Categories of Persons under the Immigration and Refugee Protection Regulations (18:IV)

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This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on July 18, 2023.



There are three legal categories of persons under the IRPA: citizens, permanent residents and foreign nationals. "Status" is the term commonly used to describe the category under which someone falls. Every person physically present in Canada falls into one (and only one) of these categories. "Indians" under the Indian Act may enter and remain in Canada in ways that are similar to, but not the same as, a permanent resident, and Indians may also apply for citizenship under certain circumstances. However, Indians may also still be foreign nationals even though they are also Indians, and as such are under the legal requirements of foreign nationals.

A. Citizen

A citizen is a person who was born in Canada, born outside Canada to a Canadian citizen parent, or who has been granted citizenship after filing an application for citizenship under the Citizenship Act, RSC 1985, c C-29. Various types of people can apply for citizenship. See Chapter 17: Citizenship.

Dual Canadian citizens (persons with multiple citizenships, including Canadian citizenship) travelling to or through Canada are required to enter Canada on a Canadian passport. Canadian citizens should always try to have a passport that will remain valid well beyond any time they plan to spend outside Canada.

B. Permanent Resident

A permanent resident (historically called a “landed immigrant”) is a person who has been granted permanent admission as an immigrant, but who has not become a Canadian citizen. Under IRPA section 2, “permanent resident” means a person who has acquired permanent resident status and has not subsequently lost that status under section 46.

Permanent residents have the same rights as Canadian citizens, with a few exceptions. One important exception is that permanent residents cannot vote. Another important exception is that a permanent resident can lose their permanent resident status and be removed from Canada under certain circumstances, most notably, for having committed a serious criminal offence or for not fulfilling their residency requirements. See Section VIII.A: Residency Requirements.

C. Foreign National

Under IRPA s.2, a foreign national is any person who is not a Canadian citizen or a permanent resident, and includes a stateless person. Foreign nationals with Temporary Resident status (such as visitors, persons with a Study Permit or a Work Permit, Convention refugee claimants and many others) must abide by certain conditions as required by law. Foreign nationals may also have no status – however, they are still Foreign Nationals even if their status has expired.

Upon losing their Temporary Resident status for allegedly failing to comply with conditions imposed (a list can be found in IRP Regulations 185(a)), a foreign national can apply within 90 days to have their status restored. If the officer finds that the foreign national has not failed to comply with any conditions and meets the initial requirements for their stay, the officer shall restore their Temporary Resident status.

Some types of foreign nationals and their associated conditions are described below:

1. Visitors

Visitors are foreign nationals who enter Canada lawfully as a visitor. Foreign nationals from certain countries require a Temporary Resident Visa (“TRV”) under the Visitor Class (sometimes known as a “visitor’s visa”) before entering Canada; others do not (see IRP Regulations, s.190). Examples of “visa-exempt” countries are the United States, the United Kingdom, Australia, Japan, and most European countries. Foreign nationals with visitor’s status can apply to extend their visitor’s status from within Canada through a visitor record. A visitor has the condition that they cannot work or study in Canada, with very few exceptions. Importantly, visitors must prove that they will leave Canada at the end of their visit.

Visitors who are exempt from requiring a Temporary Resident Visa will still be required to attain an Electronic Travel Authorization (“ETA”). The only exceptions to this requirement are for United States citizens and lawful permanent residents and for individuals with a valid Canadian visa. Applications to obtain an ETA are made through the IRCC website and applicants will be required to pay a $7.00 surcharge. Electronic Travel Authorizations are not guaranteed and may be denied to travellers with criminal records or existing inadmissibility to Canada. For more information on the ETA process and to apply online visit IRCC

Visitors can only stay in Canada for the duration of time granted when they first enter Canada unless they obtain an extension. The default amount of time granted upon entry is six months, although an immigration officer may specify a different period of time (IRP Regulations s 183). This includes foreign nationals from visa exempt countries. It is possible to apply for an extension with IRCC from within Canada. However, a person may apply for an extension without having to leave the country if they apply before the temporary resident status expires. If such a person stays in Canada beyond the period of time granted, the person has “overstayed” his or her visit and is subject to the issuance of a removal order for non-compliance (which would result in a mandatory 1-year exclusion from Canada). A successful applicant must prove that they will leave at the end of the visitation period, and that they will have sufficient funds during their visit. Most foreign nationals can apply for Restoration (IRP Regulations s 182) within 90 days of expiry, but person’s status is not actually restored until a decision is made, and so they remain at risk of potential enforcement.

A Super Visa allows parents or grandparents of permanent residents or Canadian citizens to visit Canada for up to five years at a time. IRCC grants multiple-entry visas of up to ten years for qualifying individuals. To be eligible for a super visa:

  • You must apply for a super visa from outside Canada
  • You must be the parent or grandparent of a Canadian citizen or a permanent resident of Canada
  • You must have a signed letter from your child or grandchild who invites you to Canada that includes:
o a promise of financial support for the length of your visit
o the list and number of people in the household of this person
o a copy of this person’s Canadian citizenship or permanent resident document
  • You must take an immigration medical exam.
  • You must have medical insurance from a Canadian insurance company or a designated international insurance company that is:
o valid for at least 1 year from the date of entry
o at least $100,000 coverage
o have proof that the medical insurance has been paid (quotes are not accepted)

For more information on the Super Visa process and to apply online visit:

https://www.canada.ca/en/immigration-refugees-citizenship/services/visit-canada/parent-grandparent-super-visa.html.

2. Students

A foreign national who wishes to study in Canada must apply for their initial study permit from outside Canada at a visa office under the authorization of the Student Class. There are several exceptions to this general rule: in some circumstances a foreign national can study in Canada without a permit (see IRP Regulations ss. 188 to 189); and in circumstances such as extending an existing study permit a foreign national can apply for a study permit from within Canada (see IRP s. 215).

International students enrolled in courses in Canada for six months or less do not need a study permit, as long as those studies began and will end within six months of their entry to Canada. However, they must still have valid temporary resident status in Canada to perform these studies.

To acquire a study permit, a foreign national must have an acceptance letter from a valid academic institution, sufficient funds, and the intention to leave Canada once their permit expires (see IRP Regulations ss. 210 to 222).

Registered Indians (as defined under the Canada Indian Act) who are also foreign nationals are allowed to study in Canada without a study permit. However, those persons must still have valid temporary resident status in Canada.

An international student who graduates from an eligible designated learning institution may be eligible to obtain a Post-Graduation Work Permit (“PGWP”). Applicants can only receive one PGWP in their lifetime. An applicant must submit clear evidence that:

  • They have completed a completed an academic, vocational or professional training program that is at least 8 months in duration from a designated learning institution.
  • They have maintained full time status in Canada during each academic session of the program except the final academic session.
  • They have received a final transcript or an official letter from a designated learning institution confirming that they have met the requirements to complete the program.
  • They have 180 days after they have received their final marks to apply for a PGWP.

IRCC made certain exemptions for individuals affected by COVID-19. International students who completed up to 100% of their studies online from outside Canada between spring 2020 and August 31, 2022 were eligible for a temporary COVID-19 policy that was in place until August 31, 2022. The temporary policy changed on September 1, 2022, with new lock in dates for the period of September 1, 2022 until August 31, 2022 and on or after September 1, 2023. For more information on this temporary COVID-19 policy visit:

https://www.canada.ca/en/immigration-refugees-citizenship/services/study-canada/work/after-graduation/eligibility.html#outside-dl

For more information on the PGWP process and to apply online visit here

We highly recommend paying careful attention to any upcoming changes to this program.

3. Workers

A foreign national who wishes to work in Canada must apply for authorization under the Worker Class, and a work permit from outside Canada at a visa office. There are several exceptions to this general rule: in some circumstances a foreign national can work in Canada without a permit (see IRP Regulations ss. 186 to 187); and in some circumstances a foreign national can apply for a work permit at a port of entry ( “POE”), such as airport, land border or sea border (see IRP Regulations s 198), or from within Canada (see IRP Regulations s. 199).

a) Employer Specific Work Permit

The most common type of work permit is based on an employer in Canada applying to obtain a Labour Market Impact Assessment (“LMIA”) from Service Canada (Employment and Social Development Canada) and a prospective worker applying for an employer specific work permit through the Temporary Foreign Worker Program.

There are several types of LMIAs and obtaining an LMIA is often difficult, lengthy and expensive. There are several criteria the employer must meet, including evidence of efforts to hire Canadians or permanent residents; that a government-determined minimum wage (not the same as the provincial minimum wage) will be paid (commonly known as the prevailing wage); and that the employer is able to demonstrate it can pay the wages offered. There are additional rules associated with whether the position pays less than or more than the provincial prevailing wage for the occupation.

Employers are also mandated by IRCC to provide all temporary foreign workers with information about their rights in Canada, and are prohibited from acting in reprisal against workers who come forward with complaints, as well as from charging recruitment fees to workers and holding them accountable for the actions of recruiters in this regard. In addition, employers are required to provide reasonable access to health care services. Employers under the Temporary Foreign Worker Program are required to provide private health insurance when needed. The Government of Canada announced efforts to strengthen protections for temporary foreign workers based on new regulations that came into force in September 2022.

Information on the LMIA process (currently called the “Temporary Foreign Worker Program”) and the different types of LMIAs available can be found at the Employment and Social Development Canada (ESDC) website.

b) Alternative Work Permits

There are other, less common types of LMIA-exempt work permits accessible under the International Mobility Program, such as a professional pursuant to Canada-United States-Mexico Agreement (“CUSMA”); inter-company transfers; Mobilite Francophone, and significant benefit permits, where the foreign national can demonstrate that they will contribute significantly to Canadian culture or the economy. Work permits authorizing self-employment are technically possible but rarely granted. Please see sections 204 and 205 of the IRP Regulations and the Operational Manuals relating to the International Mobility Program for further details:

Workers who have employer-specific work permits may be eligible for an open work permit that is exempt from an LMIA if they are experiencing abuse, or if they are at risk of abuse. The main objective of the open work permits for vulnerable workers program is to provide migrant workers with means to leave their employer if they are facing abuse. It helps migrant workers by reducing the risk and fear of work permit revocation and removal from Canada. Consult the relevant Operational Manual for further details.

NOTE: The Migrant Workers Centre is a non-profit organization dedication to legal advocacy for migrant workers in BC and facilitates access to justice through the provision of legal education, advice and full representation.

https://mwcbc.ca/

NOTE: Registered Indians are exempt from having to apply for a work permit to work in Canada. Please see section 186(x) of the IRP Regulations for more information.
NOTE: Under the International Mobility Program, all employers, apart from those exempted from the employer compliance regime, who make an offer of employment to a foreign national referred to in IRP Regulations s. 200(1)(c)(ii.1) must comply with the conditions imposed under IRP Regulations ss. 209.2 and 209.4. An employer may be inspected (an inspection may be initiated from the first day of employment for which a work permit is issued up to a maximum of 6 years thereafter) and must ensure they have met these conditions. For more information, see the IRCC website:
NOTE: Under the Temporary Foreign Worker Program, ESDC/Service Canada has the authority to review the activities of any employer using the Temporary Foreign Worker Program, in relation to the treatment of workers, their LMIA or LMIA application by conducting an inspection with or without prior notice to the employer. For more information, see the ESDC website:
NOTE: The International Mobility Workers Unit (IMWU) provides opinions on whether or not an employer and the temporary foreign worker they want to hire are exempt from obtaining a LMIA. You can request an opinion from the IMQU to find out if an LMIA or work permit exemption applies in our situation. For more information

4. Temporary Resident Permit

When a person is determined by IRCC or CBSA to be inadmissible to Canada (see below), a Temporary Resident Permit (TRP) (formerly called a Minister’s Permit, and not to be confused with a Temporary Resident Visa) can be issued to a foreign national who is otherwise inadmissible but who has a compelling reason for either entering or remaining in Canada. The TRP can be applied for from either outside or inside Canada (IRPA, s 24). A foreign national is granted a TRP only under exceptional circumstances.

5. Convention Refugee Claimants

A Convention refugee claimant is a foreign national who enters Canada and who requests protection but who has not yet had their refugee hearing. Canada is obligated to grant protection to refugees and other persons in need of protection under the IRPA; the obligation originates from various United Nation Conventions and Treaties.

Details of the Convention refugee process are outlined in Section V. F: Convention Refugees.


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