December 2018

Last June I did a consultation appointment for a family who wished to apply for study permits for their two children. One was an elementary school student, and the other was a secondary school student. The family was in Canada as visitors.  They had been accepted by the school board they applied to.  The school board advised that they could study in Canada for the month of June, without a study permit.  When they came to see me, the children had already been attending classes for two weeks.

I advised the family that the children required study permits, and they should stop studying immediately.  I then wrote a sharply worded email to the school board representative, outlining the applicable legislative provisions along with excerpts from the Canadian government’s website.  I received this response from the school board representative:

"Their study period is less than 6 months (ends in June) and the assumption was that they would apply for study permits for the next school year. We have been told that if the study period was less than 6 months, the minor student could attend without a permit. I’m not sure how this would cause a problem since the study period is less than 6 months and our other students have done this as well.  Each school year is September to June and students that come for one semester or less don’t typically have a study permit. I advised the family to speak to an immigration consultant since our school board can not provide immigration services. Education is provincial and our education act states that minors can be admitted regardless of status. Can they not finish the year and return to apply for a study permit for the next year (a different study period). I feel that IRCC is unclear in this case, particularly with minor students (since they are entitled to education despite status). Maybe there is a misunderstanding on this." 

 I responded as follows:

"I disagree that they were coming to study for less than six months.  Their intention was to study in June then resume their studies in September for an indefinite period.  The July-August period was a scheduled academic break and did not mean that their period of study was less than six months.  If they were only intending to study for the month of June, that would be one thing.  But they were not. 

I further disagree that minor students are entitled to education despite status.  The Education Act may permit them to enroll in school, and children in Canada without status may study tuition free, as per the attachment:

 

Students in Canada Unlawfully

If the student is in Canada unlawfully, section 49.1 of the Education Act provides that "A person who is otherwise entitled to be admitted to a school and who is less than eighteen years of age shall not be refused admission because the person or the person's parent or guardian is unlawfully in Canada."

The children referred to in this excerpt are already in Canada and are without status; studying without a study permit does not create further inadmissibility from an immigration perspective.  The problem with the children who are the subject of my email is that that they have legal status to be in Canada as visitors, but not as students.  Whether or not they have a right to study under provincial law does not impact their immigration status. 

Further, see http://www.cic.gc.ca/english/helpcentre/answer.asp?qnum=484&_ga=2.177633251.797021866.1528936512-339549967.1498578828

You can study in Canada without a study permit if:

• the duration of your course or program of study is six months or less; and

• you will complete your course or studies within the time you are allowed to stay in Canada.

The duration of their course was not less than six months.  They were not going to complete their studies in June.  As such, they are not exempt from requiring a study permit just because school will break for the months of July and August. 

See also the line, ‘You must apply for a study permit if your main reason for coming to Canada is to study for more than six months.’  They intend to study for more than six months. In fact, the intended duration of their studies is indefinite.  This is an additional reason why the exemption for a six-month program is inapplicable."

I wanted to follow-up on the school board’s statement that, ‘We have been told that if the study period was less than 6 months, the minor student could attend without a permit.’ Immigration representatives have access to a special email address that can be used to ask questions about immigration law and policy. I sent an email to this address, hoping to get their position on this issue. I would have been happy to have been wrong.

After a few non-answers, I finally just received this response from Immigration:

"This is in response to your enquiry regarding eligibility to study in Canada for minor foreign nationals on a visitor status accompanying their parents who are also on visitor status in Canada.

Minor children of a temporary resident (visitor) who is not authorized to work or study require a study permit to study in Canada.

In regards to the duration of studies that the foreign national intends to undertake, please note that foreign nationals may enter Canada or remain in Canada without a study permit to attend a course or program of study of 6 months’ duration or less [R188(1)(c)]. However, the duration of the course or program of study is often a more important consideration than the number of months the foreign national intends to study. With the exception of exchange programs, even if foreign nationals plan to study for 6 months or less, if the course or program is longer than 6 months, they need a study permit. Thus, the foreign national minor may not study at the elementary or secondary level without a study permit because they intend to study for less than six months, since the duration of the elementary or secondary schooling is longer than 6 months."

So, it is clear. If you are visitors to Canada and want your child to study at the elementary or secondary school level, you need to apply for and have received a study permit, even if there are only a few weeks left in the school year. There are no shortcuts.

The rules for children who have another type of status in Canada, or whose parents have another type of status in Canada, are different. If you are unsure if your child needs a study permit, please contact our office.