Learning moments – Restoration of immigration status
April 29, 2020
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Hello, fellow practitioners! Today’s column deals with applications for restoration of status. While the answer to the question posed is relatively straightforward, the question provides us an opportunity to discuss applications for restoration generally.
Question:
Can a client submit more than one restoration application within the 90 days they are allotted for restoration? If a decision is made on the first restoration application then can the client still await the decision on the second restoration application that is in process?
Answer:
Similar to most in-Canada temporary resident applications (study permits, work permits, and visitor records), most restoration applications will be submitted online, unless they fall under one of the provided exemptions from online filing.[1] As far as I am aware, there is no mechanism in the online portal that would prevent foreign national from submitting a second application for restoration while the first is in progress. There is certainly nothing in the Immigration and Refugee Protection Act or its regulations that would prevent this. However, for the reasons which follow, I can’t foresee there being any benefit to doing so.
Section 182 of the Immigration and Refugee Protection Regulations allows for foreign nationals to make applications to restore their temporary status:
182 (1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a),[2] any of subparagraphs 185(b)(i) to (iii)[3] or paragraph 185(c),[4] an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act.
(2) Despite subsection (1), an officer shall not restore the status of a student who is not in compliance with a condition set out in subsection 220.1(1).
When does a foreign national lose temporary status? That is, when does the timer start for the filing of a restoration application? This is stated in section 47 of the Immigration and Refugee Protection Act (IRPA):
47 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.
It should be emphasized that an application for restoration is not the same as an application for an extension of temporary status. It doesn’t confer “implied status”. Foreign nationals applying for restoration have lost their status and may not continue to work or attend school until their status has been restored and a new work or study permit has been issued.
Foreign nationals who have lost their temporary status are technically inadmissible pursuant to section 41 of the IRPA, which states:
41 A person is inadmissible for failing to comply with this Act (a) in the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act […].
This means that the removal process could be initiated as soon as the foreign national loses temporary status. Section 44 of the IRPA states:
44 (1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister.
(2) If the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
Practically speaking, it is highly unlikely that the removal process will be initiated within the timeframe for a restoration application. The Federal Court has held that where an officer is considering whether to issue a section 44 report, they need to consider whether an application for restoration has been made and whether the foreign national meets the criteria for such an application.[5]
To summarize, there is hardly any benefit to submitting two applications for restoration. Once a foreign national falls out of temporary status, they are not authorized to work or study regardless of whether they submit an application for restoration. The foreign national becomes inadmissible for non-compliance and can technically be removed. The foreign national should therefore submit an application for restoration as quickly as possible provided that they are within the 90-day timeframe for doing so.
[1] Please see: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/restoration-status.html
[2] The period authorized for their stay.
[3] The work that they are permitted to engage in: (i) the type of work, (ii) the employer, and (iii) the location of the work.
[4] The studies that they are permitted to engage in: (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.
[5] Sui v Canada (Minister of Public Safety and Emergency Preparedness) (FC), 2006 FC 1314; See also: Yu v. Canada (Minister of Citizenship and Immigration) (2005), 53 Imm. L.R. (3d) 56 (F.C.).
