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Summary

There are a number of persons who are considered inadmissible in Canada, including failed refugee claimants, individuals who have overstayed their visas, and individuals who have entered the country illegally.  Currently there is no dedicated program to grant the children of undocumented persons legal status or a pathway to citizenship.  However, in exceptional circumstances and at the discretion of the government, it appears that undocumented immigrants may be granted legal status through either temporary resident permits or permanent residency on humanitarian and compassionate grounds.

In the past there have been instances where programs were established to regularize undocumented immigrants, the largest of which was the 1973 Adjustment of Status Program. 

I. Introduction

Immigration to Canada is predominantly regulated by the Immigration and Refugee Protection Act, 2001 (IRPA),[1] and nationality is governed by the Citizenship Act.[2]  Under the law, there are a number of pathways to citizenship, namely through birth, descent, adoption, and naturalization of permanent residents.

Canada accepts several categories of immigrants for permanent residence.  According to Immigration, Refugees and Citizenship Canada (IRCC), “[a] permanent resident is someone who has been given permanent resident status by immigrating to Canada, but is not a Canadian citizen.”[3]  In addition to economic-class immigrants (skilled workers, entrepreneurs, including provincial nominees, investors, etc.), it admits specified family members and adopted children under the family class category, refugees, and others not falling into these specific categories who qualify for entry on humanitarian or compassionate grounds or for public policy reasons.[4]

Although there are no official statistics or census figures on the number of illegal immigrants in Canada, some estimate that there may be between 50,000 and 200,000[5] (some estimates go up to 500,000[6]) undocumented workers living in the country.  The IRPA does not specifically criminalize unlawfully entering the country or unlawfully overstaying a visa.  Both of these types of actions, however, fall under the general prohibition against contravening the law without exercising due diligence to prevent doing so.[7]  While the IRPA does provide for the prosecution of persons who enter the country illegally or illegally overstay a visa, trials for these offenses are rare.  Most persons caught violating the general provisions of the immigration laws are deported or ordered to be removed.

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II.  Pathway to Legal Status for Children of Undocumented Immigrants

There are a number of persons who are considered inadmissible in Canada, including failed refugee claimants, individuals who have overstayed their visas, and individuals who have entered the country illegally.  Currently there is no dedicated program to grant the children of undocumented persons legal status or a pathway to citizenship.[8]

There may be options for certain individuals with no status to be granted status, but only in exceptional circumstances.  If a person is inadmissible but has a reason to stay or travel to Canada “that is justified in the circumstances,” he or she may apply for a temporary resident permit.[9]  To be eligible for this permit the person’s “need to enter or stay in Canada must outweigh the health or safety risks to Canadian society,” which is determined by an immigration or border services officer.  There is no guarantee a person will be issued a temporary resident permit.[10] 

Persons who would not normally be eligible to become permanent residents of Canada may be able to apply on humanitarian and compassionate grounds.[11]  Factors that are considered include

  • how settled the person is in Canada
  • general family ties to Canada
  • the best interests of any children involved, and
  • what could happen to the person if the request is refused.[12]

A number of other rules apply to this application, including that an applicant “cannot apply for humanitarian and compassionate grounds if [he/she] had a negative decision from the IRB [Immigration and Refugee Board of Canada] within the last 12 months. This is called the ‘one year bar.’ ”[13]

According to a 2012 article by immigration lawyer Shelley Levine, immigration authorities understand that if a large number of applicants “were to make Humanitarian and Compassionate applications, and were to be accepted it would amount to a general amnesty.  No such amnesty is contemplated,” and therefore only a relatively small number of applications are accepted each year.[14]

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III.  Undocumented Migrants and Citizenship

Similar to the United States, persons born in Canada are generally granted citizenship.[15]  The only exception is children of foreign diplomats, who are not granted Canadian citizenship even if they are born in Canada.[16]  Therefore, the children of undocumented migrants who are born in Canada are granted citizenship.

According to IRCC, in order to be eligible for Canadian citizenship through naturalization, a person must meet certain requirements related to

  • Permanent Resident status
  • Time [the applicant has] lived in Canada
  • Income tax filing
  • Language skills
  • How well [the applicant knows] Canada [and]
  • Prohibitions[17] 

In order to become a Canadian citizen, a person’s permanent resident (PR) status in Canada must also “not be in question.”[18]  This means he or she must not

  • be under review for immigration or fraud reasons
  • have certain unfulfilled conditions related to [his/her] PR status
  • be under a removal order (an order from Canadian officials to leave Canada)[19]

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IV.  Examples of Past Amnesty Programs

Since the 1960s, Canada has implemented a number of “regularization” programs, which have been described as effectively being amnesty programs, to regularize undocumented persons.  The Chinese Adjustment Statement Program is considered the first formal regularization program in Canada, which regularized around 12,000 people.  This program allowed for “Chinese migrants who came to Canada without status documents, or with the documents of a relative of a Canadian citizen (commonly referred to as ‘Paper Sons’), to apply for permanent residency.”[20]  Applicants to the program “needed to demonstrate that they were of ‘good moral character’ and were not involved in the ‘industry’ of ‘illegal immigration.’ ”[21]

In 1973, the Trudeau government established the Adjustment of Status Program,[22] which historically is considered the “largest regularization in Canada to date,” and “regularized about 39,000 people from over 150 countries in a two-month period.”[23]  Persons who had been living in Canada with or without a legal immigration status since November 30, 1972, were given sixty days to apply for adjustment of status.[24]  Immigration officers who interviewed the aliens “retained discretion to grant landed immigrant status.”[25]  Factors considered were economic stability, family relationships, and humanitarian reasons.[26]

From 1994 to 1998, the Deferred Removals Order Class (DROC) regularized “several thousand failed refugee claimants who had remained in Canada for three years or more without a removal order.”[27]  According to one scholar, “[r]efused claimants were generally stuck ‘in limbo’ because they were from moratorium countries.  Approximately 3,000 applicants from China, Iran, and other countries were regularized through this program, but many more were rejected because they did not meet residency requirements, or had criminal records or serious medical conditions.”[28]

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Prepared by Tariq Ahmad
Foreign Law Specialist
September 2017


[1] Immigration and Refugee Protection Act, S.C. 2001, c. 27 http://laws.justice.gc.ca/eng/acts/i-2.5/FullText.html, archived at https://perma.cc/6HM9-WWPR

[2] Citizenship Act, R.S.C. 1985, c. C-29, http://laws.justice.gc.ca/eng/acts/C-29/FullText.html, archived at https://perma.cc/JG2L-B39K.

[3] Understand Permanent Resident Status, Immigration, Refugees and Citizenship Canada, http://www.cic. gc.ca/english/newcomers/about-pr.asp (last updated June 9, 2017), archived at https://perma.cc/HW39-XXJH.

[4] Permanent Resident Program, Immigration, Refugees and Citizenship Canada, http://www.cic.gc.ca/ english/resources/tools/perm/index.asp (last updated Feb. 6, 2017), archived at https://perma.cc/8DSW-45GH

[5] Immigration Policy in Canada, Historica Canada, http://www.thecanadianencyclopedia.ca/en/article/ immigration-policy/ (last updated June 29 2017), archived at https://perma.cc/RQQ6-2Z4P.

[6] Levon Sevunts, Irregular Immigration – Canada’s Ghost Immigrants, Radio Canada International, http://www.rcinet.ca/immigration-en/2017/03/08/irregular-immigration-canadas-ghost-immigrants/ (last visited Sept. 28, 2017), archived at https://perma.cc/F97U-Z2V4.

[7] Immigration and Refugee Protection Act, S.C. 2001 c. 27, § 124(1)(a).

[8] Vince Wong, Canada Has Done Even Less For Its ‘Dreamers’ Than the U.S.,Huffington Post Canada Blog (Sept. 11, 2017), http://www.huffingtonpost.ca/vince-wong/canada-has-done-even-less-for-its-dreamers-than-the-u-s_a_23202268/, archived at https://perma.cc/DSC3-4STX.

[9] Immigration and Refugee Protection Act § 24.

[10] Temporary Resident Permits, Immigration, Refugees and Citizenship Canada, http://www.cic.gc.ca/ english/information/inadmissibility/permits.asp (last updated June 9, 2017), archived at https://perma.cc/NZV6-8XPK; Temporary Residents: Overview, Immigration, Refugees and Citizenship Canada, http://www.cic. gc.ca/english/resources/tools/temp/overview.asp (last updated Aug. 1, 2015), archived at https://perma.cc/GFV8-WMXC

[11] Immigration and Refugee Protection Act § 25.

[12] Humanitarian and Compassionate Grounds, Immigration, Refugees and Citizenship Canada, http://www.cic. gc.ca/english/refugees/inside/h-and-c.asp, archived at https://perma.cc/Y52S-KPB2; see also Guide 5291 – Humanitarian and Compassionate Considerations, Immigration, Refugees and Citizenship Canada, http://www.cic.gc.ca/english/information/applications/guides/5291ETOC.asp (last updated Aug. 31, 2017), archived at https://perma.cc/M4HD-V5KB.

[13] Humanitarian and Compassionate Grounds, supra note 12.

[14] Shelley S. Levine, Humanitarian and Compassionate Applications, Levine Associates (Aug. 6, 2012), http://www.levlaw.com/humanitarian-and-compassionate-applications/, archived at https://perma.cc/4PYV-G5BC.

[15] Citizenship Act § 3(1)(a).

[16] Id. § 3(2).

[17] Find Out if You’re Eligible: Citizenship, Immigration, Refugees and Citizenship Canada, http://www.cic.gc. ca/english/citizenship/become-eligibility.asp (last updated June 20, 2017), archived at https://perma.cc/T8WX-D9MR.

[18] Id.

[19] Id.

[20] Jean McDonald, Migrant Illegality, Nation Building, and the Politics of Regularization in Canada,26(2) Refuge: Canada’s Journal on Refugees 65, 66(2009), https://refuge.journals.yorku.ca/index.php/refuge/article/ download/32079/29325, archived at https://perma.cc/D6BZ-WFL9.  

[21] Id.

[22] Desmond Slorer et al., Center For Migration Studies, Amnesty for Undocumented Migrants: The Experience of Australia, Canada and Argentina 11 (1977), http://cmsny.org/wp-content/uploads/ 2016/02/Storer-et-al-Amnesty-for-Undocumented-Migrants.pdf, archived at https://perma.cc/QEY7-LKX4.

[23] Memo to Community Development and Recreation Committee to Executive Director, Social Development, Finance & Administration, Undocumented Workers in Toronto 7 (Oct. 22, 2012), http://www.toronto.ca/ legdocs/mmis/2013/cd/bgrd/backgroundfile-55291.pdf, archived at https://perma.cc/Z4NK-NY3R.

[24] Valerie Knowles, Strangers at Our Gates: Canadian Immigration and Immigration Policy, 1540–2015 (Toronto: Dundurn, 2016).

[25] Juan P. Osuna, Amnesty in the Immigration Reform and Control Act of 1986: Policy Rationale and Lessons from Canada, 3(1) Am. U. Int’l L. Rev. 145, 168 (1988), http://digitalcommons.wcl.american.edu/cgi/viewcontent. cgi?article=1620&context=auilr, archived at https://perma.cc/4HEM-VCQY

[26] The Regularization of Non‐Status Immigrants in Canada 1960–2004: Past Policies, Current Perspectives, Active Campaigns (Nov. 2004), http://accessalliance.ca/wp-content/uploads/2015/03/ Regularization-Report.pdf, archived at https://perma.cc/9UJ3-SSAM.

[27] McDonald, supra note 20, at 67.

[28] Id.