The COVID-19 pandemic or Coronavirus has affected Canada’s immigration policies. These policies restrict travel and have delayed immigration procedures.  First put into force in March, some of these have changed, or had to be extended multiple times.

Currently, only certain foreign nationals can enter Canada, removal orders are suspended, most appeals of immigration decisions are on hold, and Immigration, Refugees and Citizenship Canada (the “IRCC”) is only processing certain applications.

Some of these changes are running on a “for the time being” basis, while others have set expiry dates.  The Order restricting travel from the United States is set to expire on June 21, and the Orders restricting travel from everywhere else and imposing mandatory quarantines are set to expire June 30.  However, don’t plan on travel being back to normal by July, as these rules, or ones like them, are likely going to keep being extended for the foreseeable future.

This article will break these down into two sections: Entering Canada, and Staying in Canada.

Entering Canada

Right now, your ability to enter Canada depends on your Canadian status, place of departure, purpose of travel, and a plethora of other factors that make up your unique circumstance.  Understanding the options, identifying which one is best for you, and preparing for the trip will take time, and may significantly benefit from speaking with a Canadian immigration lawyer.

Citizens and permanent residents have a constitutional right to enter Canada, but that does not mean they are unaffected by the changes.  Some immigrants can enter if they are travelling for a non-discretional purpose.

In order to board a flight to Canada, a person must not be exhibiting the symptoms of Coronavirus (“fever and cough, or fever and difficulty breathing”).  There is also a 14-day mandatory self-quarantine period, which anyone entering Canada has to be prepared for.

Is Canada still letting in immigrants during COVID-19?

It depends. Foreign nationals (people who are not Canadian citizens or permanent residents) are prohibited from entering Canada, unless they are travelling for an essential (non-discretionary and non-optional) purpose, and fall under an exemption.  Because Canada has special agreements with the United States, the exemptions apply differently for those travelling from the U.S.

a) What is essential travel?

There is no single definition for essential travel.  Different sets of occupation and security-based exclusions have been chosen by different jurisdictions and in different contexts.  This is why Ontario might classify transportation by air, water, road and rail as essential services, but you can’t enter Canada with your boat to establish a new ferry route for Manitoulin Island.

For the purpose of entering Canada, travel must not be “for an optional or discretionary purpose”.  The terms “optional or discretionary” leave a lot of room for interpretation, but that doesn’t mean they are broad or inclusive.  In fact, from what we can gather it seems a narrow reading is most accurate.

The interpretation is informed by some examples:  tourism, recreation or entertainment are not essential.  But practically speaking, whether an individual’s travel is “essential” is decided by the Canada Border Services Agency (CBSA) officer screening that person at a point of entry.  Previous decisions and CBSA statement are the best indications we have at the moment for what counts as essential travel, and what doesn’t.

For example, foreign nationals recently coming to Canada primarily to “ride out” the pandemic have been refused entry.  Coming to Canada to reunite with a spouse or parent also doesn’t seem to be enough without more details.

The CBSA has suggested that coming to Canada for work or study, critical infrastructure support, economic services and supply chains, shopping for essential goods, or health or security are essential.  However, given the narrow interpretation being used, these shouldn’t be taken too optimistically.  Work, for example, which can be done remotely may not be considered ‘essential’ enough a purpose to travel.

Incoming immigrants should not be discouraged, but prepared.  The onus is on the person seeking entry to Canada to demonstrate that their travel is not optional or discretionary.  They should bring documents that support that purpose.  If you are traveling to be with a family member who needs your support, perhaps get a doctor’s note explaining their need, or emails demonstrating you have experience caring for the person.  If you are traveling for work, you might want to get a letter from your employer explaining why your role is essential and cannot be done remotely.  The exact steps depend on your unique circumstances.

b) Exemptions for travellers from any country other than the United States:

If you are entering Canada from any country other than the U.S., you must fulfill two requirements.  In addition to traveling for an essential purpose, you must be a person who is exempt from the travel restrictions.

You also must not be exhibiting symptoms of the Coronavirus, and be able to meet the quarantine order (discussed below).

A foreign national is exempt from the travel restrictions if they are:

• an immediate family member of a Canadian citizen or permanent resident

[“Immediate family member” above means:

1. the spouse or common-law partner of the person;
2. a dependent child of the person or of the person’s spouse or common-law partner;

• a dependent child of a dependent child of the person or of the person’s spouse or common law partner;

1. the parent or step-parent of the person or of the persons’ spouse or common-law partner; or
2. the guardian or tutor of the person.

“Dependent child” here means: a person being under 22 years old and unmarried, or having depended substantially on financial support from the parent since the age of 22 and unable to be financially self-supporting due to a physical or mental condition.];

• a person who is authorized, in writing, by an immigration officer or a consular officer of the Government of Canada, to enter Canada for the purpose of reunited immediate family members

[It is worth noting that this exemption is somewhat broader than the first exemption, as it allows the grandparent(s) of a Canadian citizen or permanent resident to enter Canada, though it is also a more cumbersome process.];

• a person whose application for permanent residence was approved and who received written notice of the approval before 12:00pm (EDT) March 18, 2020, but who has not yet become a permanent resident;
• the holder of a valid work permit or study permit;
• a person whose application for a work permit was approved and who has received written notice of the approval, but who has not yet been issued the permit;
• a person whose application for a study permit was approved, and who received written notice of the approval before 12:00pm (EDT) on March 18, 2020, but who has not yet been issued the permit;
• a person permitted to work in Canada as a student in a health field for the primary purpose of acquiring training, with written approval from the body that regulates that field (e.g. the College of Nurses);
• a person permitted to work in Canada as a provider of emergency services for the protection or preservation of life or property;
• a licensed health care professional with proof of employment in Canada; and
• a person who has been invited or designated by certain government officials.

This is not a complete list.  More information is available from the IRCC here. In addition to the exemptions, this travel ban does not apply to:

• a person registered as an Indian (indigenous Canadian) under the Indian Act; and
• a protected person (refugee), who has already had protection conferred upon them by a Canadian immigration officer or the Immigration and Refugee Board, and whose claim was not subsequently deemed rejected.

c) Entering Canada from the United States

This applies to any foreign national entering Canada from the United States, not just U.S. citizens or other specific status holders.  A foreign national can enter Canada from the U.S. if:

• the travel is not for a discretionary or optional purpose;
• the person is not exhibiting symptoms; and
• the person is able to meet the quarantine order requirement (discussed below).

The prohibition for people exhibiting symptoms and people unable to meet the quarantine order does not apply to foreign nationals permitted to enter Canada for the purpose of making a claim for refugee protection.  However, this is currently a narrow group of people, limited primarily to some U.S. citizens and unaccompanied minors.

Can Canada Deny Entry to a Canadian Citizen Based on Coronavirus?

Probably not.

The Canadian Charter of Rights and Freedoms guarantees every citizen the right to enter, remain in and leave Canada.  This is subject to reasonable limits, like requiring the person present their valid passport, but it would be an extraordinary move for the Government of Canada to start broadly prohibiting citizens from entering the country.

Asymptomatic citizens and permanent residents are able to return to Canada by any port of entry, including by air.  Airlines running flights to Canada are required to assess if a person is symptomatic, and will prohibit people with symptoms from boarding.  Airlines also require passengers to wear non-medical masks during flights.

Symptomatic citizens and permanent residents can still enter Canada by land, rail and sea.

What are the temporary residence: COVID-19 program delivery changes and timeline?

Delays, extensions, and additional filing.

The IRCC is still processing applications for work permits and study permits.  Processing of visitor visas and Electronic Travel Authorizations (“eTA”) are paused for the time being, meaning applications (and fees) will be accepted but not processed, unless an exemption applies.

a) Extension for submitting biometrics

For many applications, the deadline to provide biometrics has been extended until the biometric site nearest the applicant reopens.  If the visa application centre, U.S. application support center, or Service Canada office nearest you is closed, your deadline has automatically been extended, and your application should not be refused for failing to provide biometrics.

This also affects the processing of many applications is delayed until these biometrics can be submitted.  Once the site nearest you is reopened, you should make an appointment as soon as possible.  The IRCC is providing information on which biometrics sites are closed on their website.

b) Work and study permits

If you are applying for a work permit or study permit, you can apply online, or at the Canada-U.S. land border if you are permitted to enter Canada from the U.S.  If your application is approved, you still must fall under a travel exemption and the essential purpose requirement in order to enter Canada.

Travelling for work or study may not qualify as essential travel, and additional documents may be needed to demonstrate to a CBSA officer that it is.

All temporary foreign workers, once approved, are exempt.  No additional steps are needed to take advantage of this exemption, except providing officials with the written notice of approval from the IRCC while travelling.  Chaudhary Law Office provides more information about types and the terms of Canadian work permits here.

Only some temporary foreign students are exempt on the basis of their study permit.  If this does not apply to your study permit, you may still be exempt under another exemption.

c) Visitor visas and eTAs

Processing of visitor visa and eTA applications is in a pause period, currently set to end June 9 2020.  This has been extended previously, and may continue past June 9.  Applications will not be processed until the pause is lifted, unless the applicant applies for an exemption.

If you are exempt from the travel restrictions or are coming from the U.S., and are entering Canada for an essential purpose, your visitor visa or eTA application can be processed.  The steps you should take depend on the type of application, and whether it has already been submitted.  Details are available on the IRCC website.  Whichever process applies, you need to identify an exemption you fall under, notify the IRCC of it, and provide proof that it applies and that you are travelling for an essential purpose.

 

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Who is eligible for express-entry during COVID-19?

The express-entry program is a points-based system to quickly acquire permanent resident status for economic immigrants in the Federal Skilled Worker Program, Federal Skilled Trades Program, and Canadian Experience Class.  Applicants create an online profile and are assigned points based on information therein, like work experience and academic achievement.  The IRCC sends out invitations to apply to the highest scoring candidates in the pool every two weeks or so.

The program is still running during Coronavirus, and it is expected that invitations will continue to be sent out at normal intervals.  While the number of points needed to receive an invitation has been trending upward, this predates the Coronavirus, and it is unclear if or how the pandemic will affect the number of invitations.

The FSW (Federal Skilled workers) and Canada Experience Class and Federal Skilled Trades programs are functioning, as usual. No changes to these programs have yet been announced.

What Can I Do Once I Am in Canada?

Quarantine yourself after you have just entered Canada.

Anyone entering Canada must quarantine themselves for 14 days, or longer if they develop symptoms of the Coronavirus.  If you don’t have access to an appropriate place to quarantine, the government of Canada has set up quarantine facilities.  The quarantine period does not prevent you from leaving Canada if you have to leave Canada before the 14 days is up.

Plan for this quarantine. You may be asked about your quarantine plan by a CBSA officer.  If it conflicts with the purpose of your travel, or if your quarantine plan suggests to the officer that you can fulfill your purpose remotely, you may not be granted entry.

If you are entering Canada for work or other obligations which cannot be done from quarantine, you may want to consider coming at least two weeks ahead of when the work starts.

The quarantine must not be done in a place with vulnerable person(s), but can be done there if the vulnerable persons are consenting adults, your parents, if you are a minor, or your children (if they are minors).  A “vulnerable person” is someone who has an underlying medical condition that makes them susceptible to complications relating to the Coronavirus, has a compromised immune system from a medical condition or treatment, or is 65 years of age or older.

A few exceptions exist to this for asymptomatic people, including:

• aviation crew members;
• licensed healthcare professionals employed in Canada;
• people already permitted to work in Canada providing emergency medical services;
• people arriving in Canada to receive emergency medical services;
• transportation crew members;
• people working on fishing vessels;
• members of the armed forces;
• and people who have been invited or designated by certain government officials.

Staying in Canada

The CBSA has said it is suspending all removals, other than those related to serious criminality and security, for the time being.  This may be a good opportunity to get ducks in a row for those who have not established status in Canada, or whose status needs to be renewed.

What if my Canadian permanent residency has expired?

Your permanent resident status may not have expired, but your permanent resident card might have.

Permanent residents have many of the same privileges as citizens, including the ability to enter Canada.  You are still a permanent resident if your permanent resident card expires, though you may not able to allow entry to Canada until it is renewed or replaced.  You can apply to renew or replace your card on the IRCC website here.

It is possible for a person to lose permanent resident status if, for example, they fail to maintain residency obligations, a removal order it made against them (e.g. they are found to be inadmissible or guilty of serious criminality), or they renounce their permanent resident status.  In this case, the person may still benefit from the temporary stay of removals (above).

If you have lost permanent resident status due to the decision of an immigration office, you may still be able to challenge that decision.

Is it possible to appeal Canada immigration refusal cases?

Immigration services are not the only services affected by COVID 19.  Appeals are taking place, though a hearing might not be held for a while.  The following affects clients and immigration lawyer Toronto.

The decision of a visa officer or immigration officer can be appealed to the Immigration Refugee Board (“IRB”) Appeal Division, or judicially reviewed by a Federal Court judge.  Both processes are currently suspended, and filing deadlines have been extended.  Information about appealing an immigration decision and how Chaudhary Law Office may be able to help is here.

Sometimes, before a negative decision is issued, an applicant is asked to respond to concerns raised by the officer.  When this happens, the officer sends what is called a procedural fairness letter (“PFL”) to the applicant, putting them on notice and giving them a chance to placate the officer’s concerns.  It is recommended that applicants obtain advice from an immigration lawyer in Canada when responding to a PFL.  Information about PFLs can be found here.

Challenging a decision does not automatically or necessary stay a removal order, but a stay can then be granted by the IRB Appeal Division or Federal Court, under certain circumstances.

a) IRB deadlines suspended

The IRB has suspended most in-person hearings and mediations, as well as document submission deadlines, until further notice.  When in-person hearings resume and hearings are scheduled, participants will be given 30 days’ notice of their hearing date, whether it is a new hearing or one which was previously scheduled and delayed.

The deadline to file a Notice of Appeal (the first step in appealing a decision) varies depending on the type of decision, though in many cases is 30 days after receiving the decision.  If this deadline fell after March 16, it will be extended until the IRB posts a resumption notice on their website, plus 30 days.  People seeking to appeal a decision should watch the IRB for this resumption notice.

Documents that were due after March 16, such as a response to a PFL, will also not be due until 30 days after the resumption notice.  The Appeal Division is also accepting documents, including notice of appeals and submissions, by email.

b) Federal Court deadlines suspended

Filing deadlines in relation to Judicial Review to the Federal Court under Immigration and Refugee Protection Act and the Citizenship Act, are also suspended.  The suspension period for the Federal Court began March 16, and is currently set to expire on May 29.  It is not expected to be extended.

Deadlines which would have expired after March 16 have been extended by the length of the suspension period, plus fourteen days.  This means a deadline which would have expired on March 16 will now expire June 12, and a deadline originally set to expire March 17 will now expire June 13, and so on.

This does not prohibit people from filing during the suspension period.  Many filing fees have been waived during the suspension period.  Filing for the Federal Court during the suspension period should be done electronically.

How to extend international student permits and work permits?

Chaudhary Law Office has provided a previous post about staying in Canada for temporary residents, available here.  In short, temporary workers, students and visitors can apply to extend their status during Coronavirus.  We are  immigration lawyers in Toronto.

Temporary visitors can do so with a visitor record.  Temporary workers can apply to extend or change the conditions of their work permit.  Temporary students can apply to extend their study permit.

If you wish to make one of these applications, it may be made 30 days (or less) before your current status expires.  Once the application is made, you will be able to remain in Canada while it is being decided.  A number of documents must be included in these applications, and applicants should begin preparing for them well ahead of time.

Other Important Immigration Information and COVID-19

It is important to note that the instructions regarding entering Canada are interpreted by the Canada Border Services Agency, despite being produced by a different department, (i.e. Immigration Refugees And Citizenship Canada IRCC).  The mandate of the former agency is often to remove people from Canada and to protect Canadians.  The mandate of the latter is to assess who qualifies to enter Canada.  Thus there is a significant degree of inconsistency in the interpretation of the Covid-19 changes to who enters Canada.  Legal advice from an immigration lawyer in Toronto such as Max Chaudhary and Chaudhary Law Office may be of use to interpret the chances of success for entering Canada.

Does Canada intend to change its immigration policy in the future?

In the meantime, the long term intention of the Canadian government is to be permissive more than restrictive on the matter of immigration to Canada.  The immigration department intends to admit 341,000 permanent residents in 2020, 351,000 in 2021 and 361,000 in 2022, which are record high numbers of immigrants.

How to choose an immigration lawyer best suited for your needs

Recent reports suggest exclusion orders may be issued against foreign nationals who have been refused entry multiple times.  Many of these reports are generated at the Greater Toronto Enforcement Centre.  To avoid this, it is best to learn the chances of success if you can enter or stay in Canada before taking action.  The Greater Toronto Enforcement Centre is a large hub of CBSA officers who often interact with immigration lawyers Toronto.

As we have said, your options and the actions needed will depend on your unique circumstances.  Chaudhary Law Office exclusively practices immigration law, and has experience with immigration services such as temporary residence, permanent residency, citizenship, immigration appeals, and judicial reviews. Max Chaudhary is the managing lawyer.

Learn more about Chaudhary Law Office and how our Canadian immigration lawyers can help you.

Book a consultation today