Canada clarifies rules for “dual intent” spousal sponsorship applications
October 31, 2020
On October 30, 2020, Immigration, Refugees and Citizenship Canada (IRCC) issued new considerations that visa officers must make when reviewing “dual intent” applicants. The “dual intent” concept refers to a situation in which couples applying for spousal or common-law partner sponsorship want to first apply for a Temporary Resident Visa (TRV) to visit Canada and then come to Canada to apply for inland spousal sponsorship for permanent residence.
The Immigration and Refugee Protection Act (IRPA) allows one applicant to legitimately have two intents. One can have separate, individual applications for temporary and permanent residence.
Dual intent is present when a foreign national who has applied or may apply for permanent residence in Canada also applies to enter Canada for a temporary period as a
You may pre-qualify for a Canada immigration program.
Having 2 intents (1 for temporary residence and 1 for permanent residence) is legitimate.
Assessing dual intent
At issue is Section A22(2) of the IRPA which 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.”
The guidelines state that having a permanent residence application pending is not by itself a reason for refusing a temporary residence application. A candidate can legitimately want to acquire permanent residence status while at the same time meeting the requirements for a temporary residence visa.
But this has presented a challenge for visa officers, who must assess the likelihood of a temporary residence applicant leaving Canada when their visa expires, given that their pending PR application may also be refused.
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 Guidelines for Dual Intent applications
The IRCC requires an officer should distinguish between a temporary residence applicant whose intention to fulfill their obligations as a temporary resident (namely, to leave at the end of their period of authorized stay as required by section R179) is bona fide and an applicant who has no intention of leaving Canada at the end of their authorized stay if their application for permanent residence is refused.
In assessing the applicant’s intentions, the individual circumstances of the temporary residence 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 application before an officer.
According to the IRCC, 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.
In assessing an application for temporary residence, an officer should consider, among other factors, the following:
the length of time that the client will be spending in Canada
means of support
obligations and ties to the home country
the purpose and the context of the stay
the credibility of documents and information submitted
past compliance with requirements of the IRPA and the Immigration and Refugee Protection Regulations (IRPR) that are applicable to temporary residents (visitors, students and workers), as well as information available in biographic and biometric information sharing
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.
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).
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. All applications are to be assessed on their individual merits.
If the officer is not satisfied that the applicant’s intentions are bona fide, and has dual intent concerns, the applicant will be refused as per section R179, with dual intent outlined as a concern in the application notes.