July 22, 2015

Residency Appeals – So, you were not in Canada for enough days…

Posted by admin - Bellissimo Law Group PC

Every permanent resident (PR) is required to be physically present in Canada for two years of every five year period. A PR’s compliance is assessed both when the individual applies for a new PR Card (or travel document, if overseas when the PR Card expires) and on entrance to Canada. If it is determined that the PR has not been in Canada for at least two years (730 days), a finding may be made to refuse to issue the PR Card (or travel document) or to issue a removal order on entrance to Canada. This decision can be appealed to the Immigration Appeal Division (IAD).

It is important to keep in mind that, if the refusal/removal order is appealed to the IAD that the PR remains a PR until a final decision is made by the IAD. If the IAD allows the appeal, then the individual is thereafter a PR in good standing. If the IAD refuses the appeal, then the individual loses permanent residence and will have to depart Canada.

In most cases, the decision is legally valid – the PR was not in Canada for at least 730 days of the five year period. In these cases, the challenge at the IAD is instead to demonstrate that there is sufficient humanitarian and compassionate merit for the IAD to allow the appeal. Each residency appeal brought before the IAD is unique to the PR’s circumstances and requires a balancing of his/her personal (and family) circumstances.

Many of the factors surrounding residency in Canada focus on the PR’s settlement and establishment in Canada. How well has the PR immersed him/herself in Canada? Is s/he truly part of the community – through employment, religion, volunteer activities, etc? Are the PR’s family members, particularly children and spouse, residents and established in Canada? Does the PR have a network of friends or other family members in Canada? These are all questions that the PR should be prepared to address at the IAD to demonstrate that it would be a hardship to leave Canada.

Tied with establishment in Canada, is character and behaviour – this is evidence of being a good member of Canadian society. For this purpose, evidence that the PR is law-abiding is important: does s/he pay income taxes? Does s/he have a clean criminal record in Canada? Participation in Canadian events – whether political, religious, sport – are also of value, as they demonstrate an interest in the Canadian community.

On the other side of establishment considerations is the explanation for having been outside of Canada. If the PR was outside of Canada due to employment or education, then it is important to demonstrate to the IAD that these circumstances are not going to be repeated. It would serve no purpose for the IAD to allow the PR’s appeal, if the individual was going to continue to be working outside of Canada and would default on residency again. The PR should have a clear employment trajectory that will lead to working in Canada, whether it be by finding a Canadian employer, having their foreign credentials approved in Canada, finding Canadian clients if self-employed, or otherwise.

Another frequent explanation for being outside of Canada is family commitments; at times a PR leaves Canada to care for an ailing parent or grandparent, for example. If this is the only explanation for being outside of Canada for over three years (in the five year period), this will be a challenge as it will be important to establish that there was no other family member available to share the care giving to that family member. The IAD will look at whether the PR returned at the first opportunity and whether the prolonged period outside of Canada was truly necessary.

The factors involved in a humanitarian and compassionate appeal are as varied as the PRs involved in this process. It is important to have a clear legal strategy from the day the appeal is filed, so that by the time of the hearing the individual is prepared both with their plan for the future and with appropriate evidence.

For more information on residency appeals, please click here.