Document Type
Article
Abstract
Youth with precarious legal status (PLS) in several provinces are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for post-secondary education are highly constrained. This article sets out an argument for expanding post-secondary 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 offences under Canadian immigration legislation, and argues that charges against post-secondary 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 post-secondary institutions were foundto 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 post-secondary education for PLS students.
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Citation Information
Mercier, Elise; Rehaag, Sean; and Rico-Martinez, Francisco.
"Canadian “Dreamers”: Access to Post-Secondary Education."
Osgoode Hall Law Journal
60.3 (2023)
: 699-753.
DOI: https://doi.org/10.60082/2817-5069.3927
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss3/5
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References
1. Elise Mercier is an Associate Lawyer at North Star Immigration Law and former Research Lawyer, Centre for Refugee Studies, York University; Sean Rehaag is Director of the Centre for Refugee Studies and Associate Professor, Osgoode Hall Law School, York University; Francisco Rico-Martinez (deceased 13 August 2021) was Co-Director of the FCJ Refugee Centre. This co-author approved the original version of the submitted article, but subsequent versions were prepared after his death. The remaining co-authors have attempted to ensure that the final version would, in their best judgment, likely also have received his approval. This article draws on research supported by the Social Sciences and Humanities Research Council. The authors are grateful for the research assistance provided by Alexander Toope, Anisha Nag, Emily F Wuschnakowski, Kevin Cho, and Daniel Yoon Sik Choi. They also appreciate the helpful comments provided by Nathasha Rollings, Tanya Aberman, Luin Goldring, Benjamin Berger, and Amar Bhatia. They thank the Osgoode Public Interest Requirement program for facilitating access to research assistance.
2. See FCJ Youth Network, Uprooted Education: 2015-2016 Ontario Report (FCJ Refugee Centre, 2016) at 38 [FCJ Youth Network, Uprooted].
3. Ibid.
4. Research on the number of people living with precarious status in Canada is notoriously difficult, but the 200,000 to 500,000 range is sometimes pointed to as a reasonable estimate. For a discussion, see Luin Goldring, Carolina Berinstein & Judith K Bernhard, "Institutionalizing Precarious Migratory Status in Canada" (2009) 13 Citizenship Studies 239 at 242; Luin Goldring & Patricia Landolt, Producing and Negotiating Non-citizenship: Precarious Legal Status in Canada (University of Toronto Press, 2013). Other sources point to the likelihood of there being at least 500,000 undocumented individuals in Canada, if not more. For a discussion, see Anthony Delisle & Delphine Nakache, "Humanitarian and Compassionate Applications: A Critical Look at Canadian Decision-Makers' Assessment of Claims from 'Vulnerable' Applicants" (2022) 11 Laws 1 at 16; Migrant Rights Network, "Canada Rejected Double the Number of Humanitarian Applications for Immigration In 2020" (13 July 2021), online: migrantrights.ca/hc202rejections [perma.cc/3N6M-XSM7].
5. This term is discussed in Part I(A), below.
6. For details about these estimates, see Faria Kamal & Kyle D Killian, "Invisible Lives and Hidden Realities of Undocumented Youth" (2015) 31 Refuge 63 at 63 https://doi.org/10.25071/1920-7336.40310; House of Commons, Temporary Foreign Workers and Nonstatus Workers: Report of the Standing Committee on Citizenship and Immigration (May 2009) (Chair: David Tilson) at 47.
7. See Paloma E Villegas & Tanya Aberman, "A Double Punishment: Post-secondary Access for Racialized Migrant Youth with Precarious Status in Toronto, Canada" (2019) 35 Refuge 72. Villegas and Aberman detail the ways in which "the immigration and schooling systems in Canada intersect to deny access to migrant youth with precarious status throughout educational trajectories" (ibid at 72). https://doi.org/10.7202/1060676ar
8. Discussed in Part I(E), below.
9. See Tanya Aberman, Francisco Rico-Martinez & Philip Ackerman, "School Outside These Four Walls: Contesting Irregularization through Alternatives to Education" (2017) 165 Studia Migracyjne 131 at 139.
10. See generally Walter J Nicholls, The DREAMers: How the Undocumented Youth Movement Transformed the Immigrant Rights Debate (Stanford University Press, 2013).
11. See generally Kristen Green, "Sanctuary Campuses: The University's Role in Protecting Undocumented Students from Changing Immigration Policies" (2019) 66 UCLA L Rev 1030; Natasha Newman, "A Place to Call Home: Defining the Legal Significance of the Sanctuary Campus Movement" (2017) 8 Columbia J Race & L 122; Aleksandar Dukic, Stephanie Gold & Gregory Lisa, "Key Legal Considerations Relating to Sanctuary Campus Policies and Practices" (2018) 44 JC & UL 23; Danielle Holley-Walker, "Searching for Equality: Equal Protection Clause Challenges to Bans on the Admission of Undocumented Immigrant Students to Public Universities" (2011) Mich State L Rev 357; Irma Aboytes, "Undocumented Students and Access to Higher Education: A Dream Defined by State Borders" (2009) 12 J Gender Race & Just 579; Josue Espinosa, "Undocumented, Uneducated, Unconstitutional: An Equal Protection Analysis of State Laws that Ban Undocumented Immigrants from Higher Education" (2017) 21 Holy Cross JL & Public Policy 139; Elizabeth M McCormick, "Federal Anti-Sanctuary Law: A Failed Approach to Immigration Enforcement and a Poor Substitute for Real Reform" (2016) 20 Lewis & Clark L Rev 214; Virgil Wiebe, "Immigration Federalism in Minnesota: What Does Sanctuary Mean in Practice" (2017) 13 U St Thomas LJ 581.
12. Laura Emiko Soltis, "From Freedom Schools to Freedom University: Liberatory Education, Interracial and Intergenerational Dialogue, and the Undocumented Student Movement in the U.S. South" (2015) 17 Souls 20 at 21-22. https://doi.org/10.1080/10999949.2015.998578
13. See e.g. Tanya Aberman, Francisco Villegas & Paloma E Villegas, eds, Seeds of Hope: Creating a Future in the Shadows (FCJ Refugee Centre, 2016); Francisco J Villegas, "'Access without Fear!': Reconceptualizing 'Access' to Schooling for Undocumented Students in Toronto" (2017) 43 Critical Sociology 1179; FCJ Youth Network, From Youth to You (FCJ Refugee Centre, 2016) [FCJ Youth Network, From Youth to You]; FCJ Youth Network, Uprooted, supra note 2. https://doi.org/10.1177/0896920516677352
14. Sarah Marsden, "The New Precariousness: Temporary Migrants and the Law of Canada" (2012) 27 CJLS 209 at 212 [Marsden, "New Precariousness"]. See also Francesca Meloni, "The Ambivalence of Belonging: The Impact of Illegality on the Social Belonging of Undocumented Youth" (2019) 92 Anthropological Q 451; Kamal & Killian, supra note 6; Judith K Bernhard et al, "Living with Precarious Legal Status in Canada: Implications for the Well-Being of Children and Families" (2007) 24 Refuge 101; Julie Young, "This Is My Life: Youth Negotiating Legality and Belonging in Toronto" in Luin Goldring & Patricia Landolt, eds, Producing and Negotiating Non-Citizenship: Precarious Legal Status in Canada (University of Toronto Press, 2013) 99; Maria Yau, "Refugee Students in Toronto Schools" (1996) 15 Refuge 9; Francisco J Villegas, "'Don't Ask, Don't Tell': Examining the Illegalization of Undocumented Students in Toronto, Canada" (2018) 39 British J Sociology Education 1111 [F Villegas, "Don't Ask"]; Graham Hudson et al, "(No)Access T.O.: A Pilot Study on Sanctuary City Policy in Toronto, Canada" (2017) Ryerson Centre for Immigration & Settlement Working Paper No 2017/1; Villegas & Aberman, supra note 7; Paloma E Villegas, "Bridging Borders: Teaching a Bridging Course with Precarious Status Students Transitioning to the University" in Francisco J Villegas & Janelle Brady, eds, Critical Schooling: Transformative Theory and Practice (Springer, 2019) 245; Aberman, Rico-Martinez & Ackerman, supra note 9; Tanya Aberman, Philip Ackerman & members of the FCJ Refugee Centre's Youth Network, "'Isn't the Right to an Education a Human Right?': Experiences of Precarious Immigration Status Youth Navigating Postsecondary Education" in Sara Carpenter & Sharhrzad Mojab, eds, Youth as/in Crisis: Young People, Public Policy and the Politics of Learning (Sense, 2017) 127; Tanya Aberman, Expanding Access to Post-Secondary Education at York University (And Beyond) For Students With Precarious Immigration Status (2015) [unpublished, archived at the FCJ Refugee Centre] [Aberman, Expanding Access].
15. Aberman, Villegas & Villegas, supra note 13 at 63.
16. See e.g. Villegas & Aberman, supra note 7; Marietta Armanyous & Graham Hudson, "Barriers vs. Bridges: Undocumented Immigrants' Access to Post-secondary Education in Ontario" (December 2019) Ryerson Centre for Immigration and Settlement Working Paper No 2019/5, online (pdf): www.torontomu.ca/content/dam/centre-for-immigration-and-settlement/tmcis/publications/workingpapers/2019_5_Armanyous_Marietta_Hudson_Graham_Barriers_vs_bridges_Undocumented_immigrants_access_to_post-secondary_education_in_Ontario.pdf [perma.cc/ZY3H-NK43].
17. Ibid.
18. Foreign nationals (including PLS students) are prohibited from studying in Canada without a permit in many circumstances. See Immigration and Refugee Protection Act, SC 2001, c 27, s 30(1) [IRPA]. See also Immigration and Refugee Protection Regulations, SOR/2002-227, s 212 [IRPR]. Section 41 of the IRPA renders people who do not comply with the Act inadmissible to Canada. Section 44 of the IRPA provides sweeping discretion to immigration officers to commence procedures leading to removal of inadmissible foreign nationals. Thus, a PLS student who is authorized to be in Canada but not to study in Canada who chooses to study without a study permit may be subject to a removal order if found in contravention of IRPA or IRPR.
19. For example, PLS students who are in Canada without authorization may be inadmissible on multiple grounds. See e.g. IRPA, supra note 18, ss 40, 41. PLS students are thus already vulnerable to an immigration officer commencing procedures that lead to removal under section 44 of the IRPA. Inadmissibility is binary, meaning that students who are already inadmissible would not become "more" inadmissible by studying without a permit.
20. PLS students can apply to regularize their immigration status by applying for PR through a humanitarian and compassionate ("H&C") application, which is a highly discretionary application that provides immigration officers with the "flexibility to approve deserving cases not anticipated in the legislation." Immigration, Refugees and Citizenship Canada, "Humanitarian and Compassionate Considerations: Assessment and Processing" (last modified 11 July 2017), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletinsmanuals/permanent-residence/humanitarian-compassionate-consideration/processing.html [perma.cc/9BUE-3QZR]. One factor that is assessed in H&C applications is whether the applicant has demonstrated successful establishment. See IRPA, supra note 18, s 25. It can be difficult to predict outcomes in H&C applications, which often seem arbitrary. See e.g. Delisle & Nakache, supra note 4. Some caution is also warranted, as some officers take a negative view of establishment gained without authorization-a position supported in some Federal Court case law. See e.g. Browne v Canada (Citizenship and Immigration), 2022 FC 514 at para 28. Nonetheless, the Federal Court has overturned many negative H&Cdecisions that placed an undue focus on the applicant's lack of status. See e.g. McDonald v Canada (Citizenship and Immigration), 2022 FC 394 at para 24. It stands to reason that the establishment demonstrated by studying at a post-secondary institution may be considered a positive factor in an H&C application. In the experience of Francisco Rico-Martinez, the Co-Director of the FJC Refugee Centre and one of the co-authors of this article, H&C applications with evidence of post-secondary education were more likely to succeed than other similar applications. However, that is merely anecdotal experience, and it involves a small (and possibly skewed) sample, so caution is necessary in generalizing.
21. Kamal & Killian, supra note 6 at 65.
22. At York University, low-income prospective PLS students can obtain summary legal advice about immigration law matters and assistance with H&C applications for PR via Osgoode Hall Law School's Community & Legal Aid Services Program. See Community & Legal Aid Services Program, "Legal Services," online: www.osgoode.yorku.ca/community-clinics/welcome-community-legal-aid-services-program-clasp/legal-services [perma.cc/2HCK-RT6Q].
23. See e.g. Migrant Rights Network, "Open Letter: Full Immigration Status for All" (2022) online: migrantrights.ca/status-for-all [perma.cc/R2S4-DNHH]; Joseph H Carens, Immigrants and the Right to Stay (MIT Press, 2010); Canadian Council for Refugees, "Proposal for Regularization of Individuals and Families Without Status" (June 2006), online: ccrweb.ca/en/proposal-regularization-individuals-and-families-without-status [perma.cc/S66Q-RZ7D].
24. Amrita Hari & Jamie Chai Yun Liew, "Introduction to Special Section on Precarity, Illegality and Temporariness: Implications and Consequences of Canadian Migration Management" (2018) 56 Intl Migration 169 at 170. https://doi.org/10.1111/imig.12523
25. Goldring, Berinstein & Bernhard, supra note 4 at 241.
26. Ibid.
27. Ibid at 240-41.
28. Sarah Marsden, "Silence Means Yes Here in Canada: Precarious Migrants, Work and the Law" (2014) 18 CLELJ 1 at 5-6 [Marsden, "Silence"].
29. For a discussion of how PRs become citizens, see Sharryn J Aiken et al, Immigration and Refugee Law: Cases, Materials, and Commentary, 2nd ed (Emond, 2015) at 1063-95.
30. For important exceptions, see Immigration, Refugees and Citizenship Canada, "Understand Permanent Resident Status" (last modified 18 May 2022), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/services/new-immigrants/pr-card/ understand-pr-status.html [perma.cc/JY4M-FH5A].
31. For details about common ways in which PRs can lose their status, see Lorne Waldman, Inadmissible to Canada: The Legal Barriers to Canadian Immigration, 2nd ed (LexisNexis Canada, 2018). See also Audrey Macklin, "Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien" (2014) 40 Queen's LJ 1.
32. At the time of writing, this process was estimated to take approximately twenty-four months. See Immigration, Refugees and Citizenship Canada, "My Immigration or Citizenship Application: Check Processing Times" (last modified 23 February 2023), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/services/application/check-processing-times.html [perma.cc/GUJ9-UJG3] [Canada, "My Application"]. See also Samantha Jackson & Harald Bauder, "Neither Temporary, Nor Permanent: The Precarious Employment Experiences of Refugee Claimants in Canada" (2014) 27 J Refugee Studies 360 at 361-62. https://doi.org/10.1093/jrs/fet048
33. Marsden, "New Precariousness," supra note 14 at 220-21.
34. We refer to both "H&C applicants who have been approved in principle" and "H&C applicants." The latter are still awaiting a determination on their H&C applications.
35. Sections 34 to 42 of the IRPA identify several grounds on which foreign nationals or PRs can be removed from Canada or denied a visa, including, among others, health grounds, criminality, non-compliance with the Act, having inadmissible family members, and the commission of human and international rights violations. See supra note 18. For details, see Waldman, supra note 31.
36. At the time of writing, this process was estimated to take approximately twenty-six months for H&C applicants. See Canada, "My Application," supra note 32.
37. Jackson & Bauder, supra note 32 at 370-71. For details about delays in refugee protection decisions, see Canada, Office of the Auditor General, Reports of the Auditor General of Canada to the Parliament of Canada, Report 2: Processing of Asylum Claims, Catalogue No FA1-27/2019-1-2E-PDF (OAGC, 2019), ss 2.12, 2.25-2.26.
38. For details about how TFWs are made precarious, see Marsden, "New Precariousness," supra note 14 at 216-18.
39. For a discussion of "how people become undocumented," see Kamal & Killian, supra note 6 at 64.
40. Aberman, Expanding Access, supra note 14 at 6.
41. For a discussion of international students' access to various benefits, see Patricia Mirwaldt, "Health and Wellness Services" in Donna Hardy Cox & C Carney Strange, eds, Achieving Student Success: Effective Student Services in Canadian Higher Education (McGill-Queen's University Press, 2010) 124. See The Higher Education Quality Council of Ontario, International Students in Ontario's Postsecondary Education System, 2000-2012: An Evaluation of Changing Policies, Populations and Labour Market Entry Processes, by Keegan Williams et al (HEQCO, 2015). https://doi.org/10.1515/9780773575721-012
42. Not all PLS youth are "brought" to Canada-many come to the country as unaccompanied minors. A discussion of the different barriers faced by unaccompanied PLS youth and other PLS youth is beyond the scope of this article. However, it is important to note that unaccompanied minors, who do not have family members present in the country to help support and advocate for them, face additional barriers.
43. Nicholls, supra note 10 at 53. Although we are differentiating between PLS students and international students for the narrow purposes of this article, we caution our reader against using this differentiation to perpetuate "[n]arratives of deserving and undeserving immigrants." Sujatha Fernandes, Curated Stories: The Uses and Misuses of Storytelling (Oxford University Press, 2017) at 104-34. Fernandes provides a discussion of how problematic such narratives can be and details about why many "Dreamers" in the US "rejected the 'good immigrant' trope that had guided much of their public image." Ibid. For details about how "imagery of the undocumented as law-abiding, hard-working, and family-oriented" had the effect of "simultaneously render[ing] more vulnerable the millions of immigrants who [did] not qualify" for "legalization" through a 2013 American immigration reform bill, see Angélica Cházaro, "Beyond Respectability: Dismantling the Harms of 'Illegality'" (2015) 52 Harv J on Legis 355.
44. See IRPR, supra note 18, s 220.
45. Ibid, s 222.
46. See e.g. Ryan Hayes, "Neoliberal Citizenship: The Case of International and Non-Status Students in Canada" in Veronica P Fynn, ed, Documenting the Undocumented: Redefining Refugee Status, Center for Refugee Studies 2009 Annual Conference Proceedings (Universal, 2009) 101 at 104, cited in P Villegas, supra note 14 at 11-12; Alex Usher, "Canada's Growing Reliance on International Students" (29 August 2018), online: Policy Options policyoptions.irpp.org/magazines/august-2018/canadas-growing-reliance-on-international-students [perma.cc/9ZW6-K26H]; Tim Anderson, "News Media Representations of International and Refugee Postsecondary Students" (2020) 91 J Higher Education 58; Nicholas Hune-Brown & Cornelia Li, "The Shadowy Business of International Education," The Walrus (18 August 2021), online: thewalrus.ca/the-shadowy-business-of-international-education [perma.cc/CJ5S-ZXGW].
47. Supra note 18, s 212.
48. Ibid, s 207(d); Immigration, Refugees and Citizenship Canada, "Study Permits: Refugees and Protected Persons" (last modified 26 April 2022), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/study-permits/making-application.html#InCanada [perma.cc/KD8W-C5UQ] [Canada, "Study Permits"].
49. Canada, "Study Permits," supra note 48.
50. This can be done provided that their status is valid at the time that they submit their application. See Meghan Wilson, Access to Postsecondary Education for Undocumented Immigrants (2009) [unpublished, archived at Parkdale Community Legal Services] at 15.
51. Ibid. Additionally, students over the age of twenty-two could "age out" of an opportunity to apply for a study permit as a dependant. See generally Immigration, Refugees and Citizenship Canada, "Who You Can Include as a Dependent Child on an Immigration Application" (last modified 8 December 2022), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/age-limit-requirementsdependent-children.html [perma.cc/27P5-S4BC].
52. Assuming that they are from a "visa-required" country. See Immigration, Refugees and Citizenship Canada, "Temporary Residents: Eligibility and Admissibility Considerations" (last modified 1 April 2019), online: Government of Canada www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/eligibility-admissibility-considerations.html [perma.cc/KAX8-S2LS]; Immigration, Refugees and Citizenship Canada, "Find out If You Need a Visa to Travel to Canada" (last modified 31 January 2023), online: Government of Canada [perma.cc/R25U-QQBY].
53. See Armanyous & Hudson, supra note 16 at 9; P Villegas, supra note 14 at 249-50.
54. The OUAC website requires applicants to provide information regarding status in Canada and country of citizenship and requests that applicants upload proof of status in Canada, though it notes that these documents "are not mandatory." Ontario Universities' Application Centre, "101 - Personal Information" (last modified 22 September 2022), online: www.ouac.on.ca/guide/101-personal-information [perma.cc/AKU7-JHL7].
55. See e.g. Wilson, supra note 50 at 19-20; Armanyous & Hudson, supra note 16 at 9.
56. Statistics Canada, Tuition Fees for Degree Programs, 2021/2022 in The Daily, Catalogue No 11-001-X (Statistics Canada, 8 September 2021) at 4 [Statistics Canada].
57. See Ontario, Ministry of Training, Colleges and Universities, Ontario Operating Funds Distribution Manual: Manual Governing the Distribution of Ontario Government Operating Grants to Ontario Universities and University-Related Institutions (Formula Manual) (MTCU, 2009) at 67 [MTCU, Distribution Manual].
58. A 2018 report noted that international student fees made up 12 per cent of operating revenue and 35 per cent of all fees collected by institutions, that these "proportions continue to climb," and that international students' tuition fees "have risen at twice the rate of hikes in domestic students' tuition fees." Usher, supra note 46.
59. Ontario, Ministry of Training, Colleges and Universities, Tuition and Ancillary Fees Reporting (MCTU, 2003) at 22-26, online (pdf): www.tcu.gov.on.ca/pepg/documents/TuitionandAncillaryFeesReporting2012.pdf [perma.cc/WM2S-KTMZ] [MTCU, Tuition].
60. Refugee students have, however, "reported being commonly mistaken for international students by post-secondary institutions." Jaswant Kaur Bajwa et al, "Refugees, Higher Education, and Informational Barriers" (2017) 33 Refuge 56 at 60. https://doi.org/10.7202/1043063ar
61. Provided that they have or are able to provide evidence of their approval in principle to the school and that this is accepted.
62. Students are not exempted from international student fees if they cannot present a family member's work permit that names a "specific Canadian employer situated in Ontario." MTCU, Tuition, supra note 59 at 24.
63. Although these students may be entitled to pay domestic fees in theory, this may not occur in practice due to the "severe misunderstandings and misinformation" that continue to surround these exceptions. See Aberman, Expanding Access, supra note 14 at 6.
64. See Meloni, supra note 14 at 476.
65. Foreign nationals are not included in the "[c]ategories of individuals exempt from international student tuition fees." MTCU, Tuition, supra note 59 at 22-26.
66. See generally Kamal & Killian, supra note 6 at 65; Paloma E Villegas, "Temporalising Barriers: Postsecondary Schooling Access among Precarious Status Students in Toronto" (2021) 27 Population Space & Place 1. https://doi.org/10.1002/psp.2477
67. For details about how government student loans are distributed in Canada, see Stephanie Ben-Ishai, "Government Student Loans, Government Debts and Bankruptcy: A Comparative Study" (2006) 44 Can Bus LJ 211 at 215-19.
68. Wilson, supra note 50 at 25. https://doi.org/10.1086/103680
69. Canada Student Financial Assistance Act, SC 1994, c 28, s 2(1). Note that protected persons have been eligible for provincial financial aid since 2003. See Louise Slobodian & Harry J Kits, Student Loans for Refugees: A Success Story for Policy Change (The Caledon Institute of Social Policy, December 2003), online: Maytree www.maytree.com/publications/student-loans-for-refugees-a-success-story-in-policy-change [perma.cc/FRW5-88W2].
70. Only citizens, PRs, and protected persons are "qualifying students" in section 2(1) of the CSFA.
71. Michael A Olivas, "Plyler v Doe, Toll v Moreno, and Postsecondary Admissions: Undocumented Adults and Enduring Disability" (1986) 15 JL & Educ 19 at 28.
72. Marsden, "Silence," supra note 28 at 33.
73. Jackson & Bauder, supra note 32 at 377.
74. Kamal & Killian, supra note 6 at 65.
75. Unfortunately, high-performing PLS students who could otherwise secure scholarships or prizes based on their academic performance are frequently ineligible for these scholarships or prizes due to their legal status, making high tuition an even more significant barrier.
76. See e.g. Wilson, supra note 50 at 25-26; Statistics Canada, supra note 56.
77. For details about these groups, see Francisco Javier Villegas, The Politics of "Access": Undocumented Students and Enrollment in Toronto Schools (PhD Dissertation, University of Toronto, Ontario Institute for Studies in Education, 2014) [unpublished]. See also Patricia Landolt & Luin Goldring, "Assembling Noncitizen Access to Education in a Sanctuary City: The Place of Public School Administrator Bordering Practices" in Xóchitl Bada & Shannon Gleeson, eds, Accountability Across Borders: Migrant Rights in North America (University of Texas Press, 2019) 214. https://doi.org/10.7560/318355-010
78. RSO 1990, c E.2, s 49.1. See Philip Cheshing Kuligowski Chan, "Sanctuary Toronto": Municipal Authority, Policing Cities, and Residents with Precarious Immigration Status (Master of Arts Thesis, University of Toronto, Department of Geography and Planning, 2018) [unpublished] at 44-45.
79. See e.g. Ontario, Legislative Assembly, Official Report of Debates (Hansard), 37-3, No 20A (13 June 2002) at 963. Minister Gerard Kennedy noted protests and petitions on this issue.
80. Ontario, Ministry of Education, "Policy/Program Memorandum 136: Clarification of section 49.1 of the Education Act: Education of persons unlawfully in Canada" (3 December 2004), online: www.ontario.ca/document/education-ontario-policy-and-program-direction/policyprogram-memorandum-136 [perma.cc/A52C-87DY].
81. See e.g. Toronto District School Board, "Policy P061: Students Without Legal Immigration Status" (16 May 2007), online: www.tdsb.on.ca/About-Us/Detail/docId/1555 [perma.cc/RDY9-K7HH]. For a discussion about the role of activists in pushing for this policy, and for a discussion about some of the limits of pursuing change through such policies, see F Villegas, "Don't Ask," supra note 14.
82. Chan, supra note 78 at 44-45.
83. As in Ontario, activists played a key role in pursing this policy for many years. See e.g. Darya Marchenkova, "School Now Free for All Quebec Children, No Matter Immigration Status," Montreal Gazette (23 August 2018), online: montrealgazette.com/news/local-news/school-now-free-for-all-quebec-children-no-matter-immigration-status [perma.cc/XR7R-VERA]; Quebec, National Assembly, Journal des débats de la Commission permanente de la culture et de l'éducation, 41-1, vol 44, No 72 (5 September 2017) at 41.
84. Bill 144, An Act to amend the Education Act and other legislative provisions concerning mainly free educational services and compulsory school attendance, 1st Sess, 41st Leg, Quebec, 2017 (assented to 9 November 2017), SQ 2017, c 23.
85. Collectif Éducation Sans Frontières, "The Exclusion of Children with Precarious Immigration Status from School and the New Law 144" (20 August 2018), online: collectifeducation.org/en/conference-de-presse-sur-lexclusion-denfants-a-statut-dimmigration-precaire-delecole-et-implementation-de-la-nouvelle-loi-144 [perma.cc/N9L4-RCLA].
86. RSBC 1996, c 412, s 82(2). https://doi.org/10.1097/00000539-199602000-00035
87. Sarah Marsden, Enforcing Exclusion: Precarious Migrants and the Law in Canada (UBC Press, 2018) at 109-11 [Marsden, Enforcing Exclusion] https://doi.org/10.59962/9780774837750; Government of British Columbia, "Eligibility of Students for Operating Grant Funding" (5 May 2011), online: www2.gov.bc.ca/gov/content/education-training/k-12/administration/legislation-policy/public-schools/eligibility-of-students-for-operating-grant-funding [perma.cc/F6C7-3XVE].
88. The Sanctuary Health Collective is a grassroots community group that advocates for services for all regardless of their immigration status. For more information on the work done by this group, see Sanctuary Health, "About the Sanctuary City Movement" (last visited 22 February 2023), online: www.sanctuarycityvan.com/?fbclid=IwAR3483z4TbKzfVgp_tdp0vYkCjJ9u1jg0-DLMvdnIJc0SpoQ8seJ1k2GNTI [perma.cc/V7AW-7BWP].
89. New Westminster Schools, "First in BC: School Board Adopts Sanctuary Schools Policy" (7 March 2017), online: newwestschools.ca/first-in-bc-school-board-adopts-sanctuary-schoolspolicy [perma.cc/T4E6-NB2K].
90. For more information on the policy, see New Westminster Schools, "Our Sanctuary Schools Policy," online (pdf): newwestschools.ca/wp-content/uploads/2021/04/3170_NWS_PolicyPostcard_FINAL.pdf [perma.cc/324V-YPCT].
91. Ibid.
92. Although access to primary and secondary school is beyond the scope of this article, we note that admission practices of school boards across the country can be very restrictive. Both the Toronto District School Board and the Toronto Catholic School Board prohibit the admission of students on multiple-entry visas. One co-author, Francisco Rico-Martinez, regularly struggled to assist them with accessing schooling in his role as Co-Director of the FCJ Refugee Centre. See e.g. Toronto District School Board, Admission Eligibility Requirements, Operational Procedure PR518 (TDSB, 28 January 2020) at Appendix D, online (pdf): ppf.tdsb.on.ca/uploads/files/live/98/1635.pdf [perma.cc/2WLE-UCW3]. For a discussion of further barriers for PLS youth in primary and secondary school, see Aberman, Expanding Access, supra note 14 at 5; Marsden, Enforcing Exclusion, supra note 87 at 117-18; F Villegas, "Don't Ask," supra note 14 at 1112.
93. This article has been heavily relied upon by many who have proposed other access programs in Ontario. See Wilson, supra note 50 at 38. See e.g. Aberman, Expanding Access, supra note 14; Dayana A Gonzalez Mateus, Expanding Access to Postsecondary Education for Youth with Precarious Legal Status: A Ryerson University Case-Study (Masters Thesis, Toronto Metropolitan University, 2017) [unpublished] at iii, 11.
94. Villegas & Aberman, supra note 7 at 77; Aberman, Expanding Access, supra note 14 at 5.
95. See e.g. FCJ Youth Network, Youth to You, supra note 13 at 60; Villegas & Aberman, supra note 7 at 77.
96. This program was modeled after similar "Freedom University" initiatives in the United States. See P Villegas, supra note 14 at 251.
97. Many involved with the CRS contributed to this project, including the long-serving CRS Coordinator, Michele Millard. See Aberman, Expanding Access, supra note 14 at 18.
98. Armanyous & Hudson, supra note 16 at 11; Aberman, Expanding Access, supra note 14 at 19.
99. Mary Weims, "York First Canadian University to Give 'Dreamers' a Chance at a Degree," CBC News (15 January 2018), online: www.cbc.ca/news/canada/toronto/canadian-dreamers-york-university-1.4488252 [perma.cc/Q796-AP3X]. See also Villegas & Aberman, supra note 7 at 77.
100. Villegas & Aberman, supra note 7 at 77. The program was "meant to encourage the continuing development of students' critical, writing, and oral presentation skills" and "attempted to introduce students to university policies…and the types of resources…available at the university." P Villegas, supra note 14 at 246, 253-56. Paloma E Villegas, the bridging course's first instructor, reflects on how PLS students "pushed