Temporary Status in Canada

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 88-131

88

CHA PTER 4

TEMPOR ARY STATUS

IN CA NADA

A. INTRODUC TION

Foreign nationals may seek to enter Ca nada temporarily for a variety of

reasons. They may come to visit family or to be tourists, students, busi-

ness v isitors, or worke rs.1 As discussed in Chapter 5, some apply for

temporary status b ecause, in specif‌ied cases, Canadian law offers the

inducement of future permanent status but only after the applicants

have endured the insecur ity of living as temporar y residents for an

extended period. This chapter examines the legal framework that sup-

ports the establi shed regimes of temporary residence, focusi ng on the

legal rules that def‌ine t he process of obtaining and retaining tempora ry

status. Underpinning the technical details, one f‌inds, are controversial

assumptions about the reasons for imposing conditions and limits on

the time foreign nationals, particularly workers and students, may re-

main in Canad a. Research and public discu ssion have drawn attention

to the hardships and un intended consequences that such restr ictions

1 See Citizen ship and Immigration Ca nada, Facts and Figures 2013 – Immigration

Overview: Per manent and Temporary Residen ts, online: www.cic.gc.c a/engl ish/

resources/statistics/menu-fact.asp [Facts and Figures 2013], listing t hat in 2000

there were 122,700 foreign student s and in 2013 there were more than double

that f‌igure of 30 4,876. Although the pe rsonal and institution al experiences are

somewhat differ ent, the increase in the num ber of international stude nts who

normally pa y large sums for a Canadian e ducation has had a major impact on

post-secondary education.

Temporary Statu s in Canada 89

can cause.2 Statistics reveal a substantial incre ase in the number of

foreign nationals who have been admitted into Canada as temporar y

workers,3 yet many of these have been denied a safe working environ-

ment or the benef‌its that Canad ian workers would expect.4 The emer-

gence of a large, temporary population unrepresented in our political

institutions and excluded from social benef‌its has raised deep ques-

tions about the integrity of our community a nd about the social and

economic impacts of our reliance on their labour.

B. SECTION 22.1 DECLAR ATIONS

Before examining t he routes that a foreign nationa l may take to acquire

temporary resident statu s, it is illuminating to look f‌irst at a section of

the Immigration and Refugee Protection Act5 that came into force in 2013.

Section 22.1 provide s:

(1) The Minister may, on the Minister’s own in itiative, declare th at

a foreign national ma y not become a temporary resident if t he

Minister is of t he opinion that it i s justif‌ied by public policy con-

sideration s.

(2) A declaration has effect for the pe riod specif‌ied by the M inister,

which is not to exceed 36 months.

(3) The Min ister may, at any time, revoke a declaration or shorten its

effective period.

(4) The [Annua l Report to Parliament] must include the number of

declarations m ade under subsection (1) and set out the public

policy consideration s that led to the maki ng of the declarations.

2 For example, Luin Gold ring, Carolina Beri nstein, & Judith Bernh ard, “Insti-

tutionali zing Precarious Mig ratory Status in Can ada” in (2009) 13 Citizenship

Studies 239; Nand ita Rani Sharma , “Race, Class, Gender, and the Ma king of

Difference: The Soc ial Organization of ‘M igrant Workers’ in Canada” (2000) 24

Atlantis 5.

3 Facts and Figures 2013, above note 1: In 2000, Canad a admitted 67,345 tempo-

rary foreign worke rs who hold work permits, while in 2013, Canad a admitted

176,613 temporar y foreign workers. Also note that t he 2013 stati stics distin-

guish betwe en temporary foreign workers and t hose in the Internation al Mobil-

ity Program (work per mits granted where no LMIA i s needed). In 2013, there

were 284,050 that were i n Canada under this prog ram.

4 See Canadi an Labour Congress, Cana da’s Temporary Foreign Worker Program

(TFWP): Model Program – or Mistake? (April 2011), online: w ww.canadianlabour.

ca/sites /default/f‌iles/pd fs/model-program-or-mist ake-2011-en.pdf.

5 Immigration and Refugee Protecti on Act, SC 2001, c 27 [IR PA].

IMM IGRAT ION LAW90

The breadth of discretion delegated to the mini ster by this section

is quite remarkable. Although the min ister must report the reasons for

the exercise of this power to Parliament annually, the section appears

to give the minister a carte blanche to prohibit any particular individ-

ual from entering Can ada. The ability of Canadians to associate with

nationals from other countries has been substanti ally curtailed and is

now dependent not on a framework of legal rules but on the govern-

ment’s assessment that such as sociation is not contrary to public policy.

While it is technically possible that, on judicial review, the Federal

Court might hold that a declaration made on th is ground is unreason-

able, it is diff‌icult to conceive of cases where a judicial body would

consider itself competent to render such a decision. On the other hand,

there is scope for a constitutional challenge to this provision based on

grounds of vagueness and overbreadth; again, though, the likelihood

of success of such a challenge may be somewhat tenuous.6 In any event,

the section reveals the government’s willingness, if not eagerne ss, to

dispense w ith the legal rules that def‌ine the acquisition of temporary

resident status in order to achieve results that it wants to achieve.

C. AN OVERVIEW OF TEMPORA RY

RESIDENCE

When applying for temporary resident status, a foreign national may

apply as a member of one of three classes: the visitor class,7 the student

class,8 or the worker class.9 While all three classes are subject to a visa

regime, which is qualif‌ied by a wide range of exemptions, students

and workers are also required to obtain a permit, subject to a narrower

range of exemptions. In most circumsta nces, a person will apply for

the needed visa and permit from outside the country. Beginning in

2015, a person who is exempted from the visa requirement and who is

travelling to Can ada by air will al so be required to obtain an Electronic

Travel Authorization before boarding. On arrival at a port of entry, for-

eign nationals are e xamined and only then may be g ranted temporary

status. The status expire s at the end of the authorized period but, in

6 Canadian Charter of Rights an d Freedoms, s 7, Part I of the Constitution Act, 1982,

being Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Charter].

7 Immigration and Refugee Protection Regulations, 2002 SOR /2002-227, ss 191–92

[Regulation s].

8 Ibid, ss 210–11.

9 Ibid, ss 194–95.