Canada’s residency requirements

By Sukhram Ramkissoon

I have been repeatedly asked by the readers to explain the requirements regarding permanent residents (PRs) outside of Canada.

Sukhram Ramkissoon

How can a PR maintain their status outside of Canada, or legally retrieve the same if lost? To answer this, I must address how a permanent resident may lose his/her status.

Firstly, this comes automatically if a permanent resident engages in criminality and is convicted or has misrepresented themself in any immigration proceedings. If it is found by the Immigration Division, this person will be subject to a deportation order or removal order and, if carried out, he loses his permanent resident status.

Canada’s immigration laws state that to retain your PR status, you must have been in Canada for at least 730 days during the last five years. These 730 days don’t need to be continuous. Some of your time outside Canada may count towards the 730 days you need. These laws further stipulate that if a person fails to comply with the residency obligation, they may ask the Immigration Appeal Division to allow their appeals on humanitarian and compassionate grounds. The only issue in these cases is whether sufficient humanitarian and compassionate considerations exist to warrant allowing the appeals.

So let us look at a recent case of Rex (not his real name) and his family, who spent 188 days in Canada between November 24, 2017, and November 24, 2022. They had been living in Canada as PRs since 2003 but returned to their country in June 2018. After being away for this number of days, they applied for a Travel Document to return to Canada and the same was refused as they did not meet the residency requirements. They immediately appealed this decision to the Immigration and Appeal Division (IAD).

Their appeal was recently heard, and it was allowed on humanitarian and compassionate grounds. The IAD member relied on a series of objective factors developed in the case law, which are considered in relation to the circumstances of each individual appeal.

These factors are as follows:

– the extent of the non-compliance with the residency obligation

– the reasons the appellants left Canada and the reasons they remained abroad

– whether the appellants tried to return to Canada at the first opportunity

– their initial and subsequent degree of establishment in Canada

– family ties in Canada and the dislocation caused to family members in Canada if the appellants were to lose their permanent residence

– the hardship the appellants would face if they were to lose their permanent residence

– the best interests of any children directly affected by the decision.

The IAD member ruled that the noncompliance is a negative factor, but humanitarian and compassionate considerations must be weighed accordingly, and stated, “The family’s reasons for leaving Canada are a positive factor, but their lengthy absence with no attempt to return at the first opportunity is a negative one.”

The IAD member found that Rex’s family testified candidly and spontaneously at the hearing and did not attempt to embellish their reasons for leaving. They left Canada in June 2018 to return to their country of citizenship. As both appellants were approaching their 60s in June 2018, they could initiate certain administrative steps with their government to begin receiving their retirement benefits. They felt they needed to be there in person so that they could get their documents together, submit their applications, and follow up on them, given the slowness and complexity of the government machinery.  Their delay in returning was also due to COVID and travel restrictions from 2020 to 2021.

At the hearing, the Minister’s representative conceded that there are humanitarian and compassionate considerations in this case. However, she argued that these are insufficient to outweigh the magnitude of the family’s shortfall in meeting the residency obligation. The IAD member concluded “that having considered all the circumstances, I am of the opinion that there are indeed negative factors that have not been reasonably explained, such as their lengthy absence from Canada and their delay in making an effort to return. Despite these, I consider that the positive factors are significant. These include their reasons for leaving Canada, their high degree of establishment in Canada over the course of 15 years of continuous presence in the country (a factor I give considerable weight to), the fact that the family has stronger family ties in Canada (namely, their three adult daughters and their grandchildren in Canada, a factor I also give considerable weight to), the hardship associated with their daughter M’s separation, and the best interests of the children. In light of all the circumstances, there are sufficient humanitarian and compassionate considerations to allow the appeals.”

The IAD member ruled that the appeals are allowed, and the officer’s decisions rendered abroad concerning the family’s residency obligation are set aside. The IAD determines that the appellants have not lost their permanent resident status.Sukhram Ramkissoon is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 4516 789 5756.