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Residency Obligation Appeals 

Permanent residents must maintain their permanent resident status by being present in Canada for a cumulative 730 days for every 5-year period after attaining said status.  However, some permanent residents may still be able to fulfil this obligation while residing outside Canada, for instance, where the permanent resident is outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or in the case of a child, their parent.

 

Where a permanent resident resides outside Canada for some time, they may need to apply for a Permanent Resident Travel Document (PRTD) if they wish to return to Canada. Where the person is deemed to have been in default of their residency obligation by a visa officer, the PRTD may be refused.  On the other hand, where a permanent resident has re-entered Canada and have been subjected to an examination based on suspicion that the person has not met (or will not meet) the residency obligation, a removal order may be issued, but the person will be allowed to enter Canada and be given the opportunity to contest the decision before the IAD. A removal order may also be tethered to the refusal of a permanent resident card. It is imperative to note however that despite these pre-emptive findings, one’s permanent resident status is not loss until a final determination is made by the IAD.

 

Once a removal order or a travel document refusal has been issued, the individual must take steps to appeal this decision. Permanent Residents have a right to appeal these decisions to the Immigration Appeal Division (IAD), where a final decision on one’s residency obligation will be made. For removal orders, the appellant must file the Notice to Appeal to the IAD within 30 days. Moreover, where a refusal was received outside Canada, the person will have 60 days to file same. 

 

If the decision is deemed legally valid, the default can be rehabilitated by presenting humanitarian and compassionate reasons why the permanent resident should be allowed to keep their status, despite the negative finding. Some factors that may be considered by the IAD include: the extent of the non-compliance with the residency obligation; the reasons for the departure and stay abroad; the degree of establishment in Canada; family ties to Canada; or hardship to the appellant if they are removed from or refused admission to Canada. This is not an exhaustive list and the weight given to each hinges on the circumstances.

If the appeal is allowed, the permanent resident will keep their status and those outside Canada will be issued a PRTD to re-enter Canada if they have not already done so. On the other hand, the status is lost where the appeal is dismissed, and the removal order will become enforceable where the person is in Canada. The matter may be challenged before the Federal Court by way of Judicial Review. 

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COVID-19 UPDATE: The Government of Canada  has implemented travel restrictions which prohibit some persons from entering Canada, and may require additional documents for those who are exempted from same. As such, please click here to see if you are eligible for travel to Canada. 

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