Losing your permanent residency in Canada for not meeting the 730 day residency obligation: What to keep in mind and how to fight an appeal to the Immigration Appeal Division
Immigration, Refugees and Citizenship Canada (IRCC) requires permanent residents of Canada to maintain 730 days physically in Canada in a five-year period in order to maintain their status as a permanent resident in Canada. This requirement is often viewed as a very low threshold to maintain one’s status as a permanent resident inside Canada. Nevertheless, it is common for permanent residents to find themselves outside of Canada for extended periods, and sometimes for reasons beyond their control.
Typically, the issue of whether or not a permanent resident has met their permanent residency obligation is brought to the attention of IRCC when one submits a PR card renewal application. Other times, this issue is brought to light when the permanent resident is entering Canada through a port of entry (airport, land border, sea port etc).
By way of law and procedure, the permanent residency obligation is monitored by section 28 of the Immigration and Refugee Protection Act (IRPA):
28 (1) A permanent resident must comply with a residency obligation with respect to every five-year period.
(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.
When a finding of inadmissibility is found for not meeting the permanent residency obligation, you typically have recourse to appeal the decision to the Immigration and Refugee Board of Canada’s Immigration Appeal Division. The decision to appeal should be filed within 30 days of the issuance of the refusal / revocation of PR status. When considering your strategy on fighting the decision to revoke your status as a permanent residency in Canada, it is important to think about why you lost status or were required to live outside of Canada for an extended period of time. Every situation is unique and the reasons should often be compelling.
When considering humanitarian & compassionate arguments, the legal test was laid out in Canada (Sécurité publique et Protection civile) c. Nkanagu, 2018 FC 56 where the IAD listed the criteria for consideration of humanitarian and compassionate grounds:
- The amount of time spent by Appellant in Canada and the degree of establishment before leaving Canada,
- The ties the Appellant maintains in Canada,
- The reasons given by the Appellant for leaving Canada, and efforts made to return to Canada,
- The Appellant’s specific circumstances during their stay outside Canada,
- Efforts made by the Appellant to return to Canada at the first reasonable opportunity,
- Hardship and upheaval that the Appellant’s removal or inadmissibility would cause,
- Best interests of any children who are also affected.
Thus, while you may feel that you had a compelling reason to stay outside of Canada beyond your requirement to maintain 730 days inside Canada within a five-year period, those arguments are assessed specifically against what is considered a very easy requirement – the 730 days in five years.
If you find yourself in a position where you foresee you losing your permanent residency status in Canada due to breaching your residency obligation, it is imperative that you connect with an immigration lawyer to best strategize how to prepare for an appeal, or even possibly avoiding an appeal altogether by submitting a compelling argument at the time of the renewal of your PR Card or PR Travel Document.