Learning moments – Residence obligations for permanent residents who have been outside of Canada for an extended period
February 10, 2021
Hello fellow practitioners! This week’s question deals with residence obligations for permanent residents who have been outside of Canada for an extended period.
Question
I have a question regarding the residency obligation during the pandemic.
A permanent resident of Canada obtained his PR card in 2016 with the expiry date in September 2021. He only resided in Canada for half a year and returned to his home country to visit his siblings and sell his property. His plan was coming back to Canada in 2020 and would live here permanently with his only daughter. In that way, he would meet his residency obligation as well. The gentleman purchased a Feb. 2020 one-way air ticket at the end of 2019 and subsequently canceled it due to the Covid. The gentleman is 80 years old now and it’s obviously not a good idea for him to take flight now.
Clearly he will not be able to meet the residency requirement but he would have met the requirement if he came back as his plan without the impact of the Covid-19.
I did my research but couldn’t find any information of special policies to those PR whose status is about to lose due to the pandemic. Is there any way he can keep his PR status now? Will there be any foreseeable trouble for him if he tries to enter with a valid PR card but hasn’t met the residency requirement?
Answer
This week’s question deals with the issue that Covid-19 has posed to those who are permanent residents, outside Canada, that could not enter due to the travel ban, and risk not meeting their residence obligation. Immigration, Refugee, and Citizenship Canada (“IRCC”) has not set out any special policies for those who will not meet their residence obligation while outside Canada, due to the Covid-19 pandemic. The COVID travel ban does not apply to permanent residents, and never has. The same rules apply, however there are still options for your client.
To begin your client does not automatically lose their PR status, simply for not meeting the residence obligation. As per s. 46 of the Immigration and Refugee Protection Act (“IRPA”)
46 (1) A person loses permanent resident status
· (a) when they become a Canadian citizen;
· (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;
· (c) when a removal order made against them comes into force;
· (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
· (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or
· (e) on approval by an officer of their application to renounce their permanent resident status.
Even if your client does not meet the residency obligation, they are still a PR until an official decision is made on their status. PR status does not expire. Even if they haven’t lived in Canada for many years, they could still be a PR. While a person’s PR card may expire, that does not mean that his or her PR status expires. PR status is not something that can expire, and needs to be revoked after a negative residency determination is made.
With a valid PR Card your client will not have a problem proving that they are a valid permanent resident of Canada. At the border, however, your client’s residency obligation may be assessed by a border officer. When there is a risk, like your client’s, we suggest putting together a package to take with them on their flight to request a positive residency determination via s. 28(2)(c) of the IRPA for humanitarian and compassionate considerations. This package should lay out all the reasons and provide the appropriate proof and documentation for why they were not able to meet their residency obligations, how they intended to return to Canada in February 2020 and would’ve met their obligation and how Covid-19 delayed that. While it is not clear from the question, this package should also outline why your client was only in Canada for half a year, returned to their home country to meet their siblings and sell their property, but did not try to return earlier.
Operational Manuals ENF 5 and ENF 23 provide further guidance. Specifically they lay out factors that the officer must weigh and consider. This includes:
· Extent of non-compliance
o How many “days of physical presence in Canada” within the five-year period under examination, has the permanent resident spent in Canada?
o Was the permanent resident outside of Canada for more than three years in the last five-year period because of a medical condition or the medical condition of a close family member?
o Could alternative arrangements for the care of the family member have been made or was it the permanent resident’s choice to remain outside Canada?
o Circumstances beyond the permanent resident’s control: Are the circumstances that led to the permanent resident remaining outside of Canada compelling and beyond their control?
o Was the permanent resident prevented from returning to Canada; and if so, by whom and by what event?
o Is the permanent resident now returning to Canada at the earliest possible opportunity?
o Did the permanent resident leave Canada as a child accompanying a parent?
o Is the permanent resident who left as a dependent child or family member returning at the earliest opportunity?
o Is the permanent resident dependent on the parent they are accompanying because of a mental or physical disability?
· Establishment in and outside Canada:
o Is the permanent resident a citizen or permanent resident of a country other than Canada?
o Has the permanent resident taken steps to establish any permanence in a country other than Canada; or the country they resided in immediately before becoming a permanent resident of Canada (that is, any third country status)?
o To what degree has the permanent resident established in Canada?
o What linkages and ties has the permanent resident maintained in Canada?
· Presence and degree of consequential hardship:
o A loss of permanent resident status will have the consequence of either having to voluntarily leave or be removed from Canada. The removal of a status-less person may have an impact on family members who do have the legal right to remain in Canada (for example, Canadian citizens and/or permanent residents). Officers should consider the person’s degree of hardship in relation to personal circumstances (that is, impact on family members, especially children).[1]
For further research see the following links to both Operation Manuals:
Your client should enter Canada, while their PR Card is still valid. Once they have met the residency obligation in Canada, of 730 days, within the past 5 years, then they should apply for a PR Card. If it is determined that you still have not met your residency obligation and are inadmissible you may apply to the Immigration Appeal Division (“IAD”) for a residency appeal. At the IAD, you will be given a full hearing before a Panel Member. Crucially, even if you are found not to have met the residency obligation, the IAD may still allow you to keep your status if there are sufficient humanitarian and compassionate grounds. They will assess much of the same factors as mentioned above including: to what extent you fell short from complying with your residency obligation; your reasons for being away from Canada; your establishment in Canada; your family ties in Canada; and, the hardship that you would face if you lose your status.
For further details on what H&C considerations the IAD assesses during a residency appeal please refer to the case of:
· Bufete Arce v. Canada (Citizenship and Immigration), 2003 CanLII 54304 (CA IRB), <https://canlii.ca/t/1rqj1>
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[1] ENF 23