March 20, 2018 – Canada immigration candidates who have pending permanent residence applications can still apply for temporary residence and a Canada work permit under dual intent regulations.
The Immigration and Refugee Protection Act (IRPA) allows one to legitimately have two intents. One can have separate, individual applications for temporary and permanent residence.
The Immigration, Refugee and Citizenship Canada (IRCC) website states that ‘the issue of dual intent affects all categories of immigration applications’.
Central to the issue of dual intent is whether the candidate is making a bona fide application for temporary residence. The outcome of any permanent residence application must be independent of the candidate’s intention to leave the country when their temporary residence visa expires.
Section A22(2) of the IRPA states: “An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.”
This presents a challenge for visa officers, who must assess the likelihood of a temporary residence applicant leaving Canada when their visa expires. The guidelines state that having a permanent residence application pending is not by itself a reason for refusing a temporary residence application. A candidate can legitimately want to acquire permanent residence status while at the same time meeting the requirements for a temporary residence visa.
Certain permanent residence programs encourage candidates to come to Canada as a temporary resident while their permanent residence application is being processed. This includes situations where an employer’s need for a foreign worker is urgent: the worker can be granted entry and given a work permit provided it is established they will should the permanent residence application fail.
One such immigration program is the Atlantic Immigration Pilot, which allows for foreign workers to enter Canada on a work permit once the permanent residence application is in the advanced stages.
Guidelines for immigration officers published on the IRCC website state that: “if an officer has concerns/doubts about the applicant’s bona fide, the applicant must be made aware of these concerns and given an opportunity to respond to them.”
IRCC’s guidelines also give reasons why a temporary residence application might be refused:
- History of having contravened the conditions of admission on a previous stay in Canada;
- Lack of or insufficient proof of adequate funds to support oneself while in Canada, and to affect one’s departure from Canada;
- Medical inadmissibility;
- Not satisfying the visa officer that the individual will leave Canada at the end of their period of authorized stay.
The guidelines further state: “Refusals do not stem from having two intents. They stem from having a single bona fide intent (i.e., to become a permanent resident) and misrepresenting the second intent (i.e., to become a temporary resident) in order to achieve the first intent.”
The example given by the IRCC is an applicant for a work or study permit who states they have no intention of leaving Canada. In this example, the temporary residence application is being used as a means to achieve permanent residence. Here, there is only a single intent and the guidelines state that the application for temporary residence should be denied.
“This is because the applicant has shown that they do not respect the terms and conditions of temporary residence, should they not qualify for a permanent resident stream,” the guidelines say.
At the same time, the fact that a study permit applicant might qualify for and apply for permanent residence at the end of their studies is not a reason for refusal, provided they demonstrate they will leave Canada if their study permit expires.
The guidelines also state that individual cases are open to interpretation, stating “Officers are reminded to use their own judgment and the flexibility afforded to them by A22(2) when making decisions in cases with a dual intent aspect.”
Applicants who intend to study or work in Canada prior to or after applying for permanent residence must be aware of Canada’s dual intent policies and how to address this issue.
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