When it comes to Canadian immigration, applicants can choose to retain the services of an authorized immigration representative – lawyers or regulated immigration consultants – or they can just opt for preparing the immigration application themselves. Immigration, Refugees and Citizenship Canada (“IRCC”) has conveyed this to the public in unambiguous terms in their website:

“You don’t need to hire a representative!”

As if the bold letters and exclamation marks were not enough, IRCC continues:

“You can get all the forms and instructions you need to apply for a visa, a permit or citizenship for free on this website. If you follow the instructions, you should be able to fill out the forms and submit them yourself.”

Any reasonable and well-informed person would conclude that hiring a representative is in fact unnecessary. After all, you should be able to rely on the instructions of a federal government department of a country where the rule of law and compliance with legislation is the norm rather than the exception and following such instructions would be enough. Not necessarily so!

What if those instructions have no legal basis? What if following those instructions blindly could result in applicants losing their ability to work or have health coverage?

Leaving complex applications aside, we are going to use one of the most common and seemingly non- complex applications to assess the accuracy and legitimacy of IRCC’s instructions: status extension applications. Two aspects are examined.

1. When does the application have to be submitted?

a) IRCC’s website

  1. According to the instructions provided in Guide 5551 – Applying to Change Conditions or Extend Your Stay in Canada – online application: “For any permit, you should always apply at least 30 days before your current status expires.”
  2. Self-guided applicants are likely to stop their search after finding this guide. However, in a different link where IRCC explains the scope and meaning of “maintained status”, it says that“(…) all applications must be submitted before midnight UTC on the date the applicant’s status expires.”Therefore in a case where a study permit status expires on June 30, 2024, in order for the applicant to have “maintained status” (more on this below), the applicant should have submitted the study permit extension no later than June 30, 2024 at 11:59 pm. This date and time however, is not defined by the applicant’s location but by the Universal Coordinated Time (“UTC”).

These are clearly 2 completely different set of instructions. Which should applicants follow? Remember, IRCC said applicants don’t need to hire a representative to understand and follow IRCC’s instructions!

b) Immigration and Refugee Protection Regulations (“IRPR”)

Pursuant to s.181(1)(a) of the IRPR temporary resident applicants should submit their extension applications “(…) by the end of the period authorized for their stay”. In other words, by 11:59 pm UTC the on the day the permit expires.

While this is mentioned elsewhere in IRCC’s maze-like website, it is not what the instructions say. Any reasonable following IRCC’s instructions on Guide 5551 could think that if his/her permit is expiring in five (5) days, then he/she missed the opportunity to extend the temporary residence status.

2. “Maintained status” validity

As per s.183(5) and s.186(u) of the IRPR, a worker who submitted a work permit extension application can continue working in Canada without a valid permit as he/she is deemed to have “maintained status” until IRCC has made a final determination on the work permit application.

While this is acknowledged by IRCC in its website, often times after an applicant has submitted an extension application before the end of their permit, they will receive a letter from IRCC providing a validity period for the maintained status. In those letters IRCC states:

Please attach this letter to your present work permit Number XXXXXXXXXXX as proof that you are authorized to continue working with the same conditions (ie: employer and occupation) until [DATE] or until a decision is made on your application, whichever is first.

This date or condition imposed on the applicant’s maintained status has no legal basis, especially in light of the wording of s.183(5) of the IRPR:

(5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

(a) the day on which a decision is made, if the application is refused; or (b) the end of the new period authorized for their stay, if the application is allowed.

Nevertheless, clients who are not aware of the immigration legislation and follow blindly IRCC’s instructions (as any law-abiding citizen would) could get very anxious and stressed because they would be under the belief that after that date they have no authorization to stay and work in Canada. not to mention that the employer could terminate the employment contract and provincial medical coverage put at risk.

Although IRCC dissuades in hiring an immigration representative, I disagree with such directions. Your application may not be processed faster, but having an immigration representative will help you not only understand the legal requirements of the immigration program you are applying for, but also will help interpret IRCC’s instructions and steer you away from those IRCC instructions which are inaccurate, ambiguous and which have no legal basis.

An Associate of

Crease Harman LLP