Flagpoling Canada Immigration Law and Regulations for Practitioners
|Coronavirus and Canada-US border restrictions: Flagpoling is considered non-essential travel, so you may not consider it for validating your COPR (permanent resident landing paper) or receive a work permit, a study permit or renewing your stay in Canada.|
Miloje is a citizen of Serbia. He recently moved to Canada, but he wants to change his status. Consequently, Miloje is considering flagpoling. However, he is not quite sure what is the legal basis of flagpoling. Miloje approaches an immigration practitioner for advice on the immigration law and regulations behind flagpoling in Canada.
The term flagpoling means you go to a Canada-US land crossing. However, you do not travel to the US. Instead, you inform the US border officer you intend to change your status in Canada. Consequently, they usually deny your entry to the US and send you back to Canada. Upon entering Canada, you apply for the new status. If you are not familiar with flagpoling at all, consider reading the following article first:
Flagpoling could occur for several reasons. For example,
- applying for a work permit,
- receiving a study permit,
- landing in Canada as a permanent resident, or
- extending the stay as a visitor.
The legal roots of flagpoling for a work permit
We could assume flagpoling became prevalent because of paragraph 190(3)(f) of the IRPR. Under this paragraph:
(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they
(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it;
If someone meets the requirements of this paragraph, they become visa-exempt regardless of their nationality. Of course, travelling to St. Pierre and Miquelon is not an option for most people. It is costly, and you may also need to apply for a visa to their country. Instead, people drive to a US-Canada port of entry (POE). Unfortunately, the US immigration officers deny entry to many of them, but at least they will come back to Canada under the authority of R190(3)(f).
Why R190(3)(f) is essential?
Under subsection 198(1) of IRPR, you may only apply for a work permit at a port of entry if you are exempt from visa to Canada. Here is the exact wording of this subsection:
R198 (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa.
If you connect the dots, you realize that flagpoling allows every nationality to apply at a US-Canada port of entry.
Can people apply for a study permit by flagpoling?
According to R214, the following foreign nationals may apply for a study permit at a port of entry:
(a) a national or a permanent resident of the United States;
(b) a person who has been lawfully admitted to the United States for permanent residence;
(c) a resident of Greenland; or
(d) a resident of St. Pierre and Miquelon.
Flagpoling is an option for these foreign nationals only.
Flagpoling for staying in Canada as a visitor
Section 180 of IRPR practically leaves the decision of authorization to stay to a Border Services Officer.
R180 A foreign national who holds a temporary resident visa is not authorized to enter and remain in Canada as a temporary resident unless, following an examination, it is established that the foreign national and their accompanying family members
(a) met the requirements for issuance of their temporary resident visa at the time it was issued; and
(b) continue to meet these requirements at the time of the examination on entry into Canada.
So if someone flagpoles and they have valid status in Canada, they may be able to renew it at a port of entry. Of course, they need to show the officer they still meet the requirements of R179, especially they have no intention to overstay in Canada. You could locate this under A20(1)(b) as well.
Flagpoling for validating the Confirmation of Permanent Residence (COPR)
A person who holds a “raw” COPR and shows up at a port of entry could land in Canada under the authority of A20(1)(a).
A20 (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
(a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence.
If you need more information, read Chapter 4 of the Enforcement operational manual (i.e. ENF 4:
Port of entry examinations).
Problems facing people who flagpole
People who decide to flagpole could face any of the following issues:
- Due to the refusal of their visa to the US, they could face problems travelling to the United States in the future.
- The Canada Border Services Officer may refuse to issue the new status to them for any of the following reasons:
- Sometimes officers issue removal orders for the applicants or detain them under the authority of IRPA or IRPR
- They may ask the applicant to apply online or leave Canada and apply from outside Canada
Read the following article about nuts and bolts of flagpoling:
Flagpoling case laws
IRCC and CBSA prefer to stay away from this term. In fact, you may not find flagpoling in any official text of the government (or at least I was not able to locate it). Of course, their lack of interest could be due to the following reasons:
- Flagpoling puts too much workload on the CBSA shoulders, and
- it practically offers a short-cut to applications that usually take several weeks to complete
However, we have some case laws that refer to flagpoling:
- Romans v. Howlund International Corp., 2010 ABPC 333 (CanLII)
- Cheaito v Canada (Public Safety and Emergency Preparedness), 2011 CanLII 101787 (CA IRB)
- Yang v. Canada (Public Safety and Emergency Preparedness), 2014 FC 383 (CanLII)
- Platon v Canada (Public Safety and Emergency Preparedness), 2016 CanLII 101703 (CA IRB)
- Paranych v. Canada (Public Safety and Emergency Preparedness), 2018 FC 158 (CanLII)
- Singh v. Canada (Public Safety and Emergency Preparedness), 2019 FC 132 (CanLII)
You may find the following article useful:
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