Learning moments – Travel options available to permanent residents who have failed to meet the residency obligation
March 17, 2021
Hello, fellow practitioners! Today’s question deals with the travel options available to permanent residents who have failed to meet the residency obligation.
Question
My question today is about residency requirement for permanent residents. The case scenario is as follows:
The client landed as a permanent resident 5 years ago. He only stayed in Canada for a few months and returned to his home country. He then married and had a child. His current PR card is valid until June 2021.
However, his spouse did not have any intention of moving to Canada permanently. In the past few years, there were endless fights between him and his spouse. They ended up in court for divorce and fighting for custody of the child. The marriage was dissolved in early 2020. The client then decided to return to Canada. However, due to the outbreak of COVID-19 and ongoing travel restrictions, his plans to travel have been delayed. His plan is to return to Canada after June 2021 (after expiry of his PR Card) due to his unfinished employment contract. He does not have a US visa.
My questions are:
- If he is unable to return prior to the expiry of his PR card, what is the chance for him to return AFTER expiry? What challenges may he encounter at the port of entry? What is the chance he may not be allowed to enter at all?
- He also indicates that he can only stay for a short period and must return to his home country again to go through a lengthy process of resigning from his employment, which may take up to 10-12 months. Again, what is the chance for him to keep his status in such a situation?
Answer
We’ve written before on permanent residents outside of Canada who do not have a valid Permanent Resident Card and need to apply for a Permanent Resident Travel Document. I’ve summarized some points that we have covered in those columns.
- Permanent Resident (“PR”) status does not lapse merely because a permanent resident’s Permanent Resident Card (“PRC”) expires. The PRC is just a document that facilitates the entry of permanent residents to Canada. The loss of PR status occurs in the circumstances listed in section 46 of the Immigration and Refugee Protection Act (“IRPA”). Many clients often conflate the PRC, and its validity, with the validity of PR status itself. It is important to draw a clear distinction between the two. The PRC is usually issued for a period of 5 years, after which it must be renewed. The 5-year validity period of a PRC leads some clients to confuse that with the residency requirement for PR status itself, which is assessed on a rolling five-year basis as per s. 28 of IRPA.
- A Permanent Resident Travel Document (“PRTD”) is another type of document that facilitates the entry of permanent residents to Canada. It is applied for and issued outside of Canada. It can only be applied for if the permanent resident’s PRC is expired. There is a general humanitarian and compassionate (“H&C”) discretion in sections 28 and 31(3) to issue a PRTD to permanent residents even if they do not meet the residency requirement under s. 28.
- While travelling on an air carrier or other commercial vehicle, a permanent resident must either have a PRC or a PRTD. Please refer to section 148 of the IRPA and section 259 of the regulations.
- While travelling in a private vehicle (i.e. at the land crossing), a permanent resident merely needs to prove their identity and their PR status (e.g. with an expired PRC) in order to be admitted into Canada. Obviously, this is only an option if the PRTD can legally enter the United States. Once PR status is established, the permanent resident must be allowed to enter. However, border services officers who suspect that a person has violated the residency obligation can file a section 44 report or refer the matter to an inland investigation.
- A permanent resident could theoretically reside outside Canada indefinitely without losing their status – so long as they do not trigger an examination by applying for a PRTD or seek to re-enter Canada at a port-of-entry.
- A finding by an officer that a permanent resident has not met the residency obligation does not immediately lead to a loss of PR status. The permanent resident will have the ability to make an appeal before the Immigration Appeal Division, either as a residency obligation appeal (for decisions made outside of Canada) or a removal order appeal (for decisions made at the port-of-entry). If no appeal is made, then PR status is lost following a prescribed period of time.
Now let’s return to the first question, which asks about the likelihood that the client will be able to return to Canada.
I think travelling to Canada as soon as possible (i.e. before the PRC expires) offers the client the best chance of retaining his PR status, as there is the possibility that the port-of-entry officer will simply wave him through without writing him up for failing to meet his residency obligation. The client does not appear to want to take this option because of travel restrictions (which don’t apply to permanent residents) and presumably quarantine requirements. However, the client should nonetheless be informed that this is probably the best of all available options.
Once the PRC has expired, the options are to travel to a land crossing from the United States or to apply for a PRTD. Given that client does not have a U.S. visa and is therefore unable to travel in a private vehicle, the only remaining option for him is applying for a PRTD. He will have to request that the PRTD be issued on H&C grounds.
Section 5.4 of OP-10 (Permanent Residency Status Determination) states:
“Permanent residents bear the onus of satisfying the manager or immigration officer that there are compelling humanitarian and compassionate factors in their individual circumstances that justify retention of permanent resident status. They also bear the onus of explaining why they were not able to comply with the residency obligation. It is their responsibility to describe the hardship that a loss of residency status may cause to them or to family members, who would be directly affected by the decision. The hardship resulting from a decision that an individual or a family has lost permanent resident status may be unusual and undeserved, or disproportionate (see definitions of hardship, section 6.6 and section 6.7 below).”
Representatives should review IRCC manual OP-10 (Permanent Residency Status Determination) for more details on the H&C analysis in this context.
Section 15 of OP 10 provides the following guidance that is helpful in framing the H&C request:
“Taken as a whole, the legislation contains provisions that favour the retention of residency status, even for persons who have been abroad for considerable periods of time. Even though the onus is on the applicant to present evidence that justifies the retention of residency status, the flexibility of the provisions of A28 allows a manager to exercise discretion in favour of the applicant in circumstances where a reasonable explanation is provided for prolonged absence from Canada.
Humanitarian and compassionate considerations are present in many of the situations involved in a prolonged absence from Canada. It is expected that managers will not limit the exercise of their discretion with respect to the application of humanitarian and compassionate considerations only to cases of “unusual and undeserved hardship.” Managers are encouraged to exercise their discretion wherever the hardship of losing residency status would have a disproportionate impact on the permanent resident or on their family members, taking into account personal circumstances.” [emphasis added]
Exactly what can be considered in a request for H&C discretion is non-exhaustive and far reaching:
“Designated officers with the authority to assess humanitarian and compassionate (H&C) considerations are obliged to consider all the information they have. They cannot rely solely on guidelines. H&C applications must be reviewed on a case-by-case basis.
[…]
Factors to consider for humanitarian and compassionate grounds
Designated officers with the authority to assess H&C considerations should consider the kinds and combination of factors when determining whether H&C grounds justify the retention of status. Designated officers with the authority to assess H&C should remember that they are not assessing intent. Rather they are assessing the circumstances and events that occurred in the 5 year period that led to the breach of residency requirements.
The designated officer with the authority to assess H&C should also take into account the best interests of a child directly affected by the determination, and the degree of hardship that may be caused by a determination that an individual or family has lost permanent resident status.
The extent and circumstances of the non-compliance
- How long beyond 3 years in the last 5-year period was the person outside of Canada?
- Was the person outside of Canada for more than 3 years in the last 5-year period because of a medical condition or the medical condition of a close family member?
- Could alternative arrangements have been made? Was it the applicant’s choice to remain outside of Canada?
Circumstances beyond the person’s control
- Are the circumstances that led to the person remaining outside of Canada compelling and/or beyond their control?
- Was the person prevented from returning to Canada?
- Why?
- By whom or by what event?
- Did the person leave Canada as a child accompanying a parent?
- If they left as a child, are they now returning to Canada at the earliest possible opportunity?
- Are they now over 22 years of age and returning at the earliest opportunity since becoming 22 years of age?
- Does the person who is over 22 years of age meet the requirements to be considered a dependent child due to mental or physical condition and are or were they accompanying their parent when they left Canada?” [1]
In this case, the amount of time spent by the client outside of Canada seems to cover almost the entire 5-year period. This is a negative factor. However, it is possible that this could be mitigated somewhat by an explanation that he would have returned to Canada sooner but for his willingness to make things work with his spouse and the subsequent custody battle for his child. These may have been beyond his control. There are also the best interests of the client’s child that need to be considered. Depending on the child’s circumstances, this has the potential to be a positive factor.
Without more facts, it is not possible to assess the strength of the client’s application.
Now assuming the client obtains a PRTD, the second question asks whether the client’s chances of retaining his status decrease if he stays in Canada briefly, and then returns to his country of origin for a period of one year. ENF 23 (Loss of permanent resident status) states:
“The effect of a recently made favourable humanitarian and compassionate decision
Officers will sometimes make residency determinations for permanent residents who were the subject of favourable decisions under A28(2)(c) for humanitarian and compassionate reasons in the recent past, either by an officer or the Immigration Appeal Division of the IRB. In this situation, officers are required to exercise their statutory authority and render independent decisions. However, officers should be mindful that the intent of the legislation was to enable persons to retain permanent resident status where it is determined that, having regard to all circumstances, retention of status is warranted. Therefore, unless circumstances have changed significantly or new information is available, it would not be consistent with the intent of the legislation for these clients to receive a negative determination.”
An officer examining the client for a second time (either at the port-of-entry or through another PRTD application) is encouraged to follow prior determinations, but is not bound by them. In my view, this decreases the client’s chances of retaining his PR because he has to now convince two officers that his circumstances are worthy of H&C discretion. The argument that the officer should follow the prior determination is not as strong if one year passes between the determinations and the client has made no further effort to establish himself in Canada during that time. I don’t find finishing an employment contract a particularly compelling reason to remain outside of Canada after what was already a very long absence and after a second chance was already given to the client. However, more context is required in order to do a full merits assessment.