Canada’s immigration system offers various legal avenues for undocumented individuals seeking to regularize their status. The options are designed to address the unique circumstances of each individual, taking into account factors such as family ties, economic contributions, and humanitarian considerations.

A person in Canada becomes undocumented if they entered Canada without legal authority or after entering Canada they lose their immigration status. Losing immigration status can happen in varity of ways, but in most common scenario, it happens when a foreign national either fails to extend their immigration status or their application for extension is denied.

The exact number of undocumented people living in Canada is unknown, as there is no official data on this population. However, some estimates suggest that there are between 200,000 and 500,000 undocumented residents in the country, with the majority concentrated in Ontario, Quebec, and British Columbia.

Canadian immigration lawyers are often faced with task representing individuals that have resided in Canada illegally. Some of them may even have worked or studied in Canada without authorization. Under this scenario, let us explore what are legal options available for these undocumented foreign nationals.

Temporary Resident Permits (TRPs)

TRPs provide a temporary solution for those who are otherwise inadmissible to Canada, including being out of status. These permits are granted on a case-by-case basis, often for individuals who can demonstrate compelling reasons to remain in Canada despite their lack of status. There needs be a legal justification to remain in Canada, and there is no list of criteria written in stone regarding what constitutes justification. For example, in dealing with many cases over the years, a TRP may be issued based on a pending interest in a provincial immigration nomination program, public interest in the continuation of critical work, or the opportunity to avail of a permanent residence program for undocumented workers. TRP can also be issued if you are fleeing family violence or if you are fighting a case at the court. This permit is highly discretionary, meaning the officer decides, and most of the time, it is the facts of the case which help is persuading an officer whether you should be granted this permit. If successful you will regain your immigration status and under limited circumstances you can be also avail an open work permit.

Permanent Residence Pathways

Canada is developing new pathways to permanent residency for undocumented workers. These initiatives recognize the economic and social contributions of undocumented residents, many of whom work in essential sectors like construction, caregiving, and agriculture. The federal government is exploring options to regularize the status of those who have been contributing to Canadian communities, with a focus on addressing the vulnerabilities associated with their lack of status.

At the moment it is not entirely clear when and if this program will be launched. There is also no clarity on what the requirement for this program will look like. However, if history is of any guide, it is safe to assume that if this program is launched it will likely have limited quota and there will be a strict criterion. Basically, not everyone that is undocumented in Canada will qualify under this program.

Humanitarian and Compassionate Grounds Application

However, for some undocumented residents in Canada, there may be another option to apply for permanent residence. Canadian immigration law allows access to extra ordinary measure to address unique situations. The humanitarian and compassionate grounds application for permanent residence is a special type of application that considers the circumstances and hardships of the applicant, as well as their establishment and integration in Canada. The application is not based on any specific criteria, but rather on a case-by-case assessment of the applicant’s situation and the best interests of any children involved.

Something to keep in mind, each application is evaluated individually and holistically. However, some general factors that may be considered:

  • The length of time the applicant has lived in Canada
  • The ties the applicant has established in Canada, such as family, community, and work relationships
  • The difficulties the applicant would face if they had to leave Canada, such as discrimination, violence, or lack of opportunities
  • The impact of separation from relatives in Canada, especially children
  • The degree of hardship the applicant would face in their country of origin, such as human rights violations, poverty, or health risks
  • The best interests of any children affected by the application, whether they are in Canada or abroad

These factors are not exhaustive, and other relevant circumstances may also be taken into account. The applicant must provide evidence to support their claims and demonstrate how they meet the humanitarian and compassionate grounds consideration. The evidence may include letters, affidavits, reports, certificates, or other documents.

There is no guarantee that a humanitarian and compassionate grounds application will be successful, as each case is decided on its own merits and the application is highly discretionary. The application process can also be lengthy and complex, taking several months or even years to complete.

The applicant must also be prepared for the possibility of refusal, which may have negative consequences for their status and future options. A refused application does not entitle the applicant to an appeal, although they may seek judicial review at the Federal Court of Canada. Therefore, it is advisable to consult with a Canadian immigration lawyer before applying on humanitarian and compassionate grounds.

If you need help or have questions, make the right call and talk to us today. We can help evaluate the strengths and weaknesses of your circumstances and explore other possible alternatives.