Can a failed refugee claimant apply for a work permit in Canada, without leaving Canada?
When a person files a refugee claim in Canada, Citizenship and Immigration Canada has a conditional removal order against them as soon as such claim is made. This conditional removal order is not enforceable until all legal remedies are used by the claimant – in other words, a refugee claimant cannot be removed until he has accessed all legal methods to obtain his refugee claim, such as a hearing, an appeal, or an appeal to the Federal Court.
Once the refugee claimant loses all his legal remedies OR he loses such remedies by NOT making appeals within the time frame (15 days after the negative decision from the hearing without making an appeal), then the conditional removal order becomes “enforceable” by Canadian Border Services Agency.
30 days after the conditional departure order becomes enforceable, the order becomes a deportation order. In this case, the person must appear before an officer at a port of entry such, as an airport, to verify their departure from Canada and to obtain a certificate of departure. Upon departing Canada, such person must obtain an authorization to return to Canada before they return to Canada.
In many cases, failed refugee claimants have their work permit while they’re waiting for their hearing. Upon receiving a negative decision at their hearings, their employer(s) may wish to retain the failed refugee claimant. First, the employer must seek a positive Labour Market opinion to get authorized to hire a temporary foreign worker. Second, with a positive Labour Market opinion, the failed refugee claimant must apply for a work permit. In order for this work permit to be successful, this person must convince a visa officer that his intention to come to Canada is “temporary” (i.e. this person is willing and able to leave Canada at the end of this work permit). However, with this person’s past history of claiming a refugee status in Canada, it is very difficult to convince the visa officer that the person is willing to leave when this person did not leave after his refugee claim was in fact assessed and refused. Furthermore, assuming that this person did not leave in time, he must apply for an authorization to return, which is a discretionary application for Citizenship and Immigration Canada to assess if this person should enter back into Canada when he did not comply with Immigration and Refugee Protection Act in the first place (i.e. he did not leave in time so, he was in fact, “removed”).
In short, it is very challenging for a failed refugee claimant to obtain a work permit. In fact, it is much better for this person to seek a permanent resident status, which puts much more weight on his authorization to return to Canada, via the Ontario Nominee Program where Ontario employers may support such employees to come back to Canada as permanent residents.
If you have any individual questions or concerns, please contact our office for more customized consultation for your unique situation. Please note that this posting is for general information only and is not to be considered binding or official legal counsel since situations will vary and can be complicated. The content in this post is current as of the day of entry. Due to the changing nature of Immigration law, the information in this entry may or may not still be applicable.