When you land at your Port of Entry (or POE) in Canada and are admitted into the country with a provincial nomination in hand as well, you still have to convince border officials that you are complying with all aspects of your status as a newly arrived immigrant. This means complying with both federal immigration law and your rights as a permanent resident in Canada.

This involves a delicate balancing act between what are called Mobility Rights, and your intent to reside in the province that has nominated you and helped ensure you have the sufficient CRS score to receive the Invitation to Apply (ITA) for permanent residence, which allowed you to apply for permanent residence.

The good news is that after some time has passed, you no longer have to balance the two acts so carefully. Your mobility rights take precedence over your obligations as provincial nominee. But that doesn’t mean that mobility rights are an absolute right. Let’s do a deep dive into immigration law and mobility rights in Canada.

 

The Canadian Right of Freedom of Mobility

Canadian provinces By Amiami3 [CC BY-SA 3.0  (https://creativecommons.org/licenses/by-sa/3.0)], from Wikimedia Commons

by Amiami3 / Wikimedia Commons / CC BY-SA 3.0

Section 6 of Canada’s Charter of Rights and Freedoms states the following:

  1. Every citizen of Canada has the right to enter, remain in and leave Canada.
  2. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
    • a) to move to and take up residence in any province; and
    • b) to pursue the gaining of a livelihood in any province.
  3. The rights specified in subsection (2) are subject to
    • a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
    • b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
  4. Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Paragraph 2 above states that both citizens and permanent residents can live and work in the province of their choice. So that should suggest that you can arrive at Pearson airport in Toronto, get your permanent residency upon arrival, and rent a car and drive straight to Calgary or Vancouver and start looking for a job.

Right?

No, not necessarily. Paragraph 3 states that mobility rights are subject to any other provincial laws or federal laws that do not discriminate based on your present province or previous residence. Specifically, the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) are relevant here.

 

Canadian Law

Paragraph 87 (2) of the IRPR states:

(2) A foreign national is a member of the provincial nominee class if

  • (a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and
  • (b) they intend to reside in the province that has nominated them.

What this tells us is that if you do not convince border authorities at your Port of Entry (POE -normally the airport in Canada that you arrive at) that you actually intend to reside in the province that nominated you, you may very well be in contravention of this section of the IRPR. The border officials have the power to deny you your status as a newly-arrived permanent resident of Canada.

This is because your permanent resident visa does not guarantee you permanent resident status. That has to be conferred at your Port of Entry (with the Confirmation of Permanent Residence or COPR) by border officials who are on the lookout for any type of immigration fraud. This means that you may be vulnerable to such a refusal to admit you because of the following part of the Immigration Refugee Protection Act or IRPA:

Misrepresentation

  • 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
    • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
    • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
    • (d) on ceasing to be a citizen under
      • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,
      • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or
      • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

The relevant part of this section of the IRPA which deals with misrepresentation – lying, essentially, to immigration authorities – is the following: 40 (1) (a):

  • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

In other words, if you are considered to have misrepresented your intention to reside in Ontario, for example, then you could very well be considered to have misrepresented a “material fact” that has direct bearing on your status as a nominee of that province. The intent to reside in Ontario (or any other province that has a nominee program) is the key selection criterion for the OINP. (And the intent to reside which is part of any other province’s PNP is exactly the same situation.) You could lose your status as a nominee and even be deported if immigration authorities decide that you have never had the intention of living and working in the province that nominated you.

So, what are your rights exactly as a newly arrived permanent resident?

 

When Can You Move?

Unfortunately, this is not 100% clear, and may have to be decided by court cases, but this much seems certain. Once you have been granted your permanent resident status and are settled in the province that nominated you, you have mobility rights under paragraph 2 of Section 6 of the Charter of Rights and Freedoms. Remember that these are rights to live and work anywhere inside Canada – in any province or territory that you choose to – and are not the same as the rights that Canadian citizens have to travel freely outside of Canada.

As well, as we mentioned above, your mobility rights are subject to paragraphs 3 and 4 in Section 6 of the Charter of Rights and Freedoms. These allow provincial governments to pass laws that favour their own residents and that certainly seems to include provincial nominee programs.

Immigration and border officials are certainly aware of this conflict between the IRPA and IRPR on the one hand, and Mobility Rights in section 6 of the Canadian Charter of Rights and Freedoms on the other hand. We suggest the following rough guide but remind you that this is for information purposes only and should NOT in any shape or form be considered legal advice. For legal we suggest you contact an immigration consultant or lawyer.

Stage of Permanent Residency Your Rights Your Obligations
Arrival at POE with PR Visa No mobility rights until you are accepted by border officials as a permanent resident and have your validated COPR. You will be asked to give a mailing address where your PR Card will be sent, although you have 180 days to do that. Comply with all selection criteria of your PNP as well as the IRPA’s federal immigration requirements.
Accepted at your POE and now residing in Canada You now have mobility rights as a permanent resident of Canada, but your right to travel abroad is conditioned by your status as a PR rather than as a Canadian Citizen. You have to fulfill the residency requirement (760 days within the last 5 years) to retain your legal status as a PR.
You receive PR Card in the mail Some people choose to exercise their mobility rights at this point. That’s up to you but there may be risks involved. You still have your residency requirements and you have to maintain your legal status and any other obligations under your nominee program.
You fulfill your 760 days residency requirements and you have your PR Card Many people see this as the perfect moment to choose to move to another province. By this point, your status as a PR is firmly established and the risks of non-compliance with your PNP would seem low. You still have to maintain your legal status as a PR and any obligations that may remain from your nominee program. 
You successfully pass your citizenship exam and receive Canadian citizenship Your rights and obligations are now the same as any other Canadian citizen.

Clearly this a balancing act, but perhaps the best course is making sure you fulfill your obligations as a provincial nominee for around 1 to 2 years. Remember, being a provincial nominee grants you a number of clear advantages especially with your job search and often helps you land a good job. Why risk that to pull up stakes and perhaps put your status at stake?

Again, this is for information purposes. Consult a lawyer or Regulated Canadian Immigration Consultant (RCIC) for any legal advice you require. And good luck!


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