Learning Moments - Effect of PR Application Refusal on Bridging Open Work Permit (BOWP)
This article by Andrew Carvajal is part of the Immigration Education Alliance (IMEDA) weekly column titled "Learning Moments" and published online http://campaign.r20.constantcontact.com/render?m=1111379240993&ca=162230ca-cb71-46d0-8deb-9473851fbbd4
Hello fellow practitioners. Today's column deals with the status of a Bridging Open Work Permit following the refusal of an accompanying application for permanent residence.
Reader's question
I received a consultation email from a person that represented herself for a permanent residence application under the Canadian Experience Class. During the processing of her PR application she applied for a Bridging Open Work Permit, which she received in November of 2017.
Her permanent residence application was refused after the approval of the work permit because it lacked sufficient documentation to prove her foreign work experience. Her Bridging Open Work Permit is currently valid until November of 2018.
Can she continue to work under the current work permit even though the permanent residence application was refused? She would like to submit a new permanent residence application with the proper documentation. I am just unsure as to what her status in Canada will be now that the first application was refused.
Answer
This is an interesting question and certainly a scenario that is probably not too uncommon among individuals who filed a "complete" permanent residence application, yet are later refused once an officer closely examines the merits of such application.
Something that does not help is the absence of any definitive statements in IRCC's policies or Program Delivery Instructions regarding the validity of a Bridging Open Work Permit (BOWP) should the supporting permanent residence application be refused. Based on the general operation of BOWPs, however, and in the absence of anything indicating the contrary, we are of the view that the person described by our reader can continue to work in Canada.
Should the client's new permanent residence application still be processing come November of 2018, we are also of the view that she should be eligible for a new BOWP, as long as she meets the requirements. It is possible that the processing of a second BOWP by an applicant whose first permanent residence application was refused may be scrutinized closely or even delayed. However, there is nothing preventing that client from applying for a new BOWP again next year if she is a permanent residence applicant.
To provide a bit of background, BOWPs are a type of open work permit available to individuals who are transitioning between an existing work permit and permanent residence under certain economic class applications.
The permits are issued under the authority of subsection 205(a) of the Immigration and Refugee Protection Regulations dealing with Canadian interests.
To be eligible for a BOWP, an applicant must
be currently in Canada;
have valid status on a work permit that is due to expire within the next four months;
have applied for an open work permit prior the expiry of the current work permit; AND
be the principal applicant on a permanent residence application under
the Federal Skilled Worker Program
the Canadian Experience Class
the Federal Skilled Trades Program
a Provincial Nominee Program (for unrestricted nominations); OR
one of the two caregiver classes
BOWPs can be sought by both online applicants for permanent residence as well as paper applicants (where applicable).
The crucial issue is that filing an application for permanent residence under one of the eligible classes does not guarantee the issuance of a BOWP. It is necessary that the application for permanent residence in question has passed an initial completeness or eligibility assessment prior to the issuance of the work permit. More specifically:
Those applying under an electronic Application for Permanent Residence (e-APR) must have passed the R10 completeness check - which can be read internally by an officer processing the BOWP; OR
Those applying on paper must have received a positive eligibility assessment on their application - communicated these days by means of an Acknowledgment of Receipt letter
That being said, while the issuance of a BOWP is certainly conditional on the eligible permanent residence application being complete, there is nothing that would indicate that the validity of the permit is conditional on the final outcome of that application.
In looking at IRCC's link labeled "Extend your work permit - Bridging open work permit"[1] it is clear that "[i]f your permanent resident application is not complete, we will refuse your bridging open work permit application and will not refund your processing fees". However, the link is silent as to the consequences of a refusal on the permanent residence application.
IRCC's Program Delivery Instructions (PDIs) regarding BOWPs [2] are also completely silent as to the impact of a refusal on a permanent residence application. All they mention is the impact of the application's completeness on the applicant's eligibility for a BOWP: "a decision on the application will not be made until the Centralized Intake Office (CIO) has assessed the e-APR for completeness. A BOWP can be issued only if the e-APR has passed the R10 completeness check".
A further section of the instructions reads as follows:
Where it is clear that complex or contentious issues or concerns exist on the APR, the work permit application should be referred to a local office for additional review. Once satisfied that any complex or contentious issues have been resolved, the local office can issue the work permit following these same instructions.
This caution to immigration officers about issuing BOWPs in cases of contentious applications gives us the impression that the government cannot take back a BOWP just because a refusal was issued on the permanent residence application. If the permit became invalid upon the refusal of the application, then the government would not be so concerned about the risk involved in issuing BOWPs in contentious or complex permanent residence applications.
We arrive at the same conclusion given the restriction in the duration of BOWPs to one year. This also appears to indicate that the government foresees the possibility that the corresponding application for permanent residence could be refused and, as such, they want to limit the temporary stay of applicants to one year. While the BOWP can be renewed come the one year anniversary, the applicant will need to demonstrate that an eligible application for permanent residence is still processing.
The PDI's also state that "In all cases, the officer must input on the work permit the visible remark "APR Pending". This remark, in addition to the Case Type code [27 - Under examination], will ensure eligibility for continued health care coverage by the province or territory". Once again, there is nothing in the remarks printed on BOWPs that states that the permit becomes invalid if the permanent residence application is refused.
There is also nothing in the legislation that authorizes BOWPs that would indicate their invalidity should there be a refusal in a supporting permanent residence application.
Given the above discussion, we believe that our reader can advise the client that she can continue to work in Canada despite the refusal of the permanent residence application. In the meantime, a new permanent residence application can be prepared correcting the deficiencies identified by the immigration officer.
The person under the BOWP can also continue to accumulate Canadian experience for a new application for permanent residence. In fact, we have processed permanent residence applications for individuals who accumulated Canadian experience under a BOWP that was issued in error, following the expiry of their Post-Graduation Work Permit and where there was no accompanying permanent residence application. Those applications were approved without incident.
[1] http://www.cic.gc.ca/english/work/permit/extend/permanent.asp
[2] International Mobility Program: Provincial nominees and permanent residence applications - Bridging open work permits for certain federal economic class applicants - http://www.cic.gc.ca/english/resources/tools/temp/work/prov/bridging.asp
Andrew Carvajal is a Toronto lawyer and partner at Desloges Law Group specializing in immigration law, administrative law and Small Claims Court litigation.
Twitter: @CarvajalLaw
Email: acarvajal@desloges.ca
