IMMIGRATIION : Options limited when restoring status

IMMIGRATIION : Options limited when restoring status

Q. My common law partner and I came to Canada so that I could pursue my master’s degree. I have a study permit. She is from a visa-exempt country and was issued a visitor record at the border. Due to a misunderstanding on our part we didn’t extend her visitor’s status when I extended my study permit. As a result, she is currently about 9 months out of status. She only came to know about it when we decided to get her a work permit during a subsequent study permit extension.

CIC sent her a letter stating that she had to leave the country immediately. This didn’t look like a ‘departure order’ since there was no 30-day time period specified, but we are concerned about this.
Since the law is very clear on overstays, we are positive the best option at this point would be to go back to her home country or is there an alternative? She is obviously past the 90-day ‘restoration of status’ window.

We thought it best to seek professional legal advice as to her options, especially since our future plans include obtaining permanent residency.

A. First, I would like to tell you what you should not do.

No doubt you may be advised by some well-intentioned person to have your partner enter the U.S. and re-enter Canada with fresh status. Your partner should definitely not try this since the U.S. will almost certainly deny her entry and even cancel any U.S. visa that she may have. Generally, the Americans will not admit foreigners to their country if they are in Canada without lawful status. Also, she should not apply for restoration of her status since, as you mentioned, she is well passed the 90-day limit for doing so.

The Immigration and Refugee Protection Act allows anyone who is “inadmissible” or who “does not meet the requirements of the Act” to legalize their status through a temporary resident permit (TRP). So legally speaking, your partner can apply for a TRP through the Case Processing Centre in Vegreville. However, this approach is risky and problematic.

The immigration department’s policy manual confirms that a person is eligible for a TRP if they are not eligible for a restoration of status. However, elsewhere it states “Temporary resident permits should not be used to restore the temporary resident status of a visitor, student or worker when their status has expired”. This latter statement seems to fetter or limit the discretion of immigration officers when considering an application for a TRP. Accordingly, a refusal of a TRP based solely on this policy is, in my view, vulnerable to a legal challenge. However, in your situation, I would not let things go that far. Also, we have to be mindful that your partner has been asked to leave Canada and if she doesn’t do so soon the CBSA could easily bring removal proceedings against her. That would really complicate things.

In short, the path of least resistance is to maintain the goodwill of CIC. She should go home briefly and attempt a return to Canada to rejoin you.

There is no guarantee that she will be re-admitted but, given the options, I would probably run the risk.
Obviously, you need to be more careful in the future.

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Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email reporter@migrationlaw.com