Permanent Resident Status: What it is and how it is lost

A permanent resident is a person who has acquired permanent resident status and has not subsequently lost their status under section 46 of the Act[1]. The acquisition of this status is achieved by a foreign national when an application for status is approved[2] following which, if that person is issued a permanent resident visa and has come to Canada in order to establish permanent residence[3] and an officer determines that the person is not inadmissible under the Act, status is achieved.[4]

Once a person becomes a permanent resident that person has the right to enter and remain in Canada, subject to the provisions of IRPA,[5] including any conditions impose under the Regulations.[6] For the purposes of this paper, the most relevant conditions imposed on a permanent resident are found in s.28 of the Act, which provides as follows:

“28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period.

Application

(2) The following provisions govern the residency obligation under subsection (1):

(a) 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, they are

(i) physically present in Canada,

(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,

(iv) 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 federal public administration or the public service of a province, or

(v) referred to in regulations providing for other means of compliance;

(b) it is sufficient for a permanent resident to demonstrate at examination

(i) 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;

(ii) 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

(c) 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.”[7]

As a means of providing a permanent resident evidence of that status, CIC is obligated to provide a permanent resident with a document indicating status, that is, a permanent resident card[8]. Section 31 of the Act not only provides that a permanent resident “shall be provided with a document indicating their status,”[9] but also establishes a rebuttable  presumption that a person who is outside of Canada with out a document indicating status does not have permanent resident status.[10] So, despite the law that a permanent resident remains a permanent resident until status is lost, if a permanent resident outside of Canada has status but does not have a permanent resident card, that person, although a permanent resident is tasked with the onus of proving that status, by way of an application for a travel document under s.31(3) of the Act, if they wish to have that status confirmed while outside of Canada, which for reasons set out later in this paper, may not always be in a permanent resident’s best interests. Briefly though, an application for a travel document necessarily requires an officer to examine whether a permanent resident is compliant with s.28, and if not, the process by which a permanent resident loses status under s.46 may be triggered.

Section 46 of the Act provides that a permanent resident loses permanent resident status upon the occurrence of one of four events, or triggers:

1.      acquisition of Canadian citizenship;[11]

2.      a final determination made outside of Canada that the permanent resident failed to comply with s.28 (that is, a refused travel document application under s.31);[12]

3.      when a removal order made against them comes into force;[13] or

4.      upon a final determination under s.109 or s.114 to vacate a decision to allow for refugee protection or protection, respectively.

The first and fourth loss of status triggers are beyond the scope of this paper. Respecting the second trigger, although a determination can be made outside of Canada that a permanent resident has failed to comply with the residency obligation, permanent residents have the right to appeal that decision[14] and as such, a “final determination” will not have occurred until the sooner of a permanent resident status filing an appeal to the Immigration Appeal Division (“IAD”) and ultimately losing that appeal or if a permanent resident does not file an appeal within the stated limitation period.

The limitation period for filing an appeal of a decision made outside of Canada that a permanent resident failed to comply with the residency obligation is 60 days, pursuant to s.9(3) of the Immigration Appeal Division Rules (SOR/2002-230) (the “Rules”). The Rules also provide that the appeal must be filed at the IAD division responsible for the region in Canada where the appellant last resided. The Appellant is also obligated to state whether or not he/she wishes to return to Canada for their appeal when the appeal is filed. If an Appellant has been in Canada at least 1 day in the 365 days prior to filing an appeal, he/she will be issued a travel document to return to Canada for the appeal by the CIC office outside of Canada responsible for the decision to refuse a travel document application. If an Appellant has not been physically present at least 1 day in the 365 days prior to filing an appeal, the Appellant must make application to the IAD for an order that they physically appear at the hearing, pursuant to section 43 and 46 of the Rules. Whether or not an Appellant physically appears in Canada to attend their appeal at the IAD, that person will lose status upon final determination of the appeal, if the Appellant loses their appeal.

Similarly, if a permanent resident is found to be non-compliant with the residency obligation from within Canada, usually in the context of either a permanent resident card application[15] or an examination upon entry into Canada, that person will have the right to appeal the decision to the IAD. However, unlike with the second trigger, in this context, in the case of this third trigger, loss of status will occur upon a removal order becoming enforceable. Removal orders will typically be issued following an examination in Canada by an officer that a permanent resident is non-compliant with the Act for failing to meet the residency obligation.[16] An officer’s decision must be transmitted to the Minister (read: Minister’s Delgate) in a Report on Inadmissibility, pursuant to IRPA s.44(1), following which the Minister may issue a removal order[17], pursuant to section 44(2). As set out in s.49 of the act, such a removal becomes enforceable on the latest of:

1.      the removal order being made if there is no right to appeal[18];

2.      the day the appeal period expires if there is a right to appeal and no appeal is made[19]; and

3.      the date of the final determination of the appeal, if an appeal is made.[20]

It is also worth noting that in cases where a determination is made outside of Canada that a person failed to meet the residency obligation and that person subsequently files an appeal which they attend in Canada, if the person loses their appeal, the IAD will issue a departure order and loss of status will be governed by s.46(1)(c) and not 46(1)(b).

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[1] IRPA, s.2

[2] IRPA, s.21

[3] IRPA, s.20(1)(a)

[4] IRPA, s.21

[5] IRPA, s.27(1)

[6] IRPA, s.27(2)

[7] IRPA, s.28

[8] IRPA, s.53 provides that for the purposes of s.31(1) the document indicating the status of a permanent resident is a permanent resident card. The card, like most government documentation, remains the property of Her Majesty in Right of Canada and must be returned upon request. Also worth noting, the permanent resident cards are issued valid for five years, except in cases, for example, where the permanent resident is under examination for non-compliance with the residency obligation or has filed an appeal to the IAD on that issue. A permanent resident card is revoked upon loss of status pursuant to s.46 or if the card is lost, stolen or destroyed, or if the permanent resident is deceased.

[9] IRPA, s.31(1)(a)

[10] IRPA, s.31(1), (2),(3)

[11] IRPA, s.46(1)(a)

[12] IRPA, s.46(1)(b)

[13] IRPA, s.46(1)(c)

[14] IRPA, s.63(4)

[15] Pursuant to IRPR, s.56, an application for a permanent resident card must include a comprehensive list of the applicant’s absences from Canada in the fiver year period immediately prior to filing the application.

[16] IRPA, s. 41

[17] As per section 229(2), the type of removal order issued against a permanent resident under section 44(2) is a departure order.

[18] IRPA, s.49(a). This typically does not to residency obligation appeals, but more commonly in matters where a determination that a permanent resident is inadmissible for reasons such as grounds related to security, violation of human or international rights, serious criminality or organized criminality.

[19] Pursuant to section 7 of the Rules, an appeal must be filed within 30 days of receipt of a removal order.

[20] An appeal would be filed pursuant to s.63(3) of IRPA and “final determination” is understood as the day a decision is rendered by the IAD.