A permanent resident must comply with residency obligations to maintain their status in Canada.
A person who has been a permanent resident for five years or more complies with residency obligations if they can demonstrate to immigration authorities that they have been physically present in Canada for a minimum of 730 days within the past five years.
A person who has been a permanent resident for less than five years complies with residency obligations if they can demonstrate they will be able to meet the minimum of 730 days physical presence in Canada at the five-year mark.
In some limited circumstances, it is possible to count the days that a permanent resident is physically outside of Canada towards the 730 day residency requirement:
- If the permanent resident is accompanying a Canadian citizen spouse, common-law partner or parent (if the permanent resident is less than 19 years of age).
- If the permanent resident is accompanying a Canadian permanent resident spouse, common-law partner or parent (if the permanent resident is less than 19 years of age). During this period, the permanent resident relative must be employed on a full-time basis by a Canadian business or in a federal or provincial public service.
- If the permanent resident is an employee of, or under contract to, a Canadian business or is a member of the federal or provincial public service and is assigned on a full-time basis to a position outside Canada.
Importantly, there are additional requirements for each of these exceptions detailed in the regulations. It is highly advisable to seek legal counsel beforerelying on them to reside outside Canada.
In certain circumstances, immigration officials will consider any compelling humanitarian and compassionate factors if a permanent resident is unable to meet the residency requirements.
Residency obligations to maintain permanent residence should not be confused with the separate matter of residency for the purposes of citizenship. The residency requirements for citizenship are now physical presence for 4 out of 6 years and unrelated to the requirements for maintaining permanent residency.
Residency compliance checks
Residency examinations occur most frequently by border officials upon entry into Canada. They also occur when new or updated travel documents are requested from within Canada. If the immigration officer engages in a thorough examination and is not satisfied the residency obligations have been met, it is within their discretion to issue a removal order, resulting in loss of permanent residency status. This can be appealed to the Immigration Appeal Division (see below).
Residency compliance examinations also occur when applying for a travel document from abroad in order to re-enter Canada. If a determination is made that residency obligations have likely not been met, a temporary travel document may still be issued for the purposes of attending an immigration appeal hearing. The travel document will be issued as long as the permanent resident has been present in Canada for at least one day out of the 365 days prior to applying for a travel document.
Residency obligation appeal
If an officer determines residency obligations have not been met, a permanent resident may apply to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) for an appeal of the decision.
If a permanent resident receives a removal order within Canada at an admissibility hearing or after an examination, they must provide a Notice of Appeal along with a copy of the removal order to the IAD no later than 30 days after receiving the removal order.
If a permanent resident wants to appeal a negative residency obligation decision made outside Canada, they must provide a Notice of Appeal and written decision to the IAD registry office for the region in Canada where they last resided no later than 60 days after receiving the written decision.
An Appeal Record is then created by the Minister which is then sent to the Appellant.
A hearing date is scheduled by the IAD, when the Appellant/counsel will appear before a Member of the IAD to argue their case. Twenty days before the hearing, the parties must submit all relevant documents that they wish to rely on and a list of witnesses. The parties then have 10 days to submit any documents in response to the documents submitted by the other party.
At the hearing, an IAD Member will first decide whether or not the 730 day residency obligation has been met. If the Appellant is found not to have met residency obligations, the Member will then decide whether there are sufficient humanitarian and compassionate considerations to justify the retention of permanent resident status and overcome the breach of the residency obligation. The IAD Member will consider factors such as the following:
- the extent of the non-compliance with the residency obligation;
- the reasons for the departure and stay abroad;
- the degree of establishment in Canada, initially and at the time of hearing;
- family ties to Canada;
- whether attempts to return to Canada were made at the first opportunity;
- hardship and dislocation to family members in Canada if the Appellant is removed from or is refused admission to Canada;
- hardship to the Appellant if removed from or refused admission to Canada; and
- whether there are other unique or special circumstances that merit special relief.
A negative determination at an IAD hearing results in loss of permanent resident status. This decision is final unless an application for leave and judicial review at the Federal Court is successful.