Canadian Residency obligations

Following the globalization of markets and businesses, Canada has been forced to recognize over the years that the need to travel and spend extended periods of time away from the home for personal, economical or social purposes is a reality that touches everyone, even permanent residents. This realization was confirmed in 2002 with the imposition of a new residency obligation on permanent residents included in the Immigration and Refugee Protection Act (IRPA). Although, the new obligation is much more lenient and offers more freedom to permanent residents then the 183 days rule found in the previous Immigration Act, several permanent residents still find themselves in breach of their residency obligation and thus, their permanent resident status in jeopardy.

We would like to review with you the specifics of the residency obligation along with several factors that may be considered in determining if Humanitarian and Compassionate Considerations may be considered to maintain one’s permanent residence status.

The residency obligation

According to IRPA, a permanent resident must be physically present in Canada for a total of at least 730 days out of any given period of five years. This means that a person may spend up to three years outside Canada and still maintain his or her permanent resident status.

It is important to also note that some of the time spent outside Canada will be considered as time spent physically in Canada for the purpose of maintaining permanent residency. Indeed, a person will retain his or her status if he or she spends time outside Canada for the purpose of accompanying a Canadian citizen who is their spouse or common-law partner, or in the case of a child, their parent.

This also applies to time spent outside Canada by permanent residents, their spouse and children, in cases where the permanent resident is employed by a Canadian Business or if he or she is employed in the public service of Canada or of a province. In these cases, the time spent outside Canada must be related to work activities.

What happens if a permanent resident is not able to demonstrate that he satisfies the residency obligation?

In some cases, an officer may determine that humanitarian and compassionate considerations, which take into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status and thus defeat any breach of the permanent residency obligation.

Other than the best interest of the child, which is clearly stated in the IRPA and considered the most important and compelling factor in determining if humanitarian and compassionate considerations should intervene in a residency hearing, there are other factors which may influence the retention of permanent residency when a breach of the conditions has occurred. These factors are very similar than the ones found in the previous Act.

In certain cases, if an applicant is able to provide a reasonable explanation as to why he or she had to stay absent from Canada for a long period of time, an appeal is likely to be successful. In those cases, the permanent resident will need to demonstrate that his or her absence was always temporary, no matter how long it had been since he or she left Canada. In the past, people who had to leave the country temporarily to care for sick relatives for example, had good chances of success.

The appellant’s age may also be relevant. For example, if at the time the person left Canada he or she was a minor, it is highly unlikely that the child in question was able to make a conscious and/or independent decision to leave Canada. If the child returned promptly after he or she reached the age of majority or as soon as it was financially feasible, in cases of abject poverty, to do so, removal order appeals under these circumstances were successful in the past.

On the other hand, permanent residents who are absent from Canada for extended periods of time and who re-settled in their home country, making few attempts to distance themselves from their home country to permanently settle in Canada, will have a harder time justifying their absence and demonstrating humanitarian considerations. Essentially, the longer the time spent in Canada prior to your departure and the more ties you make with Canada, the easier it will be to demonstrate that your intention was temporary and that you did not intend to abandon Canada as your primary residential country.

Although these are all potential remedies for a breach of the permanent residency obligations, it is always better for permanent residents to do everything in their power to respect the 730 days condition to avoid a deportation order and/or the terrifying moments that can be created by a deportation hearing. As the new residency obligation is much more lenient then in the one found in the previous Immigration Act, taking into account international mobility, it is now, more than ever, easier for permanent residents to maintain their permanent residency status in Canada and travel the world for business or pleasure.


Veronique Raymond, Attorney at Law.