Canadian Maintenance of Permanent Residence
Written by Henry J. Chang
The Immigration and Refugee Protection Act ("IRPA") establishes a residency obligation for permanent residents with respect to each five year period. It also specifies certain situations where time spent outside Canada will be deemed to be time spent in Canada for the purposes of retaining permanent resident status. In addition, the IRPA describes circumstances where permanent resident spouses, common-law partners, and dependent children will be permitted to retain their status while accompanying a Canadian citizen or permanent resident abroad.
The residency obligation arises from Subsection 28(1) of the IRPA. Subsection 28(2) of the IRPA provides the following rules to determine whether a permanent resident has complied with this obligation:
There is no specific provision to exempt the student from the residency obligations that appear in Section 28 of the IRPA.
The term "child" for the purposes of Clauses 28(2)(a)(ii) and (iv) is defined as a child of a Canadian citizen or permanent resident, including an adopted child, who is not and who has never been a spouse or common-law partner and is less than 22 years of age.
The term "Canadian business" applies to both small and large businesses and includes:
- A permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period (1825 days), they are:
- Physically present in Canada,
- Outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
- Outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province,
- Outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province, or
- Referred to in regulations providing for other means of compliance;
- It is sufficient for a permanent resident to demonstrate at examination
- If they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident;
- If they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and
- A determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination.
However, it does not include businesses that have been created primarily for the purpose of allowing a permanent resident to satisfy his or her residency obligation while residing outside of Canada.
The regulations enable permanent residents to comply with the residency obligations while working abroad, provided that:
- Federally or provincially incorporated businesses that have an ongoing operation in Canada;
- Other enterprises that have an ongoing operation in Canada, are capable of generating revenue, are carried out in anticipation of a profit, and in which a majority of voting or ownership interests is held by Canadian citizens, permanent residents, or Canadian businesses; and
- Enterprises that have been created by the Laws of Canada or a province.
Previously Issued Returning Resident Permits
Prior to the enactment of the IRPA, it was possible for a permanent resident of Canada to obtain a returning resident permit that was very similar to a reentry permit under U.S. immigration laws. If the foreign national possessed a returning resident permit, he or she would be protected from the risk of losing permanent residence for the duration of the permit. Returning resident permits no longer exist under the IRPA. However, the IRPA provides transitional provisions for foreign nationals who obtained returning resident permits under the old statute.
According to Subsection 328(2) of the IRPR, any period spent outside of Canada within the five years preceding the coming into force of the IRPA (November 1, 2001), by a permanent resident holding a returning resident permit is considered to be a period spent in Canada for the purposes of satisying the residency obligation under Section 28 of the IRPA, if that period is included in the five year period referred to in that section. According to Subsection 328(3) of the IRPR, any period spent outside of Canada within the two years following the coming into force of the IRPA [state date of enactment], by a permanent resident holding a returning resident permit is considered to be a period spent in Canada for the purposes of satisying the residency obligation under Section 28 of the IRPA, if that period is included in the five year period referred to in that section.
Status Document Creates Presumption that the Person Has Permanent Residence
For many years, CIC provided permanent residents with proof of landing in the form of an immigrant visa and a "Record of Landing" (Form IMM 1000B). Possession of a Record of Landing established the person had landed at some point but was not considered presumptive proof that the person had permanent resident status. However, this has changed under the IRPA. According to Paragraph 31(2)(i) of the IRPA, a person in possession of a status document (i.e. travel document or permanent resident card) will be presumed to have permanent residence. Conversely, according to Paragraph 31(2)(ii), a person who is outside Canada and who does not present a status document indicating permanent resident status is presumed not to have permanent resident status.
Once it is established that the person has permanent residence status, it must then be determined whether the person has complied with the residency obligations described in Section 28 of the IRPA.
Procedure for Determining Loss of Permanent Residence
Determinations Made Outside Canada
Where the permanent resident does not have a permanent resident card, he or she will need to seek a travel document under Subsection 31(3) of the IRPA in order to reenter Canada. In such cases, the officer at a Canadian Consulate will make the determination regarding his or her compliance with the residency obligation.
According to Subsection 31(3), a permanent resident outside Canada who is not in possession of a permanent residence card shall, following an examination, be issued a travel document if an officer is satisfied that
- They are under contract to, or are full-time employees of a Canadian business or in the public service, where the assignment is controlled from the head office of a Canadian business or public institution in Canada; and
- They are assigned on a full-time basis as a term of their employment or contract, to a position outside of Canada with that business, an affiliated enterprise or a client.
According to Subsection 46(1)(b) of the IRPA, a person loses permanent resident status on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under Section 28 of the IRPA. In Paragraph 31(3)(c) cases (i.e. determinations made at the consulate in the context of a travel document), loss of permanent resident status formally occurs when the Subsection 63(4) appeal period of 60 days expires (in the case of a person who does not challenge the negative determination) or when the person's Subsection 63(4) appeal to the Immigration Appeal Division is determined.
The officer cannot seize the person's permanent residence documents until a final determination is made, unless the officer believes that there are reasonable grounds to do so in accordance with Section 140 of the IRPA [the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used or that the seizure is necessary to prevent its fraudulent or improper use or to carry out the purposes of the IRPA]. The reason is because the person has the right to appeal the removal order and, until the final determination of his or her status, he or she will remain a permanent resident and is the lawful owner of these documents.
Where an overseas determination of a person's Section 28 residency obligation has been made, and that person seeks admission to Canada at a port of entry, the port of entry officer will determine whether the period for appealing the determination has expired or if an appeal has been filed. If the appeal period (60 days in travel document cases) has not expired, the port of entry officer should permit the person to enter Canada even if a notice of appeal has not yet been filed. The person should also be permitted to enter Canada if notice of appeal has been filed and an appeal is pending.
Where an overseas determination of the Section 28 residency obligation has already occurred, the port of entry officer is not required to prepare as Subsection 44(1) report because the Immigration Appeal Division of the Immigration and Refugee Board ("IRB") has the authority to make a removal order where an appeal is dismissed and the permanent resident is in Canada.
Determinations Made at Ports of Entry or Within Canada
According to the Immigration Manual, the onus rests with the permanent resident to provide the necessary information and evidence to satisfy an officer that they are in compliance with the IRPA. It further states that officers may ask permanent residents to provide such documentation, as the officer deems necessary in the circumstances, to allow for a determination to be made with respect to the residency obligation provision of the IRPA. This suggests that permanent residents must answer any questions and provide any necessary documents to establish compliance with the IRPA.
However, the Immigration Manual also states that, if the officer establishes that the person has obtained permanent residence, that person has the right to come into Canada without having to answer further questions relating to the residency obligations set out in Section 28 of the IRPA. The person can volunteer the information, allowing the officer to determine if there is compliance or not, but the officer cannot compel the person to answer nor order the person to complete a questionnaire for determination. If the person volunteers the information and the officer is able to determine compliance or noncompliance with Section 28 of the IRPA, he can do so at that time. In the event where the officer establishes that the person does not comply with Section 28 of the IRPA, the officer can write a report under Subsection 44(1) of the IRPA and recommend a removal order.
When an officer believes that a permanent resident has failed to comply with their residency obligation under Section 28(1) of the IRPA, the officer should report the permanent resident under the provisions of Subsection 44(1) of the IRPA and recommend issuance of a removal order to the Minister of Immigration. According to Subsection 44(2) of the IRPA, if the Minister is of the opinion that the report is well-founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under Section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order.
As stated above, the officer cannot seize the person's permanent residence documents despite the writing of a Subsection 44(1) report and issuance of a removal order, unless the officer believes that there are reasonable grounds to do so in accordance with Section 140 of the IRPA [the officer believes on reasonable grounds that it was fraudulently or improperly obtained or used or that the seizure is necessary to prevent its fraudulent or improper use or to carry out the purposes of the IRPA]. According to Paragraph 46(1)(c) of the IRPA, a person loses permanent resident status when a removal order made against them comes into force. Therefore, at ports of entry, loss of permanent resident status formally occurs when the 30-day period during which the person may file an appeal against a removal order expires (in the case of a person who does not challenge the removal order) or when the person's appeal is determined.
Voluntary Relinquishment of Permanent Residence
Voluntary relinquishment of permanent residence is permitted in limited cases. It may be permitted where an individual does not meet the residency obligation but is only seeking to enter Canada as a temporary resident or where a person has to abandon permanent residence in order to accept employment for a foreign government, including a diplomatic posting, or where such voluntary relinquishment is necessary in order to qualify for status in another country. However, this permission is not to be used in cases where permanent residents are subject to a report under Subsection 44(1) of the IRPA, that may or has been referred to the IRB for an admissibility hearing on matters other than the residency obligation criteria under Section 28 of the IRPA.
A person who voluntarily relinquishes his or her permanent residence will no longer be considered a permanent resident. They will be treated as a foreign national under the IRPA.
- They comply with the residency obligation under Section 28;
- An officer has made the determination referred to in Paragraph 28(2)(c); or
- They were physically present in Canada at least once within the 365 days before the examination and they have made an appeal under Subsection 63(4) to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation, which has not been finally determined or the period for making such an appeal has not yet expired.