- Naba Dhungana
Residency Obligation For Permanent Residence Canada
Residency obligation is a requirement for all permanent residents in Canada to physically reside in Canada for at least two years out of every five years to maintain their status. This obligation is outlined in Section 28 of the Immigration and Refugee Protection Act (IRPA) and its regulations, specifically Section 13 of the Immigration and Refugee Protection Regulations (IRPR).
According to IRPR Section 13, a permanent resident will lose their status if they fail to meet their residency obligation, unless they have obtained a renewal of their status or a discretionary waiver. The two-year period of physical residency is counted as a rolling period, meaning that the period is not limited to any specific five-year period, but instead, any 5-year period will be considered to determine the number of days a permanent resident has spent in Canada.
Exceptions to the residency obligation include accompanying a Canadian citizen spouse or common-law partner outside of Canada, working abroad for a Canadian employer, or accompanying a permanent resident outside of Canada who is employed by a Canadian company.
Overall, the residency obligation is an essential aspect of maintaining permanent residency status in Canada, and permanent residents must take it seriously to avoid losing their status.
Residency Obligation Appeal
If a permanent resident in Canada fails to meet their residency obligation and their status is revoked, they may be able to appeal the decision. The appeal process for residency obligation varies depending on the circumstances and the specific reasons for the revocation.
In general, there are two main avenues for appealing a residency obligation decision:
Appeal to the Immigration Appeal Division (IAD): If a permanent resident's status is revoked due to failing to meet their residency obligation, they may be able to appeal the decision to the IAD. The appeal must be filed within 60 days of the date of the decision. The IAD will consider the circumstances of the case and may grant a waiver of the residency obligation or restore the permanent resident's status if they find that the decision was made in error.
Judicial Review: If the IAD upholds the revocation decision, the permanent resident may be able to seek a judicial review in Federal Court. A judicial review is a legal process in which a court reviews the decision made by the IAD to determine if it was made in accordance with the law and the principles of procedural fairness. The court may uphold the IAD's decision or overturn it and send the matter back to the IAD for reconsideration.
It is important to note that the appeals process can be complex and requires a thorough understanding of immigration law and the specific circumstances of the case. It is advisable to seek the assistance of a qualified immigration lawyer or Paralegal to help with the appeal process.