When a permanent resident intends to leave Canada for any period of time or is outside Canada, he may make an application, orally or in writing, to an immigration officer for a returning resident permit.
Although section 26(1) of Canada's Immigration Regulations appears to conjure up an image of a straight forward entitlement to a returning resident permit, many would be applicants know only too well that such is not the case.
Moreover, a returning resident permit once issued, is no guarantee of admission to Canada for a permanent resident that has remained outside of Canada for a lengthy period of time or has not secured the necessary ties to Canada. Possession of such a permit, in the absence of evidence to the contrary, merely provides prima facie proof that a person did not leave or remain outside of Canada with the intention of abandoning Canada as the person's place of permanent residence. Permanent residents in possession of the permit are generally able to refute the presumption created by section 24(2) of the Immigration Act which provides that where a permanent resident is outside of Canada for more than 183 days in any 12 month period, that person shall be deemed to have abandoned Canada as his or her place of permanent residence. This presumption would not apply to children under age 14 years who are not considered able to make the decision to abandon Canada as their place of residence.
Section 26(2) of the Regulations provides officers with the parameters of when a permit should be issued. Officers must issue a permit where a permanent resident leaves or intends to leave Canada for the purpose of (i) carrying out duties as a representative or employee of a corporation or business organization established in Canada or a representative or employee of the Government of Canada or of a province or a municipality in Canada; (ii) for the purpose of upgrading professional, academic or vocational qualifications; (iii) for the purpose of accompanying a member of the family who is a Canadian citizen or has been issued a returning resident permit; or (iv) in any circumstances not referred to above, that the immigration officer deems appropriate. The conditions (i) - (iii) are self-explanatory and generally do not lend to much confusion.
Item (iv) above however provides officers with a large degree of discretion as to what constitutes a suitable circumstance and consequently decisions on this basis vary between officers. An applicant is obliged to establish to the satisfaction of an immigration officer that it is or was not his intention to abandon Canada as his place of residence and that the reason for absence is deemed appropriate. In such instance, the permit must be issued.
There are many valid reasons for permanent residents to be absent from Canada. Typically, these might include a return to the applicant's country of origin to care for a terminally ill parent; to complete a university degree; to honor the provisions of an existing short term employment contract, to name a few.
Applicants are cautioned however about applying for a permit for reasons that give rise to the concern that applicants were not intending to immigrate to Canada in the first place. It frequently arises for example, where applicants will experience disappointment when attempting to establish justification for a permit in order to convey their property or liquidate their business interests, the application is refused. Immigration officers often form the opinion that applicants have sufficient time during the period from visa issuance until actual landing in Canada to divest their interests in their country of previous residence. In many cases, this period may amount to between 6-9 months.
Another area of concern is the case of permanent residents who, with the intention to maintain employment abroad following a brief entry to Canada, apply for a returning resident permit. The Canadian government, in response to mounting concerns over the issue of abuse in the process of applying for Canadian residence as a secondary option for applicants, is encouraging officers to take a rigid approach to the issuance of permits to such persons who, following a brief entry to Canada, immediately leave Canada with the intention of an extended departure.
Persons who have landed under the skilled worker category and wish to honor the provisions of an existing employment contract abroad, may wish to consider establishing and/or becoming employed with a Canadian corporate entity. The company would then assign the applicant in a consulting capacity outside Canada to carry out a service related contract. This approach is in line with the fact that Canadians are increasingly addressing foreign markets to conduct business in the global marketplace.
Applicants who have landed under the Business Entrepreneur Class are encouraged to firmly establish and maintain residence in Canada and to begin efforts to meet the mandatory universal terms and conditions of admission before applying for a returning resident permit.
Applicants who have not properly established and maintained residence may wish to consider avoiding the returning resident permit process altogether. Applicants who apply for a returning resident permit and do not take proper precautions before applying, or who are otherwise not entitled to a permit, may be faced with an opinion by an immigration officer in refusing to issue a permit, that the individual has abandoned Canada as that person's place of residence (A24 (1)(a)). However, the final determination that a person has ceased to be a permanent resident, can only be made by an adjudicator at an inquiry, a process which could be initiated by a port of entry immigration officer when the applicant returns to Canada as a permanent resident.
Canadian residents are encouraged to carefully canvass the circumstances of an extended departure from Canada and to implement the necessary measures to safeguard their resident status. Applications for a returning resident permit can be filed either at a visa office outside Canada or at an immigration office inside Canada, with each venue raising issues of consideration.
