Categories of Persons under the Immigration and Refugee Protection Regulations (18:IV)
There are three legal categories of persons under 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. Clinicians are encouraged to consult with a supervising lawyer when assisting Indians with immigration applications.
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 a permanent resident can be removed from Canada under certain circumstances, most notably, for having committed a serious criminal offence or for not fulfilling their “residency requirements” (see below).
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 have conditions attached that the foreign national must abide by, such as visitor, person with a Study Permit or a Work Permit, Convention refugee claimant and many others. 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 this reviewed. 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:
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. A visitor has the condition that they cannot work or study in Canada, with very few exceptions. 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 sole exception to this requirement is for individuals from the United States and 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 www.cic.gc.ca/english/visit/eta.asp
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 Immigration, Refugees and Citizenship Canada 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 amount 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.
NOTE: In response to the 2011 two-year-pause on the sponsorship of parents and grandparents, a parent and grandparent “supervisa” was introduced. The supervisa is a category of temporary resident status that allows for the foreign national to remain in Canada continuously for 24 months, rather than the default 6 months, and can also facilitate the issuance of a multiple entry TRV for up to ten years. The parent or grandparent must not reside in Canada for more than 24 months at a time. To apply for a parent and grandparent supervisa, additional documentation such as a letter of invitation from the child, evidence of the parent or grandparent relationship and proof of private medical insurance from a Canadian insurance company are required. For more information, see www.cic.gc.ca/english/visit/supervisa-how.asp.
A foreign national who wishes to study in Canada must apply for authorization under the Student Class, and a study permit from outside Canada at a visa office. 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 some circumstances a foreign national can apply for a study permit from within Canada (see 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 ss 210 to 222 of the IRP Regulations).
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.
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 (see IRP Regulations s 198), or from within Canada (see s 199).
There are several categories of work permit, and the most common type is one based on a successful application by an employer in Canada to obtain a Labour Market Impact Assessment (LMIA), or “validation,” from Service Canada (Employment and Skills Development Canada). Obtaining an LMIA is often difficult. 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; 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 average wage (again, not the same as the provincial minimum wage).
Information on the LMIA process (currently called the “Temporary Foreign Worker Program”) can be found at the Employment and Social Development Canada website.
There are other, less common kinds of work permit such as a professional pursuant to NAFTA; inter-company transfers; 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.
In some instances, no work permit is required in the first place (see sections 186 and 187 of the IRP Regulations).
4. Temporary Resident Permit
When a person is determined by CIC 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.
Foreign nationals who enter “irregularly” in a group (2 or more persons), or whose identities cannot be determined in a timely manner, may be designated by the Minister as “designated foreign nationals.” Designated foreign nationals are subject to mandatory detention, do not have a right of appeal to the RAD, and must wait at least 5 years before applying for permanent residence in Canada, even if their claim is accepted.
Details of the Convention refugee process are outlined in Section VI.F: Convention Refugees.
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