Restoration of Temporary Resident Status between Classes

Is restoration of temporary resident status between temporary resident classes possible, or does the law require you to restore your status to the same class that you held before your status expired?

In short, yes, it is possible to restore to a different class. Here is how it works.

According to section 11(1) of the Immigration and Refugee Protection Act (‘Act’), a foreign national cannot enter or remain in Canada unless authorized to do so, be it, for instance, as a permanent resident or as a temporary resident. A person who seeks to enter or remain in Canada as a temporary resident must therefore establish, pursuant to section 20(1)(b) of the Act, that they “hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay.”

According to subsection 22(1) of the Act, the status of temporary resident is conferred on a foreign national when a visa officer is satisfied that the foreign national has applied for that status, meets the obligations set out in subsection 20(1)(b) and is neither inadmissible nor the subject of a ministerial declaration made under section 22.1 of the Act that they may not become a temporary resident on grounds of public policy considerations.

Once granted, section 29 of the Act then confers on the holder of the status of temporary resident the right to enter and remain in Canada on a temporary basis “as a visitor or as a holder of a temporary resident permit,” subject to the temporary resident’s obligations to “comply with any conditions imposed under the regulations and with any requirements under [the] Act, […] leave Canada by the end of the period authorized for their stay and […] re-enter Canada only if their authorization provides for re-entry.”

Section 30 of the Act prohibits foreign nationals from working or studying in Canada “unless authorized to do so under this Act.”

To obtain authorization to study or work in Canada, foreign nationals must therefore apply for their temporary resident status as either within the worker or student class.

The Immigration and Refugee Protection Regulations (‘Regulations’) define the different classes of temporary residents and the rules applicable to each of them. There are three classes of temporary residents: visitors, workers, and students. All three classes are subject to the general rules set out in Part 9 of the Regulations (sections 179 to 190). Additionally, each is also subject to a specific set of rules: Part 10 for visitors (sections 191 to 193), Part 11 for workers (sections 194 to 209.997) and Part 12 for students (sections 210 to 222).

Section 179 of the Regulations provides a list of general requirements that need to be satisfied for a temporary resident visa to be issues either to a visitor, worker, or student, such as establishing that they will leave Canada by the end of the period authorized for their stay (179b) and meeting the requirements applicable to their class (179d).

Section 183 sets out the conditions imposed on foreign nationals once they have been granted temporary resident status. These conditions include the obligation to leave Canada at the end of the authorized period for their stay as well as the obligation not to work or study unless authorized by Part 9 or Parts 11, in the case of the workers class, and 12, in the case of the student class.

Section 181 of the Regulations allows for an extension of the authorization to remain in Canada as a temporary resident if an application to that effect is made by the end of the period authorized for the stay and the temporary resident establishes that they have complied with all conditions imposed on their entry into Canada and continue to meet the requirements of section 179.

Finally, when temporary resident status is lost, section 182 of the Regulations allows for its restoration “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.”

To apply this law, lets say a foreign national entered Canada on a work permit. One month before their work permit expired, they applied to extend it. Two months later, they receive a refusal letter from IRCC, stating that they are not eligible to extend their work permit. While this person was on ‘maintained status’ until the day that they received a decision letter, they now find themselves without status in Canada, and are in violation of section 185(a) of the Regulations.

Since they would like to stay a few months longer in Canada to wind up their affairs, they wonder whether they can restore their status to that of a visitor.

While neither the Act nor the Regulations are entirely clear on the validity of this option, Federal Court jurisprudence makes clear that it is possible, with a caveat.

In Udobong v. Canada, the court reminds applicants that: “most importantly perhaps, the case law on restoration strongly suggests that when an applicant is seeking to be reinstated in a different temporary resident class than the one in which he previously held a temporary status, “meets the initial requirements of their stay” of section 182 can reasonably be interpreted as referring to the initial requirements applicable to the class into which the applicant wishes to be reinstated rather than to the class of the TRS previously held.”

This means that a temporary resident formerly in the worker class wishing to be restored to a visitor class would have to demonstrate in their application that they meet the initial requirements applicable to the visitor class and not the worker class. In Abubacker v Canada, the court “accepted that 'meets the initial requirements of their stay' means meeting the initial requirements of the TRS that the party wishes to have restored, regardless of which status was previously held.” In that case, the foreign national had been a student and wanted their status restored to that of a worker on a post-graduation work permit. The court held that the “IRPR can be interpreted so that a student in the applicant’s situation whose study permit has expired and who needs a PGWP is required to show that he or she meets the requirements for a PGWP and not those for a study permit.”

In Udobong v. Canada, the foreign national had applied to be restored as a visitor but had stated an intention to study. This led the officer to refuse their application, which the court found reasonable. In Stanislavsky, the court noted, however, that “the current statutory and regulatory scheme does not say that a person’s initial temporary purpose must remain constant and unchanged. The only requirement is the existence of a “temporary purpose” […]”. In that case, the foreign national had been in Canada as a visitor and eventually attempted to restore his visitor status but for a different purpose than that which they had initially received visitor status for. In the court’s view, the officer should have assessed whether the newly stated temporary purpose was valid irrespective that it was no longer the same as the initial purpose for visiting.

Our temporary resident with an expired work permit, therefore, needs to satisfy an immigration officer that they meet both the general requirements put to every temporary resident, as well as the requirements for the visitor class. The officer’s analysis will focus most heavily on section 179(b) of the Regulations, or whether they will leave Canada by the end of the period authorized for their stay (IRCC: Temporary Residents: Eligibility and admissibility considerations). As part of this assessment, the officer can consider several factors, including “the purpose of the visit, its length, the applicant’s ties to Canada and to their own country, their financial ability, their travel and immigration compliance history, and their capacity and willingness to leave Canada at the end of the stay” (Singh v. Canada at para 24).

If the foreign national is successful in their application, they will have their temporary resident status restored under the visitor class as per section 192 of the Regulations.