This post is about the way it is, with no editorializing about how things should be. The way it is, is that IRCC
expects PRs to settle in Canada and become in-fact permanent residents in Canada, and those who do not will likely face elevated scrutiny and delays when seeking to renew the PR card. In this forum alone there are plenty of anecdotal reports, by PRs who cut the PR RO close and are subjected to lengthy Secondary Review, to amply illustrate this.
It warrants being clear that meeting the
minimum PR Residency Obligation does, indeed,
suffice to retain PR status. So, for example, a PR who can and does
prove presence (or credit for presence per one of the exceptions) in Canada of at least 730 days during the immediately preceding five years, is in compliance with the PR RO and will not be stripped of PR status.
But that is the minimum. Numerous decision makers have, in official decisions, explicitly distinguished this as a
minimum and NOT an expectation, and that indeed this is
"an exception to the norm."
In just the last three years in nearly two dozen decisions, IAD panels have cited the following (emphasis added):
"Canada’s residential requirements are generous and minimal; the appellant is required to spend only two of five years in Canada. The panel views that not as an expectation but as an exception to the norm; most permanent residents come and eagerly stay. Generally, the expectation is that the appellant would settle, live and begin contributing to Canadian society, especially when, as here, they have been granted entry in the skilled worker category. The panel notes again the immigration objective “to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society.”
See, for example,
Raza v Canada (Citizenship and Immigration), 2016 CanLII 28069 (CA IRB) http://canlii.ca/t/grpv1
Khedr c Canada, 2015 CanLII 92396 (CA IRB) at http://canlii.ca/t/gn93j
Loseva v Canada (Citizenship and Immigration), 2015 CanLII 91587 (CA IRB) http://canlii.ca/t/gn45t
and some twenty other IAD decisions.
Thus, those PRs who barely meet the minimum requirements will not lose PR status, so long as they meet their burden of proving actually having met the minimum; but it should be recognized, of course, that if there is any doubt about where the PR was during a particular time period, the
reasonable inference is that the PR was where the PR was most of the time, so for the PR who was outside Canada more than in Canada, for any days that PR does not affirmatively prove actual presence in Canada, it would be reasonable for IRCC to infer those days were
outside Canada.
On the other hand, those PRs who barely meet the minimum requirements should recognize that there is a far greater risk of being subject to further examination if not rather strenuously pursued scrutiny with some skepticism. And this will inherently delay the processing of their application for a PR card.
Thus,
SR should be no surprise for any PR who has not actually settled into and become integrated into Canadian society, living and working in Canada.
In particular:
barabashka said:
dpenabill said:
It appears that more than a few mistake the minimum requirements to maintain PR status as a license to have status in Canada without actually having settled permanently in Canada. I am not sure why there is such confusion.
I am not sure I agree with this statement. Where it is written in the immigration rules/regulations that for a status of Permanent Resident of Canada one should be settled permanently in Canada?
This goes against the rules that allow the person to maintain the status while accompanying Canadian citizen abroad, working abroad for government and so on.
The reason I do not know where the confusion comes from is because there is no doubt about the meaning of either "permanent" or "resident," which are the applicable terms clearly stated in both numerous IRPA statutory provisions and in the applicable regulations.
I mean, there is no doubt that the purpose of Permanent Resident status is to bring Foreign Nationals into Canada to settle
permanently in Canada.
There are, after all, nearly a hundred official IAD decisions, and more than a dozen official Federal Court decisions, which explicitly cite section 3(1)(e) in IRPA, which states that among the objectives of the provisions governing immigration, is
"to promote the successful integration of permanent residents into Canada . . ."
There really is no doubt about the objective in granting PR status: it is for those individuals to become
in-fact residents of Canada, permanent residents in Canada.
So the answer to the question,
"Where it is written in the immigration rules/regulations that for a status of Permanent Resident of Canada one should be settled permanently in Canada?" is that it is written in IRPA section 3(1)(e), section 28, and in the IRPA Regulation 61 (which prescribes the
exceptions for credit toward the PR Residency Obligation, such as while temporarily assigned abroad for a Canadian business or while accompanying a Canadian citizen spouse). And it is further written in literally
hundreds of official decisions by the IAD and Federal Courts, which are explicitly part of the governing law.
Regarding this assertion:
"This goes against the rules that allow the person to maintain the status while accompanying Canadian citizen abroad, working abroad for government and so on."
Not really. These are explicitly
exceptions, not what is expected. They are accommodations recognizing that the lives of immigrants can be complicated, that life entails challenges including many conflicting obligations. These are explicitly flexible rules to avoid imposing hardship on immigrants. Thus, for example, the exception for a PR employed abroad by a Canadian business is to allow PRs to take
temporary assignments abroad to further their career growth
in Canada or otherwise not compromise their employment status in Canada.
Note for example, the number of IAD and Federal Court decisions which have severely limited the scope of the exception for time abroad while employed by a Canadian business, emphasizing that the employment must be a
temporary assignment and it must be likely the PR will return to Canada after the
temporary assignment, among other strict requirements. Indeed, IAD and the Federal Court have sometimes explicitly required evidence pointing to a firm commitment on the part of the employer to
reintegrate the PR/employee
to a position in Canada.
To be clear, those PRs who rely on the working abroad exception to stay in long-term employment abroad are at serious risk for losing PR status, for having the time spent working abroad for a Canadian business
not counted. See, for example, Justice Shore's decision in Baraily v. Canada (Citizenship and Immigration), 2014 FC 460 http://canlii.ca/t/g6z62
Further to this point, just this month the Federal Court, per a decision by Justice Hughes, restated and affirmed numerous previous decisions that the exception for time employed abroad
does NOT allow permanent residents to accumulate days towards meeting their residency requirement simply by being hired on a full-time basis by a Canadian business outside of Canada. In particular, Justice Hughes cited the
Baraily decision by Justice Short (linked above), and likewise ruled that such an interpretation fails because it does not promote
successful integration of PRs into Canada. See Jian v. Canada (Citizenship and Immigration) 2016 FC 523 http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/144379/index.do
and for the earlier IRB decision, see Wang v Canada (Citizenship and Immigration), 2015 CanLII 91106 (CA IRB) at http://canlii.ca/t/gn2p4
Overall:
Again, it is not as if IRCC is moving to strip PR status from PRs who barely meet the minimum obligations. But IRCC is likely to further examine, investigate, probe, and question those PRs whose life is not settled in Canada. Which really is for obvious reasons. Those who barely meet the PR RO should anticipate the likelihood of this elevated scrutiny, of SR, and the delays it inherently involves.
