One of the most common questions that immigration lawyers and consultants get asked is whether someone can visit, work or study in Canada if they either have a permanent residence application in process or plan to submit one. The issue is often especially pronounced in Canada’s family reunification programs, as families do not want to wait the years that it can take Immigration, Refugees and Citizenship Canada (“IRCC” ) to reunite, at least temporarily. It can also, however, arise in economic immigration programs, as foreign workers who arrive in Canada may ultimately want to immigrate. The same is true with students.
Section 22(2) of Canada’s Immigration and Refugee Protection Act (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 is commonly referred to as the dual intent provision.
Because of this, IRCC’s program manuals specifically state that “having 2 intents (one for temporary residence and 1 for permanent residence) is legitimate.” However, “the possibility that an applicant for temporary residence may, at some point in the future, be approved for permanent residence does not absolve the individual from meeting the requirements of a temporary resident, specifically the requirement to leave Canada at the end of the period authorized for their stay.”
A Canadian visa official will consider numerous factors when determining whether a temporary residence applicant will leave Canada by the end of their authorized stay, including, but not limited to:
- the length of time that the applicant will be spending in Canada;
- the applicant’s means of support;
- the applicant’s obligations and ties in their home country;
- the purpose and context of their stay;
- the credibility of the documents submitted;
- past compliance with Canadian immigration legislation.
In the family reunification context, the IRCC program manuals also state that additional factors to consider include, but are not limited to:
- whether the sponsorship application has been approved
- whether the application for permanent residence has received stage one approval
- to what extent the applicant has retained ties in their home country
- what the applicant’s plan is, should their application for permanent residence be refused
Dual Intent
The Federal Court of Canada has previously held that dual intent is especially applicable to work permit applicants in certain categories.
In Serimbetoz v Canada (Immigration, Refugees and Citizenship), 2022 FC 1130, affirmed in Karimi v. Canada (Citizenship and Immigration), 2023 FC 411, Justice Diner stated:
It was unreasonable for the Officer to rely on (a) family ties, and (b) purpose of the Applicants’ visit, to conclude that they were unlikely to leave Canada at the end of their authorized stay. The Program, as described above, has as its primary objective permanent residence in Canada on the basis of start-up entrepreneurship. As such, the refusals on the basis of family ties – absent reasonable justification for this basis of refusal – when the work permit applications were expressly intended as a precursor to a forthcoming permanent residency application, was not only inconsistent with the purpose of the Program, but it was also illogical. Indeed, this is a classic case of dual intent as permitted under s. 22(2) of the Act. After all, the Program allows applicants to come to Canada on a work permit before submitting their application for permanent residence, as long as they have a Commitment Certificate, along with a Support Letter from their designated entity.
For the same reasons, the Officer’s consideration of the purpose of the Applicants’ visit was unreasonable, as guidance from IRCC indicates that work permits allow applicants to enter Canada and begin working while their application for permanent residence is still pending (Application Guide at s. 6.5). This is the exact purpose that the Applicants sought to pursue in their applications, and for which due diligence had already been conducted by the Designated Entity. If the Officer doubted their purpose in coming to Canada was for the establishment and launch of the business, or that a lack of due diligence had been done by the Applicants, that should have been explained. Instead, the Decisions also lacked reasonable justification as a basis for refusal. An example of a reasonable justification for finding that the Applicants were unlikely to leave Canada at the end of their authorized stay could have been, for instance, evidence of prior non-compliance with immigration laws (Gulati v Canada (Citizenship and Immigration), 2021 FC 1358 at para 11; Rosenberry v Canada (Citizenship and Immigration), 2012 FC 521 at para 115). However, there is no indication that any of these Applicants have ever breached an immigration law and no justification was provided for any such concern.
In the absence of any other indication of why the Officer was not satisfied the Applicants would leave Canada at the end of the period authorized for their stay, I find the Officer’s Decisions were both lacking in rationale and justification, given the parameters of the Program and the work permits filed under it.
[Emphasis added.]
Finally, in Luk v. Canada (Citizenship and Immigration), 2024 FC 623, Madam Justice Aylen held that in assessing an application arguing dual intent, officers have to consider the following:
The question the Officer was required to ask was whether the Applicant would stay illegally in Canada if he is not successful under the program [see Singh v Canada (Citizenship and Immigration), 2020 FC 840 at para 21]. In other words, given the Applicant’s dual intention to obtain permanent resident status under Stream A, the Officer did not have to be satisfied that the Applicant had a temporary purpose in coming to Canada but rather that the Applicant would not remain illegally in Canada if, for example, his application under Stream A was rejected or he was unable to complete his studies [see Bondoc v Canada (Citizenship and Immigration), 2008 FC 842 at para 29; Palogan v Canada (Citizenship and Immigration), 2013 FC 889 at para 14]. This is further supported by the plain wording of subsection 22(2) of the IRPA, which clearly states that applicants are required to satisfy the Officer that they will “leave Canada by the end of the period authorized for their stay.” Accordingly, I am not satisfied that the Officer erred in their interpretation of “dual intent” in subsection 22(2) of the IRPA. While the Applicant’s authorized stay could very well have been extended under Stream A, the Applicant still bore the onus of establishing that he would leave if he is no longer authorized to remain in Canada, but he failed to do so.