The “entry/exit initiative” enables CBSA and US Customs and Border Protection to exchange the following:

• biographic information “such as: first name, middle name(s), last name, date of birth, citizenship or nationality, sex, travel document type, document number, and name of the country that issued the travel document”; and
• the date, time and location of entry/exit.[2]

The measure was introduced as part of Bill C-21, An Act to amend the Customs Act, which received Royal Assent in December 2018.[3] Having a record of exits in addition to entries that can be retained for 15 years (from the date of collection) will assist immigration authorities who are charged with assessing whether or not a PR of Canada has met the physical presence requirements to maintain their PR status or to become a Canadian citizen.

For those who are unfamiliar with the relevant requirements, a PR must comply with a “residency obligation” in order to maintain their status pursuant to section 28 of the Immigration and Refugee Protection Act. One way of satisfying this obligation is to be physically present in Canada for at least 730 days in every five-year period. A PR who wishes to apply for a grant of citizenship must have “been physically present in Canada for at least 1,095 days during the five years immediately before the date” they submit their application, according to subsection 5(1) of the Citizenship Act.

Temporary residents of Canada who are travelling across the Canada-US land border should always be mindful of the expiry date of their status and PR’s should monitor the number of days spent outside of Canada to avoid negative consequences.

Finally, it is important to note that while the entry/exit initiative is currently only in effect at the Canada-US land border, the exchange of exit information between all airlines and the CBSA is expected to begin in mid-2020.[4]

Sources

The post Records Now Kept of Exits from Canada via Canada-US Land Border first appeared on Bellissimo Law Group.

Mr. Osagie, a citizen of Nigeria and a medical doctor, had become a permanent resident of Canada in August 2009, as did his wife and children. Unlike the rest of his family, Mr. Osagie did not become a citizen as he had returned to Nigeria to work as a doctor due to family obligation, specifically.

In May 2015, Mr. Osagie applied to renew Permanent Resident (“PR”) Card from within Canada. In August 2015, he received a letter from Citizenship and Immigration Canada (“CIC”, now called Immigration, Refugees and Citizenship Canada or “IRCC”) stating that, although he did not meet his residency obligation, he had sufficient humanitarian and compassionate (“H&C”) factors to allow him to retain his permanent resident status. However, Mr. Osagie’s previous PR Card had already expired and so, the following day, he called IRCC to make an urgent request to have his renewed PR Card issued to him as he had to travel to Nigeria. His urgent request was refused, but he was advised he could apply for a PR Travel Document while in Nigeria in order to return to Canada. Mr. Osagie travelled as planned and applied for the Travel Document from within Lagos, Nigeria as he was instructed, but his application for a Travel Document was refused as he did not meet his residency obligation.

Mr. Osagie appealed this residency obligation determination to the IAD and two issues were identified for resolution on appeal: first, whether the decision of the Visa Office in Lagos was legally valid; and, second, whether Mr. Osagie qualified for special relief under H&C grounds.

The IAD determined that Mr. Osagie failed on both grounds and dismissed the Appeal. In assessing the reasons for departure, among other findings, the IAD determined he could have secured a job in Canada but chose not to and that other members of Mr. Osagie’s family could have provided care to his aging parents in his place. The IAD also determined that it was likely Mr. Osagie would continue to work in Nigeria as a medical doctor even if the appeal was granted.

In a strongly worded decision, Justice Ahmed found the IAD’s H&C analysis to be unreasonably based on irrelevant factors, notably finding that the IAD is tasked with reviewing H&C factors and not with the likelihood of an appellant’s future compliance with the residency obligation. Considering the cultural realities of Mr. Osagie’s role as the eldest son and his occupation as a doctor, Justice Ahmed stated that the IAD “has no business” determining that Mr. Osagie had many siblings who could have provided care to his aging parents in his place. Justice Ahmed took issue with the IAD’s comment that “[i]mmigrating to a new country includes making difficult choices”, highlighting that:

” Immigration does involve difficult choices. This is why Parliament provided flexibility and relief from what would otherwise result in harsh consequences under a rigid application of the residency requirement. The decision-maker is owed deference in weighing the relevant factors. But the IAD’s casual statement that immigration entails difficult choices, along with the bald assertion of a plausible alternative course of action, is insufficient. ”

The decision was returned to the IAD for re-determination, indicating that the Court may not be willing to accept reliance upon the inherent “difficult choices” involved in immigrating to Canada, or the likelihood of future compliance in residency appeals, as a basis upon which to avoid affording an appellant the relief allowed under the IRPA.

The post Judicial Review of a Residency Obligation Appeal Before the Immigration Appeal Division Returned for Re-determination first appeared on Bellissimo Law Group.

1. What is the relevant period of residence? It does not necessarily mean an applicant within Canada must apply as soon as the permanent resident (PR) card expires if the physical residency of at least 730 days in a five-year period is not met. A permanent resident must permanent resident obligations pursuant to section 2(1) of the Immigration and Refugee Protection Act (IRPA). So, a delayed filing may at times be a strategy worth exploring.

2. There is not only one way to meet the residency obligation. Pursuant to section 28 of the IRPA there are different manners in which a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, including they are:
(i) physically present in Canada,
(ii) outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent,
(iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province,
(iv) outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province.

3. So, each of these possible circumstances must be explored. Accompanying a qualifying family member usually does not present too onerous a burden to establish while proving full time employment with a Canadian business can become very complicated in certain circumstances. As can be demonstrating physical residency in certain cases.

4. Processing times and a permanent resident’s physical location are relevant factors when planning to apply for a renewal of the PR Card in particular for applicants that may not be in Canada after applying.

5. When a permanent resident does not meet the residency obligation a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, considering the best interests of a child directly affected by the determination, may justify the retention of permanent resident status and overcome any breach of the residency obligation prior to the determination. Oftentimes though this option is seen as a panacea to solve all residency breaches. However, the residency test is quite generous as it stands so this provision is better viewed as an exceptional response to exceptional circumstances.

In all, some basics to keep in mind when applying for the renewal of your PR card.

Good luck! For more information on Permanent Migration, click here.

The post Renewing Permanent Residency Cards: The Basics first appeared on Bellissimo Law Group.