As a relatively new (December 2014) immigration program, the One Year Pilot Project which provides an Open-Work Permit to In-Canada Spousal Sponsorship/Common-Law Applicants raises many interesting factual scenarios – particularly in relation to refused applications.
Under this pilot project, prior to first-stage approval, Applicants who currently are in-status and in Canada are given open work permits allowing them to work anywhere in Canada while their spousal/common-law applications are in processing. I was asked an interesting scenario, one that was brought up by the folks in the Canada Spousal Sponsorship Practitioners Facebook Group.
What if an in-Canada Spousal Application is refused? Can the individual continue to hold and work on their Open-Work Permit.
The relevant Immigration and Refugee Protection Act (“IRPA”)provision states as follows, regarding the circumstances in which temporary status (i.e visitor, student, worker) may be lost (emphasis added):
Temporary resident
47. A foreign national loses temporary resident status
(a) at the end of the period for which they are authorized to remain in Canada;
(b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or
(c) on cancellation of their temporary resident permit.
Applying Section 47 of IRPA, there are currently no grounds to require a foreign national holding a open spousal work permit to leave Canada because the Spousal/Common-Law Sponsorship application has been refused.
When does the authorized period to remain in Canada end?
Section 183(4) of IRPA states (emphasis added):
Authorized period ends
(4) The period authorized for a temporary resident’s stay ends on the earliest of
(a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;
(b) the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;
(b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;
(c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63; or
(d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.
Extension of period authorized for stay
(5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until
(a) the day on which a decision is made, if the application is refused; or
(b) the end of the new period authorized for their stay, if the application is allowed.
Non-application
(5.1) Subsection (5) does not apply in respect of a foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act.
Continuation of status and conditions
(6) If the period authorized for the stay of a temporary resident is extended by operation of paragraph (5)(a) or extended under paragraph (5)(b), the temporary resident retains their status, subject to any other conditions imposed, during the extended period.
It also important to look at when an authorized stay begins. The Immigration and Refugee Protection Act states (emphasis added):
Authorized period begins
(3) The period authorized for the stay of a temporary resident begins on
(a) if they are authorized to enter and remain in Canada on a temporary basis, the day on which they first enter Canada after they are so authorized;
(a.1) if they have become a temporary resident in accordance with subsection 46(1.1) of the Act, the day on which their application to renounce their permanent resident status is approved; and
(b) in any other case, the day on which they enter Canada.
On my reading, as long as the Applicant has a valid temporary resident visa allowing them to re-enter Canada, they cannot lose their open work permit simply by leaving Canada. This is not a case of implied status.
Of course, there may be challenges in obtaining a visa, which is another matter for another post. From my reading of the legislation, if you leave Canada during the duration of your Canada
Note, that there are several conditions by which an individual can apply for a visitor visa within Canada and holding a work permit in Canada is one of them. See: http://www.cic.gc.ca/english/visit/cpp-o-apply.asp
Opportunities Created By an Open Spousal Work Permit
There are several potential opportunities created by a foreign national spouse-applicant who holds an open work permit. There may be several economic options worth pursuing if the required work experience can be obtained.
Also, an Overseas application can be initiated and the ability of the individual to travel back to their home country can facilitate any officer interview conducted overseas.
However, given the current uncertainty with Port of Entry examinations and Officer discretion leaving Canada while holding an Open Spousal Work Permit and a In-Canada Spousal Sponsorship refusal may not be the most desirable choice.
What I Would Do – Issue all Spousal/Common-Law Applicants Open Work Permits
I think Citizenship and Immigration Canada has really shot itself in the foot with making the open work permit option only for In-Canada Spousal Sponsorship applicants. Should this option exist for Overseas applicants as well (who by the way can be in Canada when applying). If there did so there would less of a burden and backlog of the domestic system – currently holding up families for 26 months +.
While well-intentioned, the Open Spousal Work Permit has become an emergency lifeline for Canadian couples with a foreign national spouse/common-law partner. It creates the potential for poorly prepared applications filed to save a relationship. If I were CIC I would encourage more individuals to apply abroad, put more resources abroad to boost those processing times, and encourage more spouses to stay and work in Canada on a dual-intention pending processing of their Sponsorship applications.
