Restoration of Status: The 90-Day Rule

How people lose status

Section 47 of the Immigration and Refugee Protection Act sets out when a foreign national loses temporary resident status. There are three situations: the period they were authorized to remain ends, an officer or the Immigration Division determines they failed to comply with another requirement of the Act, or their temporary resident permit is cancelled (subject to an exception stated in the section).

Examples of how this happens in practice include:

• The permit simply expired and no extension application was made by the end of the authorized period
• A condition was breached. Under the IRPR, s. 183(1), temporary residents are generally subject to conditions that include leaving by the end of the authorized stay, not working unless authorized, and not studying unless authorized. A study permit holder is also subject to the enrolment conditions in s. 220.1(1).

Which of these applies in a given case depends on the permit, the dates and the officer's determination.

Maintained status is not restoration

For an extension, s. 181(1) requires that the application be made by the end of the authorized period of stay and that the person has complied with the conditions imposed on entry. For work and study, the sections cited above add that the person must have remained in Canada after expiry and continue to meet the conditions of the expired permit, other than the expiry date. Whether a person is in maintained status or has lost status therefore turns on the dates, and a lawyer can confirm that.

The 90-day rule

Section 182(1) covers a visitor, worker or student who applies inside the 90-day period after status was lost because a condition under s. 185(a) (the authorized period of stay), s. 185(b)(i) to (iii) (the type of work, the employer, and the duration of work for one employer) or s. 185(c) (the studies a person may or may not engage in) was not met. After an examination, the officer restores the status if it is established that the person:

• satisfies the initial requirements that applied to the stay;
• has no breach of any other condition on the record; and
• is outside any declaration made under s. 22.1(1) of the Act, which is a Minister's public-policy ruling that a person may not become a temporary resident.

Restoration therefore involves a fresh examination of the initial requirements; it is not a simple reinstatement of what a person had.

Two further points from the text:

• Work or study without authorization. The general conditions in s. 183(1) include not working and not studying unless authorized, so work or study while status has lapsed can bear on the "other conditions" requirement. How an officer would assess a particular history depends on the facts.
• Students. Section 182(2) carves out students: status is not restored for a student who is out of compliance with the enrolment and study-progress conditions in s. 220.1(1).

The regulation does not mention temporary resident permit holders in s. 182. The fee rules do recognize them in one respect: a $200 processing fee applies under s. 306(1), but s. 306(2) excuses anyone with an unexpired temporary resident permit. Fees change, so the current amount should be confirmed.

What the process involves

1. Fixing the exact date status ended. The 90 days run from the loss of status, so the date it ended is the starting point.
2. Confirming what happened. The regulation ties restoration to a failure to comply with specific conditions, so the reason status was lost needs to be identified.
3. Applying within the 90 days. A $200 fee is set by s. 306(1) in the text reviewed for this guide; the current fee and any other requirements need confirming.
4. Gathering records. The examination looks at the initial requirements for the stay and whether any other condition was breached, so permits, dates and records of work or study are what a lawyer would typically ask for.
5. Considering location. Section 182 does not say in its text where the application must be made. IRCC's current instructions govern, so a lawyer can confirm the position.
6. Choosing the right application. An extension under s. 181(1) must be made by the end of the authorized period, so which application fits after status has ended is a question for a lawyer.

If the 90 days have passed

Section 182 allows restoration only for applications within the 90 days, and what remains depends on the facts. Options that exist in the Act include:

• Leaving Canada. A temporary resident must leave by the end of the authorized period under IRPA s. 29(2). Whether and how a person can return depends on the circumstances.
• A temporary resident permit. Under s. 24(1), an officer may issue one to a person who is inadmissible or does not meet the Act's requirements, where the officer considers the circumstances to warrant it.
• An H&C request. Section 25(1) is described in the guide on humanitarian and compassionate applications.
• A refugee claim. Under s. 99(1), a claim may be made in or outside Canada. It is a different process with its own rules.

Remaining in Canada after the authorized period is a matter the Act addresses: s. 29(2) requires a temporary resident to leave by then, a foreign national is inadmissible under s. 41(a) for an act or omission that contravenes the Act, and s. 44(1) lets an officer who considers a foreign national in Canada inadmissible prepare a report on the facts. What follows depends on the officer and the facts.

If restoration is refused

The reasons for a refusal depend on the decision. The regulation's own requirements point to the likely subjects: whether the application was within the 90 days, whether the conditions were met, and whether the initial requirements for the stay were met.

The Act's provision for Federal Court review is s. 72, which requires an application for leave. For a matter arising in Canada, s. 72(2)(b) sets a 15-day period that starts when the person learns of the decision. The process is covered in the guide to Federal Court review. Whether a given refusal can be challenged depends on the reasons and the record, which a lawyer can assess.