Document Type

Article

Publication Date

2023

Keywords

Immigration Law; Postsecondary Education; Canada; Precarious Legal Status; Undocumented; Dreamers; Humanitarian Assistance

Abstract

Youth with precarious legal status (PLS) in Canada are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for postsecondary education are highly constrained. This article sets out an argument for expanding postsecondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program”. The article considers possible legal impediments to the establishment of such programs, including offenses under Canadian immigration legislation, and argues that charges against postsecondary institutions or their employees are unlikely. Moreover, the article contends that if such charges were pursued, courts would likely find that the relevant legislative provisions are unconstitutional due to overbreadth and because they penalize humanitarian assistance, which was not the intention of the drafters of the provisions. The article also argues that in the unlikely scenario that postsecondary institutions were found to be in breach of Canadian immigration law for admitting PLS students, this is one of the limited sets of circumstances where pushing back against the law – and even breaking the law if necessary – would be warranted. Overall, the article argues that it is time for faculty, students and administrators at Canadian colleges and universities to join the fight to create pathways for postsecondary education for PLS students.

Comments

Osgoode Hall Law Journal, forthcoming

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