Living Without Status in Canada? You May Have Options

An estimated 200,000 to 500,000 people are currently living without status in Canada. Many have lived under the radar for years, some since childhood. Others have more recently stayed beyond the validity of their temporary visitor, student or worker status—some without even realizing it.

Persons living without status in Canada on a long-term basis face difficult conditions. Those facing a medical crisis could be denied treatment. Though children without status are entitled to attend public school, some families keep them out due to fear or lack of information on their rights. Many of those who work illegally will experience poor conditions and even exploitation at the hands of their employers. Most stay silent, believing that speaking up could result in their removal from Canada.

Many live in constant fear of being discovered and ordered to leave. Others cannot be deported due to Canada’s suspension of removals to unstable countries such as Afghanistan and the Democratic Republic of Congo, but still cannot access work, education or healthcare due to their lack of legal status.

Even for those who manage to make a decent life for themselves and their families in Canada, the potential consequences of lack of legal status are serious. If discovered by the Canadian authorities, a removal order can be issued. This can lead to deportation and the denial of future entry to Canada.

Many of those living without status in Canada fear taking action to resolve their lack of status. The threat of deportation looms large. However, many people have more options than they realize, and could improve their living conditions significantly by taking steps to resolve their lack of status.

Available opportunities depend on a person’s specific circumstances, including the length of time they have been living in Canada, the reason for their lack of status, and their family situation. Options for resolving a lack of status in Canada might include:

• Restoration of Status

Those who have stayed 90 days or less beyond the validity of their temporary status can apply to restore that status. It is possible to apply to restore the same type of status (e.g. application for a new study permit after an initial study permit expires), or to restore status under a new category (e.g. application for a work permit within 90 days of visitor status expiring).

After 90 days, the restoration of status option is lost. This deadline is strict. If more than 90 days have passed, it is usually advisable that a person leave Canada before their overstay is detected where this is a valid option.

• Temporary Resident Permit

A Temporary Resident Permit can allow a person without status to remain in Canada temporarily. There must be compelling reasons to justify the person’s stay in spite of the lack of status. Valid reasons might include the hardship of family separation, a well-founded fear of harm in their country of nationality, or the need to carry out work in Canada that is beneficial to Canadians.

A Temporary Resident Permit is by definition a temporary solution. Permits are issued for a period of up to three (3) years, and can be renewed. However, a person who has stayed in Canada as a Temporary Resident Permit holder for a prescribed period may eventually become eligible for permanent residence.

• Permanent Resident Applications

Some categories of permanent residence allow for a person to apply despite the fact that they are living in Canada without status. If an individual has a spouse or common-law partner who is a permanent resident or Canadian citizen living in Canada, that individual can be sponsored from inside Canada whether or not they enjoy valid status.

Another possibility is an application for permanent residence on humanitarian and compassionate grounds, known as an “H&C application”. This is a broad category that can be used to overcome various types of inadmissibility to Canada. In evaluating an H&C application, officers will consider the best interests of any children, family reunification, health issues, establishment in Canada, and potential hardships posed by return to the country of origin.

Note that a refused refugee claimant cannot apply for humanitarian and compassionate relief until one year has passed since the refusal of their refugee claim.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to advise and assist those living without status in Canada. We can help determine available options, weigh the costs and benefits, and prepare thorough and strong applications. We invite interested persons to call us to schedule a confidential consultation.

Warren Creates is Head of our Immigration Law Group. He can be reached at [email protected] or 613.566.2839.