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.

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