“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.
(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.