ARCHIVED – Operational Bulletins 131 – July 6, 2009

Application of Dual Intent

This Operational Bulletin has expired.

Background

The Government of Canada has expressed its commitment to attract more international students and temporary foreign workers to Canada, and to tap into this source for the selection of highly skilled workers as permanent residents who will contribute to the Canadian labour force in the long term. Given the potential for an increase in the number of temporary resident applications co-existing with applications for permanent residence in Canada, a number of industry stakeholders have asked for clarity around the concept of dual intent.

The purpose of this operational bulletin is to clarify the interpretation and application of dual intent within the processing of temporary resident applications by:

• defining dual intent;
• reaffirming that an application for temporary resident status will not be refused based on dual intent; and
• clarifying what steps temporary residents must take in the application process.

Legislative reference

Dual intent is not new.  As stated in the Immigration and Refugee Protection Act and Regulations (IRPA/R), having both intents–one for temporary residence and one for permanent residence–is legitimate. The purpose of this bulletin is to address the application of section A22(2) of IRPA with respect to the overseas 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.

Assessing “dual intent’’

A person’s desire to apply for permanent residence before or during a period of temporary residence in Canada may be legitimate. An officer should distinguish between an applicant whose intentions are bona fide and an applicant who has no intention of leaving Canada at the end of their authorized stay if the application for permanent residence is refused.

In assessing bona fides, the individual circumstances of the temporary resident applicant must be examined; refusals of non-bona fide temporary residents may only withstand legal challenge when the refusal is based on the information related to the specific case before an officer. Guidance on assessing bona fides is available in FW 1, section 5.25 (Temporary Foreign Workers), OP 11, section 13 (Temporary Residents) and OP 12, section 5.15 (Foreign Students).

In assessing an application for temporary residence an officer may also consider factors such as:

• the length of time that the client will be spending in Canada;
• the means of support;
• obligations and ties in the home country; and
• compliance with other requirements of the IRPA/R applicable to visitors, workers and students.

If an officer has concerns/doubts about the applicant’s bona fides, the applicant must be made aware of these concerns and given an opportunity to respond to them.

If an application for temporary residence is not approved, the CIC visa officer will provide the client with a letter explaining why an application has been refused. Temporary residence status might be refused for several reasons including:

• 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 effect 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;
• not submitting all required documentation; and
• not satisfying the officer that the applicant has answered all material questions truthfully as required by A16(1).

What temporary residents must do in applying for temporary resident status pertaining to dual intent

Section 22(2) of IRPA acknowledges that there may be instances where a foreign national will seek entry to Canada for a temporary purpose while having a longer term intention to establish permanent residence in Canada. However, the onus is on the applicant to establish that they are a bona fide temporary resident and that they will leave Canada by the end of the period authorized for their stay pursuant to R179(b), R200(1)(b) or R216(1)(b).

Recognizing that an application for permanent residence can legitimately be made from within Canada, when applying for temporary resident status (visitor, worker, student) an individual must first and foremost clearly demonstrate to the visa officer that he or she intends to respect the requirement of their temporary resident status and leave Canada by the end of the period authorized for their stay.

Possible scenarios

1. An applicant applies for a study permit to study in Canada; they also have a permanent resident application in place. The fact that the applicant also has an application to permanently reside in Canada with their spouse does not establish that they would not leave Canada at the end of the period authorized for their study permit as required under R216(1)(b). IRPA expressly allows the applicant to simultaneously seek permanent resident status and temporary resident status.
2. An applicant applies for a temporary resident visa (TRV) to visit Canada but is denied solely because they have a family class application for permanent residence in process. In the refusal letter, the officer states that because the applicant is pursuing permanent residence, the officer is not satisfied that the applicant will leave Canada at the end of the period authorized as required by A20(1)(b). The officer has made an error. A22(2) precludes denying an application for temporary status on the basis that there is an outstanding permanent resident application, if the officer believes that the applicant will leave Canada at the end of the period authorized for their stay. If the permanent resident application is finalized after the issuance of the TRV, the applicant would be authorized, on the basis of the permanent resident visa, to remain in Canada.
3. A provincial nominee applicant applies for a temporary work permit. The officer is satisfied that the applicant will leave Canada by the end of the period authorized for the work permit should the applicant be refused a permanent resident visa. The officer issues a TRV visa. While the applicant is working legally in Canada, their provincial nominee file is finalized by the visa post and the individual becomes a permanent resident.

Officers are reminded to use the good judgement afforded to them by A22(2) in making decisions regarding cases with a dual intent aspect. CAIPS notes should clearly reflect the officer’s reasoning when assessing a case.