Authored by Maxwell Musgrove, Lawyer, Chaudhary Law Office.
The opinions expressed are those of the author.
Currently, the rules for international students in Canada include an important but often overlooked forgiveness provision. This may sound surprising, as many international students or former international students in Canada experiencing immigration difficulties find that small missteps have large consequences. However, it is often about timing.
The conditions imposed on study permit holders, and the forgiveness provision, are found in sections 220.1(1) and 221 of the Regulations:
Conditions — study permit holder
220.1 (1) The holder of a study permit in Canada is subject to the following conditions:
(a) they shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies; and
(b) they shall actively pursue their course or program of study.
Failure to comply with conditions
221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless
(a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;
(b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or
(c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.
Of this, paragraph 221(a) is unintuitive, but serves an important role. Its effect is to allow students who breach the conditions of their study permits, and get away with it, a chance to return to compliance. If they do so, they can be eligible to apply for a new study permit after six months. This is particularly useful for students who failed to remain enrolled in their studies, or failed to actively pursue them, so may need an extension before they complete their program.
While this is merciful, it is limited. The requirement to resolve the breach for 6 months before getting a new study permit means that if a person has taken a longer break from their studies, or took a break near the end of their program, the expiry of their initial permit may prevent them from availing themselves of paragraph 221(a) without first leaving Canada. Taking a break from studies can also affect a student’s PGWP eligibility, and paragraph 221(a) may not resolve that.
While non-compliance should not be encouraged, there may be good reasons some student may fail to comply with the conditions to remain enrolled and actively pursuing their studies, including serious health issues or family crisis. The Government needs the authority to cancel the status of non-compliant individuals, but does not need to be able to detect that non-compliance immediately. The forgiven of paragraph 221(a) is important for individuals who take a one or two term break from their studies, but return to those studies and earnestly pursue them.
Delayed enforcement is therefore functional, as it allows pathways to normalize status for those who have taken breaks in their studies allows the objectives of the system to be achieved and enforcement resources spared.
Under the current system, compliance is often only assessed at the time the new study permit application is received. This delayed assessment is important for paragraph 221(a) to function, as it gives students who have fallen out of compliance for one reason or another to correct themselves and, hopefully, become enrolled again and show that they are actively pursuing their studies.
The Government has proposed changes to the Regulations which have the potential to dimmish this important regulatory scheme. The proposed changes give the Government the important authority to request information from post-secondary institutions in order to verify letters of acceptance, and compliance generally. The text of one part of the proposed regulations requires post-secondary DLIs to:
…provide a compliance report that sets out, for each foreign national who has been accepted to that institution, their enrolment status and an indication of whether they are actively pursuing their course or program of study…
…provide any further information that the Minister requires in relation to study permits or applications for study permits that name the institution, or otherwise in relation to the administration of this Part.
This authority for the Government to request information, with little clarity as to the limits, and the fact that these requests are made to the schools without the opportunity for individual students to contest them, gives enforcement a shiny new tool to detect non-compliance. If these new regulations come into effect, they risk eroding the forgiveness provided for by paragraph 221(a), through over-vigilant rapid enforcement.
By giving itself the power to request information on the enrolment status of all international students, and any further information the Minister requires, the Government will be able to identify non-compliance more quickly and frequently. It can then cancel the study permits of students who are not complying, and eliminate the opportunity to return to compliance. This only creates more out-of-status foreign nationals in Canada.
The government should be careful how it uses this new power, and international students should be aware that enforcement of the conditions on them might be enforced more heavily going forward.
