This article is authored by Michael Battista, a senior immigration lawyer and Professor at the University of Toronto’s Faculty of Law and Munk School of Global Affairs and Public Policy.
Immigration law reflects the tension between rigidity and flexibility found elsewhere in administrative law. If the system becomes too rigid, it results in unresponsiveness and unfairness. Too flexible, and the system becomes ineffective and untrustworthy.
The current debate over standards applied to temporary residents illustrates this tension. In an attempt to reduce spiralling processing times for temporary resident (mostly visitor visa) applications, the government is suggesting a solution: speeding up decisions by eliminating or reducing the requirement that temporary residents demonstrate a temporary intent.
These efforts are supported by many immigration lawyers and our clients who have seen arbitrary decision making in temporary resident applications. Too often, visa officers speculate on the probability of applicants’ not respecting our immigration laws as the sole basis for their decisions. Consequently, they prioritize circumstances that are weak indicators of a person’s likelihood of returning to their country after a limited stay in Canada. For example, a person who is young and without a lengthy history of employment is often viewed as a risk for overstaying temporary status in Canada based on their lack of attachment to their country. Add in the prospect of unstable economic or social conditions in their country, and the prospect of that person obtaining temporary status in Canada drops substantially, regardless of their reasons for wishing to travel here.
When government leaders, lawyers, and clients all raise concerns about the implementation of the law, there is clearly a problem. But what is the source of the problem? The legislative requirements for temporary residents, the policy designed to guide officers, or visa officers’ lack of adherence to legislation and policy? The answer to this question points to the solution; do we respond by amending legislation, amending policy, or by implementing more rigorous training for decision makers?[1]
The legislative requirements:
The rights and obligations of temporary residents can be found in s. 29 of IRPA:
29(1) A temporary resident is, subject to the other provisions of this Act, authorized to enter and remain in Canada on a temporary basis as a visitor or as a holder of a temporary resident permit.
Obligation — temporary resident
(2) A temporary resident must comply with any conditions imposed under the regulations and with any requirements under this Act, must leave Canada by the end of the period authorized for their stay and may re-enter Canada only if their authorization provides for re-entry.
The circumstances which temporary resident visa will be issued can be found in R.179:
179 An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national
(a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class;
(b) will leave Canada by the end of the period authorized for their stay under Division 2;
(c) holds a passport or other document that they may use to enter the country that issued it or another country;
(d) meets the requirements applicable to that class;
(e) is not inadmissible;
(f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act; and
(g) is not the subject of a declaration made under subsection 22.1(1) of the Act.
The combination of s. 29(2) and R. 179(b) result in the definition of a temporary resident: someone who is believed likely to leave Canada at the end of their temporary stay. This is what distinguishes temporary residents from the other main category of people seeking to enter Canada, namely permanent residents. Temporary residents are here temporarily, in purpose and intention.
But humans are complex, and legislative attempts to place them in silos are rarely effective. Someone could arrive in Canada for a visit with a romantic partner, hoping to be sponsored by that person at some point in the future. A student could arrive here with a short-term intention to complete their academic program, but with a long-term intention to work on a post-graduate work permit and become a permanent resident in the Canadian Experience Class. A temporary worker could come here waiting for the dangerous country conditions in their country to subside, but then increasingly come to realize that a refugee protection claim is the best option to secure their future.
For this reason, IRPA contains a provision on “dual intent”. Section 22(2) of the Act states that “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.” In this section, the law recognizes human complexity, stating that an intention to become a permanent resident should not displace or nullify temporary resident status.
From a governance perspective, there appears to be nothing inherently troubling with establishing admission categories based on a person’s projected length of stay. An officer, after all, must know what type of visa to issue and for how long. Section 22(2) reasonably injects flexibility into the requirement, recognizing that an interest in both temporary and permanent statuses can co-exist. The application of this law to particular circumstances does, however, raise concerns.
Temporary resident policy guidelines:
As explained above, the law and regulations define temporary residents simply as people who are coming to Canada temporarily. Therefore, someone who is believed to be coming to Canada for a time limited purpose, such as a relative’s wedding, or a program of study, should presumptively be issued a temporary resident visa, unless inadmissibility issues exist. This should be the case even if there are indications that the person will eventually seek to remain here permanently, thanks to the provision on dual intent.
Despite the apparent flexibility of the legislative/regulatory provision, policy guidelines[2] on assessing temporary residents encourage officers to focus on whether applicants will stay illegally. This is an admissibility concern, not an eligibility concern. Accordingly, policy guidelines state that the purpose of the inquiry is to determine whether:
applicants intend to remain in Canada illegally, claim refugee status or otherwise seek to remain in Canada, and not abide by the requirement to leave Canada at the end of the period authorized for their temporary stay Note : A person may have a dual or eventual intent to become a permanent resident, but in order to qualify for a temporary resident visa, they must demonstrate that they have the capacity and willingness to leave Canada at the end of the authorized temporary period (refer to dual intent).
the ties to their home country are sufficiently strong to ensure that they are motivated to return home after the visit to Canada
they meet the requirements of the Act and Regulations
The policy’s emphasis on breaking Canada’s immigration laws by remaining in Canada illegally – an admissibility concern pursuant to s. 41 of the Act – is merged with the consideration of whether there is a genuine temporary purpose in the first place. Officers therefore have the liberty to base their refusals on the eligibility test – is there a genuine temporary plan? – or an admissibility test – will the person stay illegally? – because the two tests have been merged in policy.
The policy lists objective circumstances which are indicative of a person’s likelihood to stay in Canada temporarily. Most of these are economic factors, such as stable employment and property ownership in one’s home country. Policy guidelines invite officers to assess an applicant’s salary level and value of property. Further, policy guidelines ask officers to consider whether a person has the financial ability not only to support themselves in Canada but to leave Canada at the end of their authorized stay.
The filing of a temporary resident application is an expression of an applicant’s intention to reside in Canada temporarily. Once that purpose has been established, eligibility should be established too. But our policy guidelines invite officers to doubt that purpose by identifying a number of factors that might contradict that intention. Given this emphasis, it is no wonder a young person from a developing country may have their temporary visa application refused despite expressing a clear intention to remain in Canada temporarily. In fact, this is usually the case.
Immigration policy therefore steps away from IRPA’s apparently benign categorization of temporary residents as distinct from permanent residents, by encouraging officers to apply admissibility criteria at the eligibility stage. Intention, it says to officers, cannot be assessed solely on an applicant’s expression of intent; we must look to or even prioritize enforcement issues. It’s like refusing a skilled worker application at the outset based on a suspicion that a person will commit a crime.
This has led to temporary resident refusals based on a person’s circumstances that are largely out of their control, which have been found unreasonable by the Federal Court. For example:
Lacchar IMM-3042-11, January 9, 2021: unreasonable to refuse a visitor visa application on the basis of a relative’s immigration history or lack of travel history.
Karambamuchero, 2014 FC 1240: unreasonable to rely on unstable country conditions in the applicant’s country.
Kupriianova 2021 FC 958: unreasonable to expect low funds and income as an indicator of lack of motivation to leave Canada.
Bunsathitkul 2019 FC 376: unreasonable to refuse applications from minors (11 and 12 years old) based on lack of economic establishment and family ties in their country.
Interestingly, however, it is not examples of unreasonableness and unfairness that have led the government to consider policy change; it is the lengthening processing times. Processing times for temporary resident visas have ballooned from an average of a few weeks pre-pandemic to several months currently. For example, visa offices the United Arab Emirates and Nigeria are seeing processing times for visitor visas in excess of 300 days.
Moving forward:
CILA has taken the position that the government’s proposed policy changes, to eliminate or reduce the requirement that temporary residents demonstrate a temporary intent, will “erode public confidence in the integrity of Canada’s immigration system” by increasing the number of people who overstay, and increasing the number of refugee claimants.
However, it is not just the risk of lawlessness and chaos that undermines public confidence in the law. Public confidence is also undermined by unfairness and arbitrariness. It is undermined by every case of a parent from a developing country who is denied the ability to visit their permanent resident children, by every student who is denied the ability to pursue higher education because her fellow citizens have sought refugee in Canada.
There can be a way of making the system more fair and efficient while remaining true to legislative intent. This is where effective policy development, and effective enforcement comes in.
Immigration policy in the form of Operational Instructions allows for nimble amendment to address new circumstances. Our current policies on temporary residents could be amended to delineate a clearer line between eligibility (temporary purpose) and admissibility (non-compliance). They could also be amended to describe specific situations in which the Federal Court has determined the legal requirements to obtain temporary residence have been met.
It should also be remembered that pre-entry assessment of intent is only one way of applying Parliament’s definition of temporary residents. The other (admittedly more reactive) method is post-entry enforcement. There will always be those who conceal or change their intention to abide by Canada’s immigration laws. Better tracking and enforcement tools to ensure that temporary entries are truly temporary can augment front-end screening to ensure a fair but efficient system. But importing enforcement concerns into eligibility assessments is a recipe for confusion and lengthy decision making.
As Canada competes globally for newcomers, the status quo is not good enough for our visitors, students and temporary workers. Processing times are too long and decisions are too often unreasonable. Properly done, policy reformation and effective enforcement can be effective tools in ensuring efficiency and fairness while maintaining public confidence.
[1] This discussion is separate from an examination of visas as methods of interdiction and/or deterrence, i.e. a method of stopping refugees from arriving here. Indeed, borders themselves can be seen as refugee deterrence mechanisms.
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