The Immigration and Refugee Protection Act (IRPA) establishes residency requirements and obligations with respect to each five-year period after the granting of permanent residency status. Pursuant to subsection 28(2), a permanent resident complies with the residency obligation provisions if, for at least 730 days in that five-year period, the permanent resident is physically present in Canada or is:
- outside Canada accompanying a Canadian citizen who is his or her spouse or common-law partner or is a child accompanying a parent;
- outside Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a province; or
- is an accompanying spouse, common-law partner or child of a permanent resident who is outside Canada and is employed on a full-time basis by a Canadian business or in the public service of Canada or of a province.
The residency obligation in the IRPA is substantially different from the current provisions wherein retaining residency depends on satisfactory demonstration of intent not to abandon Canada as a person’s place of permanent residence.
Section 32 of the IRPA authorizes the making of regulations relating to the application of the residency obligation, including rules for calculating applicable days and periods.
Purpose of these provisions
The intent of the regulations on the obligations of permanent residents is:
- to prescribe flexible, clear and objective rules and criteria for establishing and determining compliance with the residency obligation provisions of the IRPA;
- to assist decision-makers in assessing factors related to residency status determinations and to increase transparency and consistency in decision making; and
- to prescribe rules for calculating days of physical presence in Canada for the purpose of determining compliance with the residency obligation of section 28 of the IRPA.
What the regulations do
The residency obligation regulations provide definitions and describe situations, in addition to those outlined in section 28 of the IRPA, in which time spent away from Canada can be deemed to be time in Canada for the purpose of retaining permanent resident status. The regulations allow permanent residents greater flexibility to engage in a wide range of long-term employment opportunities abroad while still maintaining ties to Canada through a variety of links with either the public service or businesses in Canada. The regulations also specify how close family members who are permanent residents can accompany a permanent resident who is employed abroad without the risk of losing their status.
Specifically, the regulations:
– define “Canadian business” for the purpose of residency obligation considerations.
The definition applies to both large and small businesses and includes federally or provincially incorporated businesses that have an ongoing operation in Canada; other enterprises that have an ongoing operation in Canada, are capable of generating revenue, are carried out in anticipation of profit and in which a majority of voting or ownership interests are held by Canadian citizens, permanent residents or Canadian businesses; and organizations or enterprises that have been created by the laws of Canada or a province. It does not include businesses that have been created primarily for the purpose of allowing a permanent resident to satisfy his or her residency obligation while residing outside of Canada.
– describe “employment outside of Canada.”
The regulations enable permanent residents to comply with the residency obligation while working abroad, provided that they are under contract to, or are full-time employees of, a Canadian business or in the public service, and are assigned on a full-time basis, as a term of their employment or contract, to a position outside Canada with that business, an affiliated enterprise or a client.
– describe “accompanying outside Canada.”
The regulations provide that each day a permanent resident is outside of Canada accompanying a permanent resident or Canadian citizen is deemed a day of physical presence in Canada, provided that the person accompanied is a spouse, common-law partner or parent with whom he or she ordinarily resides. In situations where the person being accompanied is also a permanent resident, only the days on which that person is in compliance with residency obligations may be counted as days of physical presence in Canada by the accompanying permanent resident.
– define “child” for the purpose of satisfying the residency obligation provisions.
For the purpose of subparagraphs 28(2)(a)(ii) and (iv) of the IRPA, “child” is defined as a child of a Canadian citizen or permanent resident, including a child adopted in fact, who has not and has never been a spouse or common-law partner and is less than 22 years of age.
– prescribe rules for calculating applicable days of physical presence in Canada.
The regulations specify the period, after an officer has made a decision that a permanent resident has failed to comply with the residency obligation, that cannot be considered by the Immigration and Refugee Board (IRB) during an appeal as days of physical presence in Canada for the purpose of satisfying the residency obligation. This rule will not apply in cases where the permanent resident is subsequently determined to have complied with the residency obligation.
What has changed
These regulations are necessarily different from the current regulations because they support and complement residency obligation provisions that are substantively different from those in the current Immigration Act. The residency obligation in IRPA is based on a period of physical presence in Canada with provisions for prolonged absences from Canada (three years out of every five-year period for any reason). In certain circumstances permanent residents, including accompanying family members, are al-lowed even longer absences when they are employed abroad. Moreover, humanitarian and compassionate considerations, including the best interests of a child, will be taken into account in all residency obligation status determinations and, when justified, will overcome any breach of those obligations occurring prior to the determination.
By contrast, current legislation is based on a highly subjective principle of intent not to abandon Canada as the place of permanent residence. Currently, if a permanent resident is absent from Canada for more than six months in any 12-month period, he or she is deemed to have abandoned Canada unless he or she is able to satisfy an immigration officer that there was no intention to do so. Criteria for determining residency status are in the regulations. These contain exceptions allowing for longer absences if the per-son is employed by or representing a Canadian government body, corporation or business organization established in Canada; up-grading professional, academic or vocational qualifications; accompanying a family member who is a Canadian citizen; or has been issued a returning resident permit; or in other circumstances that an officer deems appropriate. The provisions are difficult to administer, create uncertainties about status and the standards that are to be met, and lead to inconsistencies in decision making.