I think this may settle everyone's understanding, including mine, of the issue at thand. This is an extract from manuals used by canadian immigration officers.
5.17. What is meant by “lawfully admitted”
The intent of R11 is not to expend energy on front-end R11 eligibility screening, but rather to
protect program integrity by ensuring that applications are submitted to offices with the
appropriate expertise and local knowledge. However, there may be times when R11 eligibility will
determine case processing actions (file transfers, for example) and the following information on
“lawful admission” should assist in determining R11 eligibility in these cases.
1. For the purposes of R11, “lawful admission” is broadly defined and may cover many
situations, a few of which are described below. However, the circumstances in which an
individual has not been lawfully admitted and is therefore ineligible to apply at a visa office are
limited to:
i) persons who entered a country without status and still have no status in that
country. Under R11, they are not eligible to apply in the country where they
currently are living without status.
ii) persons who, at the time of the submission of their application, are not physically
in a country served by the visa office through which they are applying. An
applicant cannot send an application to a visa office if they are not physically in a
country served by that visa office (unless it is their country of nationality).
2. For the purposes of R11, situations in which an individual is considered to have been “lawfully
admitted” will include (but are not limited to):
i) persons who were lawfully admitted, but no longer have legal status when the
application is submitted. For example, a person who has entered a country
lawfully but at some time subsequent to lawful admission has lost legal
immigration status is considered to have been lawfully admitted, whether or not
status has been restored at the time of the application to the visa office. Such
applicants may or may not qualify for a visa, but their application must be
accepted for processing and assessed on its merits;
ii) persons who initially were not lawfully admitted, but have since gained legal
status and have legal status at the time an application is submitted;
iii) where an individual enters a country illegally, and then makes a refugee claim,
the claim must be finally determined. If positive, the person could be considered
"lawfully admitted" on the date the positive decision is made on the claim. Making
a refugee claim in itself does not regularize a person's immigration status and
does not imply that the person has been "lawfully admitted." In Canada and the
United States, during the processing of a refugee/asylum claim, the individual
does not have lawful status. Therefore, a person would not be considered to be
lawfully admitted until a positive decision has been received on the claim.
However, other countries vary in their interpretation of what type of status an
individual may have while awaiting a decision on a refugee claim. Therefore,
officers should require applicants to provide documentary evidence of their lawful
status. In all instances, a positive decision on a claim would certainly provide the
individual with lawful status.
It is the opinion of Legal Services that the making of a refugee claim alone does
not regularize a person's immigration status for the purpose of making an
application for a visa (either permanent or temporary) to Canada.
The granting of the asylum decision is the determinative date of a person's
immigration status. The date the decision is rendered on the asylum claim
becomes the date the individual is considered to be “lawfully admitted.”
3. R11(1) also stipulates that an applicant must have been lawfully admitted for at least one year
when applying for permanent residence.
Persons who are applying for permanent residence must be residing in and have been legally
admitted for a period of at least one year to the country which the visa office receiving the
application serves. The applicant is not required to have been residing in the country for one year
at the time of application, but to have been lawfully admitted to that country for a minimum oneyear
period at the time of application.
For example, under R11(1), an individual may have lawfully entered and be currently residing in a
country on the basis of a one-year work permit. Anytime during that year, the individual would be
eligible under R11(1) to apply for permanent residence to Canada through the visa office
responsible for applications from the country in which the individual is residing.
Applicants for temporary resident services must have been lawfully admitted (although there is no
time requirement).
Note: Family members included in an application for permanent residence or an application for a
temporary purpose, do not need to have been lawfully admitted to the country in which the application
is submitted. Such a requirement would make it impossible for some families to submit visa
applications anywhere.
In short, when determining residency in a particular country, offices should take into account any
official document showing that the applicant has been granted legal status in that country for a
period of one year or has been living there lawfully for at least one year.
