Restoration of Temporary Resident Status
Every now and then we receive a panic telephone call from a client who has forgotten or has otherwise been unable to extend his temporary resident status in Canada [Temporary Residents are people who are in Canada as visitors, on work permits, or study permits]. Fortunately, the law allows for Restoration of Temporary Resident status.
The relevant provisions of the Immigration and Refugee Protection Regulations state:
Restoration of Temporary Resident Status
- On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act. SOR/2013-210, s. 2.
To put it simply if you are a Temporary Resident, and your status has expired, you have 90 days to restore it.
Our firm has challenged the interpretation of this section early on and in a reported decision rendered by the Honourable Justice Kelen of the Federal Court, the court states:
10 Pursuant to section 182 of the Regulations, an immigration officer is required to restore an applicant’s temporary resident status if he meets the initial requirements for his stay and if he has not failed to comply with any other conditions imposed. Section 179 sets out the initial requirements for the issuance of a temporary resident visa. Among other things, the applicant must have properly applied as either a visitor, worker or student and it must be established by the immigration officer that the applicant will leave Canada by the end of his authorized stay. In determining whether an applicant will leave Canada at the end of his stay, an officer will usually consider the applicant’s purpose for wanting to be in Canada. This permits an officer to gauge whether it is likely that the applicant has a temporary reason for being here, and thus, whether it is likely that he will leave when required. [emphasis added]
Radics v. Canada (Minister of Citizenship and Immigration), 2004 FC 1590; 262 F.T.R. 211
The phrase “an immigration officer is required to restore an applicant’s temporary resident status if he meets the initial requirements” has been underlined for it established that the restoration should not be some sort of extraordinary or special relief, but relatively routine, if you have otherwise complied with the requirements of the Act.
The Minister has set out the following online Guidelines for restoration applications, which should also be considered. However, keep in mind that unlike the immigration Act and Regulations, and the decision of the Federal Court, they are not law.
Eligibility requirements for restoration of status
The applicant must
- apply within 90 days of having lost their status;
- meet the initial requirements for their stay;
- have not failed to comply with any other condition (e.g., working without being authorized to do so);
- meet the requirements of the class under which they are currently applying to be restored as a temporary resident.
- have lost their status because they have failed to comply with any of the following conditions:
- Paragraph R185(a) The period authorized for their stay.
- Subparagraphs R185(b)(i) to (iii) The work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the
- type of work,
- employer, and
- location of work.
- Paragraph R185(c) The studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including the
- type of studies or course,
- educational institution,
- location of the studies, and
- times and periods of the studies.
- Clients who have been refused an extension to their temporary resident status, and were in status (including implied status) until the refusal, have 90 days from the date of the refusal notice to apply for a restoration, if otherwise eligible.
- Clients who submit an application to renew their status after it has expired, but within the 90-day restoration period, receive a notice from the Case Processing Centre in Vegreville (CPC-V) warning them to apply for restoration. Clients have 90 days from the date their status expired to submit their restoration application and corresponding fee.
Continue to work or study
Contrary to applicants to whom we recognize an implied status, persons awaiting restoration have lost their status and may not continue to work or attend school.
Restoration of status cannot be granted at the port of entry. Individuals who have failed to comply with the conditions imposed under section R185 need to apply in Canada for restoration of their status. If they leave Canada, they will be deemed to be seeking a new entry on their return.
The phrase “initial requirements for their stay” should not be read too literally when it is being applied in the context of a restoration application, and the requirements of section R179 should not be applied rigidly in that regard. The preferred interpretation in this context would be that the person seeking restoration must meet the requirements of the class under which they are currently applying to be restored as a temporary resident. The desired approach to the restoration provision of section R182 is to be facilitative and consistent with the current approach to extension applications of the provision in section R181, since the two provisions are similar in nature and section R181 actually refers specifically to the requirements of section R179.
Possible restoration scenarios
A foreign student who is still in status can apply in Canada for a work permit under certain conditions. By inference, the foreign student can apply for a work permit when restoring status.
- A temporary foreign worker who is still in status can apply in Canada for a study permit if they meet certain conditions. By inference, they can also apply for a study permit when restoring status.
- A temporary resident who is eligible to apply in Canada for a work or study permit would be allowed to do so when restoring their status.
Note: The person must still satisfy the officer that they are a genuine temporary resident and meet all the requirements of the Act, in order to qualify for restoration.
Please note that there are many other scenarios in which restoration could be available to applicants. Clearly, while restorations may seem available to applicants, seeking counsel is always prudent.
Link to Guidelines:
Link to read the full decision in Canlii.org: