One of the more technically challenging, yet broad provisions under Canadian Immigration Regulation is found in Section 220.1 of the Immigration and Refugee Protections Regulations [IRPR]. This section, reproduced as a condition on a majority of study permits issued since June 2014, requires that a Canadian study permit holder remain enrolled and actively pursuing studies until they graduate.
What We Know and Don’t Know About the Actively Pursuing Studies Requirement
The basic provision reads:
Conditions — study permit holder
- 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.
Reading this provision at face value, there appear to be several undefined terms, subject to some interpretation. Based on IRCC’s interpretations and our experiences to date, we can establish several knowns, but also are left with several unknowns.
- Known – the Requirement to Actively-Pursue Studies Only Applies Inside Canada. Corresponding Unknown – what happens when you leave Canada.
We know that the provision affects a study permit holder in Canada. Therefore, and IRCC appears to have assured designated institutions of this in their consultations, a student who leaves Canada during the duration of their study permit is not required to and logically cannot actively pursue studies while in Canada.
However, I would caution students not to automatically assume that leaving Canada in the middle of a program allows them to maintain their study permit throughout their duration and return once enrollment is re-initiated. I can see a reasonable interpretation of R. 222(1) IRPR, a complementary provision, in a manner to suggest that a student who takes longer than a 90-day break between periods of studies (including those who leave Canada) have automatically invalidated their study permits.
While from my understanding, R.222(1) IRPR has generally been applied to circumstances where an individual has completed studies and has not applied to extend their study permit for a new program within 90 days, absent clear policy, there is room for a variety of reasonable interpretations.
- Known – Enrollment at a Designated Learning Institution is a requirement to maintaining a valid study permit
We also know that the requirement is for a student to remain enrolled at a designated-learning institute. Therefore, education in non-designated learning institutions or other hobby interests would not allow a student to maintain study permit status if taken as a primary study.
- Known – Enrollment is required until completion of studies
The R.221.1 IRPR provision, again read in context with R.222(1) IRPR, does not appear to allow a student to enroll, switch to visitor, and then re-engage in enrollment at a later date. Enrollment, from the provision, needs to occur continuously from the start of a program to completion.
- Unknown – What types of breaks are students allowed to take?
There is no mention in the R.221.1 IRPR provision, and it is so far absent in policy, whether there is an authority to take a break from active enrollment. Designated-learning institutions have been handed the responsibility for carving institution-specific policies around issues such as medical leaves or study breaks. These will affect how the student is report in the reporting system. However, it is unclear how in practice how a negative student report is being acted on by IRCC. It appears that currently international student cases are initiated by port of entry or inland border officers rather than IRCC.
- Unknown – What is the Definition of “Actively Pursue Studies”
IRCC’s guidance as to what constitutes the active pursuit of studies is unclear. On the face, it appears to be a highly discretionary term. IRCC has provided some form of a definition suggesting that a “student who is actively pursuing studies must make reasonable and timely progress towards the course of their studies.” However, it is not clear who is to be the judge of this, in practice. For example, a student who specifically wishes to study on a part-time basis (for example one course a semester) is permitted to by immigration law but a failure or poor grade may trigger concerns that the progress is not reasonable. Another issue arises with students who, by nature of their academic struggles, attend class on a daily basis but still fail several courses and therefore cannot proceed in their studies. These students may be placed on academic probation and ultimately limited in their ability to pursue their studies in a more timely manner. How the law applies to the two examples cited above is still largely uncertain, as I have learned from personal experience in two cases – one where we were successfully able to overturn a decision at the Federal Court and the second where the Federal Court refused to grant us leave to hear the case.
There are two categories of exceptions to this provision found under subsection (3) of R.220.1. Subsection (a) covers individual cases found under R.300(2)(a) to (i), including refugee claimants and destitute students.
The more interesting exception is covered under R. 215(2)(a) to (i) which covers select accompanying family members of study permit and work permit holders.
The requirement to actively pursue studies not does not apply to a family member of a foreign national who resides in Canada and is covered by the provision below. Family members (as covered by R.3 IRPR) covers spouses and common-law partners, their dependent children, and the dependent children’s dependent children.
- Family members
(2) A family member of a foreign national may apply for a study permit after entering Canada if the foreign national resides in Canada and the foreign national
- (a)holds a study permit;
- (b)holds a work permit;
- (c)holds a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months;
- (d)is subject to an unenforceable removal order;
- (e)is a member of the armed forces of a country that is a designated state described in paragraph 186(d);
- (f)is an officer of a foreign government described in paragraph 186(e);
- (g)is a participant in sports activities or events, as described in paragraph 186(h);
- (h)is an employee of a foreign news company as described in paragraph 186(i); or
- (i)is a person who is responsible for assisting a congregation or group, as described in paragraph 186(l).
Sub 2(a) and Sub 2(b) are the most interesting inclusions. Again, this would suggest that a study permit applicant who resides in Canada and who has a spouse who holds a study permit or a work permit, would be exempt from having to actively pursue studies if successfully granted the study permit. Based on my reading of this provision, this would have to come in the context of an inland extension as opposed to an initially applied for study permit outside Canada.
This provision clearly creates some uncertainties. Why was it not extended to study permit applicants outside Canada on initial application? Why were the spouses of permanent residents and citizens not included in this exception? The missing gaps, in my mind, suggest the need for either amendments or policy instructions to clarify what subset of individuals are in Canada with study as their secondary, rather than primary purpose.
Unfortunately, there are no clear policy guidance on this; attempting to rely on this exception may carry risk.
Challenges with Ports of Entry and Border Enforcement
One of the challenges with a violation of the actively pursuing studies requirement is that the one-year exclusion order can be made by a designated officer (a “Minister’s Delegate”) and does not need referral to the Immigration Division.
I believe this needs to be amended. From my perspective, there needs to be a baseline fact-finding determination made by an Immigration Division member to properly assess whether the student indeed was non-compliant. This would be similar to situations where an individual is accused of engaging in unauthorized work or study or misrepresentation.
The second challenge is that, from my understanding, there does not appear to be clear policy directives provided by IRCC to CBSA (port of entry and inland officers) relating to the requirement. What has subsequently occurred is a broad application and interpretation of the requirement.
In inland cases, I have seen clients issued removal orders without even having had the opportunity to provide evidence of their pursuit of studies, based only on a designated learning institution’s own email response to a CBSA inquiry. Call me jaded, but any designated learning institution facing a call from CBSA is more likely than not to put the preservation of their institution’s interests over that of any given student. It is the one reason I always advise international students to seek independent legal advice if they have concerns with their institution.
In outland cases, I have seen CBSA officers make their independent assessments of student transcripts without consulting the designated learning institution. In these cases, officers have been interpreting the requirement to actively pursue studies with the requirement for students to have reasonable performance. Without clear policy indicating whether the “actively-pursuing requirement” is a test of performance, a test of attendance (which I believe it should be), and what type of procedural fairness opportunities exist for students, I expect that results will vary.
What are the Implications for International Students?
My advice to international students, given the current nature of the law, is to limit non-essential travel outside Canada wherever possible. Where travel is required or where it is part of an authorized break, supporting documents need to be brought along. These documents can include proof of acceptance, proof of break or leave, and copies of transcripts.
Students who are between programs of study or who, due to poor performance, are on forms of academic probation should be extraordinarily cautious. These students may need to get additional documentation showing their attendance was strong and their poor performance a problem that is being actively addressed.
Ultimately, international students do not have the right to appeal under Canadian immigration law, and reviewing courts may be hesitant to step in the shoes of those officers that the law has designated to make decisions on whether a student is actively pursuing their studies.