There is a pervading misconception that there are no options available to persons who are without valid status in Canada; this simply is not true. Generally, temporary residents lose their status: upon expiry of the period of their authorized stay, where they have failed to abide by a condition of their stay as determined by an officer or by the Immigration Division (ID); or upon cancellation of their Temporary Resident Permit (TRP).[1] Below are some of the options that may be available to those who do not have legal status in Canada.
Restoration of Status
Foreign nationals may apply to have their temporary resident status restored if the same was lost within 90 days of submitting a restoration application.[2] The status must have been lost as a result of the applicant: staying in Canada longer than the authorized period for stay; changing employers, location of employment, or type of work, prior to being issued a new work permit; or changing a condition on a study permit without authorization.[3] The person must continue to meet the conditions of their initial stay and must have complied with all other conditions imposed. Due to COVID-19, foreign nationals now have until 31 August 2021 to submit an application to restore their status if they were in Canada from 30 January 2020 to 31 May 2021.
Spouse or Common-law Partner In Canada Class
Canadian citizens and permanent residents can sponsor their spouse or common-law partner who is residing with them in Canada and have maintained their temporary resident status. Despite the requirement for the spouse or common-law partner to have temporary resident status, the Government of Canada has implemented a public policy waiving the requirement. Therefore, to apply under this class they need only show that they reside with their sponsor and they are not otherwise inadmissible to Canada.[4] The spouse or partner may also apply for an open work permit if they have temporary resident status; those lacking status must wait until the requirements for a work permit is met and the application receives approval in principle.
Temporary Resident Permits
Foreign nationals who are inadmissible to Canada on any ground may be able to secure a temporary resident permit to temporarily overcome the inadmissibility. Great discretion is accorded to the deciding officer as they must be satisfied that a person’s need to visit or remain in Canada outweighs the health or safety risks to the Canadian society and is justified in the circumstances. This can be used where for instance, a person is not able to restore their status, or where they are otherwise inadmissible.
Humanitarian and Compassionate Considerations
Generally, foreign nationals or temporary residents do not have the right to apply for permanent residence from within Canada if they do not meet the requirements of an in-Canada permanent resident class, and/or they are otherwise inadmissible to Canada. However, applying for permanent residence on humanitarian and compassionate grounds.[5] is an option frequently used by individuals who have been out-of-status for some time. The decision is discretionary, and the decision maker assesses various factors to determine whether a person should be granted an exemption to apply such as: the consequential hardship of the person’s possible removal from Canada on family members; the best interest of the children directly affected by the decision, if any; establishment in Canada; and any unique or exceptional circumstances that warrants relief.[6]
In-Canada Claim for Refugee Protection
This option is reserved for some people who have suffered horrific experiences in their country of nationality and have never made a claim for refugee protection in Canada. A person may submit a claim for refugee protection where they refuse to return to their home country because of a well-founded fear of persecution based on race, religion, political opinion, nationality, or by being part of a social group.[7] They may also claim protection where they believe they will be subjected to: danger of torture, risk to their life, or risk of cruel and unusual treatment or punishment should they be removed from Canada.[8]
If you are without valid status and seeking to regularize same, you can send us an email at info@johnsonlawils.com or contact us using our contact form.
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