Exclusive VIB Preview: Latest Blog for Edelmann on Non-Discretionary Travel for International Students

This blog will be going up shortly on Edelmann and Co’s Law Blog. I thought I’d give VIB readers a sneak peak!

On 2 September 2020, Immigration, Refugees and Citizenship Canada (IRCC) released new instructions which help to further clarify that Canada Border Services Agency (CBSA) and partner Airline companies, would be responsible for ultimately determining whether international students would be able to travel to Canada to begin/resume studies as a result of COVID-19 travel restrictions.

This is welcome news, given IRCC’s instructions previously did not clarify or advise on CBSA’s own criteria, leading to issues for international students at Canadian Port-of-Entries and general confusion around the ability to return or move to Canada to begin studies for the Fall semester.

The updated Program Delivery Instructions (PDIs) now indicate:

Border services officers will assess the circumstances surrounding the student and their accompanying family members’ travel and may consider, for example, whether any of the following apply:

  • they are established, residing and studying in Canada. If they are established in Canada, their return is non-discretionary
  • they expect to begin studying upon arrival after completing their quarantine
  • their presence in Canada is necessary for their continued participation in the program (such as in laboratories or workshops)
  • pursuing online studies is not a reasonable option for their school or program or is not possible from their home country
  • the semester has been cancelled or the person will begin studying later in the year

I want to focus this piece about what I perceive as the challenge with the requirement to prove establishment in Canada to gain entry as an international student.

That is not to say the other criteria set by CBSA do not themselves create barriers.

For one, educational institutes will largely be pushing for students to return, yet, I worry that without adequate evidence or strong supporting documentation that many DLIs are not offering, questions will remain about the necessity of in-person ‘laboratories or workshops.’ With CBSA’s past application of discretion around issues such as the ‘actively-pursuing studies’ requirement and with Port-of-Entry Post-Graduate Work Permit (PGWP) determinations, one often saw very inconsistent reviews of transcripts, program structure, and technical details. Many times, in the name of enforcement, Border Service Officers took on the duties of academic counsellor, in ways I believe Immigration never intended them to. The COVID discretion for international students raise the same concerns.

Second, it is unclear how the argument that online studies are not possible from the country in which international students reside will factor in. We know and expect that these arguments will largely come folks from technology-challenged Global South countries or other countries that may limit free access to online materials. I expect international students who may have been successful in obtaining a study permit, still largely uncertain and unequipped to address Border Services Officers on these points.

Looping back and framing the discussion of establishment, another concern is that IRCC apparently has apparently stated that they do not want to, or need, to see the argument for discretionary nature of travel in study permit applications.

They have written on their instructions:

Travel will be deemed discretionary or non-discretionary depending on individual circumstances. IRCC case processing officers will not assess whether the applicant is exempt from the travel restrictions when processing a study permit application.

Yet, the Program Delivery Updates (PDUs) announcing the updated PDIs seem to paint a different picture.

September 2, 2020

The instructions have been updated to provide additional guidance on the issuance of study permits while travel restrictions are in place.

Clarification has been made to the non-optional and non-discretionary guidance to include factors taken into consideration by the Canada Border Services Agency when assessing whether students are permitted to enter Canada based on the current travel restrictions.

The updated instructions will assist officers in applying the 2-stage assessment process for study permit applications, including refusals, following the stage 1 preliminary eligibility assessment. (emphasis added)

From the above, it looks as if IRCC will consider how the Applicant’s situation (while not considering the travel exemption itself) may factor into the 2-stage assessment process to approve a study permit.

Establishment, then becomes a tricky point.

A bona-fide temporary resident to Canada has to demonstrate that they can leave Canada at the end of their authorized stay (Immigration and Refugee Protection Regulations at R. 183(1)(a), R. 216(1)(b);). While there are provisions for dual intention under the Immigration and Refugee Protection Act at S.22(2), it can be a difficult argument to establish without both pointing to significant ties in the country of residence/citizenship AND being able to credibly present a plan for permanent residence – increasingly difficult for students on future PR pathways. Generally, potential students or renewing students who show too strong a tie to Canada (i.e establishment) in their overseas applications can be refused on study permit applications.

Yet, this very establishment is what CBSA would like to see to authorize entry pursuant to their interpretation of the COVID-19 travel restrictions. This proof of establishment could presumably come from demonstrating that they have a home, job, bank accounts, lease, partners, family members, future plans to stay, etc.

Should a study permit applicant put this proof in a study permit application to seek approval and explain why they are applying now – and at the same time risking refusal by the overseas visa officer?

Should that same student, who did not include this proof, suddenly approach their entry to Canada or the time between approval and their entry to Canada – with these documents which may contrast and contradict with what was in the study permit application. Will this lead to the possibility of misrepresentation or the reassessment of study permit eligibility down the road?

I do not know and if I do not know as someone who has practiced in this area for over five years, I do not expect international students to know.

The root of the problem is, and has been highlighted time and time again in the field of immigration law, is that the left of IRCC and the right hand of CBSA are not coordinated. We have seen this play out earlier in COVID-19 with the cases of family members seeking reunification.

The best case scenario is that CBSA lowers the threshold for establishment or does not hold it against applicants who now have proof of establishment when that proof may not have been disclosed on an application.. Furthermore, it would be beneficial for IRCC to clarify what it means by taking into account the updated instructions regarding travel restrictions when deciding the study permit application, but not considering the application of the travel restriction itself. This seems contradictory and at the very least confusing to the reader.

Finally, we have to consider the overall picture and potential of the time. Eyebrows would raise (and litigation would likely follow) if the two-stage study permit application process turns into one where students were consistently approved to study overseas during the COVID-restrictions and then refused on second-stage assessment preventing them from ultimately seeking entry to study. There is nothing in the instructions to suggest a re-assessment of basic eligibility could not change, which would be the unalleviated fear.

While such a plan/strategy would short-term serve institutional cash injection through COVID’s potential second wave in Canada, it wouldn’t serve the opportunity Canada currently has, facilitated by questionable approaches taken by other Five Eyes countries, to recruit the world’s brightest international students and support them through enhanced permanent residence pathways. I hope we take the right steps moving forward on the issue of facilitative, and safe, border entry for international students.

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