The Status of Foreign Students under the
Immigration A ct 1976
Julius H. Grey*
Introduction
Before the adoption of the Immigration Act, 1976,1 students constituted
a separate class of “non-immigrants”. 2 There were no specific rules for
obtaining student status and it was often acquired inside Canada by tourists
and other “non-immigrants”. Because students were treated as a separate
class, ceasing to study meant losing the right to remain in Canada for the
remainder of the time allotted in the visa.3
Under the most recent Act, students are merely one type of “visitor”. 4 If
they cease to study, they remain “visitors” until the expiry of their permit. In
short, they need not remain “bonafide students” at all times so long as they
remain “visitors”, do not stay in Canada beyond the time granted to them,
and observe all the ordinary rules imposed upon visitors in Canada. In this
way, students may be treated slightly more liberally than before. In all other
ways, however, their treatment has become more harsh.
I. General Considerations
It is, of course, of the essence of student status that it be temporary. It is
not unlawful for a student to apply for permanent residence or to hope to get
it.5 But he must intend to leave if he is unsuccessful, otherwise he is no longer
a visitor: s. 2 includes the adjective “temporary” in the very definition of a
visitor.
The Immigration Act, 1976 has treated permission to study in Canada in
a way which is almost identical to its treatment of permission to work. This is
* Of the Faculty of Law, McGill University.
‘S.C. 1976-7, c. 52.
2 Immigration Act, R.S.C. 1970, c. 1-2, s. 7(l)(O, am. S.C. 1973-4, c. 27, s. 5.
3 Sections 7(1)(f), 18(1)(vi) and 18(2). Authorities were naturally particularly sensitive
about students working in Canada and somejurisprudence resulted from this. See Anegbeh
v. M.M.L (F.C.A.) No. A-478-76, 27 September 1976, Okalakpa v. Pard (F.C.A.) No.
A-247-76, 15 June 1976.
4 S.C. 1976-7, c. 52, s. 2(1).
5See Sai Yau Fan v. M.M.L [1974] 2 F.C. 3 (C.A.).
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COMMENTS
surprising because there does not appear to be a shortage of places in
universities equivalent to current levels of unemployment. The policy
appears to be based on the fact that every student is to some extent
subsidized by the state; hence, it is argued that each subsidy must be
controlled with great care. This rationale is weakened when one takes into
account the difference between fixed cost and marginal cost. It does not cost
substantially more to increase the student body by a moderate percentage.
Nevertheless, governments have insisted on this rationale in limiting access
to our universities and in charging foreign students fees to cover both fixed
cost -which would, at least in the short run, be the same without the foreign
students -and marginal cost, which represents the actual expense to these
students.
Canada has long been a popular destination for students from all over
the world as a place to study and train. This has in part been due to the
international reputation of such institutions as McGill University and the
University of Toronto. Other causes have been the Commonwealth
connection and the difference between tuition fees in Canada and the United
States. In recent years, Canadian policy with respect to foreign students has
taken a surprising turn and this new attitude deserves careful scrutiny.
II. The Act
The sections of the Act which govern student status are ss. 10 and 26.
Section 10 makes it necessary for a prospective student to obtain his
authorization from abroad. Hence, visitors from distant lands are at a very
serious disadvantage if they change the purpose of their stay and decide to
remain as students. It should be noted that s. 10 applies to people wishing to
work as well as to people wishing to study.
Section 26 governs the loss of visitor status generally: working and
studying illegally are both included in s. 26(1)(a). Any visitor studying
illegally –
i.e., without any authorization at all, or at the wrong institution or
for the wrong course of studies- automatically loses his visitor status and
becomes subject to removal under s. 27(2)(e). 6 Unlike illegal work, however,
illegal study is not by itself a cause for removal. The removal is directly
caused by the loss of visitor status. Persons who are temporarily in Canada
other than as visitors may apparently study with impunity. This applies
primarily to holders of minister’s permits.7
6 Section 26 applies to any visitor who “without authorization, attends any university or
college, [or] takes an academic, professional or vocational course”. Fortunately, the French
version of “attends” is “suivent des cours” and therefore the visitor need not fear being found
physically on the grounds of a university.
7 However, holders of minister’s permits are otherwise in an even more precarious position
than visitors because their status can be taken away at any time (s. 37(4)) and an
administrative deportation order can be issued against them (s. 37(5)).
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IH. The Regulations
Much of the law regarding students is spelled out in the Regulations.8
The authority and guidelines for such regulation is found in s. 10 of the Act,
which permits
the
requirement of an authorization obtained outside Canada; s. 115(a), which
allows the Department to blacklist unacceptable institutions and course
programmes by regulation; and s. 115(i), which allows regulations to specify
the documents required of any class of visitor.
regulations exempting classes of persons from
Regulation 2 defines a “student authorization” as a document; this
means that, as in the case of employment, implicit authorization is not
possible. Regulation 15 governs the issuance of student authorizations and
creates two basic requirements: proof of admission to a recognized
institution, and proof of financial means. If follows that a “general” student
authorization does not exist: a visitor can only receive the right to study a
particular subject at a specified institution. Once again the parallel between
employment and studies becomes very clear.
As in the case of employment, it is possible to violate the law not only by
studying without permission but also by studying at the wrong institution or
the wrong subject. Under s. 26 of the Act a visitor who does this forfeits his
status and must leave Canada.
Regulations 15(2) and 16 exempt certain persons from the requirement
of applying for an authorization from outside Canada. The most important
group exempted is that of holders of subsisting authorizations. If the
exemption did not exist, a renewal would be impossible and student status
would be of little practical utility since few degrees can be completed in one
year. There are other listed classes of exempt persons but they are not of
great practical significance. 9
Regulation 17(1) states that no course of less than six months duration or
24 hours of weekly instruction can be accepted for an authorization. It
would seem that this is a gratuitous intervention of government in purely
academic questions and a justification seems unlikely to prove convincing.
Regulation 17(2), on the other hand, forbids the awarding of student
authorizations to students of institutions listed on a special schedule; this
serves as a recognition of the fact that so-called institutions of learning have
at times turned out to be fronts for the sole purpose of getting persons into
the country.
One serious lacuna in the Regulations involves refugee status. A person
who has applied for refugee status, but whose case has not been decided, is
8lmmigration Regulations (1978) S.O.R./78-172.
9 One wonders why Americans, who least needed an exemption, received one. They may
apply at any port of entry under reg. 14(2).
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COMMENTAIRES
exempted by reg. 19(3) from the requirement that he obtain an employment
authorization outside Canada prior to arrival. He may apply for work
during the time his application is being considered, which is often a lengthy
period of time. No such exemption exists for student status unless one takes
literally the suggestion that only visitors are prohibited from studying. 0
There seems to be no way that a refugee applicant can study without risking
removal. In any case, many refugee applicants are visitors and therefore s. 26
applies to them. Since people who apply for refugee status are very
frequently at an age when studies are important, it seems unjust to block
them in this indiscriminate way. There seems to be no advantage to Canada
in this policy. On the contrary, it appears that since many of these applicants
will ultimately remain in Canada, we should do nothing that would make
them less prepared to adapt to this country. If anything, one could argue that
refugee applicants should be exempted from foreign student fees, both in the
interests of Canada so that they not become a burden in the future and as
part of our international, humanitarian duties.
IV. Practical Training
One of the most difficult parts of the law in this area, and one where
employment and studies do touch, is that of practical training. Many
courses require some remunerated work as part of the curriculum.” This is
particularly the case in many professional and vocational programmes.
While permission for work which is strictly necessary for a degree has usually
is tough with other
been granted, the Department of Immigration
applications and has often required clearance from Canada Manpower. For
similar reasons, the Department is not well disposed towards applications
for part-time employment for students; it is clearly risky to make such an
application, even on the basis of great need, because the renewal of the
applicant’s visa could be denied under reg. 15.12 Unlawful work is now an
automatic ground for loss of student (or other visitor) status under s. 26 of
the Act. In the past the law was more lenient on this point. 3
l0Thus someone without any status or possessing a ministerial permit would simply
proceed to study without formalities.
II E.g., accounting clerks, articling lawyers, medical interns.
12 Technically speaking, of course, it should not be dangerous to make an application. See
Sai Yau Fan v. M.M.I., supra, note 5.
13 See Narain v. MM.L [1974] 2 F.C. 747 (C.A.): this is not a case involving students but
the same principles apply as in Anegbeh v. M.M.L, supra, note 3, and Okolakpa v. M.M.L
t1977] I F.C. 437 (T.D.).
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V. Jurisdiction Problems
An agreement between the federal government and Qu6bec 14 reached in
1978 has transferred much of the discretion in granting student visas to the
Qu6bec authorities. The Regulations under the Immigration Department
Act 5 adopted on 13 December 197816 reflect the determination of Qu6bec
authorities to occupy this field.17 They force prospective students to obtain a
provincial permit before arriving in Qu6bec to commence their studies. The
requirements of this permit do not differ substantially from those under the
federal Act and Regulations.
Unfortunately, given the fact that the federal Act still applies and hence
that most of its requirements could not lawfully be waived, 18 the foreign
student in Qu6bec now carries the burden of having to make two successful
applications.
Clearly, once a student authorization is issued, the provincial authorities
no longer have any power and cannot remove an individual in mid-stream;
at that point they can only refuse to renew. The sole procedure for removing
individuals is found in the federal Immigration Act.
It would not be difficult to formulate a challenge to the validity of the
federal agreement with Qu6bec or at least to question its binding nature. The
agreement must be justified under s. 109(2) of the federal Act – but it does
not necessarily follow from s. 109(2) that a complete delegation of
discretionary powers is contemplated. A student who is refused a Canadian
student authorization merely because Qu6bec refused to admit him would
have a strong case in mandamus proceedings, to force federal officials to
consider him independently of the Qu6bec issue.
Conclusion
This writer has previously expressed the view that the present Act is very
severe indeed with respect to students. 19 For instance, the prohibition on all
14Agreement between the Federal Government of Canada and the Gouvernement du
Qudbec with regard to co-operation on Immigration matters and on the selection offoreign
nationals wishing to settle either permanently or temporarily in Quibec [referred to as the
Cullen-Couture Agreement], signed in Montr6al, 20 February 1978.
15S.Q. 1968, c. 68, am. S.Q. 1978, c. 82.
16A.C. 3834-78.
17 It would be reasonable for a province which finances students to decide how many
foreigners to subsidize. On the other hand, the “cultural” aspects of Quebec’s control have
given some cause for anxiety to Qu6bec’s English institutions, and the international aspects
of student exchange may seem somewhat incongruous with the notion of provincial control.
See Institute of Public Administration, Immigration Policy Making (1976).
18 See R. v. Catagas (1978) 81 D.L.R. (3d) 396 (Man. C.A.) where Freedman C.J.M. held
that a government does not have the power to waive the application of the law.
19See Grey, The New Immigration Law: A Technical Analysis (1978) 10 Ottawa L. Rev.
103.
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COMMENTS
“illegal studies” smacks of obscurantism and narrow-mindedness. Cases
which turn on whether an individual attended a class prior to applying for a
change of universities20 – and therefore is subject to deportation-or
applied before going to class, are on the verge of total absurdity.
Furthermore, why is it reprehensible for visitors to study a language or
attend some lectures while in Canada? It seems very dangerous to outlaw
learning for any reason, laudable though the justification may be.2′
Another somewhat disquieting side of student authorizations has been a
certain high-handedness and strict reading of the statute by certain officials.
The fact that the Department chose to press cases like Olegbade v. M.M.L, 22
Adegbola v. M.M.L, 23 Sai Yau Fan v. M.M.L24 and Fadahunsi v. M.M.L25
leads one to the conclusion that the law should be much more lenient or at
least more leniently interpreted. A student who has embarked upon a course
of studies has invested both money and time in his endeavour and it is unfair
to stop -him from completing his course for any but the most compelling
reasons. 26 Even where a student has violated the law it seems reasonable not
to take Draconian measures. For instance, it would seem appropriate to
postpone inquiries until after the end of the academic year for students in
their last year, save in cases involving heinous crimes. It would also seem
reasonable to grant departure notices, which would make it possible for the
student to return (presumably chastised), rather than to insist on deportation
orders which continue in force for the individual’s lifetime.27
It is somewhat surprising that no rules have been adopted to guarantee
renewal of student status to persons who have broken no laws. Student
20See Bernard Sariel, Adjudicator Decision under the Immigration Act (A.D.I.A.)
No. 9529-1-00985, 20 April 1979.
21 One way to soften the effect of the present law would be to interpret s. 10 of the Act to
refer to a whole “course” of studies under reg. 15. In other words, sporadic studying would
not be covered at all and courses not qualified under regs. 15 and 16, e.g., courses of less than
six months’ duration, would be open to non-residents without special authorization and not
forbidden to anyone. There are no decisions on this at present. However, reg. 16(6) may
help visitors wishing to study on a casual basis.
22 (A.D.I.A.) No. 2495-6-3825, 6 August 1979. This case is still before the Department on a
refugee claim.
23 (F.C.A.) No. A-327-76, 9 August 1976. In this case, a student who was deported because
his visa was renewed three weeks late was left without remedy despite the Federal Court’s
evident sympathy for him. Appeal dismissed by the Supreme Court of Canada without
comment, [1980] 1 S.C.R. 758.
24 Supra, note 5; the case involved a discretionary refusal to prolong a visa which
fortunately contained an error of law sufficient to quash.
25 [1977] 2 F.C. 65 (F.C.A.); the case involved another discretionary refusal corrected by
the Court of Appeal on the basis of error of law.
26 An analogy can be made with the English case of Schmidt v. Secretary of State [1969] 2
Ch. 149 (C.A.).
27The recent case of Re Ng and M.E.L (1981)126 D.L.R. (3d) 187 (F.C.A.) may be seen as
a step, albeit a tentative one, in this direction.
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to make judgments with respect to academic matters
status is never a right; it is always possible for officials to send a student
home, even before his final year, not because of any transgression on his part,
but as a matter of discretion. This has at times been attempted in
circumstances which are difficult to excuse. Clearly, pruning in this area
should be done by universities themselves. If the intention is to prevent
abuse by perpetual students, then the objection to allowing immigration
officials
is
overwhelming.28 If, on the other hand, the purpose for the broad discretion
is precisely to permit Canada or its provinces to carry out their political,
demographic and educational goals more effectively, the provisions seem
even more objectionable. A country may have wide discretion concerning a
student’s initial acceptance; to throw him out in the middle of his studies
seems inconsistent with the ordinary practices of democratic governments. 29
In conclusion, student status is one area where the Immigration Act,
1976 seems too harsh and too peremptory. Since universities require
international exchanges in order to be truly excellent and since the
individuals involved deserve some security, it is suggested that the law and
regulations be modified.3 0
2See Olegbade v. M.M.L, supra, note 22; Wilson Ikeani v. M.M.L (A.D.I.A.)
No. 2495-6-02838, 9 April 1976.
29 See Schmidt v. Secretary of State, supra, note 26. One wonders if sudden and dramatic
changes in fees in the middle of a student’s course are not similar in effect to a non-renewal of
a visa.
30 One way of doing this would be to grant students who have begun their studies an appeal
to the Immigration Appeal Board. Presently there is no such appeal. This would show that
students are not quite as insecure as other visitors but share some of the rights of permanent
residents. Another helpful change would be to grant adjudicators the discretion to decide
not to issue an exclusion order even if a student has committed an illegal act. It hardly seems
fair to deprive someone of his whole career because of a minor transgression, e.g., working
for one day, or even a minor theft. At present students are subject to removal like all visitors.
See Lee v. M.E.L (1979) 30 N.R. 575 (F.C.A.), where the student escaped for a technical
reason, and supra, note 27. The only discretion is that of the Deputy Minister under s. 27(3)
of the Act and that discretion is often illusory. There is therefore no recognition of a
student’s special status.
