SINCE 2004, IF A SPOUSE or common-law partner was sponsored for permanent residency from inside Canada, he or she could apply for an open work permit by filing an application to change the conditions of the visit before the expiry of status.  Such an application was put into the same envelope as the sponsorship application.  The resulting work permit would only be issued once the application for permanent residence was “approved in principle”, which at one point happened about six months after filing, but which more recently was more likely to occur after twelve months or longer.

It is and has been a good thing that there is an option for foreign nationals who are married to a Canadian and who are living in Canada allowing them to apply for permanent residency from within the country.  It is also a good thing that they can get a work permit while they are here.  However, a year is a long time for most foreign nationals to wait for the authority to work, and the delay creates hardship for couples who are in the meantime without the employment income of the foreign national.

It seems likely it was because of the lengthening processing time that Canada Immigration unexpectedly announced on December 22, 2014 that spouses and common-law partners who met specified criteria could be issued work permits earlier in the process – before the approval in principle.  According to the announcement, which is available here, to be eligible the applicant foreign national spouse must:

1. Have filed an in-Canada spousal sponsorship and permanent residency application;
2. File the appropriate application form for the work permit;
3. In some cases, meet medical requirements; and
4. Pay the fee.

If these things are done the foreign national will get an open work permit, that is, one that allows the foreign national to be employed at any job in Canada for which an employer will hire him or her.  The promise is that the work permit will be issued within four months of receipt of the application.

This is a welcome development that tips the balance in the direction of applying for permanent residency from within Canada, as opposed to outside of Canada.  However, for those who were not in Canada at the time the announcement was made there remains a nagging issue: what does a foreign national spouse say to border officials about their intentions when they arrive at the Canadian border, or when they land at a Canadian airport?

Upon entry one must answer the examining officer’s questions about the reasons for the entry honestly.  To say that one is coming to Canada only to visit is not an honest and complete answer if one is coming into the country to live with one’s spouse and to apply for permanent residency and a work permit.  These parts of the plan should be declared if one wishes to avoid being challenged for having misrepresented one’s circumstances.

The problem is that once the complete plan is declared there is a serious risk the foreign national will not be admitted to Canada, as his or her entry might be seen as an attempt to enter Canada to live permanently without a visa that provides the authority to do that.  In the experience of people I have spoken with, arriving at the border or airport with all of one’s possessions in tow, ready to make a life in Canada with one’s Canadian spouse is generally not positively received by Canada Border Service Agency Officers.  Even without a lot of extra luggage, border officers are often suspicious of the intentions of those entering Canada to be with a fiancee or even a girlfriend.

The law does provide that one may have “dual intent” upon entry, that is, an intention to live in Canada permanently if ultimately authorized to do so AND also the intent to leave at the end of the visit if not authorized to live here permanently.  However it is an open question as to in which circumstances the officers will recognize the dual intent and permit this entry and which they will not.

Without some clarity on this issue, it is difficult for couples to plan for their life together.  Does a foreign national pack up his or her things and bring them to the border or airport, declare to the examining officer that he intends to enter Canada to live with or perhaps even marry his spouse, and then apply for permanent residency?  Will the officer admit him or her in these circumstances?

After more than 25 years of practicing as an immigration lawyer, I have heard many stories about problems people have encountered upon entry to Canada, and I am sceptical.  I would be interested to hear about your experiences!