You may know that Canada grants Temporary Resident Permits (TRPs) to certain individuals who otherwise could not enter the country. However, you may be unaware that the criteria used by some officers to evaluate TRP applications differ from the legal requirements for a TRP laid out in the Immigration and Refugee Protection Act. This leads to significant uncertainty over which applicants are likely to be granted a TRP.
Temporary Resident Permit, According to the Act
Canada’s Immigration and Refugee Protection Act provides the legal framework for temporary residence. If an individual is inadmissible to Canada due to criminal, security or medical reasons, but requires entry to Canada, they may be eligible for a Temporary Resident Permit (TRP). Note that TRPs are different from Temporary Resident Visas, commonly referred to as Canadian Visitor Visas.
Section 24 of the Act establishes that a TRP can be issued to someone who is inadmissible or “does not meet the requirements of this Act”. A TRP overrides inadmissibility (or the inability to meet the Act’s requirements) to allow a foreign national to visit Canada for a specific length of time. TRPs can be renewed, but they may also be cancelled at any point.
For certain people who have been issued a TRP for an extended period of time, the TRP may provide an avenue towards obtaining permanent residence. This is rare however, as the applicant must have been living legally in Canada with a TRP for at least 3 to 5 years, depending on the reasons for which they are inadmissible.
According to Section 24 of the Act, a TRP may be granted “if an officer is of the opinion that it is justified in the circumstances”. While the Act acknowledges the discretion of the immigration officer, it can also be inferred that the Act intends for consideration of all the relevant circumstances – presumably including the applicant’s reasons for applying, their socio-economic position, as well as Canada’s humanitarian, social, and economic commitments.
The results of TRP application processes, however, have revealed discrepancies between the legal regulations set out in the Act and the criteria applied by the officers assessing applications.
Discrepancies in Evaluating TRP Applications
Immigration lawyers have expressed frustration at the inconsistency and lack of transparency in the process for evaluating TRP applications. Some believe that the assessments are overly subjective – too much at the discretion of the individual officer processing each TRP. Moreover, there has been concern over the clarity of criteria applied to applicants.
In addition to the conditions laid out in the Act, Immigration, Refugees, and Citizenship Canada (IRCC) has supplied guidelines for its officers to evaluate TRP applications. However, it is crucial to note that these guidelines are not laws; they are only recommendations and do not fully overlap with the official legislation in the Act.
In the non-binding TRP guidelines provided by IRCC, applicants are meant to provide “compelling reasons” to be given a TRP – something that is never written in law and does not appear in the Act itself. Overemphasis on this unofficial criteria (which places a large burden on the applicant to prove they deserve a TRP) has resulted in some officers denying TRPs to individuals whose other circumstances (e.g. humanitarian concerns; economic benefit to Canada) would provide substantial basis for their entry to Canada.
Recent court cases have challenged the use of this “compelling reasons” guideline; judges have ruled that officers do not need to consider it and should instead focus on a more fulsome analysis of all the relevant circumstances.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration follow FWCanada on Facebook, Twitter, and Linkedin.