Canada clarifies “dual intent” for overseas spousal sponsorship applicants

Some couples applying for spousal or common-law partner sponsorship want to first apply for a Temporary Resident Visa (TRV) and then come to Canada to apply for inland sponsorship. (Pexels photo)

Here is what immigration officers consider when spousal and common-law sponsorship applicants apply for both a temporary visa and permanent residence at the same time.

It is possible to apply for spousal sponsorship at the same time you apply for a visitor visa thanks to the concept of dual intent.

Some couples applying for spousal or common-law partner sponsorship want to first apply for a Temporary Resident Visa (TRV) and then come to Canada to apply for inland sponsorship.

The other option is to apply for both. While immigration officers have to see that applicants for temporary visas will leave at the end of their authorized stay, it is OK to apply for permanent residence as a temporary resident. In other words, applying for temporary residence, of any kind, does not block you from also applying for permanent residence.

The actual definition of “dual intent” in the Immigration and Refugee Protection Act goes like this:

“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.”

However, this hasn’t stopped some applicants from being refused because they were unable to prove that they would leave Canada once their documents expired.
On October 30, Immigration, Refugees and Citizenship Canada (IRCC) updated their program delivery instructions for officers, clarifying considerations to take when reviewing spousal sponsorship applications. In particular, those who have also applied for a TRV.

Immigration officers should consider the individual circumstances of foreigners who are being sponsored for permanent residence as a spouse or common-law partner, the instructions say.

Some of the factors they must consider include:

• whether the sponsorship application has been approved;
• whether the application for permanent residence has received stage one approval;
• to what extend the applicant has retained ties in their home country; and
• if their application is refused, what is the applicant’s plan?

Basically, spouses and common-law partners need to convince the officer that they will only stay in Canada as long as they have legal status in Canada.

Immigration officers will also consider other factors, like those they apply when they assess dual intent.

How immigration officers are supposed to assess dual intent

There is a difference between temporary residents who intend to leave Canada, and those who do not intend to leave at the end of their authorized stay if their application for permanent residence is refused.

When officers assess the applicant’s intentions, they are told to look at the individual circumstances of the temporary residence applicant.

Among other factors, officers consider the following when assessing an application for temporary residence:

• the length of time the applicant will spend in Canada;
• their 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; and
• past compliance with Canadian immigration laws, and information available in biographic and biometric information sharing.

From the officer’s perspective, it is no different from assessing any other temporary residence application. Each applicant is to receive a “procedurally fair, individual assessment.”

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. If the officer does not approve the application for temporary residence, the officer must give the applicant a letter explaining why they were refused.

If temporary residence applicants do not indicate that they have an intention of leaving Canada, and the officer just sees their only goal as permanent residence, their application will be refused. Even if the applicant might subsequently qualify for Canadian Experience Class, or a Provincial Nominee Program. The reason for this, IRCC says, is because the applicant has not shown that they would respect the terms and conditions of temporary residence, should they not qualify for permanent residence.

Officers will use their own judgement on applications with dual intent, but the Global Case Management System notes should clearly demonstrate the officer’s reasoning when assessing the application. In other words, if dual intent was considered as part of the decision on the application it should be written in the applicant’s file.