Catherine Sas, K.C.Once you have gone through the process of becoming a permanent resident of Canada, you are still bound by legislative requirements to maintain your Permanent Residence (PR) status. Many people misunderstand the ongoing residency requirement or confuse it with the residency threshold for Canadian citizenship. Furthermore, there are several exceptions to being physically present in Canada that allow you to still satisfy the residency requirement while being outside of Canada and people have a tendency to interpret these “exceptions” to their own advantage without truly understanding their legal significance. Let’s review what it takes to maintain your PR status.
A Canadian permanent resident must be physically present in Canada for two out of every five year period. Annually that requires you to be in Canada 40% of each year or to maintain 730 days of physical presence in Canada within 1825 days. This is not a static period of time. That five year window is constantly rolling along and it is your obligation to make sure that at any point, you can demonstrate that you have 730 days of Canadian residency. The Permanent Resident Card ( PRC) is preliminary proof that you are a permanent resident of Canada. But it is not absolute proof! For example, if you became a permanent resident on January 1, 2010 and you left Canada the following day, and plan to return to Canada on June 1, 2015, you will only have been in Canada for one day in the past four and a half years. Your PR card may be valid until December 31, 2015 but you have not met the residency requirement of 730 days in Canada. Upon entry to Canada, an officer may make a determination that you have not met the residency requirement nor are you able to meet it within the balance of the year, notwithstanding that your PR card is still valid. In such circumstances you will be directed to a hearing to determine whether you have met the necessary residency requirements where you will likely lose your PR status. Your next opportunity to retain your PR status is an appeal at the Immigration Appeal Division. Our discussion today focuses on maintaining your status as a permanent resident with a view to avoiding these costly and time consuming processes.
Obviously the easiest thing is to reside in Canada until such time as you are eligible to apply for Canadian citizenship. Currently that requires three years of physical presence – with no exceptions – but it is slated to increase to four years any day now! ) But for those who can’t be in Canada constantly, it is important to know your options. A permanent resident is able to satisfy the residency requirement even while being outside of Canada when they are:
- outside Canada accompanying a spouse or common law partner or parent that is a Canadian citizen;
- outside Canada employed on a full time basis by a Canadian business or in the public service ( federal or provincial) or accompanying a PR who is a spouse, common law partner or parent that is employed by a Canadian business.
The interpretation of what it means to be employed outside of Canada by a Canadian business is not as straightforward as it seems. Individuals have been very creative over the years in orchestrating “employment” relationships to try and support their ongoing Canadian residency status. The IAD and the Federal Court have been very restrictive in their interpretation of what being “employed outside of Canada” means. Some key points that must be demonstrated include:
- Your assignment overseas must be temporary in nature,
- You must maintain an ongoing connection with the Canadian company, and
- You must have a job to return to in Canada.
It is strongly recommended that you consult with an immigration professional BEFORE you start overseas employment in order to ensure that you understand what is required to meet this exception and so that you can satisfactorily document how you meet these necessary requirements. It is much easier to do this at the outset of the overseas employment process than it is at the time that your are renewing your PR card or preparing for your IAD hearing.
If you must be outside of Canada for extended periods of time, be sure that you come to Canada at least once in every 365 day period! In the event that your PR card will be expiring, or that an officer reviews your residency status either overseas or upon entry to Canada, so long as you have been in Canada for one day within the past 365 days, you will be eligible for a Permanent Resident Travel Document and/or a 1 year temporary PR card which will allow you to return to Canada. This is an extremely important point to note as this one day provision allows you to be in Canada while you pursue your remedies to maintain your status. Obviously it is much more prudent to return to Canada frequently throughout the year as it ensures that you will be entitled to another short term PR card.
Maintaining Canadian permanent residency status can be very tricky in the new world order of globalization. For many people, their personal and employment realities make it challenging to satisfy Canada’s legal requirements for meeting the ongoing residency requirements for permanent residence. You need to be very familiar with what these requirements are and how they apply to your own circumstances so that you can ensure that you retain your status as a Permanent Resident of Canada.
