Temporary Resident Permits (TRPs) – Processing – The Eligibility and the Assessment

Officers have the ability to issue a Temporary Resident Permit (TRP) to foreign nationals who, in the opinion of the officers, are inadmissible or do not meet the requirements specified in A24 (1) of the Immigration and Refugee Protection Act (IRPA).

Officers will always need to issue the Temporary Resident Permit (TRP) at the discretion of the delegated authority. As such, the delegated authority has the power to the cancel the Temporary Resident Permit (TRP) at any time. The delegated authority has the responsibility of determining whether:

• The need for the foreign national to enter or remain in Canada is compelling and,
• The need for the foreign national’s presence in Canada outweighs any risk to Canadians or Canadian society

In the view of the authorities, a person is not eligible for a Temporary Resident Permit (TRP) if less than 12 months have passed since the authorities last rejected their claim for refugee protection. Similarly, a person is not eligible for a Temporary Resident Permit (TRP) if less than 12 months have passed since the authorities determine the application as having been withdrawn or abandoned as described by the provisions specified in subsection A24 (4).

It is worth highlighting the sole exception that applies here. The one-year ban on accessing a Temporary Resident Permit (TRP) under the provisions specified in subsection A24 (4) does not bar an officer, on the officer’s initiative, from considering a Temporary Resident Permit (TRP) for a victim of human trafficking.

The Guidelines for Evaluating Compelling Reasons Vs. Risks

The authorities require officers to consider the factors that make the person’s presence in Canada necessary. In addition, they require officers to be mindful of the intent of the legislation to maintain program integrity and to protect public health and safety.

Economic Interest to Canada: It is worth mentioning that an urgent need for the foreign national’s presence in Canada should normally relate to economic or employment security of Canadian citizens or permanent residents. As such, the officer will need to confirm such a need with appropriate officials of the national employment service or the provincial government. Officers will need to establish the bona fides of the individual as well as of the employer or business proposal. Lastly, officers will need to establish the urgency of the case prior to making a decision of issuing the Temporary Resident Permit (TRP).

It is worth highlighting that the Minister has authorised only certain officers for determining whether the reasons or benefits for an individual to enter or remain in Canada outweigh the risks, which will typically result in the issuance of the Temporary Resident Permit (TRP). The general principle is that the applicant will only be able to overcome serious inadmissibility based on the decision taken by a senior officer.

The General Factors to Consider

The authorities require officers to consider certain general factors. These include:

• Being mindful of the fact that the issuance of the Temporary Resident Permit (TRP) confers Temporary Resident (TR) status on the holder, in accordance with the provisions specified in A24
• Issuing a Temporary Resident Permit (TRP) only in special circumstances and that too, after carefully considering all the assessment factors before granting an initial Temporary Resident Permit (TRP) or issuing a subsequent Temporary Resident Permit (TRP)
• Being aware of the fact that a Temporary Resident Permit (TRP) can carry privileges greater than those accorded to other visitors, students and workers with temporary resident status
  • For instance, when officers issue a Temporary Resident Permit (TRP) to a foreign national for a validity period of at least six months, these foreign nationals will be able to apply in Canada for a work or study permit and could thus, also receive access to health or other social services
• Considering alternatives before they issue a Temporary Resident Permit (TRP) such as rehabilitation, as there is no discretion involved in granting permanent residence to people who meet the requirements of the permit holder class
• Being aware that in accordance with the provisions specified in paragraph 65 (b) (i) of the Immigration and Refugee Protection Regulations (IRPR), Temporary Resident Permit (TRP) holders with medical inadmissibility (based on the provisions specified in A38 (1)) are eligible for permanent residence after three continuous years in Canada
• Being aware that under the provisions specified in paragraph 65 (b) (i) of the Immigration and Refugee Protection Regulations (IRPR), Temporary Resident Permit (TRP) holders who are inadmissible under the provisions specified in paragraph A42 (1) (a) on the grounds of an accompanying family member who is inadmissible under the provisions specified in subsection A38 (1) or paragraph A42 (1) (a) are eligible for permanent residence after three continuous years in Canada
• Being aware that under the provisions specified in paragraph 65 (b) (i) of the Immigration and Refugee Protection Regulations (IRPR), Temporary Resident Permit (TRP) holders with inadmissibilities other than security (A34), violation of human or international rights (A35), serious criminality (A36 (1)) and organised criminality (A37) are eligible for permanent residence after five years of continuous residence in Canada
• Being cognisant of the fact that before issuing subsequent Temporary Resident Permits (TRPs), in case the foreign national’s situation has undergone a change, the officers will need to reassess all the factors and determine the best course of action – including rehabilitation or a record of suspension
  • This is necessary before the Temporary Resident Permit (TRP) holder becomes eligible for permanent residence under the permit holder class

The authorities require officers to avoid issuing a Temporary Resident Permit (TRP) in the absence of compelling need. This directive applies even if the inadmissibility and the risks are minor. The examples that follow are classic examples of situations where officers should avoid issuing a Temporary Resident Permit (TRP). Officers will need to avoid issuing a Temporary Resident Permit (TRP):

• For reasons of administrative convenience
  • This is because only compelling reasons justifying the presence of a foreign national in Canada should serve as a guide to the decision maker
• In cases where other legal or regulatory mechanisms are accessible
  • Examples of accessible legal or regulatory mechanisms include the restoration of status or rehabilitation provisions
• For people under a removal order without conducting prior consultations with the Canada Border Services Agency (CBSA) or the Case Management Branch (CMB)
• In cases where the presence of a foreign national in Canada would contravene the objectives of the law
  • This is especially so in cases where the presence of the foreign national in Canada would contravene the objectives of the laws intended to protect the health and security of Canadians and to promote international justice and security

Note:

• It is worth mentioning that officers cannot restore the Temporary Resident (TR) status of a Temporary Resident Permit (TRP) holder under the provisions specified in section R182
• Situations could arise where officers report a student, worker or visitor with valid Temporary Resident (TR) status under the provisions specified in subsection A44 (1) but the authorities make a decision not to hold an admissibility hearing or issue a removal order
  • In this scenario, the foreign national continues to remain a Temporary Resident (TR)
  • Thus, the officers will not need to issue a Temporary Resident Permit (TRP)
  • For more information on making a decision to write a subsection A44 (1) report, officers will need to go through section 8 of ENF 05

The Risk Assessment Factors

Prior to issuing a Temporary Resident Permit (TRP), officers will need to consider whether the situation warrants it. For this, they will need to assess each application on a case-by-case basis. In addition, they will need to consider the risk assessment factors such as:

• The History
  • Is there a pattern of non-compliance with the Immigration and Refugee Protection Regulations (IRPR) or the Immigration and Refugee Protection Act (IRPA) – the patterns of non-compliance find mention in the provisions specified in A41
  • Is the violation inadvertent and accident or is it the result of careless of flagrant disregard for the law
• The Credibility
  • Officers will need to assess the credibility of the foreign national during the interview
  • In particular, they will need to weigh the facts in a fair and impartial manner, while considering both positive and negative elements
  • Officers will need to determine the facts that are of the most importance, the evidence that is the most persuasive and the argument that is the most compelling or convincing
  • Thereafter, the officers will need to explain why they felt this way about the facts, the evidence and the arguments pertaining to the case
• The Previous Removal
  • Has the foreign national overcome or diminished the original grounds that led to removal
  • Are there any statutory bars remaining against the person, other than the removal order
• The Controversy
  • Are there any high profile, complex or sensitive elements to the case that warrant referral or consultation with the Case Management Branch (CMB)
• Social Assistance
  • Is there a possibility that the foreign national intends to be become a permanent resident
  • In case the foreign national intends to become a permanent resident, is there any risk that the person will need social assistance

The considerations and examples that follow are not exhaustive. But, they serve to illustrate the scope and the spirit in which officers will need to apply discretion when it comes to issuing a Temporary Resident Permit (TRP). Officers will typically need to consider:

• The reason for the person’s presence in Canada and the factors that make their presence in Canada necessary
  • These factors could typically include aspects like family ties, job qualifications, economic contribution, attendance at an event etc.
• The intention of the legislation
  • This could comprise the objectives of protecting public health or the health care system
• The type or class of application and family composition – both in the home country as well as in Canada
• The aspect of the medical treatment being reasonably available in Canada or elsewhere and the anticipated effectiveness of the treatment in case the situation involves a medical treatment
  • In this scenario, officers will need to consider the comments on the relative costs and accessibility
• The benefits to the person concerned as well as to other and,
• The identity of the sponsor, host or employer

The Guidelines in Case the Person Raises Refugee Protection Related Risks Based on the Provisions Specified in Section A96 or Section A97

Situations could arise where officers find that the authorities have already given a final determination to the foreign national on a refugee claim or a Pre-Removal Risk Assessment (PRRA). In this scenario, the officer will need to assess the Temporary Resident Permit (TRP) without considering any risks identified by the foreign national, that find mention in the provisions specified in section A96 or section A97. This is because the authorities will have already considered these risks in their final determination.

The officer will need to advise the client that the officer did not assess the client’s risk because the authorities had already assessed this through the client’s refugee claim and / or Pre-Removal Risk Assessment (PRRA) application. If necessary, the officer will need to inform the client that the client could consider applying for a subsequent Pre-Removal Risk Assessment (PRRA) or for permanent residence. This is especially so in case the client is a protected person.

If an applicant has not had a refugee claim or a Pre-Removal Risk Assessment (PRRA) application, the officer will need to assess the Temporary Resident Permit (TRP) without considering any risks identified by the foreign national that find mention in the provisions specified in section A96 or section A97. In addition, the officer could advise the client that the client could have the authorities assess this risk through the refugee claim process.

According to section A96 of the Immigration and Refugee Protection Act (IRPA), a Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion:

• Is outside each of their countries of nationality and is unable or, by reasons of that fear, unwilling to avail themselves of the protection of each of those countries or,
• By virtue of not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country

Similarly, according to section A97 of the Immigration and Refugee Protection Act (IRPA), a person in need of protection refers to a person in Canada, whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally:

• To a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture or,
• To a risk of their life or to a risk of cruel and unusual treatment or punishment, if:
  • The person is unable or, because of that risk, unwilling to avail themselves of the protection of that country
  • The risk that that person faces in each part of that country is not faced by other individuals from or in that country
  • The risk is not inherent or incidental to lawful sanctions unless imposed in disregard of accepted international standards and,
  • The risk is not caused by the inability of that country to provide adequate health or medical care

In addition, a person in Canada who is a member of a class of persons prescribed by the Regulations as being in need of protection is a person in need of protection as well. The Fee Exemption for Certain Temporary Resident Permits (TRPs) Prior to issuing the Temporary Resident Permit (TRP), the officers will need to:

• Check the prescribed immigration systems, such as the Global Case Management System (GCMS) for ensuring that the authorities have not already granted the one-time fee exempt Temporary Resident Permit (TRP)
• Inform the foreign national that:
  • The foreign national is inadmissible to Canada
  • The authorities are facilitating the foreign national by issuing a one-time only fee exempt Temporary Resident Permit (TRP)
  • The authorities typically issue a Temporary Resident Permit (TRP) only in exceptional circumstances and,
  • The foreign national will need to go to a mission outside Canada to either apply for another Temporary Resident Permit (TRP) if they wish to return to Canada in the future or to apply for individual rehabilitation in case they meet the requirements to do so