Tag Archives: International Students

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.

By No machine-readable author provided. Klaus with K assumed (based on copyright claims). – No machine-readable source provided. Own work assumed (based on copyright claims)., CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=331725

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

International Students – My Latest NCM Piece and the Pre-Edited (Elongated) Version

For those that have been following my work over the past two years, international students (and graduates) have become a huge part of my practice. Through my work I have gotten to speak to hundreds of international students about their experiences and their struggles. With my own wife now an international student, I see the challenges on a day-to-day basis.

I wrote this piece for New Canadian Media because I felt the stories of international students were not being told. The last thing any of them would do is contact media and many, before we pursue federal court to fight their refusals, always worry about their record and their future in Canada. They have told me about their episodes of depression, lack of support, few friends, and frankly it’s a devastating story. This has been compounded by media constantly citing international students for a multitude of societal ills. Most of these ills, I humbly submit are the fault of our entire society of which international students are just a subset.

Check out my piece here —http://www.newcanadianmedia.ca/item/40286-listening-to-our-international-students-listening-to-our-international-students

Limited by space, and edited, I left out a lot of things in the final piece for NCM which was well-edited by their Team. I wanted to put the original version below (raw, uncut, with no headings) so you can see some of my thoughts in more fuller form.

Why Canada Needs to Do More to Protect International Students

Over the past year, Canada’s 400,000+ international students, particularly those in major metropolitan cities such as Toronto and Vancouver, have been subject to intense criticism. They have been blamed (directly and indirectly) for being a major contributor to such social ailments as overheated rental markets, unaffordable home ownership, abuse of public services, cheating, and unsafe roads (just to name a few).

A bulk of these criticisms are focused, as understandably Canada is only recovering from her post-census statistical dark period, on what we can label as anecdotal accounts. These accounts come from professors who study and interview as part of their work and anonymous, retired institutional instructors who can now share stories with no need to self-censor. These accounts come from positions of privilege.

There is no reason to doubt the credibility of these individuals and experts or deny that international students, just like all young Canadian students regardless of citizenship, probably in some way contribute to the social challenges we are dealing with. Indeed, by issuing them visas, they become guests at our proverbial dinner party.

However, what bothers me, as the product of an immigrant who came as a Canada international student in the late 80’s and as someone who is now married to an international student, is that this ‘blame narrative’ is just one side of the story. In drawing many of our conclusions, we have not been good listeners of international students. In fact, we generally have silenced their perspectives and ignored their challenges.

To begin, it is easy to forget, with every news story attaching immigration status to the identity of the wrong, that the majority of Canadian international students are bona fide, meaning they are compliant with rules and regulations.  In 2014, when it was estimated by the Canadian Bureau of International Education there were around 336,000 students, Citizenship and Immigration Canada (as it then was called) estimated that there were 20,000 students at high-risk of non-compliance. This accounts for only about 6% of all students admitted into Canada. One would never guess this by reading mainstream media accounts.

Next, it is important to sit down and listen to the challenges of international students and share their stories as well. I believe this task is incumbent on my journalist friends to take on, which I hope this piece will stir. In my legal work advising international students on their immigration matters, I have had the opportunity to become trusted advisor and hear these stories. From first hand experience, I can tell you it takes work for them to share with me their stories in their own native language, let alone share with their own family members and counsellors and teachers in their non-native language.

From my work, I have noted the major barriers faced by international students as follows:

First, Canada’s own immigration policies have made it difficult for international students. On the front end, the financial requirements on international students are prohibitive, in many cases. Students generally need to show one year of international tuition (usually four times domestic tuition), funds for room and board, and at least CDN 10,000 additional dollars per applicant (and accompanying family member) just to be approved for study permits. Many of the world’s best, those with the stories of growing up in abject poverty and studying by candlelight, realistically can only study in Canada if they are given a full-ride scholarship to do so. By focusing the attention on what amount to ‘wealthy students,’ the fact that some of these students come with no motivation to study cannot be of no surprise. If we genuinely want better quality students with long-term intentions of becoming Canadian permanent residents and Citizens, Canadian immigration should provide more pathways for these prospective world-class students.

Once a student is here, Canada currently has a restrictive requirement that students ‘actively-pursue studies.’ While I believe the initial intentions of the regulatory changes were good, in practice it has hamstrung international students and in an alarming number of cases has even led to the removal of students from Canada. Educational institutions now have two-tiered policies, where international students are subject to what I believe is excessive (and costly) monitoring and reporting requirements with Immigration, Refugees and Citizenship Canada. Depending on the institution, international students have to take certain number of courses and maintain a certain attendance rate, while domestic students do not.

I entirely disagree with this two-tier system. I believe in substantive equality for all students and I think that equal treatment is in line with Canadian values. I often use the example of my own undergraduate studies, where I took an economic history course. Due to my intense course schedule that year I went to three classes all semester – one to get the syllabus, one to hand in the term paper, and one to write the final exam. With my 5% attendance record in the course, if I were an international student, I would likely have been kicked out and possibly expelled or removed from Canada. Students with family emergencies, mental health episodes, or who simply want to explore a different area are left helpless by restrictive and, ultimately, unclear policies.

Finally, once nearing graduation, eligibility to continue in Canada and obtain a post-graduate work permit for which permanent residency in almost all cases depends on, is tied to the individual’s past ‘full-time and continuous’ study. The way these Regulations work make it imperative for the international student to have remain enrolled at all times. Students with financial difficulties, who do poorly and fail classes, or who simply have been to different institutions and in different programs trying to figure out their pathway often face challenges at this stage.

Second, there are major societal barriers against international students. I have worked with many international student advisors who have told me anecdotal stories of students breaking down in their advising sessions as a result of mental health issues. Without family and often adequate knowledge to seek professional help, these students are particularly vulnerable. A common theme from students that have seen me is that they are receiving poor academic support services and have even been subject to discrimination due to their country of origin and their inability to speak English fluently. I think all Canadian institutions need to do more to make their faculty more diverse, and their student services more culturally sensitive and accessible to those dealing with the challenges of being temporary immigrants to Canada.

Finally, and it has to be acknowledged, there there is an underbelly of poor, and in some cases fraudulent, third-party services to international students. Many of these purported advisors are untrained and unqualified educational consultants and agents, many of whom operate abroad without any regulation or in Canada with little care or attention paid by regulating bodies to their practices. They charge exorbitant fees, often keep international students entirely in the dark, and structure their arrangements so students assume and absorb all the risk. International students, especially when in desperate situations and without family or friends to assist them, find themselves trapped in cash schemes. These advisors are paid by the institutions and potential employers to set the students up, without full disclosure to their client, the student. Inevitably, if not now than later on, these students find themselves in situations akin to fraud or misrepresentation, for which there are severe criminal and immigration consequences.

Regardless of the economic questions and the political questions raised by student immigration, we must not forget that these students need to be represented in the decision-making process. We have seen as an example down south, what happens when immigration law is mandated by public opinion, fear, and top-down orders.

If we continue down this path of blaming and not accommodating, I foresee only increased fracturing within our already fragile mosaic.

‘Actively Pursuing Studies’ – Possible Port of Entry Issues

As I mentioned in a post written in September 2015, the requirement that a study permit holder “actively pursue studies” in Canada while holding their study permit creates major challenges.

When I first wrote my post in 2015, I imagined that exclusion orders issued pursuant to Immigration and Refugee Protections Act s.29(2) + s.41(a) would occur mostly in the context of in-land investigations. I imagined these would be situations where Designated Learning Institutions (“DLIs”) when required to update CIC (now “IRCC”) via the student compliance portal would trigger Canada Border Services Agency (“CBSA”) to investigate. Other than that I thought that international students would otherwise be brought to the attention of CBSA by external means (i.e. police-reporting, working without authorizations, etc.), where studying without authorization would be an add-on to existing concerns.

My understanding now is that with IRCC’s International Student Program (“ISP”) student compliance delivery instructions still pending final publication for sometime later this year, the main trigger of these investigations are actually reports to CBSA or initiated by CBSA themselves.

It may come to a surprise to some individuals, but CBSA often is not provided instruction on how to interpret IRCC rule/policy changes, but rather, like myself as a practitioner or a client, have to react to them by developing their own positions. These positions, as admitted by CBSA,  are not always perfect and often can lead to inconsistent application. That turns into the legal grey area that often gets clients in trouble.

Yesterday, I attended a talk where CBSA program directors talked about the recent Port of Entry issues they have noticed. This talks reconfirmed (my fear) that the ‘actively-pursuing studies’ requirement has been interpreted by CBSA quite broadly and that this requirement has created challenges for international students.  I had been hearing similar issues from in the international student community, but this talk reaffirmed them.

Travelling during “Regular School Term”

When a student is ‘actively-pursuing studies’ they are expected to be in class when there is class. Full stop.  Inevitably, trips taken during class will happen. Things happen back in the home country, emergency trips to see loved ones, health and financial issues, or even the occasional mid-term getaway.  We could all use the occasional break, right?

Well, the challenge is, that without program delivery instructions set by IRCC as to how discretion is to be exercised, there is a huge risk to an individual who leaves Canada during the regularly scheduled school term and tries to gain re-entry into Canada.

As a colleague of mine correctly pointed out, there are also challenges with the way the legislation is being interpreted right now in sense that a plain-letter interpretation of the law suggests that the law does not apply while an individual is abroad with a study permit. However, I now understand that the study permit holder does not need to be in Canada and not studying but arguably can be in their home country and holding a study permit, not studying and still fall into the requirement to actively-pursue studies.

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

  • (a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and
  • (b) they shall actively pursue their course or program of study.

CBSA’s recommendation, and one I would fully adopt for students is that they need to bring with them adequate documentation when they leave Canada in the middle of the school term. I would go a step further and suggest that this is true ot just a student’s own school term – which may or may not correlate to when a majority of students are expected to be in school.

One of the examples that CBSA provided of a “possible flag”, was an international student attempting to arrive in Canada mid-way through September. This is of course, premised on the fact that the designated-learning institution operates on a Fall/Winter semester school year. In fact many DLIs go according to different schedules, particularly those that offer continuous courses over summer but provide options for students to take authorized breaks.

Proving your Breaks

Students would be wise to have (among other relevant documentation):

  • a school calendar;
  • school policies relating to educational breaks/gaps;
  • a letter of permission from the school authorizing the late return/trip abroad; amd
  • proof that the student performed the activity/task that they were authorized to miss school for.

They should also be prepared to answer questions in secondary examination, if referred. Particularly, where a student’s first language is not English, the international student should know how to ask for interpreter and/or answer basic questions about there whereabouts and activities while abroad. Answers provided incorrectly or, worse yet, with misleading intentions may result in further immigration consequences such as misrepresentation.

Students would also be wise to ensure they are compliant with other customs policies. Often times another violation, i.e. failing to declare goods upon entry, will trigger a referral to secondary which will itself trigger a non-compliance with study permit conditions finding.

Consequences of Exclusion

As alluded to earlier, a student, if upon examination is determined not to be a student who is ‘actively pursuing studies’ could be issued an exclusion order on the spot and removed from Canada. Anecdotally, I have heard individuals who have been removed the day of their attempted entry and asked to buy a ticket to board a plane home.

From a procedural fairness perspective, it is my hope that CBSA adopts a policy that will require them to continue the investigation inland. I say this because my understanding of procedural fairness requires that an applicant is provided a meaningful opportunity to respond.

Without a full investigation of the school’s policies, of attendance records, and giving the student a chance to defend themselves in the event a designated learning institution says otherwise, I don’t think the opportunity to respond can be provided. A few hour examination is simply not enough.

Conclusion

Until IRCC comes up with clear policies communicated with CBSA Border Services Officers that apply the law,  travelling during school time without a valid reason and valid evidence is in my perspective, playing Russian roulette .

Is Canadian Immigration Overemphasing the Financial Sufficiency of International Students? – Policy Discussion

Based on StatsCan numbers, in 2015/2016, International Students to Canada pay on average $21,932 a year in tuition fees, compared to $6,191 a year paid by their domestic colleagues. I have heard in some circles, the talk of a “1 international student pays for 4 domestic students” a ratio that appears to be close to met based on these recent figures.

In order for an international student to even be determined to be financially sufficient for a study permit they must be able to cover the cost of first year tuition, the cost of housing, personal expenses, and transportation to and from Canada. They must also show that they have some potential plan in place to pay the remainder of the amount.

Accompanying spouses/dependents add additional monetary requirements to this calculation. Furthermore, different visa posts also carry different requirements ranging from being able to show the finances in a bank draft, a letter of financial support, and even prepaying tuition.

As shown by the ATIP results below from a (then Citizenship and Immigration Canada, now Immigration, Refugee and Citizenship Canada or “IRCC”), and likely still in effect – amounts proposed to be earned through work by the applicant or accompanied spouse is not to be taken into account in the calculation.Tuition and Funds requirement

If we look at just the baseline number as provided by IRCC”s program delivery guides on study permit financial sufficiency  we find a very troubling fact.

Financial Sufficiency

In order to have sufficient financial resources, the international student student  must be able to pay the cost of first year tuition (let’s put it at the average of $21k).

They must also pay the cost of living expenses, which IRCC has tagged at:

  • Student base: $10,000 for twelve-month period, prorated at $833 per month, plus cost of tuition.
  • Spouse/common-law partner/ first family member base-$4,000 for twelve-month period prorated at $333 per month.
  • Dependent child/subsequent family member base-$3,000 for twelve-month period per dependent child of any age, prorated at $255 per month.

This does not, from my understand, include rent – which itself in several cities can add up to about $20,000 to 24,000 a year.

Total, a single student would be expected to have $51k (21 + 10 + 20) in currently available, liquid funds in order to study in Canada for one year. 

Whether these requirements are actually strictly enforced at overseas visa offices is a question that must be looked into further. Yet, I question whether requiring $51k from an international  student  (currently close to the annualized living wage amount ($20.68/hr) for a family of four from Vancouver) is setting an unrealistically high barrier to Canadian education. Is it also in so doing creating unintended policy consequences?

With that amount required, it is both not a surprise that those who can afford to study in cities such as Vancouver must be supported by their parents, who themselves must by extension be financially well-off. While such a link has not yet been drawn, I would argue that international students factor prominently into the discussion of foreign ownership in the city of Vancouver, a link that has been overlooked due to the often complex arrangement in which houses are bought and rented, and statistics gathered and tracked.

I also think that the high financial requirements for study permit holders and the deisre of several international students to come into Canada at all costs (think IRCC’s 7% of high risk students), have led several Designated Learning Institutions to shift their primary focus away from ensuring that international students are “actively-pursuing studies.”

Spots in these institutions are filled by those who can pay and those who can arrange (third-party, unlicensed agencies) rather than by merit. Often times these students either fail their courses or end up being removed/leaving Canada, their pathway to any future marred by their poor grades and lack of a concrete study plan.

All this to say, I think if we make entry into Canada’s international student population more merit-based, more based on a required comprehensive study plan, we can encourage candidates that will be better permanent residents and whom Canada can invest in to gain long-term benefits.

Another barrier right now, is that students are encouraged in their study permit applications to prove they are a “temporary resident” and will “leave at the end of their authorized stay.” Perhaps our model should be switched to requiring students to demonstrate lower finances, but a higher desire to come to Canada for more than just a short-term purpose. Perhaps, we should ask international students to declare up-front whether they intend to stay for a short-term and return to studies in their home country, or if not, plan an educational strategy to become a permanent resident.

I think the Labour Market Impact Assessment “Transition Plan” provides a model that I would like to see implemented for international students. We can do this with corresponding policies that make it easier for international students to eventually become permanent residents, as this government has promised.  I can even forsee a student who has followed through their Educational Transition Plan being awarded extra-points when they are applying for Express Entry down the road.

A lot of options, but one barrier remains requiring the student to be wealthy. I never had those finances growing up, and in fact, to generalize, those of my colleagues who were most successful in university came from quite middle-class households, where the family income for a family of four was around 50k. While times of changed, I think if we are more flexible with funding arrangements, we can attract more working class individuals and families who through Canadian education can transition become our future Canadian citizens.

The Problem with the ‘Actively Pursuing Studies’ Study Permit Condition

IMG_20150909_092758Back in one particular undergraduate semester, I will admit that I had a tiny bit of a skipping problem. It was a problem of the academically inconsequential kind. I knew that by virtue of taking certain courses, with only term paper requirements, that I could free up that one course time to pursue my other research, write papers, and organize projects. Arguably had I filled my course schedule with all of the toughest courses at the worst 8am times, I would not have made it to where I am today.

One of the courses in particular was an European History of Economics class that I managed to make approximately three classes for. The first class to the get the syllabus, the second class to hand in my term paper, and the third class to attend the final exam preparation session. I was able to self-read and self-teach my way to an A (not that proud of it looking back).

For an international student, that luxury as of June 2014 no longer exists.

Speaking from my recent experiences with CBSA (an ongoing matter so I will go into no specific detail on it), I know that officers are now armed with an incredibly thick binder of information on each student. They have access to school policies, attendance records, late records, and transcripts. This is in addition to the school’s own requirement to report student progress.

All of this is in relation to the following legislative requirement that was introduced to the study permit changes in June 2014. 

Section 220.1 of the Immigration and Refugee Protection Regulations (IRPR) now reads (emphasis added):

Conditions — study permit holder

220.1 (1) The holder of a study permit in Canada is subject to the following conditions:

  • (a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and

  • (b) they shall actively pursue their course or program of study.

Individuals found in violation of this provision can be hit with an exclusion order on the basis of subsection 41(a) of the Immigration and Refugee Act  (IRPA) for non-compliance based on the requirement of subsection 29(2) of the act which requires that a temporary resident comply with any condtiion imposed under IRPA or IRPR. This type of removal is also a Specific Removal Order pursuant to subsection 228(c)(v) of IRPR which does not require referral to the  matter of the Immigration Division for an inadmissibility hearing. The decision is essentially made by the Minister’s Delegate at the conclusion of his review with the Applicant (and counsel should he/she obtain one).

Worse yet, is that by operation of s.229(1) and s.229(3)(b) a combination of two inadmissibilities can be lead to a deportation order. A deportation order is a permanent bar on returning to Canada, unless authorized by the Minister.

s.229(3)(b) states (emphasis added):

Exception

(3) The applicable removal order in the circumstances set out in paragraph (1)(f), (g), (h), (j), (l) or (n) is a deportation order if the person

  • (a) was previously subject to a removal order and they are inadmissible on the same grounds as in that order;

  • (b) has failed to comply with any condition or obligation imposed under the Act or the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, unless the failure is the basis for the removal order; or

  • (c) has been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment or of two offences under any Act of Parliament not arising out of a single occurrence, unless the conviction or convictions are the grounds for the removal order.

1(f) covers inadmissibility on health grounds, 1(g) covers inadmissibility for financial reasons, 1(h) covers misrepresentation, and 1(g) failing to appear for examination.

Why this condition is problematic?

First of all, it must be accepted that this provision does serve a purpose. Individuals who come to Canada on study permits but do not study or are simply buying time to try and obtain other permits harm the integrity of the system and arguably take away opportunities for other Canadians.

However, the condition is, on its face, very subjective. It does not specify what level of attendance is required, how many absences or skipped dates can be submitted, or provide a legislated ground for the Applicant to be exempt from the requirements due to certain personal events. For different programs, such as field-based Masters or pHD work, where the study path is not so clear and research breaks are often part of the overall process, the ‘actively pursuing’ requirement adds a layer of uncertainly.

I think that at the very least the provision requires an oral hearing (much like in the case of most misrepresentation). This is a factual inquiry, specific to each school’s policies, requirements, and the overall study program of the student.

For example, I could have easily been found to be not actively pursuing studies by virtue of skipping my Economics class, but by virtue of the result and my overall program I certainly was actively pursuing studies. The legislation states “course” or “program” which makes the application very broad.

Finally, I also find the combinations that can lead to deportation quite troubling. While misrepresentation and failure to appear, combined with a not-actively pursuing studies finding, makes some sense. In the case of financial or health inadmissibility, which itself may be-correlated with the inability to actively pursue studies, a deportation order seems particularly harsh.

My Overall Recommendation to International Students

Go to Class. With the current rules and regulations, it is probably not the best idea to try and plan class-time day excursions or trips with your Canadian boyfriend to Europe during scheduled course time.

I had a good after-hearing discussion with a particularly helpful CBSA Hearings Officer on this issue. From their perspective, it is about the international student constantly updating CIC on decisions such as withdrawing from one institution to attend another or taking certain leave of absences.

I would go a step further and argue this is a tripartite relationship. If I were an international student I would ask the school as much as possible to keep you informed as to the type of notes on your record. For example, should you have permission to take a leave, this leave needs to communicated appropriately not only to professors but to the administrators in charge of providing this information to CIC. Any information gap could lead to negative consequences.

Why is Express Entry So Tough on International Students?

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A common theme of many of my recent consultations has been the challenge many international students are experiencing as a result of Express Entry. I am finding more and more second and third-year international students asking me about best practices in planning their paths to permanent residency.

There are several reasons why this path is so difficult

1.  Meeting Basic Economic Immigration Program Requirements Tough for Many International Students

First, just to meet the basic requirement of either the Canadian Experience Class or the Federal Skilled Worker a year of skilled experience (at a NOC 0, A, B level) is required.

For the Canadian Experience Class (CEC), that work experience must consist of one year obtained within the past three years and cannot include work experience obtained while on a study permit (e.g. as a co-op student or during scheduled breaks). It also excludes time working as a contractor, an economic model growing increasingly popular for its Canadian tax-benefits to employers during the economic crisis. For newly graduated international students, who can be granted no more than three-year post-graduate work permits, obtaining that one-year of skilled work experience can be a tall order.

For the Federal Skilled Worker (FSW) Program, the one-year of skilled work experience can be in the past ten years, but that work experience has to have been continuous over a period of a year. Many international students have had to balance work and school, many taking part-time jobs that are not considered continuous under the FSW program requirements

2.  Express Entry Does Not Award International Students Favourable Points

Second, many of the points that are awarded for Express Entry that bring individuals over the threshold are awarded for language and work experience (or a combination of both). For example, under the skill transferability factors in part C for the Comprehensive Ranking Score (“CRS”) criteria, two or more years of Canadian work experience, two or more years of foreign work experiences, or CLB 9+ can double CRS scores in this caregory. Again, work experience is difficult to come by for young individuals and many international students (particularly from non-English speaking jurisdictions) may find it difficult to obtain the CLB 9+ that boost CRS scores

3.  Employers Will Be Hesitant to Pursue LMIAs for Skilled International Graduates

Third, Labour Market Impact Assessments (LMIA) for newly-minted international graduates are difficult to obtain. Holding a valid LMIA for a skilled position awards an Express Entry applicant 600 points and, as of this current date, guarantees them an invitation to apply for permanent residency. Many individuals after the expiry of a three-year work permit find that they require to obtain LMIAs in order to get a work permit that will allow them to work beyond their PGWP.

Unfortunately for them, in most circumstances employers will have to advertise the position to demonstrate that another Canadian cannot fill an international student’s shoes and do not possess equivalent qualifications. In this difficult job market, most non-managerial skilled positions will attract multiple candidates, many of whom are equally, if not, more qualified than the Canadian. Unless the candidate has a unique profile (that can’t include a third language in most cases, as a third language cannot be a job requirement unless it is mandatory for the position), it will be difficult to prove.

Finally, with CIC’s new employer compliance system which subjects Employers to sever administrative monetary penalties that can range up to the millions of dollars, the cost benefit of hiring an international student may not justify the associated compliance cost

4.  Many Skilled Worker PNP Programs Require “Several Years of Work Experience.”

In British Columbia, the BC Provincial Nomination Program Express Entry category, requires that an applicant have several years of related experience in the occupation. More recently, the BC PNP has come down more firmly on the requirement that several years is equivalent to at least two years. The challenge here is most International Graduates are given maximum three-year work permits. This essentially requires them to have two years of skilled experience in that particular NOC occupation. International students who start in entry level, low-skilled positions, such as bank tellers and customer service representatives will find this very difficult to achieve.

 Potential Tips for International Students

Unfortunately for international students, many of those looking for permanent residency two years into their post-graduate work permit will be limited to skilled worker categories. Individuals should begin planning their educational and work paths right away.

For example provincial nomination programs designed for international graduates become have become more important in today’s Express Entry environment. Here in British Columbia, the International Graduates Program (as of the date of this piece) is currently available only through Express Entry. Importantly, eligibility for this program requires applying within two-years of graduation.

While having to meet Express Entry requirements is a challenge, as described earlier, the 600 points provided by the nomination would counteract the low score issues.

Finally, the idea of pursuing further graduate studies prior to obtaining a PGWP may be more attractive. Further studies allow an individual to gain a key qualification that may differentiate them if a LMIA is required. It also may open up other options including post-graduate immigration streams, fellowships, and various professional positions under trade agreements, that could provide the crucial work permit required to get the necessary skilled work experience.