Permanent Residence

This article will provide information on Residency Obligation.

Generally, permanent residents must comply with the residency obligation of at least 730 days of physical presence in Canada during a five-year period under section 28 of the Immigration and Refugee Protection Act, SC 2001, c 27 (Act). The purpose of this provision is to promote the integration of permanent residents into Canadian society. However, the Act also specifies case scenarios allowing permanent residents to maintain their status while accompanying Canadian spouses, common-law partners or parents abroad.

The criteria are formulated in subparagraph 28(2)(a)(ii) of the Act:

(2) The following provisions govern the residency obligation under subsection (1):

(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,

The prevailing line of Immigration Appeal Division (IAD) decisions discuss the interpretation of the word “accompanying.” English and Canadian dictionaries define this verb as going with, going along with or traveling with someone. In line with the basic principles of statutory construction, this term must be given its plain meaning to respect legislative intent. In other words, one applies the rules of language and logic to find the proper sense of words.

The 23rd chapter of the Enforcement Manual (ENF 23), entitled Loss of Permanent Resident Status, was last updated by the Immigration Department on January 23, 2015. The ENF 23 is a reference tool for immigration officers to assist with the interpretation of laws and procedures. Policy statements related to the assessment of compliance with the residency obligation indicate in section 7.5 that an analysis of “who is accompanying who” is not required.

7.5 Accompanying a Canadian citizen outside Canada

R61(4) provides that each day a permanent resident is outside Canada accompanying (that is, ordinarily residing with) a Canadian citizen constitutes a day of physical presence in Canada, provided that the Canadian citizen they are accompanying is a spouse or common-law partner or parent.

In the case of a permanent resident outside Canada accompanying a Canadian citizen, it is not necessary to determine who is accompanying whom, nor is it necessary to determine for what purpose. In other words, under A28(2)(a)(ii) and R61(4), as long as a permanent resident is accompanying a Canadian citizen, the intent and purpose of their absences are not relevant as the residency obligation is met.

Yet, policy documents are not binding on the tribunals and the courts. In Dadash-zadeh v Canada (Citizenship and Immigration), 2018 CanLII 46499 (CA IRB), the IAD Member found that the permanent resident must “accompany” the Canadian spouse outside Canada as intended by the Act. Consequently, the permanent resident must “alter the pattern of life” to be with the Canadian spouse relying on Smith v Canada (Citizenship and Immigration), 2007 CanLII 67256 (CA IRB), at para 30. In short, one must focus on “who is accompanying who” when applying the legal principles as part of the analytical method.

The term is further expressed in subsection 61(4) of the Immigration Refugee Protection Regulations, SOR/2002-227 (Regulations) as ordinarily residing with the Canadian spouse overseas.

(4) For the purposes of subparagraphs 28(2)(a)(ii) and (iv) of the Act and this section, a permanent resident is accompanying outside Canada a Canadian citizen or another permanent resident — who is their spouse or common-law partner or, in the case of a child, their parent — on each day that the permanent resident is ordinarily residing with the Canadian citizen or the other permanent resident.

The Court referred to the definition obtained from the Regulations in Parikh v Canada (Public Safety and Emergency Preparedness), 2019 FC 13. Further, Justice Pentney determined that substance takes priority over formality and held as follows at paras 25 to 27:

[25] However, the argument in this case is that it is unreasonable to not make any reference to the definition of a specific legal term on the key issue, when that term is clarified in a regulation. It is argued that a decision-maker should mention the relevant regulatory definition. That was not done here – there is no mention of subsection 61(4) of the IRPR. Is that a fatal flaw? I find it is not, for the following reasons.

[26] First, during the IAD hearing, the member identified the precise legal and factual issue on this question, using words that indicate that he understood the legal test in substance. The transcript shows that relatively early in the hearing, the member said the following:

Alright, and so counsel I am just trying to make this easier for everybody; if the appellant can provide me with sufficient evidence that she accompanied her husband at the time to the United States in June of 2001 and there is proof that he was there… and they were living together, then she meets the elements pursuant to [s. 28(2)(a)(ii) of IRPA].

[27] Second, I find that the reasons demonstrate that the member was looking for indicia of the husband’s and wife’s cohabitation in the relevant period. Although the decision does not use the words “ordinarily residing with,” that is in substance what the member examined in the decision.

Thus, permanent residents who were absent from Canada while accompanying their Canadian spouses abroad meet the legal test set out in subparagraph 28(2)(a)(ii) of the Act and subsection 61(4) of the Regulations on condition that they cohabit with the Canadian family member. Then, time spent outside Canada together may be counted as equivalent to days in Canada to fulfill the residency requirement and keep their status as a permanent resident.

A failure to comply with the residency obligation can be overcome by providing sufficient humanitarian and compassionate grounds. Paragraph 28(2)(c) of the Act states that humanitarian and compassionate considerations may justify the retention of permanent resident status. It is important to keep in mind that the permanent resident bears the burden of proof to satisfy the humanitarian migration officer. The ENF 23 stipulates in section 7.7 that “a positive decision is an exceptional response to a particular set of circumstances.” Consequently, only deserving cases will succeed.

Disclaimer

This article does not constitute immigration or citizenship advice. If you require more information, then you should discuss your matter with a Canadian immigration professional.