Learning moments – Ability to study for minors

Hello, fellow practitioners! Today’s question deals with the ability to study for minors.

I have a concern that some practitioners are jumping to TRP applications in relation to minors who are out of status in Canada during this time. There are a number of minor children out of status in Canada and estimates for people out of status in Canada are anywhere from 500,000 to 600,000 people (we think).

We have a special provision A30(2), and I would like to know what ALL their options are.

I see that in the Student Manual, POE instructions state that minor children can be facilitated and should be with a visitor record at the border if they have a family member (parent) who is a worker or student in Canada.

Any clarification you can provide would be greatly appreciated!

This question affords a great opportunity to discuss the rules applicable to studying in Canada for minor children. In my view, there are several separate categories of minor children who can be permitted to study in Canada:

·        Minor children outside Canada, intending to accompany parents who are applying for a work or study visa through a visa post

·        Minor children inside Canada or at the port of entry (POE) whose parents have work or study permits or are applying for such at the POE

·        Minor children inside Canada whose parents are out of status or not in Canada

A30(2), as the questioner correctly points out, provides as follows:

(2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.

Keep in mind that “temporary resident not authorized to work or study” inherently refers to parents who are in Canada as visitors.

This rule is in place to ensure that minor children in Canada attend school as required by provincial laws, and also to ensure that children of anyone other than temporary visitors are not penalized by the actions of the parents to stay illegally in Canada.

If we unpack this provision, we see that a minor child who is already inside Canada can study without a permit up to the end of secondary school, except if their parent inside Canada is a visitor. There are several key elements to this:

·        The child is a “minor” – the cut off age is governed by provincial legislation and varies from place to place, but is generally interpreted as age 18.

·        Inside Canada – this provision does not apply to visa office applicants – they must apply for a study permit.

·        Up to the end of secondary school only – the moment the child goes to college or university, they must get a study permit even if they are under 18.

·        Parent status in Canada – If a parent is inside Canada with the child, the parent must not be a visitor only. They must be either out of status or have a work/study permit, or possibly a TRP.

To the point of the question, if a minor child is in Canada without status, assuming the parents are also without status or not inside Canada, the child does not need a TRP in order to study.

Sometimes applying for a TRP could be beneficial as part of an overall strategy. If the grounds are extremely strong and you are confident about the chances of success, then getting a TRP would put the child into status, which is obviously preferable. In addition, if the family plans to apply for permanent residence under certain categories such as economic classes, having an out of status dependent could render the whole family inadmissible as a result of non-compliance. So there might be good reasons for applying for a TRP, depending on the situation.

However, sometimes applying for a TRP could do more harm than good – for example, if the minor child can study without it and if the merits of the TRP are weak, you would then risk bringing the child to the attention of IRCC and CBSA by lodging a TRP application that the child doesn’t necessarily need. You would have to weigh the pros and cons of each option, and ultimately the parent must decide.

If the minor child is applying for a visa along with their parent(s) through a visa post, s.30(2) does not apply to them because they are not “in Canada” at that time, and they need to apply for a study permit in the regular manner. If for some reason the minor child appears at the port of entry with parents who are applying for their work permits at the port of entry, CBSA is instructed to treat this situation as if the child were “in Canada” and will issue a visitor record rather than a study permit, assuming all the requirements are met.  See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/guidelines-on-minor-children.html

Keep in mind that allowing a minor child of an international student or foreign worker in Canada to study without a permit is not the same as exempting the child from maintaining their status in Canada. If their visitor record issued at the port of entry or their study permit issued at the visa post is due to expire, the minor is still required to extend status in order to remain in Canada legally. In such a situation they could simply ask for an extension of temporary resident status as a visitor, assuming that they meet the requirements and have all the necessary documents.