Restoration of Status

Restoration of 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.

 

Relevant Legislation

The relevant provisions of the Immigration and Refugee Protection Regulations state:

 

Restoration of Temporary Resident Status

182. 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.

However, the view of CIC, as expressed in their Manuals IP 6 Processing Temporary Resident Extensions, which guides officers is more complicated;

 

5.8.Restoration(Includes instructions found in OB 130)

 

If a visitor, worker or student has lost their status, they may apply to reinstate or restore their status in accordance with R182. This regulation only applies if the temporary resident has not been out of status for more than 90 days, and they have not failed to comply with the specified conditions. If an applicant applies to renew their visitor status, or their work or study permit after their temporary resident status has expired, but within the 90-day restoration period, CPC -Vegreville will  inform them that they must  also apply for restoration of their status, if they have not already done so.

The applicant will then have 90 days from the date of notification to submit their restoration application and the corresponding fee, which is presently $200 [R306]. Restoration of status cannot be granted at the POE. Individuals who have failed to comply with the conditions imposed under 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  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 R182 is to be facilitative and consistent with the current approach to extension applications of the provision in R181, since the two provisions are similar in nature and R181actually refers specifically to the requirements of R179.

Three possible scenarios which fall under the purview of restoration of status can be described as

follows:
 

1.     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.

 

2.     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.

 

3.     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.

 

Clearly, while restorations are available to Temporary Residents, seeking counsel is always prudent.

www.leecompany.ca