permit after receiving a TRP that is valid for at least 6 months. In some cases foreign nationals are explicitly excluded from receiving temporary resident status even though they are granted a work permit. This applies to foreign nationals who are granted a work permit because they are subject to an unenforceable removal order and require a work permit in order to meet their basic needs.229 “Lawfully Staying” As discussed in Article 15, the IRPA does not explicitly state which permits or status’ result in a foreign national being considered “lawfully staying”, “lawfully in” or “habitually resident” for the purposes of the 1954 Convention, or for that matter the 1951 Refugee Convention, which contains similar language. The IRPA also does not clearly state whether “status” or “lawful status” is to be equated with “lawfully staying”.230 Nonetheless a review of the IRPA suggests that persons who have permanent residence status, or persons who have been granted a Temporary Resident Permit (TRP) under s. 24 of the IRPA, appear to be considered “lawfully staying” in Canada.231 As for foreign nationals who are in possession of a valid work permit that provides them with temporary resident status of a few months duration, it appears that they too meet the definition of “lawfully staying” discussed in the “Background and Commentary”. In the case of foreign nationals who obtain a work permit when they are subject to an unenforceable removal order, but are excluded from temporary resident status, an argument could be made that due to their limbo status they should be considered “implicitly lawfully staying.” Conversely though, since there is no clear articulation in the IRPA that such persons are “lawfully staying”, then an argument could also be made that those foreign nationals who receive IRPR, supra note 21 at s. 202. Section 159.5(a)-(d) of the IRPR implements Canada-US Safe Third Country Agreement, at Art. 4(2)(a), available at: http://www.cic.gc.ca/english/department/laws-policy/safe-third.asp (signed 5 December 2002). Article 4(2)(a) of the Safe Third Country Agreement provides that the State that receives at its port-of-entry a person who makes a refugee claim, and that person has in the territory of the receiving State a family member with “lawful status”, the receiving State must hear the person’s refugee claim. Without specifically using the words “lawful status”, s. 159.5 of the IRPR lists the status or permits that the refugee claimant’s family members must have in order to be considered to have “lawful status” for the purposes of Article 4(2)(a). Section 159.5 lists them as: Canadian citizen, protected person under s. 95(2) of the IRPA, a permanent resident, person whose removal order is stayed for H&C grounds or public policy considerations under s. 233 of IRPR; a refugee claimant over 18 years old who has had their refugee claim deferred by the IRB; a person over 18 years old who holds a study or work permit (except: work permits under 206(1)(b), work or study permits that have expired, 90 days after studies have been completed, if a removal order has become enforceable). In 2002, UNHCR stated that the list above may be too narrow and that the IRPR is not entirely clear, see UN High Commissioner for Refugees (UNHCR), “Comments on the Proposed Regulations Amending the Immigration and Refugee Regulation” (14 November 2002), available at: http://ccrweb.ca/sites/ccrweb.ca/files/static-files/regula_11.html 231 This conclusion is reached by looking at s. 31.1 of the IRPA, which states: “a designated foreign national whose claim for refugee protection or application for protection is accepted is lawfully staying in Canada only if they become a permanent resident or are issued a temporary resident permit under section 24.” Nowhere else in IRPA or the IRPR is the term “lawfully staying” used in connection with other statuses. In addition, Canada’s reservations to Articles 23 and 24 of the 1951 Refugee Convention state for the purposes of those articles that “lawfully staying” means persons admitted for permanent residence and that persons admitted for temporary residence would be treated the same as visitors generally. This latter reference in respect of temporary residents being treated the same as visitors generally appears to be limited just to these two articles of the 1951 Refugee Convention. 229 230 45 45