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!

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