The OBA Immigration Section recently convened a highly informative session with CBSA representatives and senior immigration counsel to discuss evolving port of entry (POE) issues. The session was a rare opportunity to hear directly from CBSA about how they approach applications at the border and how counsel can better prepare their clients. The discussion was wide-ranging, covering TRPs, criminal rehabilitation, work permits, flagpoling, enforcement flags, section 44 reports, and even the protection of solicitor-client privilege during electronic device searches.
A key theme of the discussion was that the standard of review for admissibility determinations has not changed. CBSA confirmed that they continue to apply the law consistently and that officers remain committed to a fair and predictable process. On the topic of Temporary Resident Permits (TRPs), CBSA encouraged counsel to ensure that applicants arrive with complete documentation that directly addresses the inadmissibility they are seeking to overcome. This includes police certificates, court records, and any other evidence relevant to the case. CBSA stressed that applicants must be prepared to answer questions truthfully and understand every part of their package, particularly when the package has been prepared by counsel. Officers cannot pause a TRP adjudication to request missing information, so a complete, well-prepared package is critical to avoiding refusals.
Counsel also asked whether criminal rehabilitation applications can be submitted at the port of entry. CBSA confirmed that these applications can technically be received but advised against it except in rare circumstances. The risk of refusal is high, particularly if documents are incomplete, because officers cannot hold the application while additional evidence is gathered. Unlike a consular application, which can be supplemented following a request for additional documentation, port-of-entry processing does not offer that flexibility. CBSA further clarified that deemed rehabilitation findings are not automatically flagged in GCMS for future entries, meaning that clients should travel with their rehabilitation documentation on each trip to avoid delays.
The conversation turned to section 44 reports, which officers are required to issue if they have reasonable grounds to believe that a person is inadmissible. Counsel were reminded that clients should cooperate with the process and accept service of the report. There may be opportunities to provide mitigation evidence that can inform the Minister’s Delegate review, and counsel should be ready to advocate at that stage to limit the downstream consequences, including possible referral to the Immigration Division.
Flagpoling generated significant interest. CBSA confirmed that the current restrictions apply nationwide and in all modes, including Pearson International Airport. Travellers who leave Canada to visit the United States or Saint-Pierre-Miquelon and then return seeking immigration services will be considered flagpoling and will be refused service unless they fall within a regulatory exception. CBSA made clear that a TRP cannot be used to “overcome” flagpoling restrictions, because flagpoling is not an inadmissibility. Some counsel raised concerns that the interpretation of section 198 of the IRPR together with Operational Bulletin 686 could constitute regulatory overreach. It was suggested that this may eventually be litigated to clarify the limits of CBSA’s discretion.
The work permit discussion was equally robust. CBSA emphasized that clients must present organized, complete, and accurate packages including proof of work experience, education, LMIA documentation (or evidence of an exemption), and CAQ where required. Officers confirmed that they can review large packages as long as they are well organized, and counsel were encouraged to use tabs, dividers, and indexes to help officers navigate the material efficiently. A recurring concern was the situation where clients are “waived in” without being processed. CBSA advised that clients should politely insist on being processed if they require a permit and, at Pearson, return to the side-door immigration reception on the same day if they have exited without receiving their permit. At land borders, clients should not leave until their matter has been addressed and may request to speak to a superintendent if there is confusion or delay.
The panel also addressed the issue of enforcement flags. CBSA explained that requests for flag removals can be made online through the CBSA feedback portal or in person at the port of entry when the traveller is present. Only a minister’s delegate can authorize a flag removal, and while minister’s delegates are generally available, there is no set schedule. Where the flag originates from an IRCC decision, CBSA cannot remove it and the client will be directed to contact IRCC directly.
An important part of the discussion focused on privacy and solicitor-client privilege during searches of personal electronic devices. CBSA confirmed that officers have the authority to examine digital devices at the border, but these examinations are not routine and are conducted only when there are lawful and reasonable grounds to suspect a contravention of Canadian law. Before any search begins, network connectivity is disabled (typically by putting the device into airplane mode) to prevent access to cloud-based information. Examinations are generally conducted in the traveller’s presence. If solicitor-client privileged material is encountered, the search is halted, and the traveller is asked to identify and document where the privileged data is stored. If there is a dispute over the privileged nature of the material, the device can be sealed and referred to the court for determination.
This session was an important reminder that success at the port of entry depends on preparation, organization, and client education. Counsel should take the time to ensure that clients travel with every relevant document, understand what to expect, and know how to self-advocate if something goes wrong. Flagpoling restrictions continue to be applied consistently across Canada, section 44 reports remain a significant risk when admissibility issues arise, and work permit applications stand the best chance of approval when packages are complete and logically presented.
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