘determination’ of IRPA did not kick in. It again goes to show how important that one section is particularly in light of a disconnect with the wording of IRPR. 

Why Is This So Important for Failed Refugee Claimants?

Subject to very few other limited options (the most popular of which is an in-Canada Humanitarian and Compassionate Grounds application under s.25 IRPA – if they are eligible and not barred) the chances of returning to Canada on temporary resident status are practically nil in the case of a failed refugee claimant. Their pathways back to Canada will most likely need to involve permanent residency. As many of you will know, a refugee claimant who does not leave within the 30 days after a removal order becomes enforceable has their departure order automatically deem into a deportation.

While my initial review suggests little option for while there are here (subject to anyone feeling like challenging the ‘a determination’ provision with me!) there definitely appears to be some pathway for utilizing that work experience in a future outside Canada application (at least in the BC and possibly Ontario contexts).

I will be looking at this issue more carefully but I am eager for you to share your two cents on this interesting topic!

Exercise Caution When Claiming Dual Intent on Study Permit Applications – International Students

Dual intent is an important and increasing oft-used provision of the Immigration and Refugee Protection Act (“IRPA”) particularly for those applicants who straddle the pathway between temporary and permanent residence. I previously wrote about this concept more than four years ago with respect to a Federal Court case I was involved with called Jewell.

The Law

Section 22(2) of IRPA sets out:

Temporary resident

 (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1).

Marginal note: Dual intent

(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.

Is Dual Intention Applicable to Study Permit Applications? Is it Over-relied Upon?

Dual intent seems naturally applicable in the context of a spouse who seeks a visa or temporary entry into Canada while a permanent residence application is in process or a foreign worker seeking to extend a temporary work permit while awaiting an Application for Permanent Residence based on an Express Entry Application or Provincial Nomination Program nomination.

Recently in reviewing study permit applications made by international students, including those prepared by prominent and experienced authorized representatives, I realized that dual intention was being heavily relied on. Indeed, Minister Hussen in several speeches given last year about international students, seemed to suggest that it was no inappropriate for students to enter Canada with an ambition to eventually become permanent residents.

However, in this piece, I want to put a cautionary tale on the application of dual intention when the future intention (permanent residence) is years away and argue that any submissions on study permit applications should focus instead on future immigration compliance and strengthened/remaining ties to the country of citizenship and or permanent residence (if not Canada). I also believe that much of our over-focus on dual intention can also be inadvertently created by our own pathwaying (as representatives) of the permanent residence process.

IRCC’s Program Delivery Instructions on Dual Intention

IRCC has published instructions (as of the date of this post, last modified in March 2019). These instructions are quite detailed and worth a detailed read.

While the instructions set out it is not impermissible to have two intentions (one permanent and one temporary) and that it cannot be a standalone basis for refusal. The section titled ‘Example of a case for refusalsheds important light on the concept, especially in the study permit concept.

The instructions state:

An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent – permanent residence. Their application would be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.

Section R179 is balanced by the flexibility of subsection A22(2), which allows the officer to consider an applicant’s intent in relation to the particular circumstances of the application. For example: an applicant for a study permit who may qualify for the CEC in 3 years has a different set of circumstances from that of a provincial nominee whose application is near completion and who applies for a work permit, with the support of the province, due to an urgent need for their services. Please note that all applications should be assessed on their individual merits.

(emphasis added)

The very examples provided by IRCC about when refusing an applicant may be appropriate focus on the international study permit applicant who is not eligible for permanent residency at the time of their application.  Furthermore, these instructions seem to suggest intent (where absent) can be imputed.

Therefore, even if the facts are presented in a balanced way – for example, half the family is in Canada vs. half the family is in the country of citizenship, or with the fact there may be a job opportunity available back home after graduation – there appears to be the needs for clear and explicit language that the Applicant will both be compliant with the terms and conditions of their temporary stay and can and will leave Canada at the end of their authorized stay. I have always interpreted leaving at the end of authorized stay as meaning as required under IRPA (i.e. if an extension is refused) rather than necessarily at the end of one’s study permit. A successful Post-Graduate Work Permit (PGWP) application, for example, would extend one’s authorized stay in Canada.

What Does Case Law Tells Us?

1) What you state and what you do must be aligned for dual intention to properly apply

In Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII), the Applicant, a lawyer who was applying for a Canadian paralegal program, was unsuccessful in judicially reviewing the refusal of his study permit application.

Arguably (although Madam Justice Simpson found otherwise), even the Applicant’s personal statement in this application sounded very much like a single intent statement:

Madam Justice Simpson writes at para 5:

[5] The Letter included the following statements which, in my view, express dual intent.

  • I have every intention of staying in Canada permanently but only, and I can’t stress this enough, if the Canadian authorities allow me to stay.
  • I have no intention of leaving Canada after graduating but only and for as long as Canada allows me to stay. I plan to do my best to finish school, work hard while I’m in school to maintain myself, apply for the PGWP, find a good job in the legal field and during that time to find a legal way to stay in Canada.

In the refusal the Officer wrote (paragraph 8 of the Decision):

Applicant is 37yrs old, graduate law program in 2010 and has many yrs of experience as lawyer. He now applies to do paralegal training. I note that applicant has four attempts to express entry. While the study program chosen is in same field as applicant’s previous studies and work, it is a step back – not coherent with career development. Given the applicant’s interest in immigration, the study program is meant only to secure entry to CDA and not obtain better employment/promotion in home country. In view of past applications history, study program chosen, I am not satisfied that dual intent exists. I am not satisfied that applicant is interested in returning in country of residence and will have incentives to leave CDA at end of authorized period of stay.

(emphasis added)

Madam Justice Simpson in rendering a bench decision and dismissing the Applicant’s judicial review, highlighted in the record the fact that the Applicant’s proof of finances to support his studies were from the winding down of his legal practice, which itself created a reasonable basis for the Officer to find that there was not an intention to return that could support a dual intention finding.

She writes:

[14]  I am entitled to review the record to make sense of the Officer’s Decision. In my view, although it is not referred to in the reasons, the fact that the Applicant proposed to finance his studies by selling his law office was reasonably treated by the Officer as a powerful determining factor. It gives the impression, in the absence of an explanation to the contrary, that he is winding down his practice and has no professional reason to return to Bosnia and Herzegovina.

(emphasis added)

Ultimately, not only in this case did the Applicant fail to adequately state out a clear temporary intention but the evidence provided suggested as well that the intention was primarily permanent. In the context of an international student, without a clear pathway or application in process – ultimately this represents a high risk approach to the application.

2) Dual intent requires a clear written statement of dual intent

One of the leading cases in this area of the law is Loveridge v. Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) a 2011 decision that highlights my earlier observations that many study permit applications (and specifically letters of intent that I have reviewed) are entirely unclear, and possibly contradictory on the intent of the applicant. Indeed, for many students coming to Canada, the future may be uncertain but a reasonable pathway and understanding does have to be provided.

In Loveridge, the Applicant from the United Kingdom wrote a letter that led to a finding that the Applicant did not have dual intention.

Madam Justice Bédard writes in her decision:

[14]           The applicant contends that it was unreasonable for the officer, in light of the evidence that was presented, to infer on her part an intention to remain permanently in Canada. She insists that her motivation letter indicated, at a minimum, a willingness to return to the UK if required and that, as such, it was unreasonable for the officer to find that she had not established that she would leave Canada if she were required to do so. She argues that, in fact, her motivation letter clearly expressed her dual intent: she would stay in Canada if she had the opportunity to stay but would go back to the UK if required. She contends that she did not need to have a firm intent to go back to her country of origin in order to have a dual intent within the meaning of section 22 of the IRPA.

[15]           The applicant insists that she was credible and that she did not hold back any information in her application. She argues that there was no contradiction in her motivation letter but, on the contrary, that the letter clarified her intentions. She further argues that the officer made an error when concluding that the bank statements did not identify the owner of the accounts since the name NLoveridge appeared on the statements. She further points to the fact that her family and friends are located in the UK as demonstrating her strong ties to that country and her motivation to return there. The applicant also submits that no negative inference should be made from the fact that she and her husband were unemployed and that she did not have ownership of property in the UK. She contends that those circumstances could be viewed as reasons for wanting to migrate to another country, but that they do not support the contention that the applicant would refuse to leave Canada if required to do so.

[16]           The respondent, on the other hand, argues that the applicant’s motivation letter was vague, contradictory, and could not properly be interpreted as supporting a singular intention of returning to the UK. The respondent submits that the applicant had the burden of convincing the officer that she would leave Canada by the end of the period authorized for her stay and that she failed to discharge that burden.

[17]           I agree with the respondent that the applicant’s motivation letter is contradictory and unclear. In the first portion of her letter, the applicant indicates that her intention is to remain permanently in Canada. She speaks of “starting a new life in Canada” and states that she “will be happier in a country where there are more job opportunities”. If her sole intention was to stay in Canada only long enough to complete her studies, as is argued by the applicant, then the additional job opportunities available in Canada would be of no relevance. In the latter portion of the applicant’s letter, however, she indicates that “when” she returns to the UK she will be able to use the education received in Canada as a competitive advantage in her job search.

[18]           The motivation letter, thus, indicates both an intention to stay in Canada as well as an intention to leave Canada and return to the UK. This is different from indicating a “dual intent” within the meaning of subsection 22(2) of the IRPA, because that type of a “dual intent” is actually an intention to remain permanently in Canada, coupled with an intention to abide by immigration laws as required – i.e. a willingness to leave Canada if required to do so. The two intentions involved under subsection 22(2) are complementary, not contradictory.

[19]           Given that the intentions expressed in the applicant’s motivation letter appear to be contradictory, it cannot be said that the officer acted unreasonably in finding that the letter provided little support for the proposition that the applicant would leave Canada by the end of the period authorized for her stay.

[20]           Indeed, the burden was with the applicant to demonstrate that she would leave Canada at the end of her study period. As indicated by Justice Russel Zinn in Wang, above, at para 14, “The Officer is required to assess the evidence presented and weigh that evidence to determine whether it establishes on the balance of probabilities that the applicant will leave Canada at the conclusion of [the] study permit.” 

(emphasis added)

In this case, the Applicant did not interplay her two intentions properly in her letter. It was not a situation where she presented her ability to return primarily. Her letter gave the appear of having two separate intentions (a Plan A and a Plan B) rather than a Plan that considered both. Again, here is where authorized representatives can add value and applicants should think carefully before writing intentions into their study plans.

3) Officers still struggle with dual intention arguments

In Mahida v. Canada (Citizenship and Immigration), 2019 FC 423 (CanLII) , the Applicant’s study permit was refused. Among other mistakes (including the Officer’s failure to properly assess the online MBA she took and a letter from the University), it is clear that the Officer failed to understand dual intent by the following assertion (found at para 30 of the decision):

PA has failed to adequately demonstrate that proposed course of studies is logical or beneficial to their education or professional advancement as she states that she would like to live in Canada yet also intends to work in real estate in India.

Mr. Justice Russell in allowing the judicial review writes:

[31] There is nothing inherently illogical about the Applicant wanting to eventually live in Canada (a goal that she may or may not achieve at some point in the future) and her intent to work in real estate in India until that goal is achieved, and indefinitely if that goal is not achieved.

[32] Consequently, I simply fail to see how this supports the Officer’s conclusion that the Applicant may not leave Canada at the end of her period of authorized stay.

[33] Other reasons are given in the Decision for a negative conclusion but, as the Officer makes clear, he is weighing the incentive to remain in Canada against the Applicant’s ties to India. The errors I have mentioned are extremely material to this weighing process and hence render it unreasonable. The matter must be returned for reconsideration by a different officer.

(emphasis added)

While I think Mr. Justice Russell’s decision is right that the Officer failed to assess dual intention, I am a little confused still by para 33. It seems to be, by IRCC’s guidance, that the very exercise of dual intention is to examine whether the ties to the home country are strong, where there may be an incentives to remain beyond one’s authorized stay, and ultimately whether the Applicant’s stated (or unstated intentions) are credible.

The website states:

In assessing the applicant’s intentions, the individual circumstances of the temporary residence applicant must be examined; refusals of non-bona fide temporary residents may only withstand legal challenge when the refusal is based on the information related to the specific application before an officer.

In assessing an application for temporary residence, an officer should consider, among other factors, the following:

  • the length of time that the client will be spending in Canada
  • means of support
  • obligations and ties to the home country
  • the purpose and the context of the stay
  • the credibility of documents and information submitted
  • past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing

Assessing an application where there are dual intent implications is no different from assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment. The applicant must, in turn, satisfy the officer that they meet all the requirements of the IRPA and the IRPR relating to temporary residence, before any temporary residence application is approved.

If an officer has concerns or doubts about the applicant’s intentions, the applicant must be made aware of these concerns and given an opportunity to respond to them. If an application for temporary residence is not approved, the officer will provide the client with a letter explaining why the application has been refused.

To me, I think it is all about the last paragraph of IRCC’s guidance that the ‘applicant must be made aware of concerns and doubts’ and the Officer must give the Applicant an opportunity to respond. This runs directly counter to some of the speculative decisions we see that extend beyond the evidence provided. Ultimately, this creates the whole dilemma between sufficiency of evidence and credibility which will be a topic of a future blog.

However, on this point,  it is worth highlighting Mr. Justice Campbell’s decision in Yaqoob v. Canada (Citizenship and Immigration), 2015 FC 1370 (CanLII). Very similar to many study permit refusals a trite, short summary was provided to a very detailed application which included very extension dual intention submissions that set out the pathway to PR. Here, Mr. Justice Campbell read between the lines that there must have been some credibility concern for which an opportunity to respond was denied. He also awarded costs to the Applicant. I read this decision as a bit of an outlier (where the dual intention submission was entirely ignored it appears). That being said, it would set a good precedent if more decisions would turn the way of Yaqoob. This would force IRCC either to refuse by properly addressing evidence or else cap the number of applicants if that is ultimately the concern, rather than arbitrarily refuse with pro forma refusal reasons and letters.

Nevertheless, this misunderstanding and confusion may be further reason to not create or counsel a ‘dual intention’ where none may currently exist. For example, many international students only learn about permanent residence options through counsel or advisors and do indeed wish to come to study and then decide their plans after. Presenting this single intention does not in any way hurt an international student’s study permit application. Of course, there may be other factors that do require addressing dual intention head on.

4) Dual intent not as effective as a back-end argument on judicial review. Courts still struggle with applying this concept in reviewing decisions.

In several cases I reviewed, it appeared that dual intention was not raised on the initial application but later argued on judicial review as a failed consideration by the Officer.

In these cases, it appears the Courts effectively sidestepped the question by stating that the Applicant’s failed to discharge their burden and/or the Officer took into account reasonable factors.

In Ali v. Canada (Immigration, Refugees and Citizenship), 2018 FC 702 (CanLII),  Madam Justice Strickland acknowledged the submission but stated that ultimately, the Applicant had to first demonstrate that he or she would leave Canada at the end of their authorized stay and that this was not demonstrated.

She writes:

[23] As to the written submissions of the parties as to dual intent, as stated by Justice Gascon in Solopova (at para 30) this Court has confirmed that a person may have the dual intent of immigrating and of abiding by the immigration law respecting temporary entry (Kachmazov v Canada (Citizenship and Immigration), 2009 FC 53 (CanLII) at para 15). The two intentions are complementary, not contradictory (Loveridge v Canada (Citizenship and Immigration), 2011 FC 694 (CanLII) at para 18 (“Loveridge”)). However, the burden lies on the applicant to first demonstrate that he or she will leave at the end of their study period (Loveridge at para 20, Wang v Canada (Citizenship and Immigration), 2009 FC 619 (CanLII) at para 14). In Solopova, as here, this threshold requirement has not been met.

Similarly in Cayanga v. Canada (Citizenship and Immigration), 2017 FC 1046 (CanLII), Mr. Justice Boswell did not delve into the Applicant’s argument that the officer failed to consider dual intention and that all temporary resident visas are premised on the idea that individuals may come to Canada to improve their economic situation (para 9). Nor, was the Respondent’s response that dual intention is permitted but reasonably found not to exist in this matter. Mr. Justice Boswell focused his reasons on the fact that evidence utilized was not extrinsic and that there was nothing unreasonable about the factors considered and applied deference to the officer’s decision.

Mr. Justice Boswell writes:

[13]           It is not unreasonable for a visa officer, as the Officer did in this case, to consider the availability of similar programs offered elsewhere at a lower cost; this is “simply one factor to be considered by a visa officer in assessing an applicant’s motives for applying for a study permit (see Zuo at para 23). Similarly, it is not unreasonable for a visa officer, as the Officer did in this case, to consider other factors such as the Applicant’s family ties in Canada and his country of residence, the purpose of his visit, his employment prospects in the Philippines, and his travel history.

(emphasis added)

5) Cases may be outdated to a time prior to detailed IRCC instructions.

There have been cases where dual intention was argued successfully in the context of international students and study permit applications.  However, I would warn these decisions as possibly being outdated or possibly not even re-occurring on the facts due to other mechanisms available to IRCC.

In Hernandez Bonilla v. Canada (Minister of Citizenship and Immigration), 2007 FC 20 (CanLII), Mr. Justice O’Keefe found that the Applicant (who affirmed through her guardian’s affidavit that she would return to Colombia once her studies were completed) was owed the opportunity to respond to the Officer’s concerns that her formative years would be spent in Canada and that she could not reintegrate into Colombia society and therefore would be unable to leave Canada. Mr. Justice O’Keefe found that this was a generalization that did not take into account the Applicant’s specific facts. Still, again, this decision had the Applicant confirming the intent to return in writing. While dual intention was framed successfully by the Applicant, it was procedural fairness rather than a failure to consider dual intention that won the day.

In Dang v. Canada (Minister of Citizenship and Immigration), 2007 FC 15 (CanLII), another 2007 case, Mr. Justice Kelen found an Officer’s assessment of a study permit extension patently unreasonable – in that it ignored dual intention. The Applicant, Ms. Dang, had a spousal sponsorship refused on bona fides and after an interview focused on that permanent residence application, the Officer refused the study permit extension – citing among other things, a lack of progress in learning English as proof she intended to remain in Canada. Mr. Justice Kelen found that inference patently unreasonable – yet in today’s day in age, with actively pursuing studies requirements and clearer guidelines, arguably an officer would be able to find other grounds to refuse. Dual intention did come handy and I do believe was properly applied in this case.

In light of new instructions and contexts, I am not sure that Madam Justice Heneghan’s decision in Moghaddam v. Canada (Minister of Citizenship and Immigration), 2004 FC 680 (CanLII), would be decided the same way especially now that it is clear dual intention requires looking at the totality of the applications situation including ongoing permanent residence applications. In Moghaddam, Madam Justice Heneghan found that the permanent residence application was not in front of the Officer and therefore was considered extraneous considerations.

Conclusion: Be Cautious Applying Dual Intent to Study Permit Applications

Ultimately, my review of the IRCC instructions and case law suggests that dual intention may not be the most effective argument when an applicant is not yet in the process or position of applying for permanent residency, as most international students would be. Emphasis should instead be placed on future compliance knowledge, individual knowledge of processes, and strong intentions and ability to effect a return at the end of the authorized stay. It is still my position that overemphasizing permanent residence does more harm than good and instead more creative ways to tie those ties to Canada (such as family, past immigration history, of courses) to a future career pathway or the possibility of employment in the country of origin should be explored. Those details should also be clearly stated, in a non-contradictory way.

While dual intention may have some back-end use in judicial review applications, it is also clear that these are usually secondary factors to underlying unreasonable assessments of evidence conducted by reviewing Officers. Proper caution should also be applied when reviewing case law to differentiate recent cases (which have or will have reference to a more robust instruction guide provided by IRCC) as opposed to those from a decade back where dual intention may have been a lesser understood concept. Still, dual intention (where there is not a permanent residence application pending) is a tricky word and evidence play that should ultimately be used very carefully by representatives and applicants alike.

R v. Singh 2019 ABPC 37: The Case DLI’s Should Make Mandatory Reading For Students/Recruiters

R v. Singh 2019 ABPC 37 is an Alberta Provincial Court decision involving an international student Mr. Surinder Singh who appeared at the port of entry in Calgary with a study permit approval letter to pursue a Masters of Chemical Engineering program at the University of Waterloo for which a letter of acceptance was purportedly issued. The problem – the letter was fake. He was not admitted to the University of Waterloo.

Also, the impugned study permit application suggested Mr. Singh had a Bachelors of Engineering from Panjab University and that he was currently a Processing Engineer working at Jagdambay Manufacturing Company. In actuality, he had only completed grade 12 and was working at McDonalds at the time of the application – as he later testified.

Analysis

This case is fascinating for several reasons.

First, it highlights the type of fraudulent schemes that are growing all to common around international study permits. While it is India in this context, the similar pattern of coaching from unlicensed consultants and local liaisons occurs throughout different communities around the world and in Canada. It highlights challenges with no oversight with the letter of acceptance process and how hard it is to detect fraudulent documents in today’s day and age. You see an established process unfold by which Mr. Singh enters Canada and then is coached on how to continue his stay here under different grounds (schools) than those by which he entered. It is also notable that this event took place in 2014 – with the trial and conviction happening some 4.5 years after the events in question took place and almost 3 years after the initial CBSA investigation began. These type of cases and situation simmer for years before being subject to public knowledge

Second, Mr. Singh’s situation represents a step up in terms of prosecuting the actual international student for criminal misrepresentation as opposed to the usual process of simply finding them inadmissible and giving them a five-year bar. No doubt, somewhere down the line, there would have been some consideration as to whether to simply pursue this as an inadmissibility matter but instead significant legal and departmental resources were placed in this case.

The Finding of the Consultancy Agency and the Network Involved

Many of us find it preposterous that individuals would engage with unauthorized practitioners but this case highlights how powerful word of mouth can be. Mr. Singh’s brother heard a friend from an adjoining village had he had recently landed in Canada as a successful immigrant. Mr. Singh and his mother went to the village where they understood the boy’s family lived, went to a shop owner – who then directed them to the family who directed them to the consultant Vicky  (paras 14-17 of the Decision). Again, this sounds very centuries ago in description but is the reality of small town life and demonstrates the desire by which some individuals often wish to leave their current situations.

The initial payment in this case was equivalent to 500,000 Rupees (CDN $10,000) which would be an incredulous amount to charge for any individual permit but again, considered so normal in the context of this case. So was the 25 lakh total price and the addition CDN $40,000 he owed after approval.

The other thing that is very common is the extended informal network of Canadian/international contacts that benefit and participate from these types of operations. The Consultant Vicky sends Mr. Singh to a “Gurjant” guy in Toronto (a purported friend) who ends up advising on education strategy (para 82 of the Decision). Vicky’s mother also assisted in the operation from India (para 51-53 of the Decision).

Judicial Knowledge of Immigration Processes Increasing

In the past where I have looked at non-immigration decisions at various courts and tribunals, I have often noticed language that makes it clear the Court was slightly uncomfortable with the immigration context. In this case, it appears that particularly Crown’s framing of the situation was done very effectively.

Crown put together this summary that looks like it was directly transposed (and or paraphrased) into the decision at para 7 of the decision:

[7]               The following is an outline of the student visa and study permit process.  I am indebted to the Crown for providing this summary in her written submissions.  I accept it as accurate based on the testimony I have heard and accepted and my review of the relevant legislation.  I have attached as an Appendix to these Reasons, all relevant sections of the Immigration and Refugee Protection Act, SC 2001, c 27 and the Immigration and Refugee Protection Regulations, SOR/2002-227

•        A foreign national from India who wishes to study in Canada must first obtain both a student visa and a study permit.

•        The foreign national must successfully apply for the study permit before entering Canada and studying in Canada.

•        The foreign national must also apply for the visa, or any other document required, before entering Canada.

•        By law, a study permit will not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states they have been accepted there.

•        A study permit will not be issued to a foreign national unless they demonstrate they have sufficient financial resources for the proposed study period.

•        Canadian visa officers review applications for study permits from foreign nationals.  If an officer is satisfied an applicant meets the criteria for a study permit, the officer may issue a student visa to the foreign national, which is placed in the foreign national’s passport before they come to Canada.

•        Once the foreign national has received their student visa outside Canada, they may present themselves at the Canadian border.  At the border, the foreign national makes an application to enter Canada and to obtain their study permit.  In other words, the student visa is issued outside Canada and the study permits is issued at the Canadian border.

•        Every person seeking to enter Canada must appear for an examination to determine whether that person has a right to enter Canada, or is or may become authorized to enter Canada.

•        When a foreign national presents himself or herself at the border seeking a study permit, the Canada Border Services Agency officer must satisfy themselves that the foreign national meets all the criteria for the student class (the criteria that would originally have been assessed to determine that a student visa could be issued to the foreign national).

•        Every foreign national entering Canada must establish that they hold the visa or other document required under the legislation and will leave Canada by the end of the period authorized for their stay.

•        Foreign nationals are inadmissible to Canada for misrepresenting or withholding material facts relating to relevant matters that induce or could induce an error in the administration of the Act.  [Footnotes omitted]

Even though we dealing with very particular regimes within immigration, it appears that knowledge around immigration is becoming more widespread. It is important that defense counsel similarly work closely with immigration lawyers when working on cases with an immigration component to ensure they match the resources Crown can often bring with their access to intergovernmental resources and knowledge.

Common Areas of Consultant Fraud

In this decision you get the ‘Rolls Royce’ of ways consultants advise their clients on study permit applications:

  1. Non-disclosure of representative – In this case, in the study permit questionnaire [page 5 – of the document which at the time may (or may not) have looked like this] was declared N/A. It is common for unauthorized consultants to ‘ghost’ a file in that they assist and prepare it without their name or address ever showing up on the file.
  2. Misleading address – A Canadian address was indicated for Calgary on the fraudulent letter of acceptance;
  3. Creating fraudulent documents/letter of acceptance – The fraudulent acceptance letter contained a student number that did not follow standards. We have seen similar issues with fraudulent photos and copy and paste graduation certificates;
  4. Lack of procedural transparency/expertise –  Mr. Singh wanted a work permit and indicated that he believed he would have trouble with the IELTS. He never knew he was going to the University of Waterloo (para 62)
  5. Submitting fraudulent documents to IRCC -Mr. Singh submitted a fraudulent IELTS exams and fraudulent bank statement;
  6. False promises – Even after the consultant Vicky indicated Mr. Singh was ineligible for a work permit, she recommended a study route to learn English (“ESL”) and then ‘get work permit’ (para 59). He then mentioned that ESL was part of the pathway to permanent residence and citizenship (para 60).
  7. Advising  on questionable travel plans – Mr. Singh was advised to fly to Calgary first (where the mailing address was purportedly indicated to be Calgary) to meet with Vicky.
  8. Getting rid of evidence – Vicky asked Mr. Singh for his password to his email account and started deleting emails.
  9. Undisclosed fee splits to third parties – while not directly stated, it is reasonable to assume that Gurjant was a benefactor – either through Vicky’s direct fee payment and/or through the schools he recommended Mr. Singh to attend;
  10. Asking a client to sign without reading – paragraph 92 is an all too common scenario and thread through common refusals.

Flag on File – Tracking Down Subject of Investigation

Many of us have seen IRCC’s efforts to track entries and exits. In this case, at paras 35-36, we see how this can work in practice in the summary of CBSA investigator Jolene Northfield. Having had difficult tracking Mr. Singh in July 2016, he came to CBSA’s attention 2017 thanks to a flag at the Windsor border. Mr. Singh’s Calgary address was obtained and supported the arrest warrant.

Wilful Blindness

Before I go into wilful blindness, there are a few things worth pointing to in the preceding section of the decision titled “credibility.

Judge Skene impugns Mr. Singh’s credibility with a couple lines including  the following:

[139]      I accept that Singh did not fully read his Application, including his supporting documentation, for a student visa and a study permit, although it would have been hard to miss the statements in English directly above each of his signatures.  I find this was an intentional act on his part.  He had no intention of reading it. 

[141]      He signed under the statement “I declare that I have answered all questions in this application fully and truthfully.”  Did he read that declaration?  I am uncertain.  As stated, it is hard to miss.  If he did, he made a material misrepresentation on his Application.  If he did not read what he was signing, in this part of his Application, or any of the other signature lines, that act and those acts were intentional – a deliberate choice.  

I cannot walk into the shoes of the defense counsel in this case in terms of whether they should have pursued a different strategy – one involving preparing Mr. Singh in order to have him understand the mistakes he made and how he had been led into making these various mistakes. It is clear that the lack of sympathy the judge had towards Mr. Singh’s position of blaming the consultant and blaming the visa office for processing his visa did not win over sympathy or create reasonable doubt.

I do feel sympathetic for the manner in which Mr. Singh assumed the ghost consultants who represented him knew what they were doing were licensed. The process of figuring out is licensed is not easy, word of mouth referrals often accepted without background checks, and representatives (including the ghost consultants here) do not often do a good job of telling clients what it is they are actually signing and/or to review carefully materials before signing. Students, especially those eager to leave their situations for Canada at a younger age, have the tendency to be impatient.

For me this is a classic case of s.40 IRPA misrepresentation but to convict him also of the criminal provision s.128 IRPA seems heavy handed.

That being said, the wilful blindness sections of the decision from paragraphs 147 – 161 are an important read. It highlights the vulnerability students face but that those factors of vulnerability (lack of knowledge, dissociation, willingness to follow instructions) can be the very foundation of fraud and contribute to their own roles of perpetrators. Clients (and for students, especially their families) should be asking many questions along the way of those who purport to help them and pose difficult questions. Obeying or Acquiescing to instructions without any active efforts to challenge or clarify those instructions can lead to a judge impugning motives, intent, and wilful blindness. There is also a major benefit to documenting questions to your representatives or to those assisting you by email to clearly demonstrate your actions through your own paper trail.

Exposing a Major Policy Gap – Ease By Which Study Permits Allow Students to Change Institutions

In paragraph 106 of the decision, a major policy gap in Canada’s international study permit is exposed and pointed to by Mr. Singh to the Court. In his testimony Mr. Singh states:

“Vicky consultant told me you are coming here on study permit, you can go anywhere to study.”

Currently, there are no rules, regulations, or policy directives which limit or dissuade students from switching universities. In fact, many schools (especially privates) have continued to operate under a seat sale process where the offering of more letters of acceptance increases the chance of converting an enrollment. Indeed, one of the reason more letters of acceptance need to be issued is with the understanding that students are likely obtaining other letters of acceptance which they may (or may not) accept.

On the flipside, many students are being coached (as it appears Mr. Singh was here) that once you obtain one letter of acceptance a student is free to ‘change their institutions.’ In other cases, after a student enters Canada on a study permit they have been advised that they are able to switch to a work permit quite easily. While they attend classes, a consultant is busy securing them a labour market impact assessment. Not only is this application difficult (for someone who has limited work experience and is still a student), but the positions that the work is organized for almost never actually assists a student in obtaining permanent residence. Most are low-skilled food service/hospitality positions that have the actual effect of culling any academic progress the student may have wanted (or ultimately needed) to pursue.

IRCC needs to step in by creating some sort of compliance process before a student is automatically allowed to switch programs. While I understand the flexibility of issuing study permits that are not tied directly to a college or university, I do believe there needs to be more than an administrative ‘update’ to IRCC after the change and that changing primary institutions (with exceptions for cases where students cannot register because a program is full, for example, or unable to offer their required courses) should be an exceptional circumstance. Furthermore, I am a big proponent of centralizing Letters of Acceptance for international students so that they have some sort of unique identifier and cannot be simply recreated and copied.

There may be some benefit to looking into the Australia model on this particular point and their rules around this.

Anti-Fraud Initiatives

IRCC has since the decision was rendered in February 2019, introduced a new campaign in India to try and curb the use of unregulated consultants.

Unfortunately, heartbreaking stories of immigration fraud too numerous to document in one short blog post. The takeaway from Singh is that there’s not too much stopping the pursuit of the students for whom fraudulent study permit applications may be submitted for as a manner of future deterrence.

Take Away

Schools – private, public, PGWP eligible or not – need to take a hard and deep look at their practices in engaging agents. Regardless of who they have a contract with (could be someone like Gurjant), students are contacting friends and family for word of mouth advice. The process isn’t always clear and that is where schools (and their advisors) ultimately have an important role to play providing basic straight forward instructions so that student have somewhere other than their neighbourhood agent to get advice from.

I think IRCC can also take major steps to make their website much more intuitive and use click down menus to better organize the content. I have been reviewing website content in light of a talk and as someone who spends way too much time on the internet and searching for information, IRCC’s website is not among the best organized. Again, Australia has a lot to offer us in this regards.

I will be presenting this case (along with several other immigration-related cases on the 30th at a session I am facilitating called Taking Stock of International Student Regulations in Canada on July 30th and August 20th. I look forward to seeing everyone there.

The Final Regs for TFW Vulnerable Work Permits = Good, But a Lot Rests on Implementation/Anti-Fraud

Today, via Part II of the Canada Gazette, the Government released the final regulatory amendments for an open work permit regime for vulnerable temporary foreign workers experiencing abuse as defined by R. 196.2 of the Regulations. See link here: http://www.gazette.gc.ca/rp-pr/p2/2019/2019-05-29/html/sor-dors148-eng.html

The changes, which come into effect 4 June 2019, create an effective national regime. The regulatory changes themselves are quite simple.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 (1) Subparagraph 200(1)(c)(ii) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

  • (ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 or 207.1 but does not have an offer of employment,

(2) Section 200 of the Regulations is amended by adding the following after subsection (3):

Non-application of paragraph (3)(e)

(3.1) Paragraph (3)(e) does not apply to a foreign national referred to in subsection 207.1(1) who engaged in unauthorized work in Canada or failed to comply with a condition of a previous permit or authorization.

2 The Regulations are amended by adding the following after section 207:

Vulnerable workers

207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they

  • (a) hold a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii); or
  • (b) previously held a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii), have applied for a renewal of that permit under subsection 201(1) and are authorized to work in Canada under paragraph 186(u).

Family member of vulnerable worker

(2) A work permit may be issued under section 200 to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).

3 Subsection 299(2) of the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):

  • (l) a person described in section 207.1.

Coming into Force

4 These Regulations come into force at 00:00:01 a.m. Eastern daylight time, June 4, 2019, but if they are registered after that time, they come into force at 00:00:01 a.m. Eastern daylight time on the day after the day on which they are registered.

It interesting to note though that the changes amend R. 200 but don’t directly reference R. 199 which creates some interpretative questions/challenges. While I think in practice, a broad interpretation of R. 199 could still support in-Canada processing under R.199(a), (b), family members under (e) and (f) if R.207.1 was read in, I agree with a Twitter commentator who noted several amendments and wording issues could create uncertainties.

Here are some thoughts I provided on Twitter:

Three Good Changes Emanating From the Regulatory Amendments

1. Providing Recourse to the Six-Month Bar to these Workers – Allowing individuals who may have violated previous work permit conditions or unauthorized work to still access a work permit under R.200(3.1). This would likely forgive 3(e) unauthorized work which may arise from where unauthorized work is necessary as a result of an abusive employer.

2.  Program Delivery Instructions Fluidity/Consultation Process – recognizing the need for strong Program Delivery Instructions and fluidity. I think this came out of a very effective consultation. process.  Full disclosure – I was in attendance for the Vancouver consultation (on behalf of a sex worker organization I assist) and also contributed my thoughts/notes to those drafting the Canadian Bar Association’s position which Deanna, from McRae Law, did a fantastic job on.

3.  Processing Times and Duration of Work Permit – Near the end, there is a discussion of five business day processing standards in 80% of the case. There is also some discussion earlier about the importance of case-by-case discretion. There seems to be acknowledgement that ESDC and LMIA-processing times are heavily intertwined. Cross-departmental coordination to encourage a reduction in processing times (which the LMIA processing moving online as it is expected to do) will play a big part of.

My Major Concern – Program Misuse

One of the concerns I possibly see is in coming up with an effective mitigation strategy against program misuse is that the problem may go deeper than limiting false claims to use this program inappropriately.

While I appreciate the multiple language access (especially for those who self-represented), I think we under-estimate two important factors:

1) Literacy of Those Who Will Likely Fall Under the Policy

  • Just because instructions are available in many languages that applicants may speak – it does not mean those individuals will interact with them.
  • In fact, when these materials are available in different languages this can also encourage more peddling of this information by community consultants and other individuals who this type of work.
  • This won’t be an easy PDI to put into English let alone other languages. There will be discretion. There will be cultural nuances to navigate as well.
  • We have to remember as well that many individuals who work in the SWAP program or in positions such as cleaners and attendants can often lack high school education or literacy to read through the length of a documentation that will be required to breakdown the definition of abuse into various related real-life, and relatable scenarios.

2) Pathways to Abuse – the International Student Parallel

  • One of the challenges I foresee is that the abuse may legitimately occur in Canada but that the roots of the abuse could be overseas through unlicensed agents and ghost consultants.
  • We saw and/or are seeing this with international students with respect to their humanitarian and compassionate grounds or refugee claims. Many of these claims cannot be said to be fraudulent and/or even without basis but were created when the individual first received a letter of acceptance to a college/university they did not know and were not prepared to necessarily attend.
  •  I do see lawyers, consultants, and community organizations legitimately using this application to try and ameliorative exploitative situations. There will be threshold issues. However, what this does not stop is the trend of bringing in individuals by third-parties who know/or are wilfully blind to the fact that exploitation or deception will happen. Agents are actively working to set up students into schools and employees into employers knowing that students will leave for LMIA-based jobs or that that the LMIA conditions will not be met. These potential workers can either be not aware of this, aware of this, or even strategizing their pathway to Canada around this. In short, there’s nothing to stop an unscrupulous agent abroad from utilizing the Vulnerable Open Worker Permit as a safety net (which it is clear from the RIAS this is not supposed to be).
  • In order to make sure this is done properly, I don’t think you can create a safety valve without controlling the front end floodplains. I worry about this being another part of the pathway to PR that it is truly not meant to be.

I am working with several community organizations/non-profits and organizing around this from a public service perspective. The LMIA process (which requires an Employer to pay for the processing fees and not reduce the costs of the processes from an Employee’s wages) can create major conflicts when both employer and employee want to go forward but cannot financially support the process. It is still very likely that several vulnerable workers will still be forced between the decision as to whether to stay in Canada (via a humanitarian and compassionate grounds and/or refugee claim) or whether to leave.

Keep me posted as this program moves forward.

Would love to engage with you and/or your orgs on this.

 

What Recent IRCC Program Delivery Updates Tell Us About the Direction of International Student Regulations in Canada

Much of Canadian Immigration Law and Regulation around international students in Canada is given life through program delivery instructions that set out the relevant policies. I have explored in recent blogs how posted policies can conflict with the operation of the law under IRPR and IRPA, which often constrain the efficacy of changing law.

I have written blogs about the 7 January 2019 change to assessing the ‘actively-pursuing studies’ requirement and the 14 February 2019 changes to processing instructions for the Post-Graduation Work Permit Program.

Since then there have been several other new program delivery updates that affect international students:

1. Co-op work permit – 7 March 2019 – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-co-op-permit.html 

Co-op work permits previously came with acondition (condition 21) that holders were ‘not authorized to work for any employer other than stated.’

The problem with this previous condition was that it created confusion among employers who did not see their name on the permit and as well created confusion as many co-op programs required multiple employers.

This is a welcome clarification that assists students and their co-op employers alike.

2. Co-op work permit clarification – 1 April 2019 https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-co-op-permit.html

In a follow-up clarification, IRCC then posted new instructions on a page titled Work related to a research, educational or training exemption code C31, C32 and C33 (International Mobility Program)

One of the unique elements of this new page is that under a subheading titled Post-secondary co-op – exemption code C32 eligibility, updated instructions are provided to clarify conditions to be entered by the officers in Canada on GCMS when issuing the work permit.

In addition to the requirement of leaving Canada (condition 18), it is interesting that condition 26 – again going to blanket ban on foreign workers engaging in employment in businesses related to the sex trade, such as strip clubs, massage parlours, and escort services” is re-emphasized as a condition. I am working some potential litigation involving individuals who are not employed (i.e. self-employed) in these areas in order to support themselves and their studies financially and would love to speak to anybody subject to enforcement on this basis.

The rest of the focus on these conditions is on designated and non-designated countries (i.e. those countries where you have lived or traveled in the past six-months). The conditions on the work permit will be different depending on both of them, with an additional condition of ‘not authorized to work in agricultural occupations’ (condition 16) added to those individuals from designated countries.

Hidden in a bit in the last point, IRCC also wants to ensure that the duration of the co-op work permit and study permit should be the same. It was in the past not uncommon for students to have a co-op work permit valid for several months after their study permits expired, creating confusion as to whether those permits authorized continuing work in Canada.

3. Post-graduation work permit length for 2 combined programs – 5 April 2019 – https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-post-grad-length.html  

While the posted changes affect Quebec vocational programs with a diploma of college studies (DCS) and an attestation of college studies (ACS), it is important to read this particular page carefully as it provides important information about the length of a post-graduate work permit vis-a-vis the program.

There are a few takeaways of note:

[1] The letters written by DLIs become very important especially around the issue of accelerated studies and to clearly lay out that the students completed the program in accelerated. Failure to do so can lead to shorter post-graduate work permits. These issues are resolvable through applications to extend and amend but could create new graduates uncertainties and hardship in the interim.

[2] IRCC has appeared to give a blanket rejection to laddering programs.

Prior to these these clarifications (implemented in February 2019, I believe with the new changes), a common practice was for private colleges who were not PGWP-eligible to partner up with programs that were to sign matriculation agreements. IRCC was previously giving credence to the length of the combined programs these schools. Meaning that a 1-year ineligible program combined with a 1-year eligible program (in which the individual received the equivalent to a 2-year diploma), did in many cases result in a 3-year post-graduate work permit. This door appears to be closed with the clarified instructions.

4. Study permits: Making an Application – 11 April 2019  and 5. Validity periods and acceptance letters for study permit – 16 April 2019 –

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-validity-letters-study-permits.html

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/updates/2019-study-permit-application.html

There is a lot packed into this update and I think it deserves it own article frankly.

I’ve posted a series of tweets to highlight some points I looked at. I will try and do a deeper analysis later – especially on new interpretation of R. 215 IRPR and studies which opens up a slew of opportunities for applicants in various situations.

I also did a series of tweets previously on this topic, but the validity period information was also amended to clarify that Officers should be entering the study permit expiry date as the date of expiry of the study or the applicant’s passport, whichever occurs first.

Reading this in conjecture with the Study permits: Final decisions page, there seems to be a little confusion as to how to reconcile program completion with validity period.

The appropriate step, from my perspective, is to ensure that the expiry of the study permit should still be 90 days after the end of the program of study. This will ensure that the expiry of that study permit will be consistent with the statutory expiry date under R. 222(1) IRPR. If the study permit is given a shorter expiry date (program of study end date), students will have to file an extension that creates more administrative work for studies they may have already completed. Most students will need to have a valid a study permit to both take advantage of the ability to apply inside Canada (R.215 IRPR) and to work according to R.186(w) IPRR prior to a decision made on their PGWP. The instructions are not currently written in the clearest form for Officers to interpret.

Several institutions, understandably to try and protect their students from running into study permit expiry issues, recommended putting a date that was after the actual completion date in study permit forms – meaning students often received study permits that were 120-180 days after the completion of studies. This should put an end to this practice.

With IRCC now clarifying that study permits expire 90 days after completion of studies but also clarifying that they will need to re-engage in studies within 150 days of completion, we will see an important extension window in those 60 days for students to get back into school if they are not eligible for PGWPs or are refused PGWPs and unable to restore their status. I am clarifying how restorations will work under this new regime and will update that in a future blog!

Takeaways

What you are seeing now is the Government really tinkering with the details (the grey areas) that previously left students and institutions unclear when advising on work and study. In most of these areas, we have seen a shift towards flexibility and giving students and officers more specific instructions, especially on timing.

I do believe that we will continue to see issues with students transitioning between studies and to post-graduate work permits in this interim period – as these timing issues are not always perfect.

I also do predict that there will be a period of time where institutions, and then to their students (through relevant channels such as student presentations, consultants, agents, etc.) will need to disseminate these new rules changes to their students. I would suggest seeking professional help from lawyers and consultants and coming up with a comprehensive strategy for this process.

 

Why the 180-Day Post-Graduate Work Permit Application Period Will Create Problems for IRCC/Applicants

In past pieces I have lauded IRCC’s extension of 180 days for students to apply for post-graduate work permits. From a policy perspective, I believe it gives students more time to find a job and prepare a decent application rather than to have to rush and base such an application off an expiring study permit that may or may not be easy to extend based on an institution.

IRCC’s new rules are that the study permit must have been valid sometime within the past 180 days but do not need to be valid at the time of application. I also wrote about how the lapse of a study permit automatically 90 days after completion of studies may also complicate the policy switch and require some sort of extension regardless.

What I didn’t realize at the time, but only did with some more reading and cross-referencing is that some of the policy likely does not work in theory with respect to the regulatory provisions of the Immigration and Refugee Protection Regulations which hold power of law.

Let’s start with the issue of what a student whose study permit is expiring (either naturally or on the basis of the 90 days) who wants to stay in Canada needs to do and how that affects their post-graduate work permit (“PGWP”) eligibility.

For those who switch to visitors in Canada, that means that their PGWPs should not (technically) be processed inside Canada unless they are accompanying a family member which permits them to make an application after entry under R.199 of IRPR.

Application after entry

 A foreign national may apply for a work permit after entering Canada if they

  • (a) hold a work permit;

  • (b) are working in Canada under the authority of section 186 and are not a business visitor within the meaning of section 187; – They don’t meet this subject to my analysis below on a possible loophole created.

  • (c) hold a study permit; – this is expired

  • (d) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;

  • (e) are a family member of a person described in any of paragraphs (a) to (d); – this depends on family members

  • (f) are in a situation described in section 206 or 207;

  • (g) applied for a work permit before entering Canada and the application was approved in writing but they have not been issued the permit;

  • (h) are applying as a trader or investor, intra-company transferee or professional, as described in Section B, C or D of Annex 1603 of the Agreement, within the meaning of subsection 2(1) of the North American Free Trade Agreement Implementation Act, and their country of citizenship — being a country party to that Agreement — grants to Canadian citizens who submit a similar application within that country treatment equivalent to that accorded by Canada to citizens of that country who submit an application within Canada, including treatment in respect of an authorization for multiple entries based on a single application; or

  • (i) hold a written statement from the Department of Foreign Affairs and International Trade stating that it has no objection to the foreign national working at a foreign mission in Canada.

(emphasis added – comments in underline)

The student whose study permit is expired without a family member to boot has no regulatory authority for their PGWP to be processed in Canada unless they utilize an exemption.

Moving on….

Adding to these challenges is the interplay between R. 186(w) which is the provision that allows a former student to work in Canada while awaiting their post-graduate work permit creates major timing issues.

No permit required

 A foreign national may work in Canada without a work permit

…..

(w) if they are or were the holder of a study permit who has completed their program of study and

  • (i) they met the requirements set out in paragraph (v), and

  • (ii) they applied for a work permit before the expiry of that study permit and a decision has not yet been made in respect of their application; or

(emphasis added in underline and bold)

In short, if I am not mistaken (and correct me if I am wrong) – a student who has let their study permit expire (90 days after completion of studies) and is applying within 180-days after graduation is under IRPR at least, in a situation where they have to make an outside Canada application.

Even more contradictory, they cannot work after they submit their PGWP application because they no longer meet the requirements of 186(w)(ii) as their PGWP application is coming after the expiry of their study permit.

Unless…..

My third point. A loophole emerges where it actually makes logical sense for a student who wants to take advantage of the whole 180-days they have to submit their post-graduate work permit to submit another paper-based application (which may be without merits – such as a Significant Benefits WP or frankly any WP application such as an accompanying spouse of a student) that would then authorize them to work until R. 186(w)(ii) until a decision is  made.

In short, it is my reading that these helpful policy changes (with good intention) will require regulatory amendment (in addition to just policy) and there may be some individuals caught in the middle of this crossfire of law and policy. Hopefully those regulatory amendments will capture that.

I will have to wait for the Gazette for those instructions.

Immigration law is fun isn’t it?

International Students, Criminality, and Immigration Status – a Few Points and Pointers

In the past year, one of the areas in which I have received the most inquiries and run the most consultations involves international students who have found themselves facing either criminal charges or dealing with the consequences arising from immigration investigations following charges/convictions.

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A Little Background – Crimigration Generally

I would be remiss if I did not point out first that my piece below will cover mainly practice/practical experience and tips that I would take if I were an international student or international adviser giving a talk to students on criminality and it’s possible consequences. I won’t be going into the details of the foundations of immigration consequences of criminality generally as I couldn’t do the topic full justice in one most.

I would strongly recommend reading this paper from my mentor Peter Edelmann, which subject to a few developments in the law around conditional sentence orders being held by the SCC not to be terms of imprisonment in the criminal admissibility context is still very valid today (http://pblsask.ca/imm_consequences_at_sentencing.doc).

Peter’s brilliant memos on criminality have helped a good number of criminal lawyers in their negotiations with Crown and their Court matters. I strongly encourage you reach out to him (peter@edelmann.ca) if you would like more advice on this.

I would also recommend reading the case he argued in front of the Supreme Court of Canada – R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696 – with respect to sentence appeals and informed consent of immigration consequences.

The SCC held that  the accused must be aware of the nature of the allegations made against them, the effect of their plea and the consequences of their plea which include immigration consequences.

International Students – Things to Be Aware Of

Unlike other permanent residents and even temporary residents, there are several factors that make international students unique in the context of criminality and have direct impacts on their larger immigration status issues.

The Role of Studies Before, During, and After the Criminal Process

First, their studies heavily factor in. International students are required to actively-pursue studies and remain enrolled during the duration of their time on a study permit in Canada (R. 220.1 IRPR). The considerations for this are highly subjective, yet gratefully have been clarified recently by IRCC – see my past post on this issue.

From my experiences, individuals who come to the attention of IRCC through criminal charges are highly scrutinized for their past educational efforts (or lack thereof). Indeed, I have come across several Officer’s section 44 reports that flag this for review, even where charges were eventually resolved by way of discharge or a peace bond (i.e. where criminal admissibility cannot be made out).

Students who are having issues with the law should do what they can to stay in school. The criminal proceedings will inevitably have an affect on their ability to attend classes, but communication needs to be established with professors, instructors, and international student advisers to try and accommodate.

Even the conversion to part-time classes for one semester that is not a final semester or a failed class can be enough to trigger attention. These would seem to be very natural consequences of the stress of facing charges in Canada, particularly for many students who have never been in trouble with the law before.

At worst, an exclusion order can be issued for not actively-pursuing studies. At best, an international student’s eligibility for a post-graduate work permit which require full-time study throughout (other than last semester) gets thrown into the deep water.  Also, for international students not engaged as a full-time students when facing charges, it is not advisable to work as doing so may be in violation of your study permit conditions, another violation that could lead to an individual’s exclusion from Canada.

I find many international students are also not aware of some of the possible outs. Exceptions to actively-pursuing studies for family members (common-law partners/spouses) of study permit and work permit holders is not adequately canvassed. In fact, the practice of updating IRCC on changes in family make up during the time after a study permit is approved is not posted anywhere on the IRCC website nor done in practice by anyone, but a select few.

Similarly, applying for a visitor record while holding a study permit can be done in cases of leave yet I would argue that IRCC has not yet made clear how the simultaneous holding of both these permits affects the active-pursuing studies requirement.

Second, applications/efforts to seek re-entry or extend stays in Canada will come under increased scrutiny. I generally recommend individuals who are facing charges in Canada and/or are in the process of fighting those charges to stay in Canada and stay enrolled. Once a flag is placed on a file, the individual can be subject to deeper looks into their immigration histories when seeking re-entry, for example on a day trip to Seattle or a Spring Break trip back home.

What were accepted as mistakes and/or missed by visa offices on past applications can now become open ground for misrepresentation investigations. The breadth in which s.40 of IRPA is applied makes a mistaken question about whether you have been previously arrested or charged, refused an application, or even the organizations you were involved with in the past  is now an open season search effort. In my ideal world, every student who is currently charged with an offense and/or was recently acquitted would seek legal advice and review before filing their subsequent applications, especially if the proximity of time between the two is very short.

Another issue to flag is that communication and contact with IRCC/CBSA becomes even more important post-criminal charges laid. It is not uncommon for CBSA officers to want to interview you in advance of a decision on your criminal matter, as a bit of a check-in and file review. Warrants for arrest, leading to detention have been issued on the basis on failures to update home address properly with relevant authorities.

I am really opposed to the detention of international students for immigration violations, but unfortunately a lot of it spurs from communication issues that are entirely avoidable. It is much more advisable for both Client and the CBSA to have an interview and go through the admissibility process when the Client is not detained.

Putting international students who have never been arrested in their life, into cuffs and with general population can have scarring and traumatic effects. I have had to make more than a few referrals to psychologists on this basis. I think there is much more that can be done to create better and more accessible portals for home address changes, especially when students do not have access to their own MyCIC application accounts (an issue I have addressed many-a-times on this blog).

Pressure to Leave Canada On Own Accord – Either/Or Conundrum

In the inside Canada context, charges are not convictions. Only convictions render an applicant in admissible. Often times I find clients that contact me have not been advised enough of the immigration consequences by their criminal counsel. This is certainly area for continued collaboration between the two legal practices, especially where students and cognitive/mental health vulnerabilities are heightened and the uncertainty can have worse psychological effects. Family overseas often times are entirely kept in the dark, many time purposefully, by international students. Students often borrow money to try and pay for legal fees further creating a whole for themselves.

The other issue I have see is pressure from CBSA who in many cases will try to encourage individuals facing criminal charges to accept a lesser exclusion order and leave Canada. Many times the grounds for this are nefarious, at best, yet remain largely unchallenged administratively.

I personally would love CBSA to take a little more of a hands-off approach and let the Canadian Criminal Justice system play its course before intercepting. However, I can see why it is sometimes deemed beneficial to get a rid of a perceived problem and cost on the system from their perspective. International students are a dime a dozen from the system’s perspective – bad press, media, and lengthy trials – certainly aren’t.

The Value of a Letter to the Court/Crown from Immigration Counsel

One of the lesser known benefits immigration lawyers can provide to criminal counsel is, as discussed earlier, a legal opinion. I mentioned Peter’s opinions are in my biased opinion – the best in the business.

These opinions can set out the immigration consequences of finding an individual guilty. They can be especially crucial for international students where you can tie in the consequences on their inability to study if found inadmissible and their removal order enforceable (R.222(1)(b) IRPR).  In my own practice, I have been able to provide memos that once disclosed by Defense counsel to Crown started the resolution process early. Crown, especially for first time offenders on more minor charges, have been amenable to considering an absolute or conditional discharge, a peace bond, or even a stay – taking into consequences the vulnerability of their student status in Canada.

I am not a criminal lawyer myself and can only provide my ‘afar perspective.’ I tend to find the process more Crown-facing than immigration’s client-facing preparations (maybe if part of it is because we don’t usually have a physical face in immigration to talk to). I would provide some constructive feedback that my crimigration clients, especially those with language barriers, often find themselves a bit in the dark during the initial stages prior to trial. Here a collaborative approach may work and also where the use of interpreters at an additional cost becomes entirely worth the transparency of communication.

A Note on Sexwork

With the cost of tuition for international students rising astronomically and as well with a strong movement of women who are breaking the stigma and taboo of sex work as an illegitimate form of labour, it is not uncommon for international students to engage in this area. I won’t weight into the larger and very Vancouver debate over whether eliminating prostitution, regulating, or deregulating prostitution, is the best path forward but do note that it is very much in the post-Bedford atmosphere here.

Unfortunately, temporary status poses problems in this regard. Section 196.1 places a blanket restriction on foreign national entering into employment agreements with employers who offer sexual services:

Restrictions

 A foreign national must not enter into an employment agreement, or extend the term of an employment agreement, with an employer

  • (a) who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages; 

There is a current silence around self-employment (especially escort work) and occasional sex work and these are the gray areas in which this arguably cruel and unusual law operates. Furthermore, no direct link is made in section to work without a permit while a student which falls under R.186(v) which has no similar sex-work limiting provisions.

For international students, I have seen the actively pursuing studies provision as well as extension refusals targeted at those who engage in this work. The ‘bawdy houses’ are still very much being treated by enforcement officials in the immigration context as human trafficking hubs, somewhat contrary and different

This is an area I am increasingly interested in. Should you have or know of other international students who are struggling with the ways the laws are written and enforced around the ability to perform sex work while on a study permit or even as an international graduate please email me at will@edelmann.ca. I am currently awaiting a few stakeholder directions on where to direct further research in this area.

After Removal…. Coming Back to Canada

Depending on the outcome of the criminal trial, whether one is ultimately found criminally inadmissible and removed, the ability to return to Canada may vary. Rehabilitation may be available, as may deemed rehabilitation after a certain prescribed period has passed.

However, for those students removed on a finding of ‘not actively pursuing studies’ or ‘work without authorization’, the one year mark when the inadmissibility expires is not an automatic green light to return. Previous admissibility findings often lead to increased scrutiny on future temporary.

I would also familiarize myself with the Authorization to Return to Canada (“ARC”) provisions especially for those who are removed on a deportation order for serious criminality or on a five-year exclusion order for misrepresentation. I’ve done a deep dive post here.

Conclusion

In short, it is tough for an international student facing criminal charges. There’s a lot of uncertainty  and a lot of communication issues inherent in the process. Conversations between yourself and your criminal counsel, criminal counsel and immigration counsel, Crown and your criminal counsel, Crown and CBSA, and CBSA and yourself all may occur in this whirlwind of personal uncertainty.

You need good and effective counsel – and thankfully Vancouver has some of the best criminal lawyers in the country. Definitely get on top of things and organize for this process – put your relevant people in touch with each other. Failure to recognize your rights, reliefs, and the interplay of CBSA with the arresting authorities can lead to confusion, and possibly huge immigration consequences for international students.

Feel free to provide to email me if you have any questions arising from this post: will@edelmann.ca

Immigration Appeals: The One Question You Should Ask Before Retaining a Lawyer/Consultant

For those that wonder why I have been posting less frequently than I used to do, one of the major reasons is that I have been putting significant time into building my immigration appeals practice (currently mostly spousals, residency, misreps, and some criminality).

I had the ability to learn after one of the very best at my old Firm, and I realize it is a practice quite suited to the younger, energetic lawyer who is willing to invest time into their clients and their cases. Through this process, clients have called me an ‘honourary family members,’ a designation that for me, more so than any third-party recognition, gives me true value through work.

I wanted to write a simple and short post because I have been seeing both a discouraging and worrying level of poor representation not only from those who do not generally do appeals work but also those who some would one would assume are the best/top immigration lawyers in Canada.

These two groups are lumped in for very different reasons. For the first, it is due to inexperience – not having spent enough time seconding or attending (as I did often during my articles) both hearings but also the preparation sessions with clients. Lack of awareness of rules, deadlines, and procedures can be killers in the final appeal.

For those in the latter category, it often is a time thing. Good, solid immigration appeal work takes time. This includes time getting to know your client, generating document lists to obtain, reviewing those documents, determining whether alternative dispute resolution is on the table, coordinating around hearing timing, preparing clients for direct examination and cross-examination, updating the file (as required), and ultimately delivery strong submissions. It is a full-service performance combining litigation and solicitors skills. For many lawyers who are eager to fight the next big constitutional battle or tackle legal interpretation, this often times pure factual engagement process (especially in the case that rely solely on humanitarian and compassionate grounds) is a time suck. Some lawyers will try and pass these preparation tasks off to an assistant, something that this work cannot be done properly by without solid direction. Others will even forgo preparation altogether and show up on the day of the hearing. Such a strategy is risky. Without having gone through questions in advance with your clients and applicable witnesses, communication lines are very likely going to break down between lawyer and client and between the answers of clients and witnesses on the day of the hearing. These gaps will lead to negatively credibility findings (when many times it is simply poor preparation, stress, and anxiety that are the root causes).

When hiring a lawyer/consultant [who I will just refer to lawyers moving forward, as a majority of good tribunal reps are lawyers rather than consultants] to do an appeal case – first of all, sign up for a consultation. Before paying a lump sum get some paperwork in front of the lawyers and work through the essential facts. That consultation will allow you gauge both the legal analysis and the factual analysis strength of who is helping you and can determine whether there is sufficient rapport to ensure the essential facts get revealed. As a client, you want to ensure that you are providing a full factual record as well. Details you may think are irrelevant or private (circumstances of family members back home, country conditions, a child with a learning disability, reasons for a misrepresentation, or a previous application) are very crucial to the overall circumstance. The lawyer should show some proactivity in gathering this documentation.

The real key question you want to ask your potential counsel though, which will differentiate those who know the process and can execute a good appeal prep process, and those who will may leave you feeling uncomfortable, concerned, and ultimately unprepared is the following:

“What is your preparation strategy and schedule for preparing my appeal?”

It is a simple question. Much simpler than the question of how much will it cost (which frankly, is highly factor dependent on how much of an uphill battle preparation will be, whether interpreters will be needed, and whether you are able to handle the paperwork).

The lawyer should be able to draw you a roadmap quite early in the process. Using the hearing date (and the potential fallouts) as the end point, when will the schedule be for disclosure (or backing up, what are the timelines for when you need to file your appeal, when about will you get the Appellant’s Record or “Blue Book”, when should the Alternative Dispute Resolution (“ADR”) requests be submitted, disclosure, and how will appeal preparation work. For complex appeals, this may be a rotating schedule (3-4 hours a day) with relevant witnesses, culminating in a run through with full direct exam, cross exam, witnesses, and interpretation. They should also demonstrate the right balance of cautious optimism where the facts support it, without putting down a percentage of success (as I have discussed in previous posts).

If none of this is being discussed or even mentioned – I would dig and potentially search elsewhere. Without these details, it is very likely for the appeals to go off the rails and become a rush job in the last 20 days before the hearing. More often than not, this is not enough time to present the strongest foot forward.

When it comes to the question of whether I think an appellant should do an appeal on their own, my answer is – no.

Why? Because a lawyer is your voice. Through direct examination we can present your case and your facts. On your own you are subject to the questioning and direction of the member of the Minister’s counsel – one neutral and one on the side of the Government. By yourself, assuming you are also a witness, the appeal will be a show without a director.

Over the next few weeks, I will be writing more posts about appeals and as well judicial reviews (two areas of my budding practice) to share not only with applicants who seek counsel but also junior counsel who are seeking to engage in this area. I note that I am by no means a senior counsel (and don’t have all the answer) but these unique nuances of practice incorporating rules of Court and Tribunal can allow for us to explore more complex and less seen scenarios, that are increasingly showing up in litigation. With an increase in settlement of straight-forward judicial reviews and changing Immigration Appeal Division Rules shortly (which I had the pleasure to consult on), navigating the margins or the obscure will become more and more useful in our practice toolbox.

Appeals – do them. I love them! I would love to assist on even more of them.

‘Considering young lawyers in our Responses to hate’ – My Email to Fellow CBA Immigration Lawyers

Following the New Zealand terrorist attack, local elements of hate have started to put out threats. Unsurprisingly, among those targeted appear to be immigration lawyers.

After it was posted, a senior colleague from Toronto and mentor Chantal Desloges shared her thoughts about the worrying nature of this incident. Barbara Jackman, OC and probably the greatest living advocate for refugee constitutional rights, thoughtfully suggested we share these messages with our assistants, many of whom are diverse persons of colour, to ensure their safety. Kyle Hyndman, a local lawyer from Vancouver whom I’ve admired for several years for his leadership and expertise, particularly in the field of LMIAs and work permits, added a further message of inspiration for us to be proud of our work.

By the way, at this point I’ll note that I have rarely ever utilized the CBA Listserv to share my thoughts. Indeed, I can count on one hand the entire number of times I have done so in now almost five years of practice (if you include articling, when I first joined the Listerv) – 3. The first time was on a truly unique fact pattern involving an overturned removal order and the Government’s financial obligations, the second was to ask for assistance on our litigation for the Parent and Grandparent Program. This was my third.

As those who read and follow Vancouver Immigration Blog and my Twitter account will know, I have recently taken a huge interest into examining power, privilege, and race. The truth of the matter is, lawyers of colour struggle in balancing these three and in turn it makes us more susceptible to anxiety, self-loathing, imposter syndrome, trauma, and stress. We become often times the invisible practitioners, behind the scenes working long hours, serving as interpreters and arbiters, sometimes even having to translate. After we serve our clients, who will often scrutinize us more because we are not white and therefore do not appear to look like your typical lawyer, we then have to handle returning to our communities to deal with the consequences (both good and bad). There’s a lot of skin in the game and it is not an easy process.

I wrote this email response to that thread.

Thank you Chantal, Kyle, and Barbara (all three fantastic mentors) for raising this important issue to our attention and your words of courage and inspiration to us.

I also wanted to chime in on behalf of myself and other younger immigration and refugee lawyers of colour. For us, we often face additional barriers – without the platforms of power that can serve to insulate and speak for us, yet at the same time with these issues and challenges so deeply embedded in the communities we serve and live in. We become part of the threatened and as well part of the front line of defence, regardless of our own statuses in Canada, simply by the way we look and who we were born to.

I am grateful for a strong CBA Executive and Coordinator team, one that has allowed me to use Twitter as a platform to share stories of inspiration, put out debate, and highlight some of the activities of our immigrant communities and young lawyers who come from them. I continue to ask you to send me news stories and developments of inspiration so we can be part of this conversation in a positive way. We also have a very diverse executive we should all be proud of and is so unique to the CBA that we should continue to champion.

As a final note, I urge you all to reach out to younger, BIPOC (Black, Indigenous, People Of Colour), LGBTQ2+, and Differently Abled lawyers in your firms and also make sure they are doing alright. Vicarious trauma and stress affects us all in different ways and for many of us with lived experience or direct family that have come from migration and struggle, these client matters and associated threats from the public take on a different meaning.

We should also be looking at ways we can help highlight diverse voices in everything we do as an organization – to make sure young lawyers of different backgrounds know they are supported and that they have a place at the decision-making table, even if this requires some of us to cede our own power and privilege in order to make this happen.

In solidarity and with gratitude,

Will