Immigration policy is always tricky stuff, but it is especially so when it involves two levels of government … and children.
While our federal government refuses to try to find some equitable way of dealing with the growing population of undocumented workers in Canada, decisions have to be made every September about their foreign children’s access to a basic education.
It is always upsetting to me when I see young children who have not gone to school in years because their parents were unaware that their children could be admitted or were afraid that they would be turned over to the immigration department by school officials.
In 1993, section 49.1 of Ontario’s Education Act was enacted so that a minor “shall not be refused admission” because “their parent or guardian is unlawfully in Canada.”
While this was a very progressive move on the part of the provincial government, our federal immigration laws continued to make it an offence for most foreign minors to study in Canada without a student authorization.
Our immigration laws were completely overhauled in June 2002 and included a provision intended to harmonize federal and provincial policy on this issue.
Section 30(2) of the Immigration and Refugee Protection Act provides that all “minors” in Canada can study here at the preschool, primary, or secondary levels without having to first obtain a study permit.
There is, however, one exception. If a parent is in Canada with lawful visitor’s status (i.e. a temporary resident) and has not been issued authorization to study or work in Canada, their minor children cannot go to school unless they obtain a study permit.
What if a minor is in Canada with two parents, one of whom meets this criteria and one who does not? The immigration department’s policy manual states that the minor would be authorized to study without a study permit.
On December 3, 2004, Ontario’s Ministry of Education issued a memo stating that “Citizenship and Immigration Canada has confirmed that there is no federal legal requirement for boards to refer families without immigration status or documentation to a local CIC office to obtain documents before their child is admitted to school.”
Remember that the age of majority is set by the provinces and territories. In Alberta, Manitoba, Ontario, Prince Edward Island, Quebec and Saskatchewan, a child is a minor until they reach 18. In other parts of Canada the age is 19.
Understanding these rules can prevent young minds from going to waste.
Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Ontario Law Society as an immigration specialist. Reach him at 416-862-0000. Confidential e-mails may be directed to Mr. Mamann at
metro@migrationlaw.com
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