I had a consultation with a kababayan recently regarding her father who obtained his PR card in 2016 and will expire in 2021. He stayed in Canada for 12 months only and returned to the Philippines to look after his properties. Last year, he decided to return to Canada for good however, due to COVID19 he could not travel. Obviously, he did not meet the residency requirement, but he really wants to return to Canada and live here permanently.
Let us first tackle on the residency obligation of a permanent resident of Canada. I checked with IRCC and I don’t see any special policy for those who will not meet their residence obligation while outside Canada, due to COVID19 pandemic. The COVID travel ban does not apply to permanent residents, which is the case here of the kababayan who is stuck in the Philippines.
One does not automatically lose his PR status simply because you don’t meet the residence obligation. Let us look at Immigration and Refugee protection Act (IRPA) section 46 and I quote:
Permanent resident
- 46 (1) A person loses permanent resident status
- (a) when they become a Canadian citizen;
- (b) on a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28;
- (c) when a removal order made against them comes into force;
- (c.1) on a final determination under subsection 108(2) that their refugee protection has ceased for any of the reasons described in paragraphs 108(1)(a) to (d);
- (d) on a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination to vacate a decision to allow their application for protection; or
- (e) on approval by an officer of their application to renounce their permanent resident status.
Even if that kababayan does not meet the residency obligation, he is still a PR until an official decision is made on his status. PR status does not expire. Even if he hasn’t lived in Canada for many years, he could still be a PR. While a person’s PR card may expire, that does not mean that his PR status expires. PR status is not something that can expire and needs to be revoked after a negative determination is made.
With a valid PR card, he will not have a problem proving that he is a permanent resident of Canada. However, at the border, an officer may assess his residency obligation. I strongly suggest that he is prepared to respond to all the concerns that the border officer may raise and be ready to request a positive determination via s.28(2) (C) of the IRPA for humanitarian and compassionate considerations. He should provide all documentation and proof for why he did not meet his residency obligations, how he planned on returning to Canada in 2020 and would’ve met his obligation and how COVID19 delayed that. He must also be able to answer what took him long to sell his properties and why he did not return earlier.
If it is determined that that he still has not met the residency obligation and is inadmissible, he may apply to the Immigration Appeal Division (IAD) for a residency appeal. Even if he is found not to have met the residency obligation, the IAD may still allow him to keep his status if there are sufficient humanitarian and compassionate grounds. IAD will assess factors (list is not exhaustive) like: to what extent he fell short from complying his residency obligation, his reasons for being away from Canada, his establishment in Canada, his family ties in Canada and the hardship that he
would face if he lose his status.
If you have questions regarding the above article, you may contact Marjorie at [email protected]
Source: Immigration, Refugees and Citizenship Canada (IRCC)
A word of caution: You should not act or rely on the information provided in this column. It is not a legal advice. To ensure your interests are protected, retain, or formally seek advice from a Regulated Canadian Immigration Consultant (RCIC) in good standing of ICCRC. The views expressed in this article do not necessarily reflect those of RCIC’s.
