A Permanent Resident’s Obligations
It has now been over three and a half years since the Immigration and Refugee Protection Act (IRPA) has come into effect. One of the major changes this legislation brought into effect was a revision of the residency obligations for permanent residents.
Under previous legislation, permanent residents were required to be in Canada for 6 months out of any 12-month period. But this standard was not enforced particularly strictly and many exceptions were granted in the form of “Returning Resident Permits”. In the past, it was not unusual for new permanent residents to immediately apply for a Returning Resident Permit upon landing in Canada so that they could go back to their home country for an extended period and wrap up their affairs before settling permanently in Canada.
Under IRPA the standard has been relaxed in favour of the permanent resident. But it is also enforced on a stricter basis. The present law requires that permanent residents be in Canada for 2 years (or 730 days) out of any 5-year period.
Many people are under the impression that the 5-year periods are consecutive and that you just need to qualify in each discrete period. For example, many people believe that if you landed on June 28, 2002 you would need to be in Canada for 2 years between that date and June 28, 2007. Then the same standard would apply only for the next 5-year period (June 29, 2007 to June 29, 2012). In fact, this is not the case. The 2-year requirement applies to any 5-year period and you can be required to demonstrate compliance whenever you are seeking entry to Canada or, especially, when you are applying to extend your PR card.
For example, to take the above case, an applicant who landed on June 28, 2002 may have stayed in Canada continuously from that date until June 28, 2004 (in other words, 2 years in Canada). This person could then leave Canada for a maximum of 3 years while still retaining status. But if that person stayed out for 3 years and 1 month, and then attempted entry to Canada, he or she could have their status revoked because, upon seeking entry, that person would have been in Canada for less than 730 days in the previous 5 years. That is, from July 28, 2002 to July 28 2007, he or she would have been in Canada for only 1 year and 11 months. This is the case even though the person could very well have once again met the 2-year requirement in the period from June 29, 2007 to June 29 2012.
This is an important factor to keep in mind when planning your travel abroad. The 5-year period is “rolling” and you can be required to demonstrate compliance with the 2-year residency requirement whenever seeking entry to Canada. At the airport, for example, your inability to demonstrate compliance with this requirement can lead to an immigration officer writing a report that can result in the issuance of a departure order against you. This can happen regardless of whether you have a valid PR card at the time.
This brings us to the other big change for permanent residents traveling abroad: their need to have a valid PR card when seeking to return to Canada. Because these cards are typically valid for a 5-year period, permanent residents are now in a position of having to demonstrate compliance with the residency requirement whenever they want to renew their cards.
IRPA does provide for important exceptions to the residency requirement for permanent residents. For example, you can count days you are outside of Canada accompanying your Canadian citizen spouse (or parent if you are a minor) as days in Canada. And if you are employed by a legitimate Canadian business or Canadian or provincial government and required to be outside of Canada as part of your job, these days can also be counted as days in Canada. Spouses of permanent resident employees of Canadian businesses or governments enjoy this exception as well.
But each exception is carefully defined. Anyone planning on being out of Canada for more than 3 years in any 5-year period and relying on one of these exceptions is well advised to fully document their absences from Canada and the reasons for them.
The residency obligations of permanent residents are a greater concern for a lot of new immigrants because of the need to extend PR cards. There will no doubt be many appeals launched in the coming months and years to dispute particular decisions of the immigration department. But generally speaking, the legislation is much more precise than it was prior to June 2002 and, as a result, the onus is on permanent residents to provide evidence to show they complied with the law.
The New Immigration Minister’s Challenge
Although he has only been in the job for a few days, Minister of Citizenship and Immigration Monte Solberg has correctly identified one of the key challenges facing Canada’s immigration system over the next decade.
In some brief comments reported in the press last week, Minister Solberg indicated that his Conservative government is unlikely to drastically change the overall levels of immigration established by the Liberals in recent years. (Last year’s target number was 245,000 immigrants.) He also did not express a desire to re-visit the Liberals’ decision of last year to increase the number of family reunification visas issued. So sponsors seeking to bring over their parents or grandparents may hope to benefit from slightly better processing times in the future.
What Minister Solberg did indicate was that he wants to see a better match between the type of skilled immigrants we attract and the needs of Canadian employers who are often desperate for experienced, skilled individuals.
"I think partly maybe it's the mix,” Solberg said. “But it's also using some of the other tools that we have to address some of the problems we have - like the work visas."
"Maybe ultimately if they're here for a time and they're doing a good job, well, permanently land them," he said.
On paper, one would think the Canadian immigration system, which seeks to have 60% of those granted permanent residence each year come through the “economic class” or skilled worker and business immigrant categories, would provide a workable solution to our skilled labour shortage. However, recent experience has indicated there is a definite disconnect between the types of skilled immigrants that are qualifying and the kinds of workers Canadian employers are seeking.
We have heard for years the stories of PhD’s who come here from overseas only to end up driving taxis or working as security guards. While at the same time, employers in certain sectors – construction, health care, and energy and mining come to mind – are intensifying their pleas for help in finding the kinds of skills they are in desperate need of.
Canada’s skilled worker immigrants have mostly come in recent years from countries like China, India, Pakistan and South Korea. Therefore the question must be asked whether our employers are reluctant to take a chance on individuals whose experience and skills are obtained exclusively in Asia. Or is it cultural differences and language barriers that are preventing these individuals from making a full contribution to the Canadian labour market?
Regardless of the causes, it is worth considering alternate approaches to ensure that our economic class immigrants are providing the maximum benefit possible to our economy.
One such approach was alluded to by the Minister in his comments. Rather than seeking to attract skilled worker immigrants who apply from overseas and never set foot in Canada until they land as immigrants, should we be building a system driven by the specific needs of Canadian employers?
If so, building such a system will not be easy. One of the challenges is fashioning a system that can respond in the timeframes required by the labour market. Ask any construction company in need of project managers, carpenters or other skilled individuals when they need their people and they will tell you, “yesterday!” Meanwhile, it typically takes 2 years or more for a skilled immigrant’s visa application to be processed.
Work visas can certainly be processed more quickly. But they also require employers to have done the groundwork of recruiting the applicants and offering them jobs.
The key question is whether employers, industry and the provinces can take on the level of involvement required to make an “employer-driven” immigration system work. Thus far, it has been accomplished on a relatively small scale by “provincial nominee programs” like BC’s. But combined, these programs represent less than 10% of the skilled immigrants Canada accepts each year.
It is an open question as to whether an effective employer-driven system can exist on the scale of Canada’s current economic immigration program. And it will no doubt be a question our new Immigration Minister will have to ponder over the coming months.
