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.

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.

Navigating the PR Card Extension Process

Myth Buster: Every Permanent Resident must have a PR Card?

The Permanent Resident Card is an ingenious little piece of plastic. It serves as primary identification for many permanent residents of Canada, it facilitates travel into Canada and it expires, typically every five years.

The benefits of having identification and easy travel into Canada speak for themselves, but the complications stemming from the expiration of PR Cards is usually only appreciated after one suffers through an anything but routine renewal application. Incidentally, primary identification is a practical but not a legal benefit of the PR card (in many applications), but that is a topic for another day.

Before I get into renewal issues, the first myth that I would like to debunk is that every permanent resident of Canada must hold a valid permanent resident card. This is simply not the case. Much like when one’s passport expires their citizenship does not expire, when a permanent resident card expires, a person does not lose permanent resident status. The card is a symbol of status only; it is not status in and of itself.

The second myth that I would like to debunk is that every permanent resident of Canada must always present a PR card to Canada Border Services Agency (“CBSA”) Officers upon entry in to Canada. Again, this is simply not the case. The PR Card is only required when using a commercial carrier to travel to Canada, for example, airlines and buses. If, for example, a permanent resident travels to Canada by private car, there is no obligation whatsoever on the permanent resident to have a valid PR Card. That said, a person without a valid PR Card must produce other evidence of their permanent resident status so as to satisfy CBSA that they are in fact a permanent resident and an original confirmation of permanent residence (or landing document), will and should do the trick. Once a CBSA officer can confirm that a person is a permanent resident, the officer must allow that person to enter Canada. Permanent residents have a right to enter Canada and CBSA officers know it.

Understanding entry into Canada without a valid PR card is particularly helpful for permanent residents outside of Canada who believe that they are stuck outside or inside of Canada because they do not have a valid PR card. So, for example, a person in this situation can travel to the USA (assuming they have valid passport and entry visa for the USA) and then take a private car and return to Canada using their landing document as confirmation of their status as a permanent resident. There is no need to apply for a travel document from a Canadian Embassy or Consulate in this situation.

It is of course infinitely more practical to carry and maintain a PR card, but if one’s renewal process is dragging out (as they often do), one does need to feel stuck in Canada. PR card renewal applications can and are often delayed if a person is relying on anything but physical presence in Canada to satisfy the residency obligation. For example, if one is relying on employment outside of Canada so as to satisfy the residency obligation, application processing may take longer than other more routine applications. According to CIC, as of the date this article was written, applications for PR card renewals are taking approximately 88 days to process.

Compared to Canadian passports (processed in 2-4 weeks), which are designed to serve a similar purpose to that of a PR card, i.e. travel, permanent residents are disproportionately under-resourced as compared to Canadian citizens when it comes to international mobility, but again, that is a topic for yet another day.

Ryan Rosenberg is am immigration lawyer and partner at Larlee Rosenberg, Barristers & Solicitors, in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his website at http://www.larlee.com/.


FORMS:

http://www.cic.gc.ca/english/information/applications/menu-prcard.asp

POLICY:

http://www.cic.gc.ca/english/resources/manuals/enf/enf04-eng.pdf
http://www.cic.gc.ca/english/resources/manuals/enf/enf15-eng.pdf
http://www.cic.gc.ca/english/resources/manuals/enf/enf23-eng.pdf
http://www.cic.gc.ca/english/resources/manuals/enf/enf27-eng.pdf

Immigration and Tax

Most, but not all, immigrants to Canada become tax residents. In this sense Canada is different from the USA where all immigrants (ie. “green card” holders) and all citizens are automatically tax residents even if they do not live or spend time in the USA. In Canada some immigrants can legally avoid paying income taxes provided they have minimal ties with Canada or have stronger economic and social ties to some other country. Of course such persons (if they are immigrants and not citizens) will have to consider how non-payment of tax might impact their ability to keep their immigration status.

Canada’s Income Tax Act does not make reference to citizenship or immigration status. It simply provides that Canadian tax “residents” are bound annually to pay tax on their world-wide income and to declare the existence of substantial foreign assets located outside Canada. This latter obligation is called “foreign asset disclosure”.

Who is a tax resident? Well, normally anybody (immigrants, citizens, students, holders of work permits -- even illegal immigrants who are out of status) who spends more than 183 days in any calendar year is a tax resident. Some people spend much less time in Canada but are still considered tax residents. For example, people whose home base in terms of social connections and economic ties is Canada will usually be regarded as tax residents even if they are elsewhere most of the time. Time is not the critical factor. Moreover, normally anyone with a house and/or spouse in Canada will usually be deemed to be a tax resident even if he/she spends most of his time elsewhere.

There are certain exceptions to this principal. Sometimes immigrants to Canada, especially wealthy ones who retain substantial economic and social ties in their countries of origin and who come from countries that have a tax treaty with Canada, can legally avoid becoming tax residents. This is a particularly complex matter where expert advice should be obtained before making any decisions as to how to report taxes in Canada. Many wealthy families decide to set up an “Immigrant Trust” -- a legal structure that provides immigrants with a tax exempt 5 year tax holiday on certain income generated outside Canada.

What does a tax resident have to do? As mentioned above, all Canadian tax residents have to report their and pay taxes on their annual income. Income includes worldwide revenue from employment, interest, rent, dividends (subject to tax credits), and ½ of capital gains. Failure to report and pay taxes can lead to penalties, interest and even criminal charges.

There is a complex interplay of issues linking immigration, citizenship and tax status. There is no formal obligation on an individual to maintain tax resident status so as to maintain immigration status and there is no formal obligation on a person to maintain their immigration status so as to maintain their tax status. The same can be said of tax status and Canadian citizenship. For instance, it is entirely possible for an individual to maintain permanent resident status (730 days in Canada in a five year period) or Canadian citizenship while at the same time NOT becoming a tax resident. Careful planning supported by professional advice can help a new immigrant walk the line between tax, immigration and citizenship status without jeopardizing one form of residency or the other.

By Peter Scarrow and Ryan Rosenberg

Ryan Rosenberg is a Partner and Peter Scarrow is Associate Counsel with Larlee Rosenberg, Immigration Lawyers, in Vancouver. Contact Ryan or Peter at 604-681-9887 or visit their firm website at www.larlee.com.

Protecting PR Status: Humanitarian and Compassionate Considerations

Over the last several months, I have been writing about how a permanent resident of Canada can maintain their permanent resident status. I’ve written about how physical presence in Canada, overseas employment by a Canadian company and accompanying family members under certain circumstances may all satisfy the residency obligation. Remember, a permanent resident of Canada will satisfy the residency obligation if they meet one of these tests for 730 days in a five-year period.

But what if they can’t?

Permanent residents who cannot meet one of the residency obligation tests set out above will get one last kick at the can – humanitarian and compassionate grounds. If an applicant falls short or doesn’t even come close to the 730 day requirement, an Immigration 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.

Whatever the reason, the onus is on the applicant to supply the officer with compelling evidence in support of their request for humanitarian and compassionate relief. This evidence may include letters from doctors, letters from schools, court documents, expert reports, old passports, bank statements, and guardianship documents and so on. Again, the options are endless.

The one area we are routinely asked about is economic factors. If a permanent resident is outside of Canada only because they have a better job lined up than in Canada, that reason alone is not likely to sway an officer to decide in a permanent resident’s favour.

At the end of the day, the onus is on the applicant to convince the officer that they deserve relief on humanitarian and compassionate grounds. It is considered an ‘exceptional response’ to a particular set of circumstances. The hardship resulting from loss of status must meet the standard of “unusual an undeserved, or disproportionate.” This is a legal standard and applicants are strongly recommended to seek qualified advice before relying on this type of exemption.

Watch for an upcoming article on appeal rights. Just because an officer refuses an application, that doesn’t mean that the decision will stand.

Ryan Rosenberg is an Immigration Lawyer and partner at Larlee Rosenberg in Vancouver. Contact Ryan at 604-681-9887 or Ryan.Rosenberg@larlee.com or visit his blog at www.immigrantlaw.ca.

Managing Permanent Resident Status: The Family Connection Option

Last month I wrote about, the Employment Option, how employment outside of Canada can help a permanent resident of Canada satisfy residency obligation. The response has been tremendous and the one question that was common to almost all of the inquiries I received from the article was, “Can’t I maintain my residency status if I am married to a Canadian, even if we live outside of Canada?” The answer in short is yes, but it isn’t quite that easy.

Before I get into what I call the Family Connection Option, a quick refresher on the residency obligation rules is in order. Section 28 of the Immigration and Refugee Protection Act, requires a permanent resident of Canada to satisfy with the “residency obligation” on an ongoing basis by complying with one or more residency obligation “options” for 730 days in every five year period. The starting point is that if you physically reside in Canada for 730 days in every five year period, that is, your feet are on Canadian soil (the “Residence Option”), you will satisfy the obligation and maintain status as a permanent resident. If you can’t satisfy the Residence Option and want to maintain PR status, you will have to rely on either the Employment Option, the Family Connection Option or humanitarian and compassionate grounds.

Next to the Residence Option, the Family Connection Option is by far the most reliable mechanism by which a permanent resident of Canada can satisfy the residency obligation. It is worth clarifying at this point that each PR who is the member of a family must satisfy the residency obligation independently. There are no “family applications” for PR card renewals nor does an entire family lose their PR status only because a single member of that family loses their status.

The Family Connection Option provides that a PR can count every day spent outside of Canada (feet not on Canadian soil), accompanying a Canadian citizen who is their spouse (common-law or married) towards the 730 day obligation. In the case of children, if a PR child can count every day outside of Canada accompanying a Canadian citizen who is their parent in the same manner. By “accompanying”, I mean residing with under the same roof outside of Canada and by “child” I mean a person who has never been married or in a common-law relationship and is under 22 years of age.

The Family Connection Option also extends to children and spouses of permanent residents who accompany their parent or spouse outside of Canada, so long as that parent or spouse complies with the Employment Option. Basically, if a PR lives and works outside of Canada satisfying the Employment Option, that PR’s spouse and children can count the days spent residing with that permanent resident outside of Canada towards their own residency obligations.

As with all dealings with Citizenship and Immigration Canada, it is incumbent on a PR to prove their case, that is, to satisfy CIC that they have met the residency obligation, whether it is by the Family Connection Option or any other option. I strongly encourage PRs to keep a folder with detailed records of their compliance with the residency obligation. Although there is no definitive list of required documents to include, I generally advise people to keep marriage licenses, birth certificates, school records, boarding passes, copies of old passports, home rental agreements, credit card and bank statements, proof of cohabitation, lots of photographs of time spent with family outside of Canada and proof of a spouse or parent’s employment outside of Canada if that is the means by which a person hopes to satisfy the residency obligation.

Compliance with the residency obligation on the whole is carefully scrutinized by CIC. As such, PRs are strongly encouraged to seek qualified advice prior to planting their feet in non-Canadian soil for any extended period of time.

Managing Your Canadian Resident Status: The Employment Option

In what I have always seen as an ironic twist, the first question often asked by many of my newly immigrated clients is, “how do I go back to my home country but keep my Canadian PR status?”

Section 28 of the Immigration and Refugee Protection Act, requires a permanent resident of Canada to comply with the “residency obligation” on an ongoing basis, so long as that person wishes to retain their permanent resident status. The basic rule is that the residency obligation can be satisfied as long as a permanent resident complies with at least one (or a combination of two or more) residency obligation “option” for 730 days in every five year period. The options range from physical presence in Canada to accompanying a Canadian citizen spouse outside of Canada and humanitarian and compassionate grounds as a last resort.

The option getting the most attention these days is the employment option. If a permanent resident accepts is employed on a full-time basis by a Canadian business and that employment requires the permanent resident to spend time outside of Canada’s borders, those days spent employed under such conditions will count towards the 730 day residency requirement. Sound simple? It isn’t.

The first challenge is determining whether or not the Canadian employer meets the definition of “Canadian business.” A Canadian business is defined three different ways. First, a business is a Canadian business if it incorporated in Canada and has an ongoing operation in Canada. If it isn’t incorporated in Canada, the business can be some other form of enterprise (a partnership, for example), that has an ongoing operation in Canada, is capable of generating revenue in anticipation of earning a profit, and where the majority of the controlling parties of the enterprise are either Canadian citizens, permanent residents or a business that meets the definition of “Canadian business”. The third alternative is an organization created by the laws of Canada or a province. This third group is designed to cover off public sector employees.

Organizations or companies which are set up for the primary purpose of allowing a permanent resident to comply with the residency obligation are excluded from the definition of “Canadian business”.

The second challenge is determining whether the employment satisfies the definition of “employed on a full-time basis by a Canadian business.” To satisfy this requirement a permanent resident must be an employee of a Canadian business or under contract to provide services to a Canadian business for at least 37.5 hours per week (to be safe as full time is not clearly defined in the regulations) where either the permanent resident’s position is outside of Canada working for either the Canadian business directly, an enterprise affiliated with the Canadian business or a client of the Canadian business.

If a permanent resident is certain that his or her employment outside of Canada will satisfy these definitions, that person’s spouse and/or dependent children who are permanent residents and will also get credit towards the 730 day residency obligation for every day that they are accompany the permanent resident outside of Canada.

The third challenge is proving compliance. I strongly encourage permanent residents to keep meticulous records of their employment outside of Canada as when applying for a new permanent resident card, a permanent resident may be called upon for proof of employment. Although there is no definitive list of required documents, I generally advise people to keep pay stubs, bank records, employment contracts, documents evidencing the assignment of the permanent resident to the position outside of Canada, time sheets, tax records, correspondence with the Canadian business, e-mails, passport stamps, airline tickets (boarding passes) and any other documentation unique to their employment which could assist in the analysis.

This area of residency obligation requirement is closely scrutinized by Citizenship and Immigration Canada. As such, one is strongly encouraged to seek qualified advice prior to accepting employment overseas after becoming a permanent resident of Canada.

Is permanent forever? What all permanent residents need to know about their status.

For those of you who haven’t figured it out yet, “permanent” resident status isn’t really permanent; rather, it is conditional. And by conditional I mean that if you don’t meet certain obligations under Canada’s immigration laws, you can lose your status and find yourself back in your country of citizenship.

All permanent residents are issued wallet-sized cards that are valid evidence of their status in Canada, usually within a few weeks of landing as immigrants. These cards ingeniously have expiry dates on them, suggesting to permanent residents that they should reapply for new cards every five years.

So what happens when your permanent resident card expires? Nothing. The expiration of the card does not mean expiration of your status. Rather, it just means that the card is no longer valid evidence of your permanent resident status. Just like an expired Canadian passport doesn’t mean you lose your citizenship, an expired permanent resident card does not mean you aren’t a permanent resident.

Still, you are urged (but definitely not required) to get a new card every five years. This five-year period generally corresponds to a section in our immigration laws that require permanent residents to be physically present in Canada 730 days in every five-year period to maintain their status.

There are all sorts of exceptions to the requirement to be physically present in Canada, including accompanying a Canadian spouse outside of Canada or working for a Canadian company outside of Canada, to name a few. Speak to a lawyer if you aren’t sure whether you’ve met the requirements or one of the exceptions.

The only way you can lose your status for failing to meet the residency requirement goes something like this: an immigration officer has to review your residence history over the previous five years upon your re-entry into Canada after a long absence or upon your application for a new permanent resident card after the expiration of a previous card. If the officer believes that you have fallen short of the 730-day requirement, that officer can look at humanitarian and compassionate reasons for allowing you to keep your status, usually involving the best interests of any children involved. If the officer still isn’t satisfied that you should keep your status, he or she will write up a report and give you an opportunity to appeal that decision at the Immigration Appeal Division. It is only after you either lose your appeal or fail to file an appeal that you lose your status.

So, really, it is entirely possible to not meet the residency requirement, but still have status. Alternately, it is possible for you to have a valid permanent resident card, but not meet the residency obligation.

If you find yourself in a situation where you are entering Canada and an immigration officer is questioning you about your residency over the past five years and you aren’t sure whether you meet the residency requirement, you should know your basic rights.

First, as a permanent resident you have the right to enter Canada. Second, an officer must allow you into Canada after establishing that you are a permanent resident of Canada. (Although it is always good to travel with the contact information for your immigration lawyer just in case you face difficulties entering Canada.)

Third, you may use your permanent resident card as evidence of your status in Canada whether or not you have met the residency requirement. You also have the right to not answer any questions about your residency over the previous five years once the officer establishes that you are a permanent resident.

Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at Ryan.Rosenberg@larlee.com, call 604-681-9887 or visit www.larlee.com.

Protecting Permanent Resident Status

Congratulations! You have completed the complicated and lengthy process of obtaining permanent resident status in Canada. You suffered through application forms and lengthy processing times. You enduredmedical examinations, photographing and fingerprinting. You paid application and landing fees and have been issued a shiny wallet-sized permanent

resident card. You transplanted your life and your family’s life, perhaps started a new job and moved into a new home. Your effort has been enormous, but is your status in Canada secure?

Under the Immigration and Refugee Protection Act, you must comply with residency obligations to maintain your permanent resident status. You can lose your status if you fail to meet these obligations — a scary proposition considering how hard you worked to achieve your status in the first place.

For every five-year period, you are obligated to accumulate at least 730 days of being one of the following:

• Physically present in Canada.

• Outside of Canada but accompanying a Canadian citizen who is your spouse or common-law partner (or parent, in the case of a child).

• Outside of Canada but employed on a full-time basis by a Canadian business or in the public service of Canada or a province.

• Outside of Canada but accompanying a permanent resident who is your spouse or common-law partner (or parent, in the case of a child) and who is employed on a fulltime basis by a Canadian business or in the public service of Canada or a province.

However, a plain reading of these obligations can lead you astray. Aside from the option of being physically present in Canada, compliance is complicated. For example, what constitutes a “Canadian business” for the last two options? A Canadian business can be incorporated outside of Canada, so long as a majority of shareholders are Canadian and the business is capable of and anticipates profitability. Also, the 730 days do not need to be consecutive, but they must be accumulated

within every five-year period. This means that from any given moment in time, looking backward, you should have 730 days under your belt. If you haven’t been a permanent resident for five years yet, you need to ensure that you will reach 730 days within the first five years.

Permanent resident status in Canada is a privilege, not a right. Here are some tips to help you secure your status.

• If you plan to reside in Canada, you should apply for citizenship as soon as you qualify. As a citizen, residency obligations do not apply to you and you will be free to leave Canada knowing that you will always be welcome back.

• Keep a record each time you leave Canada, including the dates, reason for leaving, your itinerary and boarding passes, and the names of whom you resided with outside of Canada. Careful recordkeeping will go a long way to secure your status in Canada and Canadian citizenship.

• If you plan to travel or reside outside of Canada extensively, do not leave until you have devised a residency protection

strategy. It is far less expensive to seek advice and implement a residency protection strategy than it is to leave Canada and lose your status or be forced to litigate.

• If you are already living outside of Canada and believe that you have not met the residency requirements, do not return without first seeking the advice of a professional.