Time to Remedy the Problem of Temporary Resident Permits

Canada’s Award-Winning Canadian Immigration and Refugee Law and Commentary Blog

co-written w/Yussif Silva, Student Intern, Edelmann and Co. Law Offices

Mel is a stateless Palestinian. She grew up stateless in a country that does not offer her Citizenship and no longer offers her status. She has been on successive TRPs but is looking to apply for economic permanent residence and obtain successive work permits. Mel recognizes she probably needs a TRP but is uncertain of why she needs to make paper-based extension applications and how she eventually should apply for PR.

Prab is an Indian national. She accidentally flew back into the United States from India to re-enter Canada as a student, not realizing she needed a TRV first. She has been on successive TRPs. She has since been on successive TRPs, but is seeking to complete her studies and apply for a post-graduate work permit (“PGWP”). Prab wants to trade-in her TRP and go on her way to the pathway to PR.

Jack is an Armenian national and study permit holder in Canada. He does not have a passport and returning to his country at this time would mean mandatory military conscription. However, the passport issue could be resolved through some negotiation by his family members. He is seeking his first TRP.

Raj is a Pakistani national. He has held TRPs in the past unauthorized studies, but abruptly after years of work permits it was refused. He believes it was refused because another TRP would have enabled him to apply for permanent residence, but he is not sure.

Marcela is a Mexican citizen. She had a semester of non full-time studies while going through a difficult time with mental health challenges, but her university did not offer leave. Her university recommends that she asks for a ‘TRP in the alternative,’ alongside her PGWP but is uncertain what this entails.

 Bahar is an Iranian citizen. She extended her own work permit, but forgot to extend the visitor status of her two children who were studying in Canada. They were able to study, but she was advised to obtain TRPs to address their inadmissibility. She is in the PR process and wondering if her children will face any difficulty in obtaining their permanent residence.

TRPs: A Backgrounder

Temporary Residence Permit [TRP] allow for foreign nationals otherwise inadmissible or not meeting a requirement of the Immigration and Refugee Protection Act (“IRPA”) to stay in Canada if it is justified in the circumstances (s. 24(1) of the IRPA).

Justice Norris, in the 2020 case of Williams v. Canada (MCI) 2020 FC 8, lays out the regime perfectly in paragraphs 35-38 of his decision, which I will reproduce below:

(3)  Section 24(1) of the IRPA

[35]  This provision provides for the issuance of a temporary resident permit to someone who is inadmissible or who does not meet the requirements of the Act “if an officer is of the opinion that it is justified in the circumstances.”  Such a permit may be cancelled at any time.  Further, under section 63 of the Immigration and Refugee Protection Regulations, SOR/2002-227, a temporary resident permit is valid until one of the following events occurs:

  • (a) the permit is cancelled under section 24(1) of the Act;
  • (b) the permit holder leaves Canada without obtaining prior authorization to re-enter Canada;
  • (c) the period of validity specified on the permit expires; or
  • (d) a period of three years elapses from the date of validity.

[36]  Operational instructions and guidelines from Immigration, Refugees and Citizenship Canada [IRCC] that were in effect at the time shed additional light on how decisions on applications for TRPs were made when the applicant submitted his request.  (They have since been modified in some respects – for example, by clarifying that the predominant consideration is whether “the individual’s purpose for entering Canada balances Canada’s social, humanitarian and economic commitments to the health and security of Canadians, per the objectives of the IRPA”: see https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits/eligibility-assessment.html.)  While such instructions and guidelines are not law and are not binding, they can “offer guidance on the background, purpose, meaning and reasonable interpretation of legislation” (Mousa v Canada (Immigration, Refugees and Citizenship), 2016 FC 1358 at para 11).

[37]  The instructions and guidelines explain that the officer will determine whether “the need for the foreign national to enter or remain in Canada is compelling” and whether “the need for the foreign national’s presence in Canada outweighs any risk to Canadians or Canadian society.”  In evaluating “compelling reasons” versus “risks”, officers “must consider the factors that make the person’s presence in Canada necessary and the intent of the legislation to maintain program integrity and protect public health and safety.”  The officer must be satisfied that “the reasons or benefits for an individual to enter or remain in Canada outweigh the risks.”

[38]  IRCC instructions and guidelines pertaining specifically to risk assessments in cases of criminal inadmissibility note that the “onus is on the client to demonstrate their level of risk and that further criminal activity is unlikely.”  In making this determination, officers are directed to assess, among other things:

  • the seriousness of the offence
  • the chances of committing further offences
  • evidence of reform or rehabilitation
  • if there is a pattern of criminal behaviour (e.g. the offence was a single event and out of character)
  • if all sentences have been completed, fines paid or restitution made
  • if there are any outstanding charges.

See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits/considerations-specific-inadmissibility-on-criminality-grounds.html.

[39]  Finally, section 29(2) of the IRPA provides that a temporary resident “must comply with any conditions imposed under the regulations and with any requirements under this Act [and] must leave Canada by the end of the period authorized for their stay.”

 

The Problem

IRCC does not set out a detailed regime for TRPs when it is a non-serious inadmissibility or failure to meet a requirement of the Act, and rolls it into a very high threshold assessment. The current website materials, many of which are several years old, are focused on serious inadmissibilities and clearly indicate only the process for permanent residency for those individuals.

This was not in line with the many meetings I was having with individuals who either had or were thinking of applying for TRPs to remedy simple matters and needed just bandaid coverage. Even in the case law framed around TRPs, we have a discussion of ‘risk’ vs. ‘compelling reasons’ which becomes very difficult to apply in contexts involving international students or visitors with temporary status issues largely considered disposable.

Specifically, I am realizing international students need to rely more and more on temporary resident permits, to overcome inability to meet requirements of IRPA and IRPR such as the failure to maintain full-time status. Unfortunately, rather than apply discretion and issue full duration post-graduate work permits for these exceptional circumstances, many Officers have been issuing TRPs instead.

From a logical perspective, an individual on a TRP for not having studied full-time shouldn’t need to wait the same five-years as someone who misrepresented on an application to obtain permanent residence. 

In June of this year, I posed a question to Immreps to try and seek some clarity after a string of individuals coming to see me about TRPs. 

 

 Hi Immreps:

    I was hoping for some clarification on the TRP Holder Class

    (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/permits.html)

    1) If an individuals is inadmissible to Canada for an issue such as not holding a document required for entry (they do not hold a passport and only a refugee travel doc for example) or for perhaps an exemption to the requirement to meet the requirements for the PGWP (given to students who may not meet requirements but still are granted PGWPs w/TRPs) and who has been on valid Temporary Resident Permits for 3 years are they eligible to apply for PR under the TRP Holder Class or should they apply under the traditional economic routes.

     The website only mentions health admissibility, inadmissible family members, and the other main inadmissibilities but not non-compliance.

        2) If they need a TRP and a PGWP is this also considered an exemption to the need to apply online through eAPPs and they can do this paper-based (if they hold a valid TRP currently)?

    (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/place-application-visa-electronic-travel-authorization-study-permit-work-permit/exempt-electronic-applications.html)

        3) Furthermore, if they are supposed to utilize the traditional economic routes – when do these individuals no longer require the TRPs? Are they able to simply apply for PGWPs from being Study Permit holders without needing to renew their TRPs and then ask for H&Cs on the requirement to hold a valid passport when it comes to their economic PR applications?

    Thank you,

   

IRCC’s response was as follows:

  Good day, 

    Our sincere apologies for the late response. 

    1) As identified in the link provided, Temporary resident permit (TRP) holders may be eligible to apply for permanent residence as members of the permit holder class if all of the following apply:

  • they have not become inadmissible on any grounds other than those for which the original TRP was issued •they currently hold a valid TRP •they have resided continuously in Canada as a permit holder for three to five years, depending on the nature of their original inadmissibility.

    2) If a client has been granted a TRP in Canada and meets all the requirements identified above and other requirements as outlined in the Act and Regulations, they may be eligible to apply for permanent residence as members of the permit holder class. However, if a client does not meet the above mentioned requirements, they may apply for permanent residence under IRCC’s economic programs if they meet the requirements.

    If the client is inadmissible or does not meet the requirements of the Act, they still require a TRP. If a foreign national holds a valid TRP in Canada and is seeking to extend their temporary resident status, they must apply by electronic means, unless they meet one of the following exemptions:

                    – Exceptional circumstances beyond the control of foreign nationals, individuals or entities

                    – Disability

                    – System restrictions (Come to Canada tool and MyAccount) If the Come to Canada tool and MyAccount are inadequate for the specific application of the client, then they may be exempt from the mandatory online application.

    3) Based on question (1) above, if a client is unable to meet the requirements to apply for PR as members of the permit holders class, they may apply for permanent residence under IRCC’s economic programs if they meet the requirements.

    A temporary resident permit (TRP) holder who is in Canada and who is also a study or work permit holder may extend their temporary resident status by applying for a subsequent TRP directly, using the respective in-Canada forms (Application to Change Conditions, Extend My Stay or Remain in Canada as a Student form [IMM 5709] (PDF, 589 KB) and Application to Change Conditions, Extend My Stay or Remain in Canada as a Worker form [IMM 5710] (PDF, 583 KB)).

    TRP holders are encouraged to avoid a break in continuity, which occurs when TRP holders leave Canada without authorization for re-entry, or when they do not apply for a subsequent permit before the expiration of their existing permit. 

    The issuance of a TRP is discretionary and therefore we are unable to speculate as to when a TRP may be issued or the process that may follow with the issuance of H&Cs, which is also highly discretionary.

 

There are a lot of unanswered questions in what IRCC has provided.

  1. What is the requirement for TRP Holder Class for minor inadmissibilities? (Previous Non-Compliance/Not Holding Valid Travel Documents)
  2. How does one submit a complex TRP (TRP extension) but not get stuck in the paper-based delay process? How it is possible to extend temporary resident status online when most times it is tied to expiring TRPs?
  3. How does an Applicant know whether they still remain inadmissible or if the issue has been addressed by the bandaid remedy of TRPs?

 

Recommended Solution

IRCC should create the TRP equivalent to the International Mobility Worker Unit to assess whether an individual still needs a TRP without requiring them to submit an extension to find out. Indeed, such a department can also assist in determining whether the TRPs can be traded in. For example, in the case of a student who now is holding the equivalent of a post-graduate work permit, should not need to be weighed down by an old TRP. Similarly, an individual who is able to obtain a passport mid-way through their TRP or a subsequent TRV, should not need to leave Canada or be in limbo for several months before being able to switch off that status.

At the same time, those who hold TRPs should be encouraged and assisted with clear instructions on how to pursue usual pathways to permanent residence, notwithstanding past records. For example, stateless individuals (who often need to hold TRPs) continue to be ostracized at each step, first in needing to extend TRPs, second in needing to ask for exemptions on initial application and with filling in electronic forms that require the document, and finally with seeking security check exemptions. Individuals who are recognized as stateless and TRP holding, should have some access to an interim document to aid in the transition from temporary residence to permanent residence.

Finally, I do hope, that TRPs will eventually be delineated by case law and by circumstance, so that applicants do not need to meet a ‘risk’ and ‘compelling reason’ test when they are not inadmissible to Canada for serious matters creating risk, and may have simply made a mis-step that requires a TRP correction rather than a ‘compelling reason.’ Perhaps Officers could themselves go out of their way more, through discretion, to award the original permit (and exempt it on an H&C) rather than issue a TRPs. TRPs confuse potential employers, create paper-work challenges, and ultimately give a sense of instability and otherness. 

It is a label and an application we should assign with caution.

Note: I am grateful to showcase my colleague Yussif Silva as a co-author and editor of this piece. Yussif is currently a legal intern at Edelmann and Co. Law Offices. He graduated with an LLM after a storied legal career in Brazil and is passionate about immigration and refugee law.

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary

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