What is a Temporary Resident Permit (TRP) and what is the legal test to get a TRP approved?
What used to be known as a Minister’s Permit, since the coming into force of the current Immigration and Refugee Protection Act (IRPA), is now known as a Temporary Resident Permit.
This is often confused by many with the Temporary Resident Visa, or a mutation of it. It is neither. What it is can be largely understood by reading the section of the Act which deals with it, section 24 of the IRPA, which states:
Temporary resident permit
24 (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.
Therefore, this is a section that can be used to override inadmissibility or any other “failure to meet the requirements of the Act”. While the temporary resident permit gives the applicant permission to “temporary entry”, not permanent entry, it can be renewed, and it is often requested by those seeking permanent residence who, while qualifying for the particular class of immigration that they have applied for, are refused due to issues of inadmissibility.
Lee v. Canada (Minister of Citizenship and Immigration), 2006 FC 1461
Dhandal v Canada (Citizenship and Immigration), 2009 FC 865
A key feature of someone who is granted entry by way of a Temporary Resident Permit is that if one stays in Canada on that permit long enough it can lead to the granting of permanent residence by virtue of belonging to the Permit Holders Class found in Division 4 of the Immigration and Refugee Protection Regulations (IRPR). The relevant sections of which read:
Permit holder class
64 The permit holder class is prescribed as a class of foreign nationals who may become permanent residents on the basis of the requirements of this Division.
Member of class
65 A foreign national is a permit holder and a member of the permit holder class if
(a) they have been issued a temporary resident permit under subsection 24(1) of the Act;
(b) they have continuously resided in Canada as a permit holder for a period of
(i) at least three years, if they
(A) are inadmissible on health grounds under subsection 38(1) of the Act,
(B) are inadmissible under paragraph 42(1)(a) of the Act on grounds of an accompanying family member who is inadmissible under subsection 38(1) of the Act, or
(C) are inadmissible under paragraph 42(1)(b) of the Act on grounds of being an accompanying family member of a foreign national who is inadmissible
(I) under subsection 38(1) of the Act, or
(II) under paragraph 42(1)(a) of the Act on grounds of an accompanying family member who is inadmissible under subsection 38(1) of the Act,
(ii) at least five years, if they are inadmissible on any other grounds under the Act, except sections 34 and 35 and subsections 36(1) and 37(1) of the Act;
(c) they have not become inadmissible on any ground since the permit was issued; and
(d) in the case of a foreign national who intends to reside in the Province of Quebec and is not a member of the family class or a person whom the Board has determined to be a Convention refugee, the competent authority of that Province is of the opinion that the foreign national meets the selection criteria of the Province.
Further another key feature is that persons who are in Canada on Temporary Resident Permits (TRP) can apply for and obtain work permits, pursuant to R. 208(b) of the IRPR, and if the TRP has been issued for more than 6 months, they can apply for and obtain a student permit, pursuant to R.215(1)(e) of the IRPR.
Clearly, Temporary Resident Permits are an important vehicle to deal with issues of inadmissibility and other shortcomings and can eventually lead to permanent residence.
However, recently those practicing in the area of immigration inadmissibility and litigation, like Lee & Company, have been frustrated in that the legal test being applied for the issuance of such permits seemed both too high, random, and largely driven by whatever personal view the decision maker had. Clearly, this was not good for transparency and consistency. Further while the Minister has given guidance in Manuals and online Guidelines, these also seemed to be largely ignored, in favour of whatever personal view the decision maker had.
Fortunately, the question of what the proper legal test for the issuance of Temporary Resident Permits was addressed and answered in the recent Federal Court decision of Krasniqi v. MCI, 2018 FC 743.
In that decision the Court states:
- Equally, I am not persuaded by the Respondent’s contention that applicants must demonstrate “compelling reasons” to be issued a TRP. While much of the Federal Court jurisprudence appears to have applied such a test, I will adopt the view articulated by Justice Harrington in Palmero v. Canada (Minister of Citizenship and Immigration), 2016 FC 1128 (F.C.) at para. 21:
I am concerned that the Guidelines speak of “compelling reasons”, while the Act itself does not. Not only are guidelines not law, but they cannot go beyond the boundaries of the statute itself.
- Federal Court jurisprudence indicates that there is no legal obligation for a decision-maker to consider and apply the guidelines; it is often repeated that the guidelines are not law, not binding, and do not create any legal entitlement in the context of a TRP application: Vaguedano at para. 35; Shabdeen v. Canada (Minister of Citizenship and Immigration), 2014 FC 303 (F.C.) at para. 16. However, this Court has also recognized that a decision-maker must nevertheless consider the relevant circumstances and the reasons advanced by an applicant when assessing eligibility for a TRP: Zlydnev v. Canada (Minister of Citizenship and Immigration), 2015 FC 604 (F.C.) at para 20; Mousa v. Canada (Minister of Citizenship and Immigration), 2016 FC 1358 (F.C.) at para. 9; Ali v. Canada (Minister of Citizenship & Immigration), 2008 FC 784 (F.C.) at para. 12. In my view, this obligation covers any relevant circumstances or reasons, whether or not they are specified in the guidelines.
- Moreover, the decision-maker’s analysis of Ms. Hashani’s situation was wholly insufficient and demonstrated a complete lack of appreciation for her circumstances. Although framed in the language of “compelling reasons” (which I have already described as problematic above), Justice Shore wrote in the oft cited decision of Farhat v. Canada (Minister of Citizenship & Immigration), 2006 FC 1275 (F.C.) at para. 22, “[b]asically, the TRPs allow officers to respond to exceptional circumstances while meeting Canada’s social, humanitarian, and economic commitments [emphasis added].” In my view, the case at bar potentially engages all three of those criteria, and I believe that a fulsome analysis of those interests may have yielded a different result.
In Krasniqi, the Learned Justice explicitly took issue with the long-standing policy Guideline issued by the IRCC requiring applicants to demonstrate “compelling reasons” on a Temporary Resident Permit Application whereas the Immigration and Refugee Protection Act (“IRPA”) only refers to a Temporary Resident Permit as being “justified in the circumstances”. This case is instructive as it requires immigration to conduct a fulsome analysis of all the relevant circumstances and reasons, including social, humanitarian, and economic criteria.
If you are inadmissible to Canada and applying for a TRP to overcome an inadmissibility, under s.24 of the IRPA, this is a useful case to keep in mind while making your submissions to IRCC. Finally, we remind you that this area of the law is fairly complex and if you are facing inadmissibility issues you should seek out experienced immigration counsel.
Link to read the full decisions in Canlii.org: