Permanent Resident Legal Limitations

By Edward C. Corrigan

Published in Arab 2000, January 14, 2006

Under the Immigration and Refugee Protection Act permanent residents must comply with residency obligations. They must accumulate at least two years of physical presence in every five-year period. If you have not accumulated two-years of time there must be that time remaining for you to qualify if you are to be allowed back in Canada. You also must have a Permanent Resident Card to be readmitted to Canada.

There are, however, a number of ways of protecting your status as a permanent resident in Canada. If a permanent resident is out of the country accompanying a Canadian spouse, or common-law partner, or the child is accompanying a parent. If they are also employed on a full time basis by a Canadian business, or in the public service of Canada. If their accompanying spouse or common in-law partner of a child of a permanent resident who is outside of Canada and who is employed on a full time basis by a Canadian business or the public service of Canada.

If a person has been determined to not meet the residence requirements, Citizenship and Immigration Canada (CIC) Officers may issue a Departure Order that require the person leave Canada. This Departure Order may be appealed to the Immigration Appeal Division within thirty days after receiving the notification. If you do not appeal the Decision within the thirty-day period, permanent resident status will be lost.

If a person has permanent residence status of Canada, and is deemed not to have met the residency requirements while outside of Canada, CIC Officers may inform the person in writing that they have failed to meet the residency obligations. Normally information on appeal procedures will be provided at that time. Out side of Canada an appeal must be filed within sixty days of the permanent resident receiving written notification of noncompliance. If the appeal is not filed within those sixty days, then the permanent residence status will be lost and that person will loose the right to return to Canada.

Previously people who maintained residence who could prove that they did not intend to abandon Canada were able to argue that they should retain their permanent residence status. The new act has eliminated this whole concept of intent to abandon Canada.

The new act also eliminated the Returning Residence Permit and the previous requirement under the old Immigration Act that a person had to stay in Canada at least six months and one day in order to maintain their status in Canada. The new Act allows people to be outside of Canada for three years in every five year period. They must remain in Canada or be able to accumulate at least two years of residence in this country or they will loose their permanent residence status. The new act also gave CIC Officers abroad authority to make decisions as to whether or not an individual had satisfied their permanent residency obligations in Canada.

There also are additional considerations for people who are permanent residents. Their permanent residence is not permanent in that if a permanent resident is convicted of a criminal offence. This criminality would be an offence under an act of parliament punishable by maximum term of imprisonment of at least ten years, or an offence under an act of parliament for which a term of imprisonment or more than six months has been opposed. A person loses their status as a permanent resident having such a conviction and they would to make an appeal to the Immigration and Refugee Board Appeal Division that there would be humanitarian and compassionate considerations which would allow them to Stay Order and prove that they are rehabilitated and do not pose a risk to the Canadian public. If a person is convicted of an offence outside Canada which would constitute an offence under an act of parliament, punishable by a maximum term of prison at least ten years, they also would loose their status as a permanent resident of Canada and can be deported.

If a person is found to be inadmissible on grounds of security, violating human international rights, or serious criminality, or organized criminality then they have no right to appeal and would be deported from Canada. Serious criminality for the purpose of the Act is a crime that was punished in Canada by term or imprisonment of at least two years. So, if you are accused of being inadmissable on grounds of security, violating human international rights, or organized crime, or convicted of a sentence to two years or more, then you would be automatically deported from Canada and have no right of appeal.

So permanent residence does not mean that you have the right to permanently reside in Canada. There are some important limitations and this right can be taken away from you if you do not meet the residency requirements, do not have in your possession a Permanent Resident Card which will entitle you to return to Canada, or other problems such as criminality which would also remove your right to reside in Canada.

For further information you should consult a Citizenship and Immigration lawyer.

Ed Corrigan is a lawyer certified as a Specialist by the Law Society of Upper Canada in Immigration law and refugee protection with offices located in London Ontario at 383 Richmond St. Suite 902, tel: 519-439-4015 and at 3195 Erindale Station, Rd in Mississauga, tel: 905-290-9018. Toll free number is 1-800-883-6217. His email is corriganlaw@linkd.net