After fulfilling all applicable requirements and finally obtaining their permanent resident status, immigrants to Canada will have to comply with another set of requirements stipulated by the immigration legislations in order to maintain that status. This set of requirements is called the residency obligation.
For immigrants who are not yet Canadian citizens and those who plan to spend time overseas regularly for work or other purposes, it is imperative that they comply with the residency obligation, otherwise they risk losing their permanent resident status.
So, what is the residency obligation, and how is it applied under the law?
Paragraph 28 (1) and subparagraphs 28 (2)(a)(i) of the Immigration and Refugee Protection Act (IRPA) state that a permanent resident must meet his/her residency obligation for each five-year period by being physically present in Canada for at least 730 days.
The “two-years-out-of-five” rule may seem simple at first, but it is rather complex. Most people take the five-year periods as discrete five-year periods. However, according to para.28(2)(b) of IRPA, the five-year periods for residency obligation are rolling periods. This is a vital distinction because, for example, while there are only two separate five-year periods in ten consecutive years, when counted in a rolling manner there are suddenly six of them —12345, 23456, 34567, 45678, 56789, and 678910. Legally speaking, a permanent resident may have to be present for at least 730 days in Canada in all six rolling periods within those ten years if he/she is absent from Canada frequently.
Examination by an Immigration Officer
Despite having to count these periods in a rolling manner, immigration officials are not authorized to examine a permanent resident’s residency obligation whenever they choose. An immigration officer is only authorized to do so when someone applies for a permanent resident card or travel document, or when they return to Canada at a port-of-entry following international travel. The good news is that the government official can only check the residency obligation of the previous five-year period. As long as the immigrant has 730 days of physical presence in the previous five years, he or she is good to go. For those who have been permanent residents for less than five years, they only need to show that they have enough time left within their first five-year period as a permanent resident to meet the 730-day requirement.
Alternatives to Physical Presence
Besides being physically present in Canada, there are other ways of satisfying the minimum 730-day residency requirement. Any of the following alternatives, so long as they last for one day, can be treated as one day of physical presence in Canada:
a) Outside Canada, but accompanying and ordinarily residing with a spouse or common-law partner who is a Canadian citizen;
b) As a person under 22 years of age, without a spouse or common law partner, residing outside Canada with his or her parent who is a Canadian citizen;
c) *Residing outside Canada but working full-time for a Canadian business or federal/provincial government of Canada;
d) Outside Canada, but accompanying and ordinarily residing with a spouse or common-law partner, who is a permanent resident and described above;
e) As a person under 22 years of age, without a spouse or common law partner, residing outside Canada with his or her parent who is a permanent resident and described in the third bullet point.
*It is worthwhile to keep in mind that there are many other complex requirements identified in regulations and jurisprudence to meet this option. If this applies to you, consult a licensed immigration practitioner.
Breach of Residency Obligation
If following an examination by an immigration official, a permanent resident is determined to be in breach of his or her residency obligation, namely not meeting the 730-day requirement for the past five years, he/she would be deemed inadmissible for non-compliance.
If the examination is conducted when the permanent resident is applying for a travel document while outside Canada, the visa officer overseas would typically not issue the travel document, and permanent resident status will be terminated if they do not appeal the decision within the time limit (60 days from receipt of the decision).
If the examination is conducted when the permanent resident is applying for a PR card inside Canada, the immigration officer in Canada could issue a removal order. If the examination is conducted at a port-of-entry, a border services officer may issue that removal order. The applicable removal order for breach of residency obligation is called a departure order. It will come into force if the time limit (30 days) to appeal the departure order has passed and the permanent resident did not initiate an appeal.
Once the departure order comes into force, permanent resident status is terminated, and the subject of the order must leave Canada within 30 days. If the subject fails to leave Canada within 30 days after the departure order comes into force, it will become a deportation order, which forbids the subject from coming back to Canada ever again without an authorization to return to Canada (as distinct from a visa).
Residency Obligation Appeals
Permanent residents have the legal right to appeal a removal order or a negative determination regarding their residency obligation. Appeals concerning a removal order against a permanent resident and residency obligation are decided by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB). In the case of a removal order, as long as the permanent resident has initiated the appeal process within the 30-day time limit, the removal order will not come into force until the appeal is later dismissed. As long as the removal order does not come into force, permanent resident status will not be terminated, and the permanent resident is entitled to remain in Canada. Keep in mind, however, that after a negative determination on residency obligation is made and a non-compliance report is lodged, days spent in Canada by a permanent resident would not count toward the 730-day requirement, unless the appeal is subsequently allowed by the IRB.
For permanent residents outside Canada where the appeal time limit is 60 days, if they have been present in Canada for at least one day in the past 365, despite not meeting the 730-day requirement in the past five years, a visa officer overseas shall still issue a travel document for them to travel back to Canada, pending the outcome of the appeal.
The IRB would allow an appeal if it finds that the law was applied incorrectly, that the findings were wrong according to law and facts, or if the decision was not made in a fair manner. The IRB would also allow an appeal if it finds that there are sufficient humanitarian and compassionate factors that justify the retention of permanent resident status. This is a ground that is most popularly used and argued, and each case could be different. At an appeal hearing, an appellant has the right to be represented by a lawyer or a Regulated Canadian Immigration Consultant as their legal counsel. If you find yourself in this situation, do not put off retaining competent legal counsel.
A breach of the residency obligation causes many permanent residents to lose their status each year. They should thus ensure that they understand the legal obligation related to their status. As once said by IRB member Kenneth D. MacLean, “the onus is on the appellant to satisfy the residency obligation and ignorance of the law is not a sufficient excuse.”
Of equal importance is that such individuals know what to do and where to seek help when they encounter problems relating to their immigration status. This article is for general information only and does not constitute legal advice. To discuss individual circumstances, please contact a licensed immigration practitioner.