Immigration: Residency Obligation
by Guida Mamann
One of the first questions newcomers to Canada ask is “How much time do I have to stay in Canada to apply for citizenship?’
Some are confused because they have heard two different things. “Is it ‘2 out of 5 years’ or is it ‘3 out of 4 years’?”
The confusion lies in the fact that these figures refer to two completely different things.
The first deals with the amount of time a person must live in Canada to maintain their status here as a permanent resident. If they are not here for this minimum period they can lose their status as a permanent resident.
The second refers to the amount of time a permanent resident needs to live in Canada in order to qualify for Canadian citizenship.
On June 28, 2002 Canada’s new immigration legislation, the Immigration and Refugee Protection Act (IRPA) came into effect. This legislation included a new “residency obligation” which requires permanent residents to be physically present in Canada for 730 days (i.e. two years) in every five-year period. This replaced the previous rule which required that permanent residents reside in Canada for at least 183 days (i.e. about 6 months) in each twelve-month period.
A permanent resident can include in this 730-day period any time that they were outside of Canada:
- accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent
- employed on a full-time basis by a Canadian business or in the public service of Canada or of a province; or
- 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 public service of Canada or of a province.
Our legislation also contemplates other forms of compliance being enacted.
Individuals who cannot meet this requirement because they were landed in Canada less than five years prior to their attempted re-entry can meet this requirement by proving that, if permitted
re-entry, it is still mathematically possible for them to meet this obligation for the five-year period immediately following their landing.
Every time a permanent resident seeks to re-enter Canada he/she may be asked to prove that he/she has met this residency obligation for the five-year period immediately preceding the examination.
Newcomers to Canada can get into trouble when they spend extended periods of time outside of Canada without fully understanding how to calculate this five-year period. The easiest way to do this is by estimating your probable date of return to Canada following a trip abroad. Let’s say you plan on being outside of Canada and plan on returning here on October 3, 2008. All you do is subtract 5 years from that date which takes you back to October 3, 2003. Now you have to count up all your days inside of Canada, including qualifying time abroad as described above, between October 3, 2003 and October 3, 2008. You are fine if you have 730 days of residency in Canada during that period. You must repeat this calculation for every planned re-entry to Canada.
A port-of-entry officer could excuse a failure to comply with this requirement if he/she were to find sufficient “humanitarian and compassionate” grounds. However, if it is determined that no such grounds exist, a removal order may be issued by the immigration department or by a member of the Immigration and Refugee Board (IRB). This removal order can be appealed to the Appeal Division of the IRB.
The permanent resident can win the appeal if he/she can prove that they have met the residency obligation or that there are sufficient humanitarian and compassionate grounds to excuse the appellant of this requirement.
There are separate rules in Canada’s Citizenship Act relating to the acquisition of Canadian citizenship.
To qualify for citizenship a permanent resident has to accumulate 1095 days (i.e. three years) of “residency” in Canada in the four-year period immediately preceding the application for Canadian citizenship.
The Federal Court of Canada has ruled on numerous occasions that, for the purposes of a citizenship application, “residency” does not necessarily mean “physical presence” in Canada. It can include time spent outside of Canada during a period when the applicant’s mode of living was centralized in Canada, i.e. where the applicant’s spouse, children, home, bank accounts, or major assets etc. are in Canada and not abroad.
Once a person acquires Canadian citizenship they may remain abroad as long as they wish without ever risking their right to return here.
In our immigration and citizenship system a person must simultaneously keep an eye on two time periods to ensure that they don’t lose their permanent residency status and/or that they are accumulating enough time in Canada to obtain Canadian citizenship.