Canada offers a very flexible permanent residence program allowing Canadian permanent residents to maintain their status while outside Canada for extended periods. To preserve permanent residence the Immigration & Refugee Protection Regulations require a Canadian permanent resident to demonstrate physical residence inside Canada totalling 730 days (approximately two-years) over any five-year period.
There are two instances however where a permanent resident card holder, providing prescribed linkages to Canada, can count days spent outside Canada towards the 730 day physical presence rule. First, it can occur where a permanent resident accompanies a Canadian citizen, seconded outside Canada who is their spouse, common-law partner or child and ordinarily resides with such individual and who is employed, on a full-time basis, by an approved Canadian business or with the public service of Canada or of a province.
It can also occur where a permanent resident spends time outside Canada while employed on a full-time basis with a Canadian company, the federal government of Canada, or in public service on behalf of a province. In both of the above scenarios, the cumulative number of days spent by a permanent resident outside Canada can count towards the 730 day inside Canada physical residence requirement.
A few examples can highlight the application of this requirement.
A Canadian permanent resident upon arriving in Canada, spends 365 days (1 year) working in Canada, and then proceeds to the US to work for an American company for a 3 year period. The Canadian resident thereafter returns to Canada for the next 365 days (1 year). This individual would be able to meet the 730 day physical presence rule because the individual would have spent 730 days (2 years) in Canada over the preceding 5 year period since becoming a Canadian permanent resident.
A Canadian permanent resident upon arriving in Canada proceeds to the US to work for a prescribed Canadian company for a 3 year period. The permanent residence holder is permitted to count the entire 3 years’ outside Canada towards the 730 day inside Canada physical residence requirement.
For the frequent international traveller, the physical presence requirement rules can pose a challenge in terms of documenting the cumulative number of days in question when returning to Canada and appearing at a Canadian port of entry.
The permanent resident bears full responsibility of demonstrating that they were physically present in Canada for the required number of days in accord with the residency obligation outlined in the law. An important issue of concern is that the Canadian Border Security Agency (CBSA) does not consistently stamp passports of Canadian residents returning to Canada. Yet most countries’ border officers routinely stamp passports of foreigners entering a particular country. Therefore, the passports of Canadian permanent resident holders can have a record of entering a foreign country, but may not have a record of return to Canada. This may render it difficult for a Canadian permanent resident to prove the exact number of days spent inside Canada during a five year reference period.
One of the practical solutions to address this potential difficulty is for a Canadian permanent resident who travels frequently to maintain a well documented evidentiary travel log. A travel log should include a “moving calendar” with documentary evidence of all travels to and from Canada. A moving calendar is a compilation of evidence covering the five-year period that immediately precedes the date of entry to Canada in question. Additionally, where a Canadian spouse, common-law partner or child was involved in a travel itinerary, or if travels abroad were in connection with a Canadian business or governmental mission, this fact should likewise be carefully documented. Suitable documentation should include all boarding passes corresponding to actual flights; copies of credit card receipts covering purchases in airports and destinations abroad.
Canadian permanent residents, who enter Canada by land from a Canada / USA Port of Entry border crossing, should specifically request the border security officer to stamp their passport.
Person employed outside Canada on a full-time basis by a Canadian business that does not serve primarily to allow a permanent resident to meet their residence requirement should be prepared to show written employment letters of assignment specifying the duration and terms and conditions of the assignment abroad. As well the resident should be in a position to provide a letter of declaration signed by an authorized officer of the Canadian business which indicates that:
- The business is incorporated under the laws of Canada or a province;
- The business has ongoing activity;
- The nature of the business; length of time in operation in Canada and number of employees in Canada;
- Pay statements;
- Canadian Income Tax Notice of Assessment;
- T4 slips;
- Additional evidence that may be useful.
Adhering to these basic formalities will enable a Canadian a permanent resident to successfully address Canada’s flexible residency rules.
What happens if the 730 day obligation is not met?
Where a permanent resident appears at a Port of Entry, an officer will confirm that the person is a permanent resident of Canada. If the officer concludes that the 730 day physical residence obligation is not met, the result may be the loss of permanent resident status. If the permanent resident is inside Canada, immigration officers may conclude that the resident is in violation of their status and issue a departure order. The departure order will require the permanent resident to leave Canada. However, the decision to issue a departure order may be appealed. In this circumstance, a permanent resident has 30 days (upon reception of the departure order) to appeal to the Immigration Appeals Division (IAD). Note also, that if the departure order is not appealed within 30 days, permanent resident status will be lost.
The second circumstance is the loss of permanent resident status by a person outside of Canada. Where a permanent resident loses their status, a CIC immigration officer will inform them of the loss of status. The permanent resident has 60 days (upon reception of the written decision concluding that the permanent resident has not fulfilled the residency rules) to appeal to the Immigration Appeals Division (IAD) Here, if the appeal is not received by the IAD within 60 days of notification of the loss of status, permanent resident status will be lost.
Persons appealing a decision rendered by an officer from abroad may also be issued a temporary travel document, if they cannot otherwise travel to Canada without a visa, in order that they may attend their hearing in Canada. In this case, it is best that the appellant include the request to attend their hearing in Canada when they file their appeal, as this may save time and insure the greatest possible likelihood that all of the formalities may be concluded in order that an appellant may arrive in Canada in time to attend their appeal.
The Appeal Process
The Immigration and Refugee Protection Act provides permanent residents with an appellate review opportunity before the Immigration Appeal Division (IAD). The IAD, a court of equitable jurisdiction, consists of government appointed members who hear immigration appeals. The hearings are public, and have a similar organization as a proper court proceeding. The major difference is that rules of evidence in IAD matters are much more flexible than in a normal court case. The IAD has a broad discretionary power as to whom it hears admitting evidence. And to that end, IAD members consider what evidence has been submitted, questions of law, fact and to assess the presence of humanitarian and compassionate concerns. Most appeals of this type are contested and owing to the volume of such cases across Canada, can take approximately 12-18 months to conclude.
If you are faced with an immigration problem affecting your status or that of a close relative in Canada, or if you require additional information, please take the liberty to contact Colin R. Singer, Attorney by Toll Free telephone (1-888-817-2011) or by email – [email protected] to discuss any issue related to the foregoing.