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Allen and Hodgman | Residency Obligation
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Residency Obligation

   

Beginning in June 2002 with the coming into force of Canada’s new immigration law known as IRPA, permanent residents in Canada became subject to a new residency obligation. In contrast with prior law, which was based on an intent to return to Canada, the new obligation is based on a mathematical counting of days inside and outside of Canada.

What is the residency requirement?

The basic principle is that a permanent resident must be present in Canada for a total of 730 days (i.e., two years) out of any five year period. When does the five year period start and end? The five year period is determined at any time that a residency determination is made. For instance, if a person applies for admission to Canada after a prolonged absence, the government will consider whether the person met the residency obligation during the five year period immediately preceding the date the person applied for admission. It doesn’t matter what happened before that. To give another example, if a person applies for a new permanent resident card, the government will look at the five year period before the person applied. Again, it doesn’t matter what happened before the five year period started. The government looks only at the last five years. This means in some cases that if you are in Canada now, but do not meet the residency requirement, you can simply wait until you have the necessary days, and then apply for the renewal card.

There are several exceptions to the general rule. Under some circumstances, time spent outside of Canada is counted as time in Canada. These circumstances include the following:

  • If you are outside of Canada accompanying a spouse or common law partner who is a Canadian citizen.
  • The same principal applies to children of Canadian citizens living outside of Canada with a Canadian citizen parent, until the child turns 22 years of age.
  • If you are outside Canada employed full time by a Canadian business that hired you in Canada and then transferred you, or by the federal government or the government of a province, or accompanying a permanent resident who is so employed.

The exception for employment by a Canadian business does not include a  business which has been established for the purpose of assisting the permanent resident in meeting the residency obligation.

These days do not count for citizenship purposes, but only for the purposes of meeting the residency requirement.

Even if a person has failed to comply with the residency obligation, an immigration officer may determine that humanitarian and compassionate grounds, taking into account the best interests of a child who is involved, may justify the retention of permanent resident status. An example would be a person who was out of Canada caring for a sick parent, but maintained strong residential ties to Canada. Another example is a child who was taken from Canada by his or her parents, and then returned to Canada soon after becoming an adult. A voluntary choice to pursue employment or business interests outside Canada usually does not constitute humanitarian and compassionate grounds, particularly if the person never established a residence in Canada or tried to find employment in Canada.

What is the relationship between the residency requirement and the Maple Leaf card?

A source of much confusion is the relationship between the residency requirement and the permanent residence card, sometimes called the “Maple Leaf card.” These are usually issued for five year periods. However, a person may have an unexpired Maple Leaf card, and still be in breach of the residency obligation. For instance, if a person lands in Canada, gets the card, and then leaves Canada for the next four years, the person will be in violation of the residency requirement, even though the card has not expired. By the same token, a person may have an expired Maple Leaf card and not be in violation of the residency requirement. For instance, the person may have landed in Canada, never left Canada, but simply did not bother to apply for a new card after five years. Permanent residents are under no legal obligation to have an unexpired Maple Leaf card.

The real purpose of the Maple Leaf card is to permit permanent residents of Canada to board airplanes or other common carriers destined for Canada. In theory, any permanent resident must have an unexpired Maple Leaf Card to board an airplane outside of Canada. In reality, this requirement mainly impacts persons from countries that require visas to enter Canada. In this situation, the Maple Leaf Card functions like a visa. If a person needs a visa to travel to Canada by common carrier, and does not have a valid Maple Leaf card, the person must apply to a Canadian consulate to obtain a Permanent Resident Travel Document. This is similar to a single entry visa. It permits the person to return to Canada. Once in Canada, the person can apply for a new Maple Leaf card.

A person appearing at a land port of entry from the United States by car or other personal vehicle does not need a Maple Leaf card or a Travel Document, because the person is not boarding a common carrier. Canadian boarder officials are required to admit any person who can prove he or she is a permanent resident. For instance, landing papers are usually sufficient proof. Therefore, if a person without a valid Maple Leaf card is in the United States, or can get to the United States with a U.S. visa or visa waiver, the person can travel to the border and gain admission to Canada.

How is the residency obligation enforced?

The residency obligation is enforced by an application. There are basically three types of applications than can trigger enforcement. They are:

  • An application to enter Canada.
  • An application for a Maple Leaf card
  • An application for a Permanent Resident Travel Document.

An application for a Permanent Resident Travel Document may result in a direct determination by the consulate that the person is in violation of the residency requirement. This will lead to a loss of permanent resident status, unless the person appeals to the IRB (Immigration and Refugee Board). If the person has been in Canada at any time during the last year, the person may return to Canada to pursue the appeal. Otherwise the person will be required to remain outside Canada while the appeal proceeds.

In the case of an application to enter Canada or for a new Maple Leaf card, there is no immediate determination that the person has breached the residency requirement. In particular, an officer at the boarder has no authority to make such a determination, and may not refuse entry to a permanent resident. However, the officer my write up a “section 44 report.” This may result in a departure order. The person has 30 days to appear the order. The person may remain in Canada and may obtain a new one year replacement card. The IRB may consider humanitarian and compassionate grounds. However, once the section 44 report is written, the person cannot benefit from the passage of time until the appeal is heard. In other words, the determination is based on the person’s status at the time the section 44 report is written.

Get professional advice if you are in danger of losing your residency status. We can help!