Flagpoling

“Flagpoling,” also known as “sidedooring,” are terms which describe the process of individuals who are inside Canada travelling briefly to the United States and then upon re-entry to Canada submitting an application at a Canadian port of entry (“POE“).  For most individuals who are eligible to flag-pole it is the preferred method to obtain study permits, work permits, and to have their Confirmations of Permanent Residence signed.  The reason is because it typically takes a Canada Border Services Agency (“CBSA“) officer less than 30 minutes to process an application, whereas it can take Citizenship and Immigration Canada (“CIC“) weeks or months to either process an application or schedule a landing interview.

Who Can Flag-Pole (Work Permits)

In the work permit context, regulation 198 of the Immigration and Refugee Protection Regulations (“IRPR”) provides that:

(1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa.

Exceptions

(2) A foreign national may not apply for a work permit when entering Canada if

(a) a determination under section 203 is required, unless

(i) the Department of Employment and Social Development has provided an opinion under paragraph 203(2)(a) in respect of an offer of employment — other than seasonal agricultural employment or employment as a live-in caregiver — to the foreign national, or

(ii) the foreign national is a national or permanent resident of the United States or is a resident of Greenland or St. Pierre and Miquelon;

(b) the foreign national does not hold a medical certificate that they are required to hold under subsection 30(4); or

(c) the foreign national is a participant in an international youth exchange program, unless they are a national or permanent resident of the United States or their application for a work permit was approved before their entry into Canada.

IRPR r. 190 sets out who is exempt from the requirement to obtain a Temporary Resident Visa before entering Canada.  Importantly, IRPR r. 193(3)(f) provides that:

A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

(i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it.

A copy of the implications of IRPR r. 193(3)(f) can be found here. It is very important to understand when an individual who typically requires a Temporary Resident Visa to enter Canada is exempt from the requirement to do so under IRPR r. 193(3)(f).  Our office routinely meets with individuals who misread this policy, which is beyond the scope of this post.

Who can Flag-Pole (Study Permits)

In the study permit context, IRPR r. 214 provides that:

Application on entry

214. A foreign national may apply for a study permit when entering Canada if they are

(a) a national or a permanent resident of the United States;

(b) a person who has been lawfully admitted to the United States for permanent residence;

(c) a resident of Greenland; or

(d) a resident of St. Pierre and Miquelon.

(e) [Repealed, SOR/2014-14, s. 10]

Who can Flag-Pole (Landing)

Anyone can flag-pole to land as a permanent resident.

Risks of Flag-Poling

The term “flagpoling” does not actually appear in Canadian immigration legislation.  In Yang v. Canada (Public Safety and Emergency Preparedness), 2014 FC 383, Justice Harrington remarked that (emphasis added):

It was on 21 May 2013 that Ms. Yang left Canada in body, if not in spirit, and presented herself to the U.S. authorities. They gave her a form called “Notice of Refusal of Admission/Parole into the United States”. This form was addressed to the Department of Manpower and Immigration, Douglas, B.C. Within a column which bears the title “Reasons for Excludability or Parole”, the word “Flagpole” was typed in. There were two other boxes in the form. One is to indicate whether the alien was refused admission into the United States. The other was whether the alien was refused admission and parole in the United States. Both boxes remained blank.

“Flagpole” obviously means something to both the U.S. and Canadian authorities, although whatever understanding there is, was not set out in the record. Counsel for Ms. Yang says it is well-known that individuals in Canada seeking extension of work or study permits simply walk across the border and come back in.

In addition to illustrating that “flag-poling” is a loosely defined concept, the above passage highlights another common practice that is actually very risky for individuals.

Many people who flagpole do not actually get admitted to the United States because they lack American visas.   In addition to these individuals being denied entry to the United States, which can possibly have long-term consequences, it is unclear whether such people actually meet the requirements of IRPR r. 198. After all, if they were denied entry to the United States, did they technically leave Canada? If they didn’t leave Canada, then how can they make an application on entry?  The question has had legal scholars scratching their head for some time.

Ultimately the prevalence of flag-poling may be diminishing.  As the document below indicates, CBSA is becoming increasingly frustrated with people flag-poling, and have voiced their concerns to CIC.  It remains to be seen what CIC ultimately does.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”).  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

Flag-Poling_Page_1

Flag-Poling_Page_2


New LMIA Exemption – Repair Personnel

On May 21, 2015, Citizenship and Immigration Canada (“CIC”) introduced a new Labour Market Impact Assessment (“LMIA”) exemption for individuals who are coming to Canada to repair industrial or commercial equipment that is no longer under warranty or covered by an after-sales or lease agreement.

The LMIA exemption code is C13.

Continue reading “New LMIA Exemption – Repair Personnel”


Asking the Embassy to Re-Consider an Application

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
Continue reading →


Determining Whether a Marriage Is Genuine

Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by s. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”), which provides that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”), there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7:

It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Ouk v. Canada (Minister of Citizenship and Immigration), 007 FC 891 at para 13; Zheng v. Canada (Minister of Citizenship and Immigration), 2011 FC 432 at para 23; Khan v. Canada (Minister of Citizenship and Immigration), 2006 FC 1490 at para 20). It is exclusively up to the visa officer to determine the relative weight to grant each of the factors, based on the facts, to ensure the inherent logic of the applicant’s story according to the particular clues, or references made by the applicant himself, meaning the encyclopedia of references, a dictionary of terms, a picture gallery of the applicant’s file in addition to an assessment to determine whether the facts on file taken together create harmony or discord (Keo v. Canada (Minister of Citizenship and Immigration) 2011 FC 1456 at para 24; Zheng, supra).

Notwithstanding the fact that there is no set criteria for IRPR r. 4(1) analysis, numerous Immigration Appeal Division (“IAD”) decisions have noted that a non-exhausted list of factors includes:

  • the compatibility of the spouses;
  • the development of the relationship;
  • communication between the appellant and the applicant;
  • financial support;
  • the spouses’ knowledge of each other;
  • visits by the appellant to see the applicant;
  • the presence of the applicant’s family in Canada;
  • the applicant’s previous attempts to land in Canada;
  • previous marriages; and
  • the cultural context.

While the burden of proof is on an applicant to establish that a relationship is bona-fide, officers should not presume at the outset that a relationship is mala-fide. As well, while visa officers are entitled to consider and weigh numerous factors when assessing a sponsorship application, the jurisprudence is also clear that officers must be alert to an applicant’s unique circumstances, including cultural customs, dating habits, and financial circumstances.

Citizenship and Immigration Canada has produced training materials to officers on how to spot non-genuine relationships.  Thankfully, most officers show much more common sense in assessing these applications than what their training materials suggests should be how they assess applications.


Bill C-60, The Removal of Serious Foreign Criminals Act

On May 13, 2015, the Minister of Public Safety and Emergency Preparedness introduced Bill C-60, An Act to amend the Criminal Records Act, the Corrections and Conditional Release Act, the Immigration and Refugee Protection Act and the International Transfer of Offenders Act, also known as the Removal of Serious Foreign Criminals Act (“Bill C-60Removal of Serious Foreign Criminals Act”).

Bill C-60 will:

  • Make it easier and faster to remove certain foreign nationals and permanent residents who are inadmissible to Canada for serious criminality.
  • Make all foreign nationals and certain permanent residents ineligible for a record suspension.
  • Allow the Correctional Service of Canada to inform registered victims of crime of the date and destination of criminals released from immigration detention; and
  • Make it easier for Canada to transfer criminals without their consent to serve their sentence in their home country.

A more detailed breakdown of the provisions is as follows:

Continue reading “Bill C-60, The Removal of Serious Foreign Criminals Act”



Judicial Reviewing Electronic Decisions

Bill C-59 – An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 (“Bill C-59“) and other measures introduces certain amendments to the Immigration and Refugee Protection Act (“IRPA“).  One of them is:

186.1 (1) The Minister may administer this Act using electronic means, including as it relates to its enforcement.

(5) For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision or determination under this Act, or by an officer to make a decision or determination or to proceed with an examination under this Act, if the system is made available to the officer by the Minister.

It is well known that most Electronic Travel Authorization decisions will be electronic.  Bill C-59 allows for the possibility that automated decision making may occur elsewhere.

As computers possibly start deciding temporary and permanent residence applications, the question has to be asked.. how do you judicially review the decision of a computer? Is the computer an expert?


Renouncing Permanent Resident Status

Prior to November 21, 2014, there was no formal way for permanent residents to voluntarily renounce their permanent resident status in Canada.  Incredibly, permanent residents who wanted to voluntarily relinquish their status had to generally first be declared inadmissible to Canada by Citizenship and Immigration Canada (“CIC”).  This has now changed, and the ability to formally relinquish permanent resident status will benefit numerous individuals.  As the CIC website states:

In some cases, permanent residents know that they failed to meet the residency obligation and have no desire to remain in Canada as permanent residents, but they wish to visit Canada without being reported for non-compliance with respect to their residency requirements. In other cases, individuals may be required to provide proof that they have given up Canadian permanent resident status in order to obtain benefits from their country of origin or a third country, such as accepting a diplomatic posting, renewing civil documents (national identity cards, health or pension coverage, etc.) or entering military service.

Continue reading “Renouncing Permanent Resident Status”