Temporary Status in Canada

AuthorJamie Chai Yun Liew; Donald Galloway
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.
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].
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.
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.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT