One of the most frequently asked question I get is, can an applicant who applied under the PNP, or was given a Provincial nomination move out of the Province of his nomination. And if he can, under what circumstances and what is the procedure.
To answer this question, we need to understand the PR status and then dwell into the PNP program.
1. Understanding Permanent Resident status:
When your PR application is approved, a COPR issued, and a visa stamped in your passport, you are all ready to become a Canadian Permanent Resident. You will become a Permanent Resident as soon as you land in Canada and complete the formalities of getting the COPR stamped, your data entered in the system, and the CSBA officer allowing you to enter Canada as a PR.
Upon becoming a PR, you get all rights under the Canadian Constitution that as a Canadian Citizen has, except the right to vote and run for office. As a PR you may not be eligible for high level security clearance to work for jobs in intelligence, but apart from that, you can work for the government.
One of the many rights a PR would get is called the
“Mobility Right.” Section 6 of the Canadian Charter of Rights and Freedoms, which is the same as the fundamental rights or bill of rights in other countries states:
6. (1) Every citizen of Canada has the right to enter, remain in and leave Canada.
(2) Every citizen of Canada and every person who has the s
tatus of a permanent resident of Canada has the right
a) to move to and take up residence in any province; and
b) to pursue the gaining of a livelihood in any province.
(3) The rights specified in subsection (2) are subject to
a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and
b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.
(4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.
If you carefully read Section 6(2), you will understand that as a PR, you have the right to move and settle in any part of Canada, including Quebec. Even if you mentioned in your application that you want to settle in Ontario and then changed your mind to settle in Montreal, you can do that as a FSW.
This is your fundamental right, which is guaranteed by the Canadian Constitution.
As a PR, you don’t have to inform any authority on your intent to move, including the Province you are moving out of, or the Province you are moving to.
2. Understanding your obligation as a PNP nominee
When you filled your form for the PR, you were asked about your interest to reside in different provinces. Alternatively, you may have sent a letter of interest (“LOI”) to the province communicating your interest in moving to that province. It was in consideration of this Interest that you communicated, and having satisfied the Provincial nominee program requirements, the Province issued you a nomination, which gave you an additional 600 points.
It is important to understand that while Immigration is a federal subject, on which the federal government has complete control, the federal government has given certain privileges to Provinces to attract prospective immigrants to those provinces. PNP, is a part of that deal. However, even when a province nominates a prospective immigrant, it is the federal government through IRCC, which will make a final decision in whether to approve it or not.
There has been a case where a province nominated an applicant, but the IRCC refused his application citing concerns on his intent to settle in that province. The court held that it was the sole prerogative of the IRCC to make a decision and the Province can only nominate, but not have a final say on whom to admit and whom not to. This is why IRCC will ask for settlement plans from some PNP applicants to ensure that they are not using PNP as a means to seek in. (See
Deol v. Canada (Minister of Citizenship and Immigration), 2013 FC 1147; and Noreen v. Canada (Minister of Citizenship and Immigration), 2013 FC 1169).
Now the important part - Section 6(3)(a) & (b) are subject to certain regulations and laws, and one of the most important is Provincial Nominee Program. Section 6(3)(a) & (b) create several limits to mobility rights. Laws requiring reasonable residence periods in order to qualify for social service programs, laws that do not discriminate on the basis of province of previous or present residence, and laws designed to improve conditions in areas of Canada with lower than average employment rates, are all exempted from the mobility rights guarantee in section 6. In other words, these types of provisions can infringe mobility rights, without being unconstitutional. Additionally, a law that is not saved by section 6(3) or (4) may be saved by analysis under section 1 of the Charter as being demonstrably justified in a free and democratic society. Until now there has been no case that I have come across dealing with the mobility rights and PNP. If you know of any, please let me know.
This mandates that an immigrant who immigrated under the PNP should remain in the province which nominated him for about 2 years to show his intention. This number is no where in the law, but reading the immigration laws and regulations, this is what people have derived. Even though an immigrant may have become a PR, he is subject to the limitations under Section 6(3)(a) & (b). While the law remains ambiguous, the more provinces are reporting PNP applicants who do not reside in the Province of nomination.
In the case of individuals where indications at the Port of Entry (POE) are that they no longer intend to reside in the nominating province/territory, they may be reported under section A44(1) for non-compliance with paragraph 87(2)(b) of the IRPR. At worst, where it becomes evident that an individual never intended to reside in the nominating province or territory, this could give rise to an allegation of misrepresentation, pursuant to paragraph 40(1)(a) of the IRPA. In the case few months some Provinces have been very actively pursuing this part and reporting immigrants. When reported for misrepresentation, the PR status can be cancelled and the applicant deported.
3. Does this mean that the PNP applicant can not leave the Province?
By moving to another province right after you get your immigrant status, your intentions may be questioned and you may be reported for misrepresentation. Here are a few things that you can do before you decide to leave the province that nominated you:
a. Actively look for other jobs within the nominating province.
b. Properly document your job hunting activities including the results for each job that you applied for.
c. Exhaust all means of finding employment inside the province.
If you don’t get job offers or if you’re offered a job but the offer you’re getting out of the province is for a higher position and for a significantly higher pay, then your move is justified. If you have these documented, your move to another Province would be justified and if questioned, you will have all the documents that you tried.
I hope this helps you understand what the PR status is, the mobility rights and your obligation under the PNP.
Your thoughts are welcome and if any of you has experience with the PNP, or would like to add, please do so.
I am from Pune
