October 3, 2023
How are Temporary Resident Permits Assessed?
Foreign nationals in Canada can be found inadmissible for a number of reasons, ranging from criminality and human rights violations to health concerns and misrepresentation. In certain circumstances, the foreign national may be eligible to apply under section 24(1) of the Immigration and Refugee Protection Act (IRPA) for a temporary resident permit (“TRP”).
The provisions for TRPs give broad discretion to the officer and the Minister to allow a foreign national, who is inadmissible or does not meet the requirements of the IRPA, to enter or remain in Canada. A TRP can only be issued in justified circumstances, when:
- the need to enter or remain in Canada is compelling and sufficient to overcome the risk;
- the risk to Canadians or Canadian society is minimal and the need for the presence in Canada outweighs the risk. (1)
Therefore, TRP applications should present a “needs versus risk” assessment emphasizing the compelling need for the person to enter or remain in Canada and demonstrating that the applicant poses a minimal risk to Canadians or no risk at all.
When evaluating TRP applications, IRCC Officers must perform in-depth examinations of all relevant factors presented by applicants to address the relevant needs and risk factors. The degree of need is measured relative to the type of case. The factors to consider include:
- the reason for the person’s presence in Canada and the factors that make their presence in Canada necessary (for example, family ties, job qualifications, economic contribution, attendance at an event)
- the intention of the legislation (for example, protecting public health or the health care system)
- the type or class of application and family composition, both in the home country and in Canada
- the benefits to the person concerned and to others. (2)
The IRCC’s Program Delivery Instructions directs ofﬁcers to address all of the following questions when assessing generalized risk:
- History– Is there a pattern of non-compliance with immigration laws? Is the violation inadvertent and accidental or the result of careless or flagrant disregard for the law?
- Credibility– Credibility may be assessed during an interview.
- Previous removal– Have the original grounds for removal been overcome or diminished? Are there any statutory bars, other than the removal order, remaining against the person?
- Controversy– Are there high-profile, complex or sensitive elements of the case?
- Social assistance– If there is a possibility that the foreign national intends to become a permanent resident, is there any risk that the person would require social assistance? (3)
If you have questions about your options to use a TRP to come to or remain in Canada, feel free to schedule a consultation with our office.