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Maintaining legal status as a temporary resident in Canada

18/10/2018

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Every year, hundreds of thousands of foreign nationals are admitted to Canada as “temporary residents”. These may be tourists who are visiting under a visitor visa or an electronic Travel Authorization (eTA) if they are from a visa-exempt country. They may be students or workers in Canada temporarily. While many applicants are most concerned about the eligibility requirements to obtain such temporary visas to enter Canada, it is extremely important for temporary residents to understand the legal nature of their stay in Canada in order to maintain their status and ensure that they do not become inadmissible to Canada by breaching any conditions on their type of visa.

Having legal status means you are authorized to enter and remain in Canada as a temporary or permanent resident under the Immigration and Refugee Protection Act, as a Canadian citizen under the Citizenship Act or as a Registered Indian under the Indian Act. In the case of temporary residents, your status is valid for a specific period of time that is set out in your visa, study or work permit.

Apply for an extension before you lose your status

Each type of temporary visa has a different duration. For example a study permit may be for the duration of your studies in Canada. A work permit may be for the duration of the contract of employment you have with your employer in Canada. In the case of visitors you are generally permitted to stay in Canada for up to 6 months from the date of your entry (unless the officer indicates at the time of your entry that you are permitted to remain in Canada for a shorter period of time).

Irrespective of the type of temporary status you hold, you should be careful of the duration and ensure that you take appropriate steps to extend you status before your status expires. For example, if your studies are taking longer than your original study permit, you can apply to extend your study permit. In the case of visitors, you will need to leave Canada before six months or, if there is a reason why you need to remain in Canada, it is possible to apply for an extension of your status before the six months is up.

What if you miss the deadline to extend you status?
In some situations you may not be able to apply to extend your visa or apply for a new visa in time. Depending on your circumstances this may create serious problems with regards to your ability to extend your study permit or work permit and may even impact your eligibility for future visas. However, if you have missed your deadline to apply for a renewal by only a few days, there is a window of opportunity to be able to apply to restore your status for up to 90 days from the date of expiration of your visa or permit

A restoration application is very important as you must explain the circumstances that prevented you from complying with the conditions of your permit and you must meet all the conditions of your initial visa or permit. Applications are processed on a case-by-case basis and the 90 day deadline is very rigid. If you have missed your deadline you should immediately consult an experienced immigration lawyer to understand your options.

Application To Return to Canada (ARC)
In some cases, where a temporary resident has overstayed his or her authorized period to remain in Canada or did not comply with the conditions of his or her stay, the resident may be issued with a removal order. If you are issued with a removal order (which may be a departure order, deportation order or exclusion order) then you may no longer stay in Canada and it may also result in you becoming inadmissible for re-entry to Canada.

Depending on the reason you receive on the removal order you may be able to appeal the decision. However, once a removal order is final, in most cases you will need a special permission called an Authorization to Return to Canada (“ARC”) before you will be allowed to re-enter Canada.
ARC applications require that you demonstrate that there is a low possibility that you will repeat the behaviour that caused the order to be issued in the first place and your current situation as well as the reason you have for returning to Canada. The officer will also consider the reasons for which the removal order was issued and the amount of time that has passed since the order was issued. There is no guarantee that an ARC will be issued and by having the assistance of an experienced immigration lawyer you will be able to navigate the process and ensure that you submit the best application possible and have the highest chance of success.

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Understanding Inadmissibility: Criminal Inadmissibility

14/12/2017

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Why does Canada deem that certain individuals are “inadmissible” to enter the country? Canada's immigration laws and regulations must balance the nation's interest in permitting immigration to maximize social, cultural and economic benefits for Canada as a whole while at the same time protecting the health and safety of Canadian and ensuring the security of Canadian society. Last week I wrote about medical inadmissibility and individuals who may be prevented from entering Canada because they may endanger the health of other Canadians. In this article, I will outline who may be deemed criminally inadmissible: the group of people who may not be allowed to enter Canada because they have committed a crime or been convicted of a crime inside or outside of Canada.

Canada's immigration laws and regulations make it clear that a foreign national or permanent resident who is convicted of an offence under any act of Canada's parliament is deemed criminally inadmissible. The most common offences are found under the Criminal Code of Canada and the Controlled Drugs and Substances Act and include manslaughter, assault, theft, dangerous driving and driving under the influence of drugs or alcohol, and possession of or trafficking in drugs or controlled substances. However, it is possible that someone may be convicted of an offence under the Immigration and Refugee Protection Act (“IRPA”) of an offence such as possessing false documents in order to contravene IRPA or direct or indirect misrepresentation.

Compared to medical inadmissibility, it is important to note that criminal inadmissibility can apply to those who are already permanent residents of Canada. In some cases, IRPA authorizes the removal from Canada of permanent residents (as well as foreign nationals) that are deemed to be criminally inadmissible.

Who is criminally inadmissible?
In order to determine if you are criminally admissible we need to know what offence you were convicted of and where the conviction occurred. Except in cases of crimes against humanity, the activity you are convicted of must be a crime in both the place it was committed and in Canada. Interestingly, for offences outside of Canada a conviction is not necessary but for an offence in Canada you must have an actual conviction to be considered criminally inadmissible.

The seriousness of the crime that was committed and the consequences that follow your conviction determine if the crime you committed makes you inadmissible. In Canada the terms used to describe difference in severity of an offence are “Indictable” (more serious) and “Summary” (less serious) offences. Some offences are “Hybrid” offences where you may be prosecuted by indictment or summary conviction. A person is generally inadmissible if convicted of an offence in Canada, or elsewhere in the world, that would be at least a hybrid offence in Canada.

Immigration officers are charged with determining the equivalency of foreign conviction compared to Canadian laws, such as the Criminal Code. Based on this, the immigration officer will determine if the criminal conviction will render the applicant inadmissible. In many cases this determination is very difficult because the criminal laws of each country are different in terms of how they define the elements of the crime and the consequences of a conviction. In cases where the crime is more serious, such as murder, armed robbery or burglary, the decision to grant admission to Canada cannot be made by the immigration officer but must be referred to a Manager or Supervisor for determination.

Is there any way to overcome criminal inadmissibility?
In some cases, there may be a compelling reason for you to enter Canada for either employment or family issues despite having a criminal record. In some cases you may be able to overcome your criminal convictions and enter Canada, and in the case of permanent residents who are convicted of a crime, it may still be possible to overcome the criminal record and apply for citizenship. Next week I will write about rehabilitation and temporary resident permits that may allow a person with prior convictions to enter Canada.

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    Authors: 
    Zeynab Ziaie 
    Zahra Ziaie 

    Note: This information is not intended as legal advice or opinion. You should always seek specialized legal advice with regards to your situation as the facts of each case are unique and the application of law varies in every case. 

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