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Canadian immigration guidance creates uncertainty for incoming students

Short on time? Here are the highlights:

  • The Canadian government has introduced new guidance that could limit entry to Canada for students whose programmes have transitioned to online delivery because of the pandemic
  • Canada’s federal government has also launched a new consultation process with provincial and territorial governments to define protocols and processes for the safe arrival of new international students

Through its immigration policy and directives throughout the COVID-19 crisis, Canada has distinguished itself as a progressive and welcoming destination for international students. In the early weeks of the pandemic lockdown, Immigration, Refugees and Citizenship Canada (IRCC) announced an exemption to allow international students – at least those with valid or approved study permits as of 18 March – to enter the country, whose borders were otherwise largely closed to international travellers.

That initial announcement was followed in the months after with additional directives concerning flexibility around students commencing studies online, eligibility for post-graduate work permits, and, with the resumption of visa processing services, a mechanism for conditional study permit approvals.

More recently, however, IRCC has introduced an additional policy change that casts into doubt the ability of some study permit-holding students to enter the country this year as expected. Canadian educators, students, and families have also eagerly anticipated further guidance that would allow new students (that is, those who had not secured a study permit as of 18 March) to travel to Canada. But a process to provide for this has not yet been established and it appears now it will be some months before it is in place.

Non-discretionary travel

The first of these issues centres around a July update from IRCC. It cautions that even those with valid study permits (issued or approved as of 18 March) should only plan to come to Canada at this time if their travel can be considered “non-optional and non-discretionary”.

The most difficult aspect of this directive is that IRCC leaves it to the discretion of the Canada Border Services Agency (CBSA), and even the student’s air carrier, to determine whether or not travel is optional or discretionary.

“Prior to boarding, air carriers are instructed to conduct an assessment of foreign nationals’ ability to travel to Canada based on…guidance for the travel restrictions,” says IRCC. “However, the decision to allow entry into Canada will rest with CBSA officers.”

This has led in turn to numerous reports in media and from individual institutions in Canada about students either being prevented from boarding flights overseas or being turned away on arrival at the Canadian border.

IRCC explains the general criteria that will apply in determining whether an individual student may enter the country. The main point in all of this is that if the student’s programme of study has transitioned to online delivery because of the pandemic, their travel to Canada could be found to be optional/discretionary and the student could be refused entry to Canada on that basis.

“Border services officers will assess the circumstances surrounding the student’s travel and consider, for example, whether any of the following apply:

  • they are established, residing and studying in Canada. If they are established in Canada, their return is non-discretionary
  • they are expected to begin studying upon arrival after completing their quarantine
  • their presence in Canada is necessary for their continued participation in the program (such as in laboratories or workshops)
  • pursuing online studies is not an option for their school or program or not possible from their home country (for example, due to internet restrictions or bandwidth limitation)
  • the semester has been cancelled or the person will begin studying later in the year

A border services officer will make a final determination on the foreign national’s eligibility to enter Canada at the port of entry.”

What is especially unclear in all this is how CBSA officers evaluate factors such as (i) how students would follow synchronous (that is, live) online teaching from a very different time zone overseas or (ii) what the threshold might be for determining whether or not the student would have sufficient Internet access at home to pursue online studies from abroad.

Canadian institutions and industry stakeholders are actively seeking clarification from CBSA on these points. But for the moment, Canadian educators are left with an uncomfortable choice. They can try to provide as much direction, supporting documentation, and guidance to incoming students as possible to ensure they have the best chance of being admitted by CBSA at a Canadian port of entry. Or they can advise students simply not to travel at this time if their programmes have shifted online.

Students planning to travel to Canada for studies this year are left with a similarly difficult choice.

Provisions for new student arrivals

In June and July, the Canadian government began a process of consultation with provincial and territorial governments throughout the country in an effort to establish protocols and policies that would permit new international students to enter Canada.

However, that process essentially broke down in July around the absence of clear government criteria for safe student arrivals (and any clear benchmarks as to the readiness of Canadian institutions to receive new students from abroad). That earlier consultation also stumbled because of the lack of clear processes and protocols within provincial governments for evaluating institutional readiness to safely receive students.

This lack of progress was apparent in an updated federal Order in Council that was issued on 30 July. It essentially maintained the current border restrictions against international travellers with no new provisions for foreign students.

In the wake of all that, a second effort at federal-provincial consultations is now underway. As an IRCC spokesperson explains, “[Minister of Immigration Marco Mendicino and Minister of Health Patty Hajdu] have been in communication with provinces and territories regarding welcoming international students back to Canada should travel restrictions change, including criteria that provinces and territories should consider in determining whether individual designated learning institutions were prepared for the healthy and safe return to in-class learning for international students. This collaboration with provinces and territories on a matter of provincial jurisdiction is ongoing.”

Those current discussions are underpinned by more detailed criteria from the Public Health Agency of Canada (PHAC) that set out comprehensive requirements for safe student arrivals, including pre-arrival requirements, provisions for 14-day quarantines, and requirements for student support and monitoring after the quarantine period.

This latest consultation is also guided by more clarity around an approval process for student arrivals that will require sign-off on an institutional plans and protocols by the local health authority (for the community or region in which the institution is based), the provincial government, and then the federal government as well.

Finally, Canadian educators have also made some important contributions to policy development in this area with the development of detailed safe arrival protocols for students coming to Canadian K-12 schools and language learning programmes.

The more nuanced approval process reflected in the current consultation suggests that Canada could emerge from the exercise with a national protocol in place, or, as in the case in Australia for example, that we might see one or more regional pilots as a first step toward a broader policy for student arrivals.

Whatever the case, it seems clear that the consultation itself will be measured in months and Canadian institutions and foreign applicants alike may not see further clarification around new student arrivals until later this year.

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