Hello fellow practitioners. This week's question brings us back to the issue of dual intent for persons with pending (or soon to be submitted) Permanent Residence (PR) applications.
Question
I have a client who is a Permanent Resident. He is getting married in January 2018 in India. He wants to bring his spouse with him when he will come back after a month. What will be the best way, first get her a visitors visa and then apply for inland sponsorship and open work permit or file an application for spousal sponsorship first and then apply for visitors visa for Canada and after coming to Canada apply for the Open work permit.
Answer
We are not in a position to advise as to the specific strategy that should be followed in this case. The decision as to the "best way" involves both legal and personal issues - and ultimately the decision will be the client's. As representatives, we have to lay out the legal considerations involved in each option, and particularly the potential risks.
This question raises some very important general issues and considerations that we wish to highlight.
First, while the Charter gives the PR husband the right to enter Canada, his foreign national spouse has no such right. As a foreign national, she is not guaranteed entry to Canada no matter which route the client chooses.
We have to begin with the basic proposition that any foreign national that seeks to enter Canada must demonstrate that they have a genuine temporary intention and will leave Canada at the end of their authorized stay (see R179
here
).
Section 22(2) of the IRPA states that "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 provision is incorporated into the following guidance provided on the IRCC website (referenced above):
Having two intents - one for temporary residence and one for permanent residence - is legitimate. This section addresses how to apply subsection A22(2) of the IRPA to the decision-making process, and to clarify that the issue of dual intent affects all categories of immigration applications.
A22(2) 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." Dual intent is present when a foreign national who has applied for permanent residence in Canada also applies to enter Canada for a temporary period as a visitor, worker or student. Dual intent on the part of the applicant is therefore not prima facie grounds for refusal of temporary resident status.
The client should be aware that his spouse will be expected to show continued ties to India such that the Officer is satisfied she will not stay in Canada illegally. If the couple is planning to relocate their entire life to Canada immediately, this could raise questions as to whether the spouse truly has a temporary intent in entering Canada.
In our experience, clients who marry abroad often assume that because they are able to file a sponsorship application, they will also automatically be able to bring their spouse to Canada while the application is pending (or before it is filed, as the case may be). However, this is not automatically the case. The prospects of being approved will depend on a number of factors, including, but not limited to:
- The foreign national spouse's ties to their home country (family, work, property, etc.); and
- The prospects of the sponsor being able to live in India temporarily with the foreign national spouse should this be required (this will strengthen the case that the spouse will not overstay the visa because they could both go back if needed).
Assuming that the spouse would be approved for a visitor visa, then the question of whether to apply from inside or outside Canada comes down to the client's plans and preferences. Representatives should note two key differences in presenting the options to the client:
- If the client elects to file in-Canada and the spouse has to go back to India for some reason during the process, there is never a guarantee that she will be allowed to re-enter. A work permit that is issued to an In-Canada spousal applicant is not valid for re-entry to Canada. Indeed, no work permit is valid for re-entry, because a work permit simply gives the holder the right to work. A person needs to either be visa exempt or else hold a multiple entry TRV in order to re-enter Canada after leaving. The exception to this is the "contiguous territory" rule - meaning you can travel to the US and re-enter Canada without needing a multiple entry TRV, as long as you don't leave the US. (For more on contiguous territory exception see R190(3)(f)). If the spouse is denied entry, the sponsorship process would have to be re-started from outside Canada - which would result in a significant delay.
- There is no right to appeal to the Immigration Appeal Division ('IAD') for in-Canada sponsorships. Therefore, if the relationship presents some 'red flags' where an officer may question the genuineness of the relationship, the client should consider filing from outside Canada to ensure there is a right to a de novo appeal at the IAD (as opposed to a more limited judicial review application in Federal Court).
Under current processing estimates, the
posted
processing estimate from IRCC is virtually identical for both options. However, representatives should check the most updated processing times when advising clients and ensure that they provide this information for consideration.
