Keeping Permanent Resident Status: Humanitarian and Compassionate Grounds

A permanent resident of Canada will satisfy the residency obligation if they are physically present in Canada, residing outside of Canada with a Canadian spouse (or in the case of a child, their parent) or if have a qualifying employment relationship with a a qualifying Canadian employer outside of Canada for 730 days in a five-year period. But if a permanent resident cannot meet these requirements, that person will have a final opportunity to maintain status on humanitarian and compassionate grounds. If an applicant falls short or doesn’t even come close to the 730 day requirement, an Officer must consider humanitarian and compassionate considerations relating to the permanent resident, taking into account the best interests of a child directly affected by the officer’s decision. These considerations must justify the permanent resident keeping their status even though they have failed to meet the residency obligation.

There is no definitive list of what types of factors an officer will consider. Each case is judged on its own merit, making it very difficult to predict when an applicant will be successful in an application based on humanitarian and compassionate grounds and when they will fail. Some of the factors which may be important include family medical situations overseas which have kept a permanent resident out of Canada (sick children or elderly parents, for example), custody battles or family breakdown outside of Canada, schooling or even mandatory military service. The options are endless.

In fact, section 28(2)(c) of IRPA clearly provides that an officer cannot make a determination of a loss of permanent residency based on a failure to meet the residency obligation without making an assessment of humanitarian and compassionate (“H&C”) factors. 

The appropriate H&C factors to be considered in a removal order appeal to the IAD have been adequately set out in Ribic[1], adopted by the Supreme Court of Canada in Chieu[2] and have been consistently modified  by the Board to suit the specific issues relevant to Residency Obligation Appeals.[3] These factors have also been supplemented by factors set out in Citizenship and Immigration Canada’s operational manuals. The factors are exhaustive and from all of these sources include but are not limited to:

1. initial and continuing establishment in Canada;
2. length of time spent in Canada;
3. reasons for departure from Canada;
4. circumstances surrounding the breach;
5. medical conditions in relation to a close family member and could arrangements be made or was it by choice that the appellant remained outside of Canada;
6. degree of control the applicant had over his circumstances;
7. any factors preventing a return to Canada;
8. extent of non-compliance with the obligation;
9. reasons for continued or lengthy stay abroad;
10. ties to Canada;
11. whether reasonable attempts were made to return to Canada at the earliest opportunity;
12. best interests of children affected by a negative determination;
13. family in Canada and impact on that family caused by loss of status;
14. personal hardship stemming from loss of status;
15. future intentions in relation to residing in Canada;
16. whether the appellant can be sponsored by a spouse or child;
17. other unique or special circumstances; and
18. status in other countries.

These factors, as applicable, ought to be put an examining officer in detail as the onus is on a permanent resident to convince an officer that they are deserving of an exemption.

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[1] IAB T84-9623

[2]  [2002] 1 S.C.R. 84, 2002 SCC 3

[3] See for example, Kuan v. Canada [2003] IADD No. 638, Wong v. Canada [2003] IADD No. 824, Lei v. Canada [2006] IADD No. 75.