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Phyllis Ramkumar, Immigration Consultant, Former CIC Officer  

As a permanent resident of Canada, in order to comply with the residency obligation, you must be physically present in Canada for a total of 730 days or 2 years in a five-year period following the day on which a person became a permanent resident of Canada.

 

Other means by which you are considered to have fulfilled the residence obligation are as follows:

If you are outside Canada accompanying a Canadian citizen who is your spouse or common-law partner, or if you are a child accompanying your parent.

If you the permanent resident is 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.

Also, if you are outside Canada accompanying a permanent resident who is your spouse or a common-law partner or, in the case of a child, your parent 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.

if however, a permanent resident is examined for reasons of residency obligation and has been a permanent resident for less than five years, it would be necessary for the permanent resident to prove that he would be able to meet the residency obligation with respect to the five-year period.

Also, if one has been a permanent resident for five years or more, the permanent resident would have to demonstrate that they met the residency obligation with respect to the five-year period prior to an examination.

In addition, if upon examination if it is determined that humanitarian and compassionate grounds exist in relation to the loss of permanent resident, taking into consideration the best interests of a child directly affected by it, this decision would justify the retention of permanent resident status and it overcomes any breach of the residency obligation prior to the determination. There are many factors to consider before an Officer can reach a position decision on H&C grounds. The onus is therefore on the Permanent resident to prove that H&C grounds exist for the granting of a position decision.

If a person was granted permanent resident status and has never lost his/her status due to relinquishment under the former Immigration Act, the person may still be a permanent resident. An Immigration Officer must complete a determination of the person’s permanent resident status under section A28 of IRPA before issuing any type of visa to such a person. However, a person who voluntarily relinquished his or her PR status under the former Immigration Act may lose his/her PR status if the person formally signed an  IMM1342B form declaring abandonment of PR status. This information is usually notated in the Immigration records (FOSS) for future reference.

A determination of one’s permanent resident status can be conducted at a Visa Office abroad, at a Canadian Port of Entry, or at an Inland Canadian Immigration Office. When an examination is conducted at a Visa Office regarding residency obligation, no enforcement action such as a removal order is issued against the person since the person is not in Canada. If the person is in Canada, and it is determined that he/she has lost his permanent resident status, then a removal order may be issued against the person.

Another factor that can lead to a determination of residency obligation of a Permanent resident who is outside Canada is the Permanent Resident Card. Although the Permanent resident card was issued to indicate one’s status, and facilitate one’s return and entry into Canada, if the PR card has expired while the person is outside Canada, this can most likely lead to an examination of the person’s residency obligation.

Once it is determined that a permanent resident has lost his/her status, the person can file an appeal to the Immigration Appeal Division against the decision of the loss of his/her status. If the person is outside Canada, he has 60 days to file the appeal from the date of his decision letter. If the person is in Canada, he/she has 30 days to file the appeal. If the appeal period has elapsed and no appeal is filed, then the person will have no other recourse to retain his permanent resident status.

Residency obligation involves lengthy procedures and rules to follow, as it is not easy to take away someone’s permanent resident status. It is, therefore, necessary for an Immigration Officer to ensure that they apply the appropriate legislation/Immigration Act Section 28 governing residency obligation as well as the procedures and policies.
Phyllis Ramkumar is currently a Registered Immigration Consultant with Immigration Consultants of Canada Regulatory Council. Prior to her role as an Immigration Consultant, she was a former Senior Immigration Officer with the Department of Immigration, Refugee, and Citizenship Canada. 

For more information please call Mrs. Phyllis Ramkumar @ 647-822-7495