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.
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 .