In this post, we will explore IRCC’s new program delivery instructions (“PDIs”) on dual intention, how they have changed and the implications of those changes. Our overall position is that it is currently too hard [based on some positive/some confusing inclusions] but ultimately too early to say if it will lead to practical benefits for Applicants or better decisions by IRCC officers considering dual intent.
Specifically, in this post, I will be comparing the new PDIs (see: here) with the PDIs from November 2022 when Wayback Machine last saved them (see: here).
OLD
Having 2 intents (1 for temporary residence and 1 for permanent residence) is legitimate. This section addresses how to apply subsection 22(2) of the Immigration and Refugee Protection Act (IRPA) to the decision-making process.
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, in accordance with section 179 of the Immigration and Refugee Protection Regulations (IRPR).
NEW
Having 2 intents (initially for temporary residence and eventually for permanent residence) is legitimate. Facilitative pathways that depend on retaining temporary residents with essential skills or experience, such as Agri-Food Pilot (AFP), Caregiver pilot and Canadian Experience Class, have increasingly been relied upon as routes to permanent residence that contribute to Canada’s economic growth. This section addresses how to apply subsection 22(2) of the Immigration and Refugee Protection Act (IRPA) to the decision-making process, recognizing that the 2 intentions involved are complementary, not contradictory.
The possibility that an applicant for temporary residence may, at some point in the future, be approved for permanent residence does not remove the individual’s obligation to meet the requirements of a temporary resident, specifically the requirement to leave Canada at the end of the period authorized for their stay, in accordance with sections 179, 200, and 216 of the Immigration and Refugee Protection Regulations (IRPR).
IMPLICATIONS
The major difference we see is the movement in wording from holding two intents to a discussion of an initial and eventual intent. We would suggest that this wording is important in explanation letters where applicants are trying to claim dual intent.
Also, IRCC’s highlighting of specific programs that pathway into PR is quite interesting as it provides three examples, but arguably ignores the start-up visa context (Serimbetoz v. Canada (Immigration, Refugees and Citizenship), 2022 FC 1130 (CanLII), <https://canlii.ca/t/jrbwn> at para 39, recently affirmed in Karimi v. Canada (Citizenship and Immigration), 2023 FC 411 (CanLII), <https://canlii.ca/t/jwdj2> at para 17). It is curious that these three programs were chosen as the examples.
Large portions of this section, however, are quite similar between old and new.
OLD
Assessing an application where there are dual intent implications is no different from assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment. The applicant must, in turn, satisfy the officer that they meet all the requirements of the IRPA and the IRPR relating to temporary residence, before any temporary residence application is approved.
If an officer has concerns or doubts about the applicant’s intentions, 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 officer will provide the client with a letter explaining why the application has been refused.
NEW
Assessing an application where the applicant may have a dual intent is the same as assessing any other temporary residence application. Each applicant receives the benefit of a procedurally fair, individual assessment, which takes into account the entire context of the application.
Applicants have the right to have a fair and impartial decision-maker. The courts have indicated that it is necessary to avoid even the possibility or perception of bias, examples of which may include:
– judging a matter before it is heard
– prejudicial attitude
Examples of bias would include a belief that applicants with open, closed, or prospective permanent residence applications automatically have a desire to remain in Canada past the authorized period of stay.
When an individual will be affected by a decision, that individual has the right to know the case to be met and must be given a fair opportunity to respond where procedural fairness requires. For example, a migration officer may draw inferences regarding an applicant’s intention to return based on information in previous or concurrent applications and interviews.
IMPLICATIONS
I am personally surprised that bias has been highlighted here. I think bias (and prejudice) against applicants from the Global South attempting to claim dual intent has been raised as a concern at the CIMM and in policy discussions, yet there has not been a Federal Court ruling on bias in the context of dual intent nor have arguments for reasonable apprehension of bias been particularly effective recently given the high standards (see e.g. Haghshenas v. Canada (Citizenship and Immigration), 2023 FC 464 (CanLII), <https://canlii.ca/t/jwhkd> at para 26. However, the inclusion of bias here may give Applicant’s some legs in terms of challenging reliance on biased data or having a prejudicial attitude informed by the manner in which inputs are put in front of the Officer. Again, because standardized refusal letters have become so good at sanitizing issues such as bias and utilizing softer language that eliminates presumptions such as the example provided, establishing bias may (continue to) be very difficult. I presume IRCC must have some level of confidence in their decisions being shielded from bias concerns to be so upfront about it in instructions. That being said, I do feel the days of Baker-esque decisions are largely curtailed by the use of tools such as Chinook (later Cumulus) that will provide softer, safer, neutral refusal grounds that avoid explicit biased language.
OLD
Spouses and partners
Officers should consider the individual circumstances of a foreign national who is being sponsored for permanent residence as a spouse or common-law partner. 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
If a spouse or partner can satisfy an officer on a balance of probabilities that they will, if their permanent residence application is refused, leave Canada at the end of their authorized period of stay in accordance with section R179, officers may issue a temporary resident visa (TRV).
NEW
Spouses and partners
Officers should consider the individual circumstances of a foreign national who is seeking to join their spouse or common-law partner who is already residing in Canada.
Factors to consider include, but are not limited to,
- whether a sponsorship application has been approved, if applicable
- whether an application for permanent residence is proceeding towards approval, if applicable
- the applicant’s ongoing ties in their home country
- the result of being without status in Canada, e.g. the inability to work, inability to study, no access to health care, risk of being deported, etc.
Temporary resident application forms do not ask the applicants to explain their intent, other than asking purpose of travel, which generally does not result in a detailed explanation. However, based on the other information provided by the foreign national and presence or absence of past immigration compliance (positive) or non-compliance (negative); or lack of either (can only be considered neutral and is not a ground to cite for refusal or approval), if a spouse or partner can satisfy an officer that it is more likely than not that they will leave Canada at the end of their authorized period of stay, officers may issue a temporary resident visa (TRV).
IMPLICATIONS
This part of the program delivery instructions have arguably changed the most and for good reason. Many spousal applicants (or those seeking to come to Canada temporarily to then pursue an in-Canada spousal) have been refused temporary resident visas on the ground that they cannot leave Canada at the end of their authorized stay.
Significant changes were made removing the stage one approval requirement, the ‘retained ties’ discussed in the old instructions to their home country is now ‘ongoing ties’, and as well the plans an applicant was expected to demonstrate if their PR is refused has now been replaced by the result of an individual being without status in Canada.
I find the change around an Applicant demonstrating what they would do if their PR refused to what the impact is of loss of status to be very confusing. It seems to me more logical for an Applicant to have to show the genuineness of their dual intent, by demonstrating what would happen if their PR was not achieved and how they could effect their departure from Canada. With the criteria “The result of being without status in Canada, e.g. the inability to work, inability to study, no access to health care, risk of being deported, etc.” – these are all logical consequences of being without status in Canada. I am not sure how one assesses this in a dual intent application. Indeed, this criteria actually suggests that applicants would be more effective at claiming dual intent IF they were unable to be removed from Canada (their country subject to a Temporary Stay of Removal or Administrative Deferral of Removal) as those applicants would have less risk of being removed and could arguably apply for an R.206) IRPR work permit.
NEW INCLUSION
Temporary resident to permanent resident programs
While some temporary residents only reside in Canada for a limited period of time, IRCC, in partnership with provincial and territorial governments, has developed various pathways to encourage and allow temporary residents to become permanent residents and remain in Canada as a first step towards becoming Canadian citizens. Several economic immigration programs are designed for applicants with Canadian work or study experience. Other programs give extra points for applicants whose work or study experience is in Canada.
Canada actively promotes these programs to foreign nationals as Canadian work experience is a strong indicator for successful settlement. In the case of study permit applicants, officers should take into consideration that the Government of Canada actively promotes study-work-permanent residence pathways to prospective students, and that prospective students (particularly Francophones) are encouraged to indicate that they wish to immigrate to Canada permanently. Indeed, many prospective students will emphasize their desire to remain permanently in Canada as they believe this bolsters their application, in response to Government of Canada messaging and advertising.
IMPLICATIONS
This provides a bit more context continuing from the intro, but one questions why it was separated into it’s own section (or if the earlier summary should have been re-hashed here with the three possible dual intent programs). This expands further on other categories (beyond the specific three provided earlier) such as the intersection between IRCC and provincial programs starting with temporary residence, or the fact many economic programs provide extra points for those with Canadian work or study. The highlight of Francophones, in particular, seems very targeted at addressing a major concern of CIMM Study 8 that the presumption of dual intent was not provided to everyone. However, again, as soft law/guidelines – it’ll be interesting to see how it impacts Officer’s actual considerations and whether it ends up privileging some categories of applicants at the expense of forgoing others.
OLD
Refusals
The existence of 2 different intents is not, in itself, reason to refuse a temporary residence application. If the officer is satisfied that the applicant will leave Canada after their authorized stay regardless of the outcome of any potential future permanent residence application, the temporary residence application may be approved.
Example of a case for refusal
An applicant for a work or study permit who indicates that they have no intention of leaving Canada has demonstrated only a single intent—permanent residence. Their application will be refused, even if the applicant might subsequently qualify for the Canadian experience class (CEC) or the Provincial Nominee Program (PNP). This is because the applicant has shown that they would not respect the terms and conditions of temporary residence, should they not qualify for permanent residence.
Section R179 is balanced by the flexibility of subsection A22(2), which allows the officer to consider an applicant’s intent in relation to the particular circumstances of the application. For example, an applicant for a study permit who may qualify for the CEC in 3 years has a different set of circumstances from that of a provincial nominee whose application is near completion and who applies for a work permit, with the support of the province, due to an urgent need for their services. Please note that all applications should be assessed on their individual merits.
Officers are reminded to use their own judgment and the flexibility afforded to them by subsection A22(2) when making decisions on applications with a dual intent aspect. Global Case Management System (GCMS) notes should clearly demonstrate the officer’s reasoning when assessing an application.
Dual intent should be mentioned if it was considered as part of the decision on the application. If the officer is not satisfied that the applicant’s intentions are bona fide, and has dual intent concerns, the applicant should be refused as per section R179, with dual intent outlined as a concern in the application notes.
See also: Refusals overview
NEW
The existence of two different intents is legitimate according to A22(2) and not, in itself, reason to refuse a temporary residence application. If the officer is satisfied that the applicant will leave Canada at the end of their authorized stay regardless of any negative outcome for an ongoing or potential future permanent residence application, the temporary residence application may be approved.
Refusals
Officers are reminded to use their own judgment and the flexibility afforded to them by subsection A22(2) when making decisions on applications with a dual intent aspect. Global Case Management System (GCMS) notes should clearly demonstrate the officer’s reasoning when refusing an application.
Dual intent should be mentioned if it was considered as part of the decision on the application, with an explanation as to why the officer was not satisfied on a balance of probabilities that the applicant would leave Canada at the end of the authorized period of stay. If the officer is satisfied, taking into consideration the context outlined above, that the applicant genuinely intends to respect the conditions imposed on temporary residents, then dual intent has been established. If not, the application should be refused as per sections R179 (TRV), R200 (Work Permit), R216 (Study Permit), with failure to demonstrate bona fide temporary resident intent outlined as a concern in the application notes.
See also: Refusals overview
IMPLICATIONS
Perhaps I see things differently, but the previous instructions appeared to be clearer in establishing the statutory basis for a refusal. Examples were provided of cases that can be refused – where an Applicant who cannot demonstrate they will leave Canada, even if they have a pathway to future permanent resident, should be refused. It also asked the immigration officers to consider the pathway to PR, and where the Applicant is on that pathway.
Here is perhaps where it appears most likely that the instructions are becoming more lenient. The removal of the question of timeframe seems more facilitative to claims of dual intention not locked by when. However, an Applicant is still tasked with demonstrating a genuine intent to abide by conditions – which at this time include the ability to leave Canada at the end of their authorized stay. Honestly speaking, I still worry for many clients that the inclusion of the words dual intent don’t themselves trigger refusal on dual intent, but rather the scrutiny or the ‘finding of a reason’ to refuse on the temporary intent.
Overall Takeaway
My overall takeaway is that there are a combination of both helpful changes (e.g. removing stage one approval on spousal sponsorships and time frame on pathway to PR and highlighting possibly eligible programs) but also some head scratchers (discussion of bias and factoring in the universal consequences of removal). I think ultimately not enough was said about the actual temporary resident factors that lead applications to be refused and to advise Officers away from utilizing another ground to step in for an ultimate concern of an Applicant not leaving Canada at the end of their authorized stay.
What I recommend to find the actual benefit of these new policies in practice is to data track the number of applications that claim dual intent, the country of citizenships/residence, and eventually to run a detailed GBA+ analysis. An effective dual intent policy provides consistent results of success of the arguments across board and aligned with what should also be be equalizing approval rates.
