Residency rules for immigrants

New rules provide an objective test in determining if individual has abandoned Canada as a place of residence, but caselaw shows a subjective element is still present in evaluating a permanent resident’s conduct

The Immigration and Refugee Protection Act (IRPA) states in s. 28 that a permanent resident must, with respect to every five year period, be physically present in Canada for a total of 730 days unless she is outside Canada and fits in one of the exemptions specifically provided for in the legislation. Such exemptions from the physical residency requirement are:

•being outside of Canada accompanying a Canadian citizen spouse, common-law partner, or parent in case of a minor child;

•being employed abroad on a full-time basis by a Canadian business as defined by the regulations, or by a federal or provincial government; or

•accompanying a spouse, common-law partner or parent in the case of a minor child who is employed by a Canadian business or government.

Old versus new legislation

The physical presence requirement and the objective standard set out in the legislation represent a change from the previous provisions in the Immigration Act, which was in force until June 28, 2002. While the previous legislation emphasized a permanent resident’s intention to abandon Canada as her place of residency, the current provisions provide an objective test.

But, as the caselaw developed in the last four years shows, a subjective element is still present in the evaluation of the resident’s conduct and it comes into play before a person can be stripped of permanent resident status.

The current legislation introduces, for the first time, two new elements: the application of humanitarian and compassionate grounds relating to a permanent resident and the consideration of the best interests of the child affected by the parent’s loss of status. Both elements must be taken into account prior to a final determination that a person has lost permanent residency in Canada.

Surprisingly, there have been relatively few cases dealing with these provisions, and most of the decisions rendered seem to be strongly tied to the facts of each case. There are, however, several noteworthy decisions that relate to work and employment situations, which both employers and employees must consider.

Permanent resident returned to Taiwan

In Kuan v. Canada (Minister of Citizenship & Immigration), Chih Kao James Kuan became a permanent resident, returning to Taiwan with his family within five days of landing in Canada. Upon returning to Canada four years later, he was ordered removed on the basis he had failed to comply with the residency obligation. His appeal to the Immigration Appeal Division (IAD) failed. In a lengthy decision, the IAD held that under the previous Immigration Act, permanent residents could justify extended physical absences by establishing that they did not have the requisite intention to abandon Canada as their place of permanent residence, but that opportunity no longer exists under current legislation, which provides for a mathematical calculation of a permanent resident’s obligation of physical presence in Canada.

More important, in canvassing the possible existence of humanitarian and compassionate grounds, the tribunal attempted to develop a test to examine the circumstances of each case and noted that appropriate considerations included:

•the appellant’s initial and continuing degree of establishment in Canada;

•reasons for departure from Canada;

•reasons for continued or lengthy stay abroad;

•ties to Canada;

•whether reasonable attempts to return to Canada were made at the first opportunity; and

•generally, whether unique or special circumstances are present that may have prevented the appellant from returning.

Couple sent back to the United States

A similar conclusion was reached in Kroupa v. Canada (Minister of Citizenship & Immigration). In that case, the Robert and Diana Kroupa were citizens of the United States. The husband and wife couple became permanent residents in 1985 when the husband was employed in Canada. They returned to the U.S. in 1987 in order to look after a mentally ill daughter and the husband remained employed by a U.S. company in Portland, Ore. He visited Canada once or twice per month to assist his employer’s Canadian subsidiary. Upon returning to Canada for a visit in 2002, the couple were issued removal orders on the basis they had lost their permanent resident status. Their appeal was dismissed.

Robert argued that he could avail himself of the exemption provided in the legislation, because he was employed on a full-time basis by a Canadian business. However, the tribunal specifically rejected his argument, noting that he remained employed by a U.S. company and he only provided services periodically on behalf of his U.S. employer parent company for its Canadian subsidiary. This was considered insufficient to meet the Canadian business employment exemption.

Airline employee spent little time in Canada

Different arguments were advanced in Angeles v. Canada (Minister of Citizenship & Immigration). In that case, Antonio Angeles was an airline employee, a citizen of the Philippines and a permanent resident of Canada for several years. However, during the relevant five-year period for the calculation of his residency obligation, he had only spent 360 days in Canada.

The tribunal dismissed his appeal and he pursued a judicial review application at the Federal Court. Angeles impugned the tribunal’s decision, advancing three distinct arguments. First, he argued he was deprived of the assistance of an interpreter. Second, that the tribunal breached the principles of fundamental justice by failing to ensure that he was properly represented by competent counsel.

And, third, that the immigration officer who made an adverse determination concerning his permanent resident status was obligated to consider humanitarian and compassionate grounds prior to making such determination.

The court rejected all the arguments and noted that Angeles failed to demonstrate a clear intention to establish himself in Canada while maintaining his home on a permanent basis in the Philippines with his wife and children whom he never attempted to sponsor. The court noted that his intention “to perhaps settle in Canada at some point in the future in the hope of improving his family’s standard of living” was not sufficient to warrant special relief. The court also held that the immigration officer was not obligated to consider humanitarian and compassionate grounds unless Angeles advanced those arguments at the first opportunity. The court also dismissed his contention of lack of competent counsel and held the tribunal had no obligation to intervene regarding his choice of representative.

Humanitarian, compassionate factors still relevant

Having regard to the caselaw developed in the four years since the new legislation came into force, it is apparent that, while it provides an objective test for determining whether a permanent resident has maintained her obligation to reside in Canada, the consideration of humanitarian and compassionate grounds continues to be a relevant factor that must be carefully canvassed before a permanent resident can be held to be in breach of the residency obligation.

However, the onus rests with the applicant to ensure all facts and arguments are presented at the earliest possible opportunity.

The skilful presentation of the case is crucial in the success of a challenge to a decision that a person is no longer a permanent resident of Canada. The caselaw also emphasizes the importance of advance planning by employees who must carry on assignments abroad or must take temporary leave of absence for personal reasons and return to their countries of origin, before they become Canadian citizens.

For more information see:

Kuan v. Canada (Minister of Citizenship & Immigration), [2003] I.A.D.D. No. 638, 2003 CarswellNat 4538, 34 Imm. L.R. (3d) 269 (Imm. & Ref. Bd. (App. Div.))

Kroupa v. Canada (Minister of Citizenship & Immigration), 2003 CarswellNat 4352, 34 Imm. L.R. (3d) 55 (Imm. & Ref. Bd. (App. Div.))

Angeles v. Canada (Minister of Citizenship & Immigration), 2004 CarswellNat 5860, 2004 CarswellNat 3197, 262 F.T.R. 41, 2004 CF 1257, 2004 FC 1257, 38 Imm. L.R. (3d) 308 (F.C.)

Sergio Karas is a certified specialist in Canadian Citizenship and Immigration Law by the Law Society of Upper Canada, vice-chair of the Ontario Bar Association Citizenship and Immigration Section and vice-chair of the International Bar Association Immigration and Nationality Committee. He can be reached at (416) 506-1800 or [email protected].

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