Residency Obligation Appeal
The residency obligation refers to a person’s physical presence inside of Canada for a set amount of time. In order to maintain a permanent residence card, a person must meet a residency obligation.
If a person has been a Canadian permanent resident for less than five years, they may be eligible to apply for a permanent resident card renewal or PRTD provided they can demonstrate that they will be able to meet the 730 days physical presence day within the five year period.
Usually, whether a permanent resident has met their residency obligations is assessed when they are applying for a permanent resident card renewal, permanent resident travel document (PRTD), or Canadian citizenship. Please note that if a person has Canadian permanent residence for more than five years, the residency obligation will be calculated based on the five years prior to the date an application was received by the visa office.
Canada’s residency obligation for permanent residents requires a person to be physically present inside of Canada for at least 730 days within a five-year period, or to meet one of the following situations:
- The person is outside of Canada accompanying a Canadian citizen who is their spouse or common-law partner, or the person is a child accompanying their parent;
- The person is outside of Canada employed on a full-time basis by a Canadian business or in the public service of Canada or of a Canadian province;
- The person 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 Canadian province.
In the other circumstances enumerated in subsection 46(1), the IRPA ensures that permanent resident status will not be lost until the permanent resident has had an opportunity to contest the loss of status. When there is a right of appeal, the removal order does not come into force (and consequently the permanent resident retains status) until the appeal period expires, or if an appeal is filed, the day the appeal is finally determined. Retaining permanent resident status is critical to having a right of appeal to the IAD under subsections 63(3) or (4).
Like any appeal, this process is legalistic. Most people choose to be represented by a legal representative at the appeal. You should also consult with a representative prior to filing an appeal to determine the suitability and the correct basis for appeal. Sometimes, it may serve you better to follow an alternate route such as re-applying with more supporting documents or with a stronger explanation which your representative can prepare for you.
If you are outside Canada when your PR card was refused and if you chose to appeal the refusal, you will be able to attend your appeal hearing via telephone conference.
The IAD can do one of three things with the appeal:
- it can allow the appeal,
- it can stay any removal order made or
- It can dismiss the appeal
Chance of Success in Appeal
The likelihood of success in residency appeals, as with many appeals, may depend greatly on your (client’s ) behavior after the date of filing the appeal. Particularly with current timelines, taking easily over a year to reach a hearing, much can be done to rehabilitate residency on humanitarian grounds. Consequently, a prospective client with a relatively low number of days spent in Canada and minimal establishment may still be able to demonstrate sufficient H&C considerations to have their appeal allowed. However, if the prospective client does not intend to change their behavior in the coming months, the appeal may only prolong their loss of residency. It is possible that other avenues exist, by which the client could regain their permanent residency in the future, when they are actually prepared to resettle permanently in Canada.
For more information, please contact ND Paralegal Services to arrange for a consultation with Naba Dhungana to discuss how we can assist you on your residency appeal at Immigration Appeal Division.