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.