Learning Moments - Authorization for Children to Study without a Study Permit
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online.
Hello fellow practitioners. Today’s column deals with accompanying children of temporary workers and their eligibility to study without a study permit.
Reader’s question
A client of mine, who is a temporary foreign worker in British Columbia, has an 18 year old son who has two semesters left of high school. He turned 18 less than a month ago in December and is planning on coming to Canada later this month to accompany his working father along with his mother (who will be applying for a spousal open work permit). Can the son study in Canada pursuant to section 30 ofIRPA and the exemption for a study permit? Both the client and his parents are visa exempt, so we are planning on having them apply for the spousal work permit at the port of entry and a Visitor Record for the son. Can the son in fact apply for a Visitor Record to study in this scenario or does he have to apply for a study permit on his own at visa office?
Answer
This is an interesting question as the answer to the application of section 30(2) of the Immigration and Refugee Protection Act in this particular case varies by province. The provision reads as follows:
Minor children
(2) Every minor child in Canada, other than a child of a temporary resident not authorized to work or study, is authorized to study at the pre-school, primary or secondary level.
This means that the minor son of a temporary worker (who is authorized to work in Canada) will be authorized to study at the high school level without the need of a study permit. This is further defined in IRCC’s Program Delivery Instructionsregarding “Study permits: Guidelines on minor children” (underlining added). [1]
Is a study permit required? [A30(2)]
Minor children already in Canada are authorized to study without a study permit at the pre-school, primary or secondary level if
they are either accompanying parents claiming refugee status or are claimants themselves;
one of their parents (biological or adoptive) is a Canadian citizen or permanent resident;
one of their parents (biological or adoptive) is authorized to work or study in Canada; this includes temporary residents who are
work permit holders,
study permit holders,
visitor status holders (e.g., visitor record holders) who are either authorized to work without a permit, as per section 186 of the Immigration and Refugee Protection Regulations (IRPR), or authorized to study without a permit, as per section R188; or
neither parent is physically in Canada.
Minor children intending to study are required to apply for a study permit before entering Canada.
It should be noted that minor children of a temporary resident (visitor) who is not authorized to work or study require a study permit to study in Canada.
There are two important questions in this case that need to ne answered in order to determine the applicability of section 30(2) of the Act to our reader’s scenario. One is what constitutes a “minor child” for the purpose of this provision, as well as what constitutes being “already in Canada”.
The answer to “who is a minor” is defined by each province and territory. [2]
Who is a minor?
In Canada, each province or territory defines the age of majority. Anyone under the age of majority at the time of their arrival in Canada is considered to be a minor child.
The age of majority is 18 in Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan.
The age of majority is 19 in British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, the Northwest Territories, Nunavut and the Yukon.
In the case of British Columbia, the age limit happens to be 19 years old, making the son of our reader’s client a minor. Since he is going to be pursuing secondary level studies, he is allowed to do so without a study permit.
As for the second question, had the client’s son not been visa exempt, he would need to apply for a study permit at a visa office abroad to accompany his father in Canada. He would be exempt from requiring a letter of acceptance from the school by virtue of section 219(2) of the Immigration and Refugee Protection Regulations.
In our reader’s case, however, the son will be able to apply for a Visitor Record at the same time that his mother applies for the spousal work permit and study with that document. Even though the child will be “in Canada” only once he reaches the Canadian Port of Entry, this is considered acceptable for the application of section 30(2) of the Act . [3]
Applying from overseas
The study permit exemption for minor children pursuant to subsection 30(2) of the Immigration and Refugee Protection Act (IRPA) applies when a minor child is already in Canada.
Visa offices processing temporary residence applications made outside Canada by minor children who want to study in Canada should consider them as students and not as visitors, even when they are accompanying a parent who is authorized to either work or study in Canada. In other words, a study permit is required, unless they are exempt from requiring one pursuant to section R188 .
Applying at a port of entry (POE)
A minor child coming to Canada to study should have applied and obtained a letter of introduction (approval in writing) at a visa office, or be entitled to apply for a study permit upon entry pursuant to section R214.
If they have not done so, and because POEs are considered “in Canada” for the interpretation of subsection A30(2), officers at a POE may authorize entry of the child as a temporary resident within the visitor class if all the requirements are met (e.g., the accompanying parent is permitted to work or study in Canada) and if the child is not otherwise inadmissible. The child should be documented on a visitor record. When the child ceases to be considered a minor, an application for a study permit must be submitted if they wish to continue studying.
To summarize, the 18 year old son of our reader’s client will be able to pursue high school studies in British Columbia without the need of a study permit, due to the application of section 30(2) of the Act. Once he turns 19 or completes high school in Canada, he will need to apply for a study permit should he wish to continue further studies.
[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/guidelines-on-minor-children.html
[2] See Ibid.
[3] See Ibid. (underlining added)
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.
Twitter: @CarvajalLaw
Email: acarvajal@desloges.ca
